The Divorce Act Changes Explained: Part II
Appendix D
Other Amendments Relating to 2007 Convention
Assignment of an order to a public body
(s 20.1 (1)(f), Divorce Act)
New section
Subsection 20.1(1) of the Act is amended by striking out “or” at the end of paragraph (d), by adding “or” at the end of paragraph (e) and by adding the following after paragraph (e):
(f) a public body referred to in Article 36 of the 2007 Convention, as defined in section 28.
What is the change
Section 20.1(1) of the Divorce Act allows for the assignment of an order to a public body referred to in Article 36 of the 2007 Convention as required.
Reason for the change
Support orders can be assigned to a minister, member, agency or public body pursuant to the Divorce Act. These assignments often happen when the support recipient is on social assistance.
Implementation of the 2007 Convention will allow for applications for the recognition and enforcement of a decision made in a State party. The amendment would allow for an order to be assigned under section 20.1 of the Act to a public body in Article 36 of the 2007 Convention. This public body would be an order assignee in the other State Party.
When
On a day to be fixed by order of the Governor in Council.
Rights- public body
(s 20.1 (3), Divorce Act)
New section
Section 20.1 of the Act is amended by adding the following after subsection (2):
Rights – public body
(3) A public body referred to in paragraph (1)(f) to whom a decision of a State Party that has the effect of varying a child support order has been assigned is entitled to the payments due under the decision, and has the same right to participate in proceedings under this Act, to recognize and enforce the decision or if the recognition of this decision is not possible, to obtain a variation order, as the person who would otherwise be entitled to the payments.
What is the change
The amendment would (1) allow a public body to whom a support order is assigned to receive payments or; (2) to make an application for the recognition and enforcement of a State Party decision that has the effect of varying a child support order and; (3) if the recognition of the State Party decision is not possible, the public body would be able to file an application to vary an order.
Reason for the change
Under the 2007 Convention, a public body can act in place of a creditor. Under the Divorce Act, this is done through section 20.1, which deals with the assignment of orders. The amendment would allow a public body (order assignee under the Divorce Act) to receive payments, seek recognition of certain orders, and in certain circumstances apply to a court of competent jurisdiction to vary the support order.
When
On a day to be fixed by order of the Governor in Council.
Definition of State Party
(s 20.1 (4), Divorce Act)
New section
Definition of State Party
(4) For the purpose of subsection (3), State Party has the same meaning as in section 28.
What is the change
The amendment includes a reference to the definition of State Party in the section 28 of the Divorce Act.
Reason for the change
The subsection includes a reference to the term State Party, which is defined in section 28, and clarifies that it has the same meaning.
When
On a day to be fixed by order of the Governor in Council.
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Definitions
(s 30, Divorce Act)
New section
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Definitions
1996 Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996, set out in the schedule. (Convention de 1996)
What is the change
The amendment adds a title describing the subject matter of ss 30 through 31.3. The amendment also defines the term “1996 Convention” for the purposes of sections 30 to 31.3.
Reason for the change
The title makes it easier to navigate and understand the Act.
“1996 Convention” refers to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996.
When
On a day to be fixed by order of the Governor in Council.
Definitions
(s 30, Divorce Act)
New section
Definitions
State Party means a State other than Canada in which the 1996 Convention applies. (État partie)
What is the change
The amendment defines the term “State Party” for the purposes of sections 30 to 31.3.
Reason for the change
The amendment clarifies that “State Party” in these sections refers to a State other than Canada where the 1996 Convention applies.
When
On a day to be fixed by order of the Governor in Council.
Implementation, Interpretation and Application of the 1996 Convention
Force of law
(s 30.1(1), Divorce Act)
New section
Force of law
30.1 (1) The provisions of the 1996 Convention have the force of law in Canada in so far as they relate to subjects that fall within the legislative competence of Parliament.
What is the change
The amendment gives the 1996 Convention legal effect in Canada for matters under federal jurisdiction, such as parenting and contact orders under the Act.
Reason for the change
To ensure consistency between federal legislation (Divorce Act) and Convention obligations.
When
On a day to be fixed by order of the Governor in Council.
Inconsistency
(s 30.1(2), Divorce Act)
New section
Inconsistency
(2) The 1996 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them.
What is the change
The amendment clarifies that the 1996 Convention takes precedence if a conflict arises between it and any federal law, including the Divorce Act.
