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Overview and Assessment of
Approaches to Access Enforcement
2001-FCY-8E
CANADIAN LAWS AND PROGRAMS (cont'd)
Enforcement of Foreign Access Orders
At common law, it is not possible to enforce a foreign custody or access order, not even an order made in another Canadian jurisdiction.(152) A court will consider such an order only as one factor to be considered in a proceeding to determine custody or access. However, statutes that recognize and allow enforcement of foreign access orders have superseded the common law. This is important because such statutes address the problem of non-custodial parents being forced to obtain a new order for access in the jurisdiction to which the custodial parent has moved before proceeding with enforcement. It is necessary for the non-custodial parent to apply to have the order recognized and enforced, but not to re-apply for access. Although the recognizing court may vary or supersede the access in accordance with the statutes of each province and territory, the court’s starting point will be the existence of an enforceable access order in favour of the non-custodial parent. The measures to enforce foreign access orders will not exceed those available to enforce domestic orders.
As indicated in Appendix A, an access order made under the federal Divorce Act has legal effect throughout Canada and may be enforced throughout Canada. Access orders that are not made under the Divorce Act are recognized and enforceable only as provided in provincial and territorial legislation.
Alberta and Manitoba have enacted the necessary legislation to recognize and enforce foreign access orders, under which a court shall enforce an access order as if the order had been made by the court, unless it is satisfied the child did not at the time the order was made have a real and substantial connection with the granting jurisdiction.
New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Prince Edward Island and Yukon have enacted the necessary legislation to recognize and enforce foreign access orders, under which a court must recognize and enforce a foreign access order as an order of the court unless, in the proceedings in which the order was granted, the respondent was not given notice or an opportunity to be heard, the best interests of the child standard did not govern, the order is contrary to the public policy of the province or territory, or the court acted without jurisdiction.
Saskatchewan’s legislation provides that a court shall enforce an order that provides for access "at specific times or on specific dates"
as if it had been made by the court, but may refuse to enforce the order and may make any other order for access that it considers necessary if the child is in Saskatchewan and the court is satisfied on the balance of probabilities that the child would suffer serious harm if subject to access by the person entitled to it, or is satisfied that the court that granted the access order did not have jurisdiction in accordance with Saskatchewan law. Although Saskatchewan’s law provides for unilateral enforcement only in the case of specific access orders, this is not problematic because enforcement actions require a specific order in any case.
In contrast with the legislation of other provinces and territories that recognizes and allows unilateral enforcement of foreign access orders, Nova Scotia law allows enforcement of access orders made by reciprocating jurisdictions.(153) As well, Nova Scotia law allows enforcement of access orders made by superior courts in other Canadian jurisdictions that have been registered with the Nova Scotia Supreme Court.(154) Thus, access orders granted by jurisdictions that have not been declared reciprocating, or by superior courts of other Canadian jurisdictions, will not be recognized and enforced but may be considered by the court. Nova Scotia should consider amending its statute to provide for unilateral recognition of foreign and extraprovincial custody and access orders.
