The Divorce Act Changes Explained

Jurisdiction

Transfer of proceeding if parenting order applied for
(Section 6(1) and (2) Divorce Act)

New section

Subsections 6(1) to (3) of the Act are replaced by the following:

Transfer of proceeding if parenting order applied for

6 (1) If an application for an order under section 16.1 is made in a divorce proceeding or corollary relief proceeding to a court in a province and the child of the marriage in respect of whom the order is sought is habitually resident in another province, the court may, on application by a spouse or on its own motion, transfer the proceeding to a court in that other province.

Transfer of variation proceeding in respect of parenting order

(2) If an application for a variation order in respect of a parenting order is made in a variation proceeding to a court in a province and the child of the marriage in respect of whom the variation order is sought is habitually resident in another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

Old section

Transfer of divorce proceeding where custody application

6 (1) Where an application for an order under section 16 is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province.

Transfer of corollary relief proceeding where custody application

(2) Where an application for an order under section 16 is made in a corollary relief proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the corollary relief proceeding to a court in that other province.

Transfer of variation proceeding where custody application

(3) Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

What is the change

The court can now transfer a divorce, corollary relief, or variation proceeding that includes an application for or to vary a parenting order to the province where the child habitually resides instead of the province to which a child is most substantially connected. The amendment also merges ss 6(1) and 6(2).

Reason for the change

The change makes the Act more consistent with provincial and territorial statutes, and with international law, and accommodates other changes to the Act related to parenting. By deleting the phrase “and is opposed,” the amendment gives courts greater discretion to transfer proceedings to the province where the child habitually resides, even in unopposed applications.

When

March 1, 2021.