Reason for the change
As a party to an international Convention, Canada agrees to follow the rules of the Convention. This provision ensures that if there is an inconsistency between the 1996 Convention and a federal law, that the Convention takes precedence.
When
On a day to be fixed by order of the Governor in Council.
Explanatory Report
(s 30.2, Divorce Act)
New section
Explanatory Report
30.2 In interpreting the 1996 Convention, recourse may be had to the Explanatory Report on the 1996 Hague Child Protection Convention, adopted by the Eighteenth Session of the Hague Conference on Private International Law that was held from September 30 to October 19,1996.
What is the change
The amendment specifies that the court may consult the Explanatory Report on the Convention to interpret the 1996 Convention.
Reason for the change
Explanatory reports on the various Hague Conventions provide important information about rationale, interpretation and application of these Conventions. The reports promote an internationally consistent interpretation of the Conventions. Including a reference to the Explanatory Report in the Act aligns with principles in the Vienna Convention on the Law of Treaties, to which Canada is a party, and with Canadian case law.
When
On a day to be fixed by order of the Governor in Council.
Application
(s 30.3, Divorce Act)
New section
Application
30.3 Sections 30.4 to 31.3 only apply in a province if
- Canada has made a declaration extending the application of the 1996 Convention to that province; and
- the child of the marriage concerned is under 18 years of age.
What is the change
The amendment sets out that the 1996 Convention-related provisions of the Act will apply when the child in question is under the age of 18, and Canada has made a declaration extending the application of the 1996 Convention to that province or territory.
Reason for the change
Article 59 of the 1996 Convention allows federal States such as Canada to declare, at the time of signature or ratification, the territorial units to which the Convention shall apply. They may modify this declaration subsequently, to extend the application of the Convention to additional territorial units. This provision allows for the gradual implementation of the 1996 Convention in federal States, as the territorial units are ready to implement it.
This rule will allow Canada to declare, at the time of ratification, that the 1996 Convention will apply to one or more of the provinces and territories that have implemented it and that have asked the federal government to have the Convention apply in their jurisdiction. Additional declarations will be made once new provinces and territories have met these conditions. The provision states that the Divorce Act provisions related to the Convention only apply in the provinces and territories to which the application of the Convention has been extended.
The provision also states that the Divorce Act provisions related to the Convention only apply to children under 18. This rule corresponds to Article 2 of the Convention, which defines the children to whom the Convention applies.
When
On a day to be fixed by order of the Governor in Council.
Jurisdiction
Child habitually resident in State Party
(s 30.4, Divorce Act)
New section
Child habitually resident in State Party
30.4 If a child concerned is habitually resident in a State Party, a court in a province does not have jurisdiction to hear and determine an application in respect of the child for a parenting order, a contact order or a variation order in respect of either such order, except in the circumstances set out in section 30.6, 30.7, 30.9 or 31.
What is the change
A court in a province or territory that would otherwise have jurisdiction under the Divorce Act does not have jurisdiction to make an order relating to parenting or contactif the child is habitually resident in another State Party, unless one of the identified exceptions applies.
Reason for the change
The basic jurisdictional rule in the 1996 Convention is that the authorities of a Contracting State where the child habitually resides have jurisdiction to make decisions related to the protection of the child (Article 5). Section 30.4 reflects this rule by providing that a court otherwise having jurisdiction under the Divorce Act cannot make a decision about a child who is habitually resident in another Contracting State, except in one of the following circumstances:
- the child is present in a province to which the Convention has been extended and the child is a refugee, internationally displaced or their habitual residence cannot be determined (Article 6, s 30.6)
- a divorce proceeding is underway in the province and certain other mandatory criteria are met (Article 10, s 30.7)
- the court has requested or been requested to assume jurisdiction under the Convention’s transfer provisions (Articles 8 and 9, s 30.9)
- the child is present in Canada and there is an urgent situation (Article 11, s 31)
When
On a day to be fixed by order of the Governor in Council.
Wrongful removal or retention
(s 30.5, Divorce Act)
New section
Wrongful removal or retention
30.5 In the case of a wrongful removal or retention, as defined in Article 7(2) of the 1996 Convention, a court in a province has jurisdiction to hear and determine an application for a parenting order, a contact order or a variation order in respect of such orders only if the child has become habitually resident in that province and the conditions set out in subparagraphs 7(1)(a) or (b) of that Convention have been met.
