Document Information

Date: 1980-09-08
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers, Report of the Continuing Committee of Ministers on the Constitution to First Ministers, Family Law, Doc 800-34/ (Ottawa: 8-12 September 1980).
Other formats: On order.

DOCUMENT: 800-34/

CONFIDENTIAL

FEDERAL-PROVINCIAL CONFERENCE
OF
FIRST MINISTERS

Report of the Continuing Committee of Ministers
on the Constitution to First Ministers

FAMILY LAW

Ottawa
September 8-12, 1980

FAMILY LAW

The matter of the transfer to the provinces of legis-
lative competence to enact laws in relation to the whole or
any part of marriage and divorce was included in the twelve
items to be addressed by the Continuing Committee of
Ministers.

At an early stage of our deliberations a consensus
emerged favouring the following principles:

i. that legislative jurisdiction concerning marriage,
including the validity of marriages, be transferred to the
provinces;

ii. that legislative jurisdiction to prescribe
grounds for divorce be transferred to those provinces wish-
ing to avail themselves of this power and that for the re-
mainder of the provinces Parliament retain this power;

iii. that in order to prevent a marriage being valid
in one province but invalid in another and to prevent
parties from resorting to courts in a jurisdiction with
which they have no reasonable connection, Parliament should
retain exclusive authority to establish rules for the
recognition of divorces, whether granted inside or outside
Canada, and to establish the basis for jurisdiction of courts
granting this relief in Canada;

iv. that the provinces be given exclusive legis-
slative competence with respect to relief ancillary to
the granting of divorce i.e. maintenance and custody;

v. that the present section 96 of the British
North America Act be amended to provide that the provinces
be enabled to confer jurisdiction in all family law matters
on courts established or on judges appointed by provincial
administrations.

At the request of the delegates of the federal dele-
gation ministers were asked to consider reserving to
Parliament the same powers with respect to recognition of
declarations of nullity and the jurisdiction of the courts
to grant them as would apply to divorce. The provincial
consensus supports this principle.

In addition concern has been expressed both inside and
outside this Conference that the transfer of legislative
competence to the provinces in relation to maintenance and
custody would jeopardize the enforcement of these
orders on a national scale. ‘Ministers moved to
eliminate or blunt this possibility by proposing that such
orders have binding effect on a national basis wherever
made in the country; and by providing for the registration
and enforcement of these orders in all courts of competent
jurisdiction in all provinces irrespective of the province in
which the order is made. The powers to vary orders by
reason of change of circumstance and the power to decline to
enforce an order which offends public policy or which was
granted without regard to due process of law are made sub-
ject to the power of provincial reservation.

-2-

The text reflecting these proposals is appended
hereto as Annex A.

Manitoba and Prince Edward Island support the prin-
ciples set forth in Sections 3,4 and 6 and reject the balance
of the proposals.

The Province of Alberta reserves on the proposed trans-
fer to the provinces of legislative jurisdiction in relation
to divorce.

BEST EFFORTS DRAFT
FAMILY LAW

l. Repeal head 26 of section 91 — “Marriage and divorce”.
2. Repeal head 12 of section 92 — “The Solemnization of
Marriage in the Province”.
3. Add as new legislative authority provisions, the
following sections:

“l. The legislature of each province may
make laws in relation to marriage in the province,
including the validity of marriage in the province,
except that Parliament has exclusive authority to
make laws in relation to the recognition of a
declaration that a marriage is void, whether granted
within or outside Canada, and in relation to the
jurisdictional basis upon.which a court may entertain
an application for a declaration that a marriage is
void.

2. (1) The legislature of each province may
make laws in relation to divorce in the province and
has exclusive authority to make laws in relation to
relief ancillary thereto.

(2) Parliament may make laws in relation to
divorce and has exclusive authority to make laws in.
relation to the recognition of divorces, whether granted
within hr outside Canada, and in relation to the
jurisdictional basis upon which a court may entertain
an application for a divorce.

(3) Where.the legislature of a province enacts
a law in relation to any matter over which it has con~
current authority with Parliament under this section,
that law prevails in the province over any law of Parliament
in relation to that matter to the extent of any inconsistency.

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(4) The legislature of each province may.
declare that it is assuming authority in relation to
all matters over which it has concurrent authority
with Parliament under this section and, where the
legislaturg so declares, notwithstanding subsection 3,
all laws of Parliament in relation to those matters have no
effect in that province while the declaration is in effect.

3. An order for maintenance or custody made
in Canada has legal effect throughout Canada.

4. An order referred to in section 3 made in
any province or territory may be registered in any other
province or territory in a court of competent jurisdiction and
shall be enforced in like manner as an order of that court.

5. The legislatures of the provinces may make
laws to give effect to the provisions of sections 3
and 4 and may make laws providing for the variation and
non-enforcement of orders by reason of a change in
circumstances and, in addition, for the non-enforcement
of orders on grounds of public policy or lack of due
process of law.

6. Notwithstanding section [96], the legislature
of each province may confer, or authorize the Lieutenant
Governor of the province to confer, concurrently or
exclusively, upon any court or division of a court or all
or any judges of any court, the judges of which are
appointed by the Governor General or by the Lieutenant
Governor of the province, as the legislature may determine,
the jurisdiction of a judge of a superior court of the,
province in respect of any matters within the field of
family law.”

-3-

4. Add as one of the transitional provisions, the following
section:

“XX. Except as otherwise provided in this Act,
all laws relating to marriage and divorce that are in
force in Canada or any province immediately before the
coming into effect of this Act continue in force in
Canada and that province, respectively, until such time
as they are repealed, altered or replaced by Parliament
or the legislature of the province according to the
authority of Parliament or the legislature under this
Act.” *

*NOTE: The wording of this general transitional section
will need to be finalized later.