Jurisdiction of Saskatchewan Courts
If you need to start a family law case it is important to first make sure that it can be heard in Saskatchewan. The Form Wizard and self-help kits, discussed in Unrepresented Litigants, can only be used to apply to a Saskatchewan Court of King’s Bench. Whether a Court of King’s Bench in Saskatchewan can hear a particular case, as opposed to a court in another province, depends on the type of case and where the parties and any children live.
There are a number of laws that govern family law cases and the jurisdiction of the Court can be different depending on the law the application is made under. For more information about these laws see Family Law Basics.
Married spouses can only be granted a divorce under the Divorce Act. A King’s Bench Court in Saskatchewan can hear a divorce case if either spouse has been habitually resident here for at least one year. You are habitually resident in Saskatchewan if you live here. You are still considered to be habitually resident even if you leave temporarily. However, if you leave for an indefinite period of time, even if you do plan on returning at some time, you are no longer habitually resident here.
If divorce cases are started in two different provinces on two different days, one party can agree to discontinue their case. If the parties do not agree it will be heard in the province where it was first started. If the cases are started on the same day, one party can agree to discontinue their case. If neither case is discontinued a court must decide where the case will be heard. If either or both of the cases include a request for a parenting order, the court will order that province where the child is habitually resident to hear the case. If a parenting order is not requested, the court will order that the province where the spouses last maintained a habitual residence hear the case. In other cases it is up to the court to decide which province the case should be heard in.
There are two different Acts that can be used to apply for a parenting order. Married couples who are asking for a divorce use the Divorce Act. Unmarried people and married couple who are not asking for a divorce use The Children’s Law Act.
Divorce Act & Parenting Orders
Married couples who are asking for a divorce can ask for a parenting order under the Divorce Act. If you are asking for a parenting order or a change to one under this Act and the child is not habitually resident here, the court can transfer your case to where the child lives.
CHANGE IN HABITUAL RESIDENCE: DIVORCE ACT
If a child is removed from where they habitually reside and the rules about relocation are not followed, the move does not change their habitual residence unless:
- anyone with a right to make decisions about the child agreed to or allowed the change
- the person with a right to make decisions unduly delayed starting a court action to return the child
- the court where the child now lives is in a better position to hear the case.
The Children's Law Act & Parenting Orders
Unmarried parties and married parties that are not asking for a divorce must use The Children’s Law Act to apply for a parenting order. They can also ask for a change to a parenting order made under this Act. An application can be made under The Children’s Law Act if:
- the child is habitually resident in Saskatchewan when you start the case
- the habitual residence of the child cannot be determined and the child is physically present in Saskatchewan
The court can ask a court in another province to hear the case if they think it is in the best interests of the child and:
- there is already a case started in the other province
- the child has a substantial connection to that province
- the child has property in that province.
In these situations the court can also adjourn the case to allow a party to start a case in the other province. The court in the other province must agree to take the case before it can proceed there.
CHANGE IN HABITUAL RESIDENCE: THE CHILDREN’S LAW ACT
Under The Children’s Law Act a child’s habitual residence is not changed by a move to another province unless all people with decision-making responsibility agree to it. There is an exception to this rule. A child can be considered habitually resident in a new province even if the child’s decision-maker did not agree to it if:
- the child has lived in the new province for at least a year
- the child’s decision-maker knows or should know where the child is living
- the child’s decision-maker has not started a case to return the child
- the child is settled in the new province
Where a child is habitually resident depends on that child’s particular situation. It usually means living in a place for a period of time and intending to remain in that place indefinitely. For children it is the intention of the person who has the legal right to make decisions that is considered.
There are two different Acts that can be used to apply for a support order. Married couples who are asking for a divorce use the Divorce Act. Unmarried people and married couples who are not asking for a divorce use The Family Maintenance Act.
Divorce Act & Support Orders
Married spouses can ask for support or a change in interim support as part of a divorce application started in the province they reside in regardless of where the other party lives. If the other party does not live here the court will make a provisional order that then needs to be confirmed by the court in the province where the other party lives.
However, if the parties are divorced and the other party lives in another province, the other party can ask to have an application for support or for a change to a final support order heard using the provincial inter-jurisdictional process. Even if the other party does not request this the court can decide that this process should be used.
The Family Maintenance Act & Support Orders
Parties who are not married or who are married but are not asking for a divorce must apply for support or a change to support under The Family Maintenance Act. If the paying party does not live in Saskatchewan you must apply to the Inter-jurisdictional Support Orders Unit here.
A King’s Bench Court in Saskatchewan can make orders concerning any family property that is in Saskatchewan. In making these orders they can also take into consideration the value of any family property outside of Saskatchewan.