What is the change
Section 30.5 provides that if a child has become habitually resident in a province or territory as a result of a wrongful removal or retention, a court in that province or territory may not exercise jurisdiction until the conditions set out in paragraphs 7(1) (a) or (b) of the 1996 Convention have been met and the court has jurisdiction under sections 3 – 5 of the Divorce Act jurisdiction.
Reason for the change
This provision is intended to discourage international parental child abduction and forum shopping by denying a jurisdictional advantage to a person who has abducted a child. It is intended to complement the 1980 Child Abduction Convention, to which Canada is a party.
The amendment refers to the definition of wrongful removal or retention found in Article 7(2) of the 1996 Convention, which is the same as in Article 3 of the 1980 Child Abduction Convention. Under this definition, a removal or retention is wrongful if it breaches “rights of custody,” which under both Conventions, “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” (Article 3(b) 1996 Convention and Article 5(a) 1980 Child Abduction Convention)
In cases of wrongful removal or retention, the authorities of the Contracting State of the child’s habitual residence before the removal or retention keep jurisdiction until certain conditions have been met, even when the child has established a new habitual residence.
There are two situations when jurisdiction shifts to the new State of the child’s residence:
- Acquiescence: a person, institution or other body with “rights of custody” acquiesces to the removal (for example, they were aware of the removal of the child and there is clear evidence of an intention not to seek the return of the child).
- No Acquiescence :
- the child has lived in the new State for at least 12 months since those with “rights of custody” knew or should have known of the whereabouts of the child
- any request for return was made within the 12-month period and is no longer pending (e.g. an application for return under the 1980 Child Abduction Convention., and
- the child is settled in the new environment.
It is important to note, however, that Article 7 of the 1996 Convention is of general application and is not limited to instances where the 1980 Child Abduction Convention applies. It therefore applies to wrongfully removed or retained children up to the age of 18 years (while the 1980 Child Abduction Convention applies up to the age of 16 years) and between Contracting States to the 1996 Convention, whether or not they are also party to the 1980 Child Abduction Convention.
When
On a day to be fixed by order of the Governor in Council.
Child present in the province
(s 30.6, Divorce Act)
New section
Child present in province
30.6 If one or more of the circumstances set out in Article 6 of the 1996 Convention exist and the child is present in a province, a court in that province that would otherwise have jurisdiction under any of sections 3 to 5 of this Act has jurisdiction to hear and determine an application in respect of the child for a parenting order, a contact order or a variation order in respect of either such order.
What is the change
The amendment clarifies that a court that would otherwise have jurisdiction under sections 3 (divorce proceeding), 4 (corollary relief proceeding) or 5 (variation proceeding), may take jurisdiction over a child who is present in the province or territory, in one of the circumstances set out in Article 6 of the Convention. This is despite the child not being habitually resident in the province or territory.
Reason for the change
Article 6 of the 1996 Convention is intended to ensure that a Contracting State can take jurisdiction over a child who is not habitually resident there, but is nonetheless present in specific circumstances (the child is a refugee, internationally displaced or the habitual residence of the child cannot be determined).
Because the Divorce Act requires that one of the parents be habitually resident in a province (or territory) for a year before a divorce proceeding can commence, Article 6 situations would likely arise very rarely under the Act.
When
On a day to be fixed by order of the Governor in Council.
Divorce proceeding – child habitually resident in State Party
(s 30.7 (1), Divorce Act)
New section
Divorce proceeding – child habitually resident in State Party
30.7 (1) For the purposes of Article 10 of the 1996 Convention, if the child is habitually resident in a State Party, a court in a province that would otherwise have jurisdiction under section 3 of this Act has jurisdiction to make a parenting order or contact order in respect of the child if
- at least one of the spouses has parental responsibility in respect of the child;
- the spouses and any other person who has parental responsibility accept the jurisdiction of the court; and
- the court is satisfied that it is in the best interests of the child to exercise jurisdiction.
What is the change
This amendment is consistent with Article 10 of the Convention and provides that a court that would otherwise have jurisdiction under s 3 (divorce proceedings) can make a parenting or contact order in relation to the child, despite the fact that the child is habitually resident in another State Party, if three conditions are met:
- at least one spouse has parental responsibility for the child,
- anyone with parental responsibility consents to the court taking jurisdiction, and
- the court determines that it is in the best interests of the child to take jurisdiction.
