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 (S.C. 2019, c. 16)

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

Definitions

Marginal note:Definitions

30 The following definitions apply in this section and in sections 30.1 to 31.3.

1996 Convention

1996 Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996, set out in the schedule. (Convention de 1996)

State Party

State Party means a State other than Canada in which the 1996 Convention applies. (État partie)

Implementation, Interpretation and Application of the 1996 Convention

Marginal note:Force of law

• 30.1 (1) The provisions of the 1996 Convention have the force of law in Canada in so far as they relate to subjects that fall within the legislative competence of Parliament.

• Marginal note:Inconsistency

  (2) The 1996 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them.

Marginal note:Explanatory Report

30.2 In interpreting the 1996 Convention, recourse may be had to the Explanatory Report on the 1996 Hague Child Protection Convention, adopted by the Eighteenth Session of the Hague Conference on Private International Law that was held from September 30 to October 19, 1996.

Marginal note:Application

30.3 Sections 30.4 to 31.3 only apply in a province if

• (a) Canada has made a declaration extending the application of the 1996 Convention to that province; and

• (b) the child of the marriage concerned is under 18 years of age.

Jurisdiction

Marginal note:Child habitually resident in State Party

30.4 If a child concerned is habitually resident in a State Party, a court in a province does not have jurisdiction to hear and determine an application in respect of the child for a parenting order, a contact order or a variation order in respect of either such order, except in the circumstances set out in section 30.6, 30.7, 30.9 or 31.

Marginal note:Wrongful removal or retention

30.5 In the case of a wrongful removal or retention, as defined in Article 7(2) of the 1996 Convention, a court in a province has jurisdiction to hear and determine an application for a parenting order, a contact order or a variation order in respect of such orders only if the child has become habitually resident in that province and the conditions set out in subparagraphs 7(1)(a) or (b) of that Convention have been met.

Marginal note:Child present in province

30.6 If one or more of the circumstances set out in Article 6 of the 1996 Convention exist and the child is present in a province, a court in that province that would otherwise have jurisdiction under any of sections 3 to 5 of this Act has jurisdiction to hear and determine an application in respect of the child for a parenting order, a contact order or a variation order in respect of either such order.

Marginal note:Divorce proceeding — child habitually resident in State Party

• 30.7 (1) For the purposes of Article 10 of the 1996 Convention, if the child is habitually resident in a State Party, a court in a province that would otherwise have jurisdiction under section 3 of this Act has jurisdiction to make a parenting order or contact order in respect of the child if

  • (a) at least one of the spouses has parental responsibility in respect of the child;

  • (b) the spouses and any other person who has parental responsibility accept the jurisdiction of the court; and

  • (c) the court is satisfied that it is in the best interests of the child to exercise jurisdiction.

• Marginal note:Definition of parental responsibility

  (2) For the purposes of subsection (1), parental responsibility has the same meaning as in Article 1(2) of the 1996 Convention.

Transfer of Jurisdiction

Marginal note:State Party better placed to assess child’s best interests

30.8 For the purposes of Articles 8 and 9 of the 1996 Convention, a court in the province in which a child is habitually resident that would otherwise have jurisdiction under any of sections 3 to 6 of this Act, or that has jurisdiction under section 30.6 of this Act, may decline to exercise jurisdiction to make, in respect of the child, a parenting order, a contact order or a variation order in respect of such an order if the conditions of Article 8 or 9, as the case may be, are fulfilled and there is agreement between the court and the competent authority of a State Party that the latter will have jurisdiction.

Marginal note:Canadian court better placed to assess child’s best interests

30.9 For the purposes of Articles 8 and 9 of the 1996 Convention, only the court in a province that would otherwise have jurisdiction under any of sections 3 to 5 of this Act may exercise jurisdiction to make a parenting order, a contact order or a variation order in respect of such orders if the conditions of Article 8 or 9, as the case may be, are fulfilled and there is agreement between the competent authority of a State Party and the court that the latter will have jurisdiction.

Urgency

Marginal note:Urgent cases

31 For the purposes of Article 11 of the 1996 Convention, a court in a province that does not have jurisdiction under sections 30.4 to 30.9 of this Act but that would otherwise have jurisdiction under any of sections 3 to 5 of this Act, may, in urgent cases, make a parenting order, a contact order or a variation order in respect of either such order if the child who would be the subject of the order is present in that province.

Recognition

Marginal note:Recognition by operation of law

• 31.1 (1) For the purposes of Article 23 of the 1996 Convention, a measure taken by a competent authority of a State Party is a measure that has the effect of varying, rescinding or suspending a parenting order or contact order.

• Marginal note:Measure taken deemed to be variation order

  (2) A measure taken by a competent authority of a State Party that is recognized by operation of law under Article 23(1) of the 1996 Convention is deemed to be an order made under section 17 of this Act.

• Marginal note:Extent of validity

  (3) Despite subsection 20(2), the measure referred to in subsection (2) is valid only in any province to which the 1996 Convention applies.

Marginal note:Jurisdiction respecting recognition

• 31.2 (1) For the purposes of Article 24 of the 1996 Convention and on application by an interested person, a court in a province has jurisdiction to decide on the recognition of a measure referred to in section 31.1 of this Act if there is a sufficient connection between the matter and the province.

• Marginal note:Effect of recognition

  (2) The court’s decision recognizing the measure is deemed to be an order made under section 17 and has legal effect throughout Canada.

• Marginal note:Effect of non-recognition

  (3) The court’s decision refusing to recognize the measure has legal effect throughout Canada.

Marginal note:Enforcement

31.3 For the purposes of Article 26 of the 1996 Convention, a measure taken by a competent authority of a State Party that is enforceable in that State Party and that is to be enforced in a province may, on application by an interested person,

• (a) be declared to be enforceable by a court in the province and enforced in that province as an order of that court; or

• (b) be registered for the purposes of enforcement in the court in that province and enforced in that province as an order of that court.