The Divorce Act Changes Explained: Part II

On May 23, 2017, Canada signed the 1996 and the 2007 Conventions but, as of time of writing, is not yet a party to either. As a first step toward becoming a party, Canada’s Parliament needed to amend federal family laws to align them with the Conventions. Former Bill C-78 amendments therefore included provisions needed to implement the Conventions at the federal level.

More specifically, former Bill C-78 gives “force of law” to the 1996 Convention and the 2007 Convention and then makes several specific amendments to the Divorce Act, to clarify the application of the Conventions in the Divorce Act context. For example, the former Bill sets out the types of 2007 Convention support applications that may be recognized, recognized and enforced, varied or established pursuant to the Divorce Act. Finally, changes to the FOAEAA will also assist with operation of the Conventions.^Footnote25 What follows is a description of each Convention as well as information on what additional steps would be required for Canada to become a party to these instruments in the future.

Note that the coming into force of the provisions in former Bill C-78 for each international Convention, by Order in Council, will coincide with their entering into force for Canada internationally.

2007 Convention

The 2007 Convention came into force internationally on January 1, 2013. As of May 2023, there are 47 Contracting Parties^Footnote26, including all members of the European Union (EU)^Footnote27, and the United States.

The 2007 Convention provides the legal framework for cross-border recognition and enforcement, establishment and modification of family support orders and agreements. It establishes an international system for administrative cooperation by requiring that a Central Authority be designated for each State Party to process international applications and implement Convention obligations. In federal States such as Canada, the 2007 Convention also allows designation of Central Authorities for each territorial unit to which the 2007 Convention has been extended.^Footnote28

The 2007 Convention applies to the establishment, modification, recognition and enforcement of child support obligations for children under the age of 21, regardless of the marital status of the parents. It also covers recognition and enforcement of spousal support obligations where the spousal support claim is made with a claim for child support. Other claims for the recognition and enforcement of spousal support (i.e. when not made in conjunction with a claim for child support) come within the compulsory scope of the 2007 Convention, but do not benefit from the provisions of Chapters II and III which establish the system of administrative co-operation via Central Authorities, and which also contain generous provisions for assistance in child support cases. The 2007 Convention provisions will apply only if one of the spouses habitually resides in a Contracting State and the other spouse is habitually resident in a province or territory that has implemented the 2007 Convention. In the Canadian Divorce Act context, the spousal support provisions would apply only to former spouses (i.e. spouses already divorced by a Canadian court under the Canadian Divorce Act).

In addition, Contracting States may bring, by declaration, within the scope of the 2007 Convention (or any part of it) any other maintenance obligations arising from a family relationship, parentage, marriage or affinity.^Footnote29

a. Benefits of becoming a party to the 2007 Convention

Ratification of the 2007 Convention will increase the number of countries with which Canadian jurisdictions have reciprocity, which will result in more family support flowing to Canadian families and children. Ratification of the 2007 Convention will make it easier to have Canadian child and spousal support orders recognized and enforced across international borders, as between States party to the 2007 Convention. It will also provide a means for Canadians to establish and vary a child support order in those States.

Becoming a party to the 2007 Convention will contribute to former Bill C-78 objectives of reducing child poverty and increasing the efficiency of the family justice system.

b. Role of the Central Authority

Under the 2007 Convention, Canada could designate a Federal Central Authority as well as provincial and territorial Central Authorities. Provincial and territorial Central Authorities would be primarily responsible for operations under the 2007 Convention.

Upon receiving an application from a Central Authority located in a State party to the 2007 Convention, a provincial or territorial Central Authority would be required to provide assistance to a former spouse residing in that State. The provincial or territorial Central Authority would then send the application to the appropriate competent authority in its jurisdiction. The competent authority could either be a court, which would generally be the court closest to where the former spouse habitually resides, or a provincial child support service, if that service were available in the province or territory.

The role of the Canadian Federal Central Authority would be to assist foreign Central Authorities in locating parties in Canada and with the transmission of applications to the appropriate provincial or territorial Central Authority, if required.^Footnote30

c. Direct requests to Court

Under the 2007 Convention, direct requests^Footnote31 to courts would be available to foreign creditors seeking to have their support orders recognized or recognized and enforced in a province or territory to which the 2007 Convention applies.^Footnote32 Foreign debtors would also be able to make direct requests to courts for suspending or limiting the effect of a support order that was recognized or recognized and enforced in a province or territory to which the 2007 Convention has been extended. In these cases, foreign parties may wish to retain a lawyer in the appropriate province or territory to make requests or applications directly to the court if they choose this procedure rather than using Central Authority procedures.

