CUSTODY ORDERS UNDER THE CONSTITUTION
AbstractIn order to set the constitutional foundation for custody orders and reveal the issues related to it, this article surveys the case law discussing the interaction between provisions of the Divorce Act governing custody orders and orders made under provincial jurisdiction. The issues identified relate to the scope of federal ancillary powers over custody and the intended effect of variation order provisions. The author considers whether an order under the Divorce Act will supersede an existing order that extinguishes parental rights in favour of a third party, and argues that orders made under the Divorce Act should be paramount over antecedent and subsequent provincial orders attempting to re-determine the custodial rights of the parties.
Keywords:Constitutional Law, Divorce, Husband and Wife, Marriage
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