The Divorce Act Changes Explained: Part II

Part II: New Inter-jurisdictional Rules on Parenting Orders and Contact Orders (see also The Divorce Act Changes Explained)

Former Bill C-78 amendments create new rules for determining jurisdiction regarding parenting orders and contact orders. The amendments centralize jurisdiction for parenting matters in the child’s habitual residence. The term “habitually resident” replaces the term “ordinarily resident” throughout the Act in order to align with terminology used in provincial and territorial statutes and in both the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of ChildrenFootnote22 (1996 Convention) and the Convention on the International Recovery of Child Support and Other Forms of Family MaintenanceFootnote23(2007 Convention). In addition, with former Bill C-78 changes, the court may transfer applications involving a parenting claim to the province or territory where the child “habitually resides” rather than to the province/territory to which a child is “most substantially connected”, as was required previously under the current Divorce Act.Footnote24 The court also has greater discretion to transfer proceedings to the court where the child habitually resides, even in unopposed applications.

Applications for contact by a non-spouse will be made to the court seized of a parenting application if a proceeding is ongoing. If not, they will be made to the provincial or territorial court of the child’s habitual residence, unless that court determines otherwise (s. 6.1).

For removal/retention cases, the court where the child is located will have to transfer parenting applications to the court of the child’s habitual residence except under limited circumstances (consent/acquiescence, undue delay or the other court is better placed) (s. 6.2).

Practice Tips

  • Be ready to speak to the issue of jurisdiction - the court may raise the issue of the child’s habitual residence even if the matter is unopposed.
  • The court in the child’s habitual residence often has the best evidence available about the child’s situation.