Under provisions relating to the 2007 Convention, former Bill C-78 does not specifically address direct requests for the establishment and variation of support orders. Consistent with the 2007 Convention, former spouses may use the existing process set out in sections 15.1 (child support), 15.2 (spousal support) or 17 (variation of orders) of the Divorce Act.

d. Stand-alone spousal support claims

As previously mentioned, the 2007 Convention allows Contracting States to extend all or parts of the 2007 Convention to other types of family support such as spousal support only, or support for vulnerable persons by means of declaration.^Footnote33 Therefore, Canada could, after receiving a request from a province or territory to do so, declare on behalf of that province or territory that application of the 2007 Convention is extended to other types of family maintenance not covered by the core scope of the 2007 Convention, including the application of Chapters II and III (administrative cooperation via Central Authorities) for spousal support only applications (i.e. applications that do not involve child support).

Practically speaking, this declaration made on behalf of a province or a territory would extend the scope of the Convention to include processing by Canadian Central Authorities of incoming applications for spousal support only and ensure the processing of outgoing applications for spousal support only by Contracting States having made the same declaration (see Article 2(3)). The 2019 changes to federal family laws (former Bill C-78), once in force, will provide authority under the Divorce Act for provincial or territorial Central Authorities to assist with these applications, should the scope of application in a particular province or territory be extended.

Status of Current and Future Reciprocity Arrangements between Canadian Provinces and Territories and Foreign States

As noted, Canadian provinces and territories currently have a number of reciprocity arrangements with foreign States to accommodate the establishment, modification, recognition and enforcement of support decisions across borders. Any such arrangements with States that are not party to the 2007 Convention will continue.

Where a reciprocity arrangement exists with a State that has become party to the 2007 Convention, the most effective rule (Article 52) will prevail. Article 52 (1) provides that the 2007 Convention does not prevent the application of such reciprocity arrangements if the arrangements provide for a more favorable application of the 2007 Convention, for example, a broader base of recognition/enforcement, a simpler procedure, more beneficial legal assistance, or direct applications from applicants to the Central Authority of the requested State.^Footnote34 Similarly, the 2007 Convention (Article 52(2)) does not prevent the application of a law in the requested State, which would provide for more effective rules.

Case Illustrations

Application for recognition and enforcement: Julie and David got divorced in Manitoba 3 years ago; the order under the Canadian Divorce Act required David to pay child support. After their divorce, Julie moved to Australia with their three children. Since the divorce, both Julie and David were promoted at work. Julie has a recent child support decision from Australia requiring David to pay child support for their three children. David still lives in Manitoba. Julie would like her child support decision enforced in Manitoba.

Assume both Australia and the province of Manitoba have implemented the 2007 Convention. Julie would ask the Central Authority in Australia for assistance in transmitting an application for recognition and enforcement of the Australian order that has the effect of modifying the previously made Divorce Act child support order to the Central Authority in Manitoba. The Convention application is consistent with section 28.4 of the Divorce Act.

Application for establishment: Erika resides in Colorado, USA, and has a three-year-old child. She was never married to the father of the child, and parentage has not been established for the child. Patrick, the father of the child, resides in British Columbia (BC). Erika would like Patrick to start paying child support.

Assume both the United States and BC have implemented the 2007 Convention. In this case, the Central Authority in Colorado would transmit an application for establishment of a maintenance decisionfor the child to the Central Authority in BC. The Central Authority in BC would take the necessary steps to have a decision established, by referring the application to a competent authority, which would usually be a court. The competent authority in BC would facilitate the determination of parentage. Paternity testing may facilitate determination of parentage. In BC, the Family Law Act^Footnote35 governs the determination of parentage. Once the child support decision is made in BC, the competent authority in BC would take steps to facilitate enforcement if necessary (i.e. registration with the provincial maintenance enforcement program) and payments would be transmitted to the mother in Colorado without the need for further application by the mother.

Note that in the above scenario, the same could be accomplished under BC’s ISO Act, as the state of Colorado is a reciprocating jurisdiction under the provincial Act. If under this existing reciprocity arrangement, Colorado benefits, for example, from a broader range of services from BC, then the Convention provides that the “most effective rule” applies. Under Article 52 “the most effective rule”, the Convention shall not prevent the application of a reciprocity arrangement in force in the requested State that essentially provides for services or rules that are more effective. In this case, to the extent that the reciprocity arrangement provides for more effective services or rules, these would apply.