Reason for the change
The amendment aligns the Act with Article 10 of the Convention, and facilitates the resolution of divorce and parenting issues by the same court, saving both judicial resources and costs for the parents. The amendment applies only to an application for divorce, and not to corollary relief or variation proceedings.
When
On a day to be fixed by order of the Governor in Council.
Definition of parental responsibility
(s 30.7 (2), Divorce Act)
New section
Definition of parental responsibility
(2) For the purposes of subsection (1), parental responsibility has the same meaning as in Article 1(2) of the 1996 Convention.
What is the change
This amendment clarifies that for the purposes of s 30.7(1); the definition of “parental responsibility” in Article 1(2) of the 1996 Convention applies.
Reason for the change
The amendment clarifies the definition of parental responsibility.
When
On a day to be fixed by order of the Governor in Council.
Transfer of Jurisdiction
State Party better placed to assess child’s best interests
(s 30.8, Divorce Act)
New section
State Party better placed to assess child’s best interests
30.8 For the purposes of Articles 8 and 9 of the 1996 Convention, a court in the province in which a child is habitually resident that would otherwise have jurisdiction under any of sections 3 to 6 of this Act, or that has jurisdiction under section 30.6 of this Act, may decline to exercise jurisdiction to make, in respect of the child, a parenting order, a contact order or a variation order in respect of such an order if the conditions of Article 8 or 9, as the case may be, are fulfilled and there is agreement between the court and the competent authority of a State Party that the latter will have jurisdiction.
What is the change
If a child is habitually resident in a province or territory and the court has jurisdiction under sections 3 to 6 of the Act; or the child is present in the province or territory, and a court can take jurisdiction under ss 3 to 5 consistent with Article 6 of the Convention, the court can decline to exercise this jurisdiction in favour of a court in another State Party, if the conditions set out in Articles 8 or 9 of the Convention are met.
Reason for the change
In exceptional cases, Articles 8 and 9 allow for the transfer of jurisdiction from the Contracting State with primary jurisdiction (the Contracting State of the child’s habitual residence (Article 5) or the Contracting State where a refugee, internationally displaced child, or a child’s whose habitual residence cannot be determined is present (Article 6)) to another Contracting State.
Article 8 applies when the competent authority of a Contracting State with primary jurisdiction initiates a request for transfer; Article 9 applies when a competent authority of the other Contracting State initiates the request. Otherwise, the same conditions apply to a request for transfer under both Articles 8 and 9.
A transfer of jurisdiction is possible only when the Contracting State to which jurisdiction would be transferred is that:
- of the child’s nationality,
- in which property of the child is located,
- whose authorities are seized of an application for divorce or legal separation of the child’s parents, or the annulment of their marriage, or
- with which the child has a substantial connection.
The competent authorities in both Contracting States must agree that the authority in the Contracting State to which jurisdiction would be transferred is better placed to assess the best interests of the child.
This provision specifies which courts under the Act can decline jurisdiction to allow a competent authority of another State Party to assume jurisdiction.
It is anticipated that transfers are most likely to occur when the child has a substantial connection to the other Contracting State. For example, in a situation where there is a request to vary the parenting time provisions of an order in respect of a child who is habitually resident in a province, but whose parent lives in another country, the courts in both countries may determine that the court in the other country is best placed to make the determination, given that evidence about the parent and the child’s interactions with the parent in the other country are there.
When
On a day to be fixed by order of the Governor in Council.
Canadian court better placed to assess child’s best interests
(s 30.9, Divorce Act)
New section
Canadian court better placed to assess child’s best interests
30.9 For the purposes of Articles 8 and 9 of the 1996 Convention, only the court in a province that would otherwise have jurisdiction under any of sections 3 to 5 of this Act may exercise jurisdiction to make a parenting order, a contact order or a variation order in respect of such orders if the conditions of Article 8 or 9, as the case may be, are fulfilled and there is agreement between the competent authority of a State Party and the court that the latter will have jurisdiction.
What is the change
The amendment identifies which courts can accept a transfer of jurisdiction to make a parenting, contact or variation order, in cases where the child either habitually resides in another State Party or that other State Party would have jurisdiction to make an order in relation to a child under Article 6, if the conditions of Article 8 or 9 are met.
