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Considering Jurisdiction in Interprovincial Custody Applications

Family Law ColumnCanadians are mobile and it is not uncommon for families to move between provinces.  It is also not uncommon for parents to live in different provinces after a separation.  So, if they need to go to court to settle a parenting dispute, which province should make this decision?  This is a question of which court has “jurisdiction” over the matter. (For more detail about jurisdiction see the family law column: What, Why and Where: Untangling Jurisdiction in Family Law)

It may be tempting for a parent to simply apply to the court closest to them.  Across Canada the laws regarding children are very similar: the “best interests of the child” is the primary consideration. Choosing the most appropriate jurisdiction from the start, even if it is inconvenient to one parent, can set the family on the path to getting the best and quickest decision about their children. Therefore, arguing about jurisdiction can sometimes be a distraction from the true issue: what is the best parenting regime?

Take, for example, a case I witnessed last month.  The children had lived with Mom since birth in B.C.  After the parents separated, Dad moved to Alberta.  The children visited Dad for the summer holiday and he believed that the children should continue to live with him for the whole year.  He brought an application for custody in Alberta in late July.  When the matter was heard in court in mid-September, Mom’s lawyer argued successfully that Alberta was not the proper jurisdiction so Dad’s application failed.  The parents had to start the court process all over again in B.C.  Had Dad simply brought his application in B.C., a decision about where the children should live might have already been well on its way to a resolution.  This also created instability for the children: they started the school year off in Alberta, were then sent back to B.C., and are likely still waiting for an outcome.  Choosing the most appropriate jurisdiction from the start, even if it is inconvenient to one parent, can set the family on the path to getting the best and quickest decision about their children.

Often, legislation will set out when a court can take jurisdiction, but not always.  Regarding parenting of children, married parents would usually apply under the Divorce Act.  Sections 4 and 5 of the Divorce Act allows a court to hear and determine custody and access applications (also called “corollary relief”) if either parent is ordinarily resident in the province at the commencement of the proceedings, or if both parents accept the jurisdiction of the court.  If each parent brings an application, the first application will go ahead.  However, s. 6 of the Divorce Act allows a parent to make an application to transfer the issue of custody and access to a court in another province if the child of the marriage is most substantially connected with that other province.

Unmarried parents in Alberta usually apply for parenting orders under the Family Law Act.  However, the Family Law Act does not state when a court has jurisdiction over the parenting of children.  Therefore, the common law rules regarding forum non conviens (a Latin term meaning “the forum which is not convenient”) apply.  The family legislation of other provinces, such as Ontario, allow a court to take jurisdiction where the child is habitually resident in that province.

Whether the test is habitual residence, real and substantial connection, or forum non conviens, the factors are very similar. Generally, if a child was removed from a province without the consent of the other parent, the court will not allow that parent the benefit of taking jurisdiction over the matter. When jurisdiction is challenged in parenting matters, the court will consider the following:

  • where the child was born;
  • where the child has spent most of his or her life;
  • where the child last lived with both parents;
  • where the child has lived since the separation with the agreement of both parents;
  • where the child’s extended family lives;
  • where the child has the strongest bonds;
  • where the child has connections to school, health care providers, and other members of the community;
  • where the parents have established a life by setting up a home, finding employment, and engaging in a social life;
  • where there are other court orders already in place;
  • whether there is a difference between court processes that will affect how quickly and inexpensively the issue can be resolved; and
  • whether there is a difference between the laws that will affect the welfare of the child.

Many of these points come down to the basic question: where is the best evidence located?

Another important consideration is whether or not a child was unilaterally removed from one place to the other.  Generally, if a child was removed from a province without the consent of the other parent, the court will not allow that parent the benefit of taking jurisdiction over the matter.  However, in cases where a child may experience harm if returned to a particular place, such as in situations of family violence, the court may make concessions to address these concerns.

When confronted with interprovincial parenting disputes one parent is sure to be inconvenienced.  However, in the long run, there will likely be a better outcome, reached more quickly and inexpensively, if applicants turns their minds to which place has the best evidence and bring an application there.

 

Authors:

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


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