What is the test for determining custody and access under s. 3(1) of the Divorce Act?

Alberta, Canada


The following excerpt is from Bullecer v. Mayangat, 2010 ABQB 680 (CanLII):

This is discussed in Schlotfeld v. Schlotfeld, 2008 BCSC 678 (CanLII), 2008 B.C.S.C. 678 as follows at paragraphs 12 - 15:– 12 There is no dispute about the fact that the husband has been ordinarily resident in British Columbia since January, 2002. The wife says that she ceased to be a resident of British Columbia in 2006, but s. 3 requires that only one spouse be ordinarily resident in British Columbia. That is the only jurisdictional fact that is relevant to the question and the test for this court's jurisdiction is therefore satisfied. (Follwell v. Holmes, [2006] O.J. No. 4387 (QL) (O.N. S.C.J.) at paragraph 24). 13 For the same reason, the court has jurisdiction to determine custody and access. Section 3(1) gives the court jurisdiction over a "divorce proceeding". The Divorce Act definition of "divorce proceeding" includes orders for custody and access as long as they are made along with a proceeding for divorce: 1. 'divorce proceeding' means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a custody order; 14 Under s. 1, a "custody order" includes an order for access. Since there is no doubt in this case that the husband is seeking orders for custody and access along with an order for divorce, I find that all those matters fall under the jurisdiction of s. 3(1). 15 In exercising its divorce jurisdiction, the court is also bound by s. 11(1)(b) of the Divorce Act to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage.

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