1996 Convention

The 1996 Convention came into force internationally on January 1, 2002. As of May 2023, there are 54 Contracting States including all the members of the EU, Australia and Switzerland. Both Canada and the United States have signed the 1996 Convention, but are not yet a party to it.

In Canada, most of the legislative areas to which the rules of the 1996 Convention apply fall under provincial/territorial jurisdiction. However, parenting matters fall under the jurisdiction of Canada’s Parliament in the context of proceedings under the Divorce Act. More specifically, federal jurisdiction in relation to child custody and access matters exists where the issues are raised in the context of a divorce proceeding under the Divorce Act or subsequent to a divorce proceeding in a corollary relief proceeding, and when the parties seek to vary a Divorce Act order.

The 1996 Convention only applies among “Contracting States”.^Footnote36 It harmonises private international law rules to clarify such issues as which Contracting State’s courts can make decisions about parenting arrangements for a child and which State’s laws these courts will apply in making these decisions, when the child habitually resides in one Contracting State but also has close connections to one or more other States.

The 1996 Convention also sets out rules for the recognition and enforcement in one Contracting State of orders made in a different Contracting State. It also makes it easier for authorities in different Contracting States to communicate and cooperate with each other about many cross-border issues involving children covered under the scope of the 1996 Convention.

In addition to parenting matters, the rules of the 1996 Convention also apply to other matters related more broadly to the “protection of children”, such as child protection, and the administration, conservation and disposition of children’s property. However, former Bill C-78 only relates to parenting matters, as these are the only matters to which the rules of the 1996 Convention apply that fall within federal jurisdiction.

a. Benefits of becoming a party

Once Canada becomes a party, the 1996 Convention will reduce the risk of potentially conflicting decisions applying to the same child between Canada and other Contracting States. In addition, the 1996 Convention will facilitate the recognition and enforcement of Canadian parenting orders in other countries that are also party to the 1996 Convention, creating greater legal certainty. This will provide better assurances to families who travel or relocate to another Contracting State that their Canadian order will be respected. This could also make it easier to return a child to Canada in parental child abduction cases. It could also reduce costs for families by reducing the need to re-litigate the same issues in another Contracting State. In 2015, the Standing Senate Committee on Human Rights recognised the benefits of joining the 1996 Convention, both as a complement to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction^Footnote37 (1980 Child Abduction Convention) and as a tool to help resolve cross-border parenting disputes.^Footnote38

The 1996 Convention could lead to more effective communication and cooperation between authorities in Canada and in other countries party to the Convention about many other child-related issues. The potential benefits of the 1996 Convention continue to grow, as more countries become parties.

b. Implementation through changes to federal family laws

As stated earlier, once in force, the relevant Divorce Act amendments will give the 1996 Convention force of law, which, from a legal perspective, will be sufficient to implement the 1996 Convention federally. However, the changes include other amendments to clarify how some of the rules in the 1996 Convention are to be applied specifically in the Divorce Act context. The provisions of the Divorce Act dealing with the 1996 Convention will only apply to the provinces and territories to which the application of the 1996 Convention has been extended (see discussion in Part IV). In addition, in accordance with the 1996 Convention, they will only apply to children under the age of 18.

c. Jurisdictional rules

The basic jurisdictional rule in the 1996 Convention is that the authorities of the Contracting State where the child is habitually resident have jurisdiction to make decisions related to the protection of the person or property of the child.^Footnote39 The changes to federal family laws brought by former Bill C-78 reflect 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, unless specified exceptions provided by the 1996 Convention are met. These exceptions are as follows:

• The child is present in the province/territory and the child is a refugee, internationally displaced or their habitual residence cannot be determined.^Footnote40
• There is a divorce proceeding in the province/territory and other mandatory criteria are met. These criteria, under new section 30.7 of the Divorce Act are: 1) at least one spouse has parental responsibility for the child, 2) the spouses and any other person who has parental responsibility consent to the court taking jurisdiction, and 3) the court determines that it is in the best interests of the child to take jurisdiction.^Footnote41
• The court in the province/territory has requested or been requested to assume jurisdiction in accordance with the 1996 Convention’s transfer provisions.^Footnote42 This transfer can only occur where the competent authorities in both Contracting States agree that the authority that would assume jurisdiction after such transfer would be better placed to assess the child’s best interests. The cases where jurisdiction is most likely to be transferred to a Canadian court will be those where there is a divorce proceeding pending in the province/territory, but where the conditions set out in new section 30.7 of the Divorce Act have not been met, or where the child has a substantial connection to the province/territory.
• The child is present in the province/territory and there is an urgent situation.^Footnote43