Reason for the change
As noted above, in exceptional cases, Articles 8 and 9 allow for the transfer of jurisdiction from the competent authority of a Contracting State with primary jurisdiction (that is, that of the Contracting State of the child’s habitual residence (Article 5) or that of the Contracting State where the child is present and is a refugee or internationally displaced, or whose habitual residence cannot be determined, (Article 6)) to the competent authority of another Contracting State.
Article 8 applies when the Contracting State with primary jurisdiction proposes or initiates a request for transfer; Article 9 applies when the other Contracting State initiates the request. Otherwise, the same conditions apply to a request for transfer under both provisions.
A transfer of jurisdiction is possible only when the Contracting State to which jurisdiction would be transferred is that:
- of the child’s nationality
- in which property of the child is located
- whose authorities are seized of an application for divorce or legal separation of the child’s parents, or the annulment of their marriage, or
- with which the child has a substantial connection.
The competent authorities in both Contracting States must agree that the authority in the Contracting State to which jurisdiction would be transferred is better placed to assess the best interests of the child.
This provision clarifies which courts under the Act have authority to accept a transfer of jurisdiction from another State Party. These are the courts that would otherwise have jurisdiction in divorce proceedings (s 3), corollary relief proceedings (s 4) and variation proceedings (s 5).
It is anticipated that the cases where jurisdiction is most likely to be transferred to a Canadian court would be those where there is a divorce proceeding but where the conditions set out in section 30.7 of the Act (Article 10 of the 1996 Convention) have not been met, or the child has a substantial connection to the province or territory.
When
On a day to be fixed by order of the Governor in Council.
Urgency
Urgent cases
(s 31, Divorce Act)
New section
Urgent cases
31 For the purposes of Article 11 of the 1996 Convention, a court in a province that does not have jurisdiction under sections 30.4 to 30.9 of this Act but that would otherwise have jurisdiction under any of sections 3 to 5 of this Act, may, in urgent cases, make a parenting order, a contact order or a variation order in respect of either such order if the child who would be the subject of the order is present in that province.
What is the change
The amendment specifies which courts can exercise jurisdiction in “urgent cases,” consistent with Article 11. These are the courts that would otherwise have jurisdiction under sections 3 to 5 of the Act.
Reason for the change
Article 11 provides for an exceptional basis for jurisdiction, where a timely decision is required to protect the child. It allows the authorities of a Contracting State in whose territory a child is present to take necessary measures of protection in all cases of urgency, including where the presence of the child in that State results from a wrongful removal or retention.
This jurisdiction could be exercised, for example, when a child who is habitually resident in a State Party is visiting a parent who is habitually resident in a province or territory where the Convention applies and there is an urgent need to make a decision about a medical procedure or if there are concerns about the safety of the child.
When
On a day to be fixed by order of the Governor in Council.
Recognition
Recognition by operation of law
(s 31.1(1), Divorce Act)
New section
Recognition
Recognition by operation of law
31.1 (1) For the purposes of Article 23 of the 1996 Convention, a measure taken by a competent authority of a State Party is a measure that has the effect of varying, rescinding or suspending a parenting order or contact order.
What is the change
The amendment specifies that for the purposes of Article 23 (recognition of foreign decisions), the decisions or “measures” that are relevant for Divorce Act purposes are those, which have the effect of modifying a previous parenting or contact order under the Act.
Reason for the change
Provincial and territorial laws generally address the recognition of foreign parenting (custody and access) or contact orders. However, when a parenting or contact order is made under the Actand later modified by a State Party having jurisdiction under the 1996 Convention, the foreign modifying decision (measure) must be recognized under theAct, so that it has the effect of overriding the original order.
When
On a day to be fixed by order of the Governor in Council.
Measure taken deemed to be variation order
(s 31.1(2), Divorce Act)
New section
Measure taken deemed to be variation order
(2) A measure taken by a competent authority of a State Party that is recognized by operation of law under Article 23(1) of the 1996 Convention is deemed to be an order made under section 17 of this Act.
What is the change
This provision treats a foreign order that: 1) has the effect of modifying a Divorce Act order; and 2) has been recognized by operation of law, as a variation order under the Act.
Reason for the change
Article 23 provides for the recognition by operation of law in Contracting States to the 1996 Convention, of measures (decisions) taken by other Contracting States. Recognition by “operation of law” means that decisions are automatically recognized and that a court need not recognize the measure for it to have effect.
Section 31.1(2) treats a foreign measure that has been recognized as if it were a variation order under the Act.
