The Divorce Act Changes Explained

Jurisdiction

Two proceedings commenced on same day
(Sections 3(3), 4(3), 5(3) Divorce Act)

New section

Jurisdiction if two proceedings commenced on same day

3 (3) If divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day, and neither proceeding is discontinued within 40 days after it was commenced, the Federal Court shall, on application by either or both spouses, determine
which court retains jurisdiction by applying the following rules:

  1. if at least one of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;
  2. if neither of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the spouses last maintained a habitual residence in common if one of the spouses is habitually resident in that province; and
  3. in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

Jurisdiction if two proceedings commenced on same day

4 (3) If corollary relief proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day, and neither proceeding is discontinued within 40 days after it was commenced, the Federal Court shall, on application by either or both former spouses, determine which court retains jurisdiction by applying the following rules:

  1. if at least one of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;
  2. if neither of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the former spouses last maintained a habitual residence in common if one of the former spouses is habitually resident in that province; and
  3. in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

Jurisdiction if two proceedings commenced on same day

5 (3) If variation proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day, and neither proceeding is discontinued within 40 days after it was commenced, the Federal Court shall, on application by either or both former spouses, determine which court retains jurisdiction by applying the following rules:
  1. if at least one of the proceedings includes an application for a variation order in respect of a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;
  2. if neither of the proceedings includes an application for a variation order in respect of a parenting order, the court that retains jurisdiction is the court in the province in which the former spouses last maintained a habitual residence in common if one of the former spouses is habitually resident in that province; and
  3. in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.
Old section

Jurisdiction where two proceedings commenced on same day

(3) Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

Jurisdiction where two proceedings commenced on same day

(3) Where proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the corollary relief proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

Jurisdiction where two proceedings commenced on same day

(3) Where variation proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any variation proceeding then pending between the former spouses in respect of that matter and the variation proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

What is the change

The amendment limits the Federal Court’s authority under the Act to a determination of the issue of jurisdiction only, and extends the time to discontinue one of the proceedings from 30 to 40 days.

Reason for the change

Previously, the Federal Court heard the entire proceeding (divorce, corollary relief or variation) in cases where both proceedings were started on the same day in different provinces. The changes to this section limit the Federal Court’s role to deciding only the issue of jurisdiction (i.e. which court should hear the matter).

The amendment also provides the Federal Court with rules to decide jurisdiction:

The new 40-day period also gives the parties more time to recognize that two proceedings have been started and to discontinue one of them.

When

March 1, 2021.