Divorce Act — D-3.4 31
31 The Act is amended by adding the following before the heading before section 32: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Definitions Definitions 30 The following definitions apply in this section and in sections 30.1 to 31.3. 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 means a State other than Canada in which the 1996 Convention applies. ( État partie ) Implementation, Interpretation and Application of the 1996 Convention 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. Inconsistency (2) The 1996 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them. 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. 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 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. 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. 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. 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. 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 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 otherwi