The Divorce Act Changes Explained

Jurisdiction

Child habitually resident outside Canada
(Section 6.3(1), Divorce Act)

New section

Child habitually resident outside Canada

6.3 (1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province.
Old section

None.

What is the change

The provision indicates that under the Act, a court in Canada should only take jurisdiction to make a parenting or contact order in exceptional circumstances when the child habitually resides outside Canada. The child must also be present in Canada.

Reason for the change

In general, the court in the jurisdiction where the child habitually resides is best placed to make and vary decisions about parenting and contact. This jurisdiction often has the best evidence available about the child’s situation. In exceptional circumstances, however, it may be appropriate for another jurisdiction to make a decision. Requiring that the child be present in Canada helps to ensure that there is sufficient connection between the child and the Canadian province, consistent with the approach in many Canadian provinces.

When

March 1, 2021.