Enforcement of Family Law Orders When Parents Live in Different Places: Part 2 - LawNow Magazine

Enforcement of Family Law Orders When Parents Live in Different Places: Part 2

Family Law ColumnGenerally, Alberta court orders are only enforceable in Alberta.  And, generally, Alberta judges can only grant family law orders about people who reside in Alberta.  However, families are mobile and many relocate from province to province or even from country to country.  Therefore, Alberta has entered into agreements with the other Canadian provinces and territories, and with many other countries, to recognize, enforce, and change each other’s family law orders.  Agreements or orders that have effect across political boundaries are usually referred to as “interjurisdictional”.

In Part 1, the Interjurisdictional Support Orders Act (ISOA) will be discussed. In Part 2, we will discuss the Extra-Provincial Enforcement of Custody Orders Act (EPECOA) and the Hague Convention.

Extra-Provincial Enforcement of Custody Orders Act (EPECOA)

EPECOA states that the court of a province, state, territory, or country generally has the authority (or “jurisdiction”) to make an order about the custody of a child if that child has real and substantial connection to that place.  A “real and substantial connection” usually means that the child lives or has lived in that place but other factors may be relevant.

If a court outside of Alberta granted a custody order regarding a child that did have a real and substantial connection to that place, EPECOA states that the Alberta court can enforce that extra-provincial custody order if Alberta has the jurisdiction to grant orders regarding that child.  An Alberta judge can make any order to give effect to the extra-provincial custody order as if the order had been made in Alberta.   An Alberta judge who now has jurisdiction over a child can also change the extra-provincial custody order just as it would vary an Alberta order.

If an Alberta judge believes that the extra-provincial court did not have a real and substantial connection to the child when the order was granted, they may decline to enforce or vary the extra-provincial order.  In this case, the Alberta court would proceed as if there was no custody order for the child. A person applying for custody would have to bring an application under the relevant Alberta legislation such as the Family Law Act.

In some cases, more than one place could take jurisdiction over a child, for example, if a child had recently relocated with one parent. This could result in different courts hearing competing custody applications.  The judge must make a decision about which place should take jurisdiction and which court will grant an order or which order will be enforced.  This can involve complicated legal arguments and advice from a lawyer should be sought in these cases.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention)

Several countries have agreed to follow the Hague Convention which is an international treaty regarding the return of a child who is internationally abducted.  The Hague Convention does not set out how custody decisions should be made.  It is intended to help maintain the status quo until the custody of the child can be properly determined by the court of the place where the child usually lived.  For example, if a child usually lives in Alberta and is abducted to the United States, the Hague Convention provides that the child should be returned to Alberta so that an Alberta court can make a decision about who should have custody of the child.  The Alberta judge may ultimately decide under the Family Law Act that the child should live with the parent in the United States. if that is what is in the child’s best interests.  The Hague Convention is intended to ensure this decision is made in the appropriate court.  Currently, 98 countries have signed onto the Hague Convention.

A child is “wrongfully” removed or retained from their home country if they are removed in breach of a person’s rights under the law of the place where their child usually lived.  If two (or more) people have joint decision-making powers for a child and that child is removed from their home country without the consent of one of the parties, this is usually considered to be a wrongful removal and the child would be returned.

A court can decline to order that a child be returned to their home country under the Hague Convention in a few circumstances:

  • where the person asking for the return of the child wasn’t actually exercising their custody rights at the time the child was removed or they had consented to or hasn’t protested to the removal of the child;
  • where more than a year has passed since the child was removed;
  • where the child objects to being returned and is old enough and mature enough that the court should consider their wishes; or
  • where returning the child would put that child in grave risk of physical or psychological harm, place them in an intolerable situation, or violate their basic human rights.

Parents who wish to relocate with their child should first seek the consent of the other parent or get a court order allowing the relocation.  Where safety is an issue, other steps can be taken to mitigate risk while a custody application is before the court.

Parents who are concerned that the other parent will abduct their child can find some comfort when the other parent has connections to, or proposes travel to, a country that is a signatory to the Hague Convention.  If that parent does not return the child, there is an established process to have the child returned.  The process may take time and money to implement but it exists.  Parents may wish to research a country’s history of actually complying the Hague Convention. In cases where parents have connections to, or propose travel to, a country that is not a signatory to the Hague Convention, likelihood that an abducted child will be returned is much lower.

Authors:

Sarah Dargatz
Sarah Dargatz
Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.
 


A Publication of CPLEA

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