The Divorce Act Changes Explained: Part II

Coming into Force of Inter-jurisdictional Support and Parenting Provisions

Order in Council

Bill C-78 received Royal Assent on June 21, 2019.^Footnote52 The Divorce Act provisions relating to inter-jurisdictional support and parenting came into force by Order in Council on March 1, 2021.

Certain FOAEAA amendments in former Bill C-78 came into force at the time of Royal Assent.  Other amendments to the FOAEAA either came into force in December 2021 by Order in Council (Part III of FOAEAA) or will come into force by Order in Council at a later date (Parts I and II of FOAEAA) to allow time for regulatory amendments as well as technical and operational changes required to federal, provincial and territorial systems to be completed. The coming into force of FOAEAA changes that relate to the 1980 Child Abduction Convention, the 1996 and the 2007 Conventions is anticipated in 2023-24.

Coming into force of provisions relating to Conventions and Ratification

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.

Each Convention will enter into force, for Canada, on the first day of the month following the expiration of three months after the deposit of Canada’s instrument of ratification.

For Canada to ratify either the 1996 or the 2007 Convention, three steps would be required:

1. Changes to federal law would be required - in this case amendments to the Divorce Act to be consistent with Convention rules (this step was completed through former Bill C-78, although these provisions are not yet in force);
2. At least one province or territory would need to pass implementing legislation to ensure that its laws are consistent with Convention rules;^Footnote53 and
3. That province or territorywould need to ask the federal government to have the Convention apply in its jurisdiction.

The 1996 Convention and the 2007 Convention could be ratified at different times. At the time of ratification of each Convention, Canada would extend the application only to those provinces and territories that have implemented the Convention and have asked the federal government to extend its application to their jurisdiction. Over time, Canada would make new declarations extending the application of the Convention to additional provinces and territories once these provinces and territories have also implemented the Convention and requested that its application be extended to their jurisdiction. These rules would allow Canada to become party to the Conventions without having to wait for all the provinces and territories to be ready to apply them.

Summary and Conclusion

This paper presented information on new rules and procedures affecting inter-jurisdictional support and parenting orders introduced by former Bill C-78. To assist family law practitioners, here are some key things you need to know to help your clients with inter-jurisdictional family law matters following the coming into force of former Bill C-78 inter-jurisdictional provisions:

1. With the coming into force of Bill C-78 inter-jurisdictional provisions, the rules relating to inter-jurisdictional support orders and parenting orders under the Divorce Act have changed.
2. The rules on inter-jurisdictional support in the Divorce Act have been broadened/expanded (to deal with international support enforcement), while procedures now resemble the one-step process under provincial/territorial ISO legislation.
3. Former Bill C-78 enacted new rules for determining jurisdiction regarding parenting orders and contact orders.
4. The 1996 Convention presents a number of potential benefits, including facilitating the recognition and enforcement of domestic family law orders and decisions in other Contracting States and discouraging “forum shopping”.
5. The 2007 Convention creates an effective legal and operational system to ensure the effective international recovery of child support and other forms of family maintenance across borders. This system is comparable to the ISO process under Canadian law.
6. The majority of Divorce Act provisions came into force on March 1, 2021, but this did not include provisions dealing with the 1996 and 2007 Conventions; these latter provisions will come into force at a later date to coincide with the entering into force of each Convention for Canada internationally.
7. As of writing, Canada has signed the 1996 and 2007 Conventions, but has not yet ratified them. Canada is therefore not yet a party to these Conventions.
8. For Canada to become a party to the 1996 and 2007 Conventions, for each of the Conventions, at least one province or territory needs to implement the Convention by amending its laws to be consistent with Convention rules; and at least one province or territory, having passed implementing legislation, needs to ask the federal government to have the Convention apply in its jurisdiction.
9. Information online, including The Divorce Act Changes Explained and Legislative Background: An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78 in the 42nd Parliament), are useful resources for counsel with questions about particular provisions of the legislation.