The jurisdictional provisions also provide that, if a child has become habitually resident in a province/territory as a result of a wrongful removal or retention, a court in that province/territory may only take jurisdiction once specific criteria set out in the 1996 Convention have been met.^Footnote44 This provision will help discourage international parental child abduction by denying a jurisdictional advantage to a person who has abducted a child. It is complementary to the 1980 Child Abduction Convention^Footnote45, to which Canada is a party.

d. Recognition and enforcement

While foreign parenting orders are generally recognized under provincial and territorial laws, there is one situation in which such orders must be recognized under the Divorce Act. This is where the foreign parenting order has the effect of modifying a previous parenting or contact order made under the Divorce Act. It must be recognized under the Divorce Act so that it has the effect of overriding the original Divorce Act order.

Article 23 of the 1996 Convention provides for the recognition by “operation of law” in Contracting States of measures (decisions) taken in other Contracting States. This means that the decision will have legal effect in a province/territory without the need to undertake any particular formality, including the need for a court application.^Footnote46 Article 24 provides, however, that any interested person may ask a court to decide on the recognition or non-recognition of a measure taken in a Contracting State in accordance with the 1996 Convention.^Footnote47 Article 23(2) lists several grounds for non-recognition of a measure, for example if a person who claims their parental responsibility is infringed by the decision was not given an opportunity to be heard.^Footnote48 Changes to the Divorce Act under former Bill C-78 specify that this application may be made to any court in a province/territory if there is a sufficient connection between the matter and the province/territory.

Under former Bill C-78, where a foreign decision is recognized by operation of law in accordance with Article 23(1) of the 1996 Convention, that decision only has legal effect in the provinces and territories where the 1996 Convention applies.^Footnote49 In cases where a foreign decision is recognized by the court of a province/territory having a sufficient connection with the matter, however, it will have legal effect across Canada, consistent with the current approach under section 20(2) of the Divorce Act.^Footnote50

While a foreign decision may be recognized by operation of law, if an individual wishes to have the foreign decision enforced additional steps will be required.^Footnote51 The provinces and territories will determine the appropriate procedure for their jurisdiction. Enforcement could be refused on the same grounds, as could the recognition of a foreign decision, meaning the grounds under Article 23(2) of the 1996 Convention. Former Bill C-78 clarifies this in the context of the Divorce Act and provides that a foreign decision will be enforced in the same way as an order of a court in the province/territory.

Former Bill C-78 also provides a basis for the recognition of foreign decisions modifying a parenting or contact order made under the Divorce Act in situations where the 1996 Convention does not apply. The grounds for non-recognition are similar to those found in the 1996 Convention. Once recognized, the decision will be enforceable as an order of a court in a province/territory, across Canada.

Case Illustration

Jurisdiction

Assume that both Canada and the U.S. are parties to the 1996 Convention (both have now signed it). Mary is aged six and lives with her mother in Winnipeg, Manitoba. Her parents are divorced and her dad lives in Minnesota. While visiting her dad for an extended access visit in the summer, Mary’s father decides that it would be best for Mary to live with him, and brings an application in Minnesota for a custody (parenting) order to that effect.

In accordance with the 1996 Convention, the Minnesota court should decline jurisdiction, in favour of the courts in Manitoba, where Mary is habitually resident.

If Mary’s father applies to the court in Winnipeg for decision-making responsibility and primary parenting time for Mary and to relocate Mary to Minnesota, the Manitoba court will vary the original Divorce Act order if it determines it is in the best interests of the child.

Recognition

If Mary relocates to Minnesota, Mary’s father will need to register her in her new school. He does not need to go to court to have his Manitoba order recognized in Minnesota. He can rely on the Manitoba order as proof that he has custody of Mary (terminology used in Minnesota) and that he has authority to register her in school. The Manitoba order is recognized by operation of law, which means that it has automatic legal effect in Minnesota.

Under the 1996 Convention, it is, however, always possible to bring a court application for recognition or non-recognition of a court order made in another Contracting State.

If Mary’s mother is concerned that the father may not comply with the parenting time terms in the Manitoba Divorce Act order, in accordance with the 1996 Convention, she may seek advance recognition of the Manitoba order in Minnesota, prior to Mary’s relocation to that state.