When
On a day to be fixed by order of the Governor in Council.
Extent of validity
(s 31.1(3), Divorce Act)
New section
Extent of validity
(3) Despite subsection 20(2), the measure referred to in subsection (2) is valid only in any province to which the 1996 Convention applies.
What is the change
This provision clarifies that despite s 20(2), when a foreign measure is recognized by operation of law, it applies only in provinces and territories where the 1996 Convention applies.
Reason for the change
Normally, when an order is made in a province or territory in respect of corollary relief or a variation of corollary relief under the Act, it has legal effect in every province and territory as a result of s 20(2).
The provisions of the Actin respect of the 1996 Convention apply only in provinces and territories for which Canada has made a declaration extending the application of the Convention. In such a situation, under provincial family law, measures must also be recognized by operation of law (without a decision of a court), ensuring consistent treatment of the foreign measures.
In provinces and territories where the 1996 Convention does not apply, only a measure recognized by a court under the Actwould have legal effect, which is similar to existing practices under provincial and territorial legislation.
When
On a day to be fixed by order of the Governor in Council.
Jurisdiction respecting recognition
(s 31.2(1), Divorce Act)
New section
Jurisdiction respecting recognition
31.2 (1) For the purposes of Article 24 of the 1996 Convention and on application by an interested person, a court in a province has jurisdiction to decide on the recognition of a measure referred to in section 31.1 of this Act if there is a sufficient connection between the matter and the province.
What is the change
The amendment specifies that a court in a province or territory has jurisdiction to decide on the recognition of a measure if there is a sufficient connection between the matter and the province or territory.
Reason for the change
Article 24 provides that any interested person may ask a court to decide on the recognition or non-recognition of a measure taken by a Contracting State under the 1996 Convention. The amendment clarifies that for the purposes of the Act, these applications can be made to a court in a province or territory that has a sufficient connection to the matter of recognition. For example, a sufficient connection would exist if one of the parties, or the child subject to the measure, resides in the province or territory and the measure would need to have effect there.
When
On a day to be fixed by order of the Governor in Council.
Effect of recognition
(s 31.2(2), Divorce Act)
New section
Effect of recognition
(2) The court’s decision recognizing the measure is deemed to be an order made under section 17 and has legal effect throughout Canada.
What is the change
The amendment specifies that an order recognizing a measure is deemed to be a variation order and has legal effect across Canada.
Reason for the change
Decisions recognized by operation of law have effect only in provinces and territories where the 1996 Convention applies. In contrast, when a court makes a determination under the Act, it has legal effect across Canada.
When
On a day to be fixed by order of the Governor in Council.
Effect of non-recognition
(s 31.2(3), Divorce Act)
New section
Effect of non-recognition
(3) The court’s decision refusing to recognize the measure has legal effect throughout Canada.
What is the change
The amendment provides that a decision of the court to refuse recognition has legal effect across Canada.
Reason for the change
If a court determines that a measure should not be recognized, based on one of the grounds in Article 23(2), the decision has legal effect across Canada. This prevents the issue of recognition from being re-litigated in another province or territory.
When
On a day to be fixed by order of the Governor in Council.
Enforcement
(s 31.3, Divorce Act)
New section
Enforcement
31.3 For the purposes of Article 26 of the 1996 Convention, a measure taken by a competent authority of a State Party that is enforceable in that State Party and that is to be enforced in a province may, on application by an interested person,
- be declared to be enforceable by a court in the province and enforced in that province as an order of that court; or
- registered for the purposes of enforcement in the court in that province and enforced in that province as an order of that court.
What is the change
The amendment specifies that when a measure taken in another State Party is enforceable there, upon application a court in a province or territory may declare it enforceable, or it may be registered in the court. In either case, it would be enforced as if it were an order of that court. An interested person may make the application.
Reason for the change
While a foreign decision may be recognized by operation of law, if an individual wishes to have the foreign decision enforced, they must take the extra step of either registering the decision with a court in a province (or territory) or seeking a declaration from the court that the decision is enforceable. The particular procedure is determined by the provinces and territories. The registration or declaration could be refused on the same grounds as those applicable to the recognition of a foreign decision (Article 23(2)). When it is enforceable, a foreign decision may be enforced in the same way as an order of a court in the province or territory.
When
On a day to be fixed by order of the Governor in Council.
- Date modified: