CONFLICT OF LAW ISSUES IN FAMILY LAWS- FEDERAL V. PROVINCIAL

In the court’s application of family law, there might arise a conflict of laws between federal and provincial statutes. This journal seeks to discuss how the Courts handle such conflicts.

In Lefebvre v. Lefebvre, 1982 CanLII 1860 ONSC, the parties were married for two years before separating in 1972. In early 1973, the Provincial court awarded custody to the mother and ordered the father to pay $10 per week as child support. The father complied with the court order for about 8 months. In 1977, the mother obtained a decree nisi of divorce, which was silent regarding child maintenance. At the time of hearing the divorce petition, counsel indicated that the mother would continue to rely on a child support order made under provincial law. The decree nisi was made absolute in January 1978. The appellant relied on the doctrine of paramountcy to the Maintenance support the Dominion Parliament has “occupied the field” wherein divorce is granted. The appellant argues that orders for the support granted cannot remain effective upon dissolution of marriage. 

The Court held that a support order made according to provincial legislation does not automatically lapse upon granting a decree nisi, where the judge has made n corollary relief order. While it is certainly within his prerogative to invoke federal jurisdiction to make a support order, in the absence of his exercising jurisdiction, it cannot be said that there can be a “conflict” between federal and provincial legislation. Unless and until the federal legislation is invoked, there can be no “express conflict” or operating incompatibility. There can be no conflict until an order is made. It should be noted that provincial support legislation is not intended to be invoked upon a marriage’s dissolution. To that extent, it may be said that federal and provincial legislation in itself is not in conflict.

The judge held that a maintenance order made under federal legislation supersedes provincial legislation, but that does not mean that provincial legislation is rendered inoperative by the federal legislation. The judge further held that provincial legislation does not fail the express contradiction test commonly applied so long as it is not in conflict with, repugnant to, encroaching upon, or interfering with the federal legislation, nor does it have a complete identity of purpose or subject matter. It serves as a supplementary. Mr. Justice Southey approved this in Sniderman v. Sniderman et al. (1982), 1982 CanLII 1866 (ON SC) whereby he held that child support made per provincial legislation remains in effect to the extent and so long as the provincial legislation remains in effect to the extent and so long as no order has been made for corollary relief under the Divorce Act. 

In Gomes v. Gomes (Keene), 1985 CanLII 825 (BS SC), when the judge was answering the question of whether the Court should apply the Family Relations Act or the Divorce Act in a divorce action, the judge held that the court might award maintenance order under either Act, but not under both; the Court held that it is preferable to award maintenance under section 11 of the Divorce Act and under the Family Relations Act only in the alternative. Further, the court held the provincial jurisdiction to maintain a child is found in s. 56 of the Family Relations Act. Simply because the provincial Act goes further than the federal Act does not make a conflict between the two statutes any more than a provincial Act automatically suspending a driver’s licence when a federal statute has permitted a person to drive for business purposes under valid criminal law. Similarly, a policeman asking for a blood sample under valid provincial legislation rather than a breath sample under valid federal law creates no conflict.

I agree with the holding in Lefebvre that federal legislation prevails over provincial legislation in case of any conflict of laws. I further agree with Sniderman’s holding that if a case has been decided, the decision will be valid so long as it is not in no order has been made according to federal legislation.

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