When co-parents live in different provinces and parenting issues arise, they can try to come to an agreement themselves or with the help of a professional. If not, there are legal processes to figure out which court should decide.
EDITOR’S NOTE This article was first published in LawNow on November 5, 2014. It was reviewed and updated by the author in 2025.
As Canadians are mobile, it is common for families to move between provinces. It is also common for parents to live in different provinces after separation. So, if they need to go to court to settle a parenting issue, which province’s court should make this decision? This is a question of which court has “jurisdiction” (authority) over the case. (For more detail about jurisdiction, see the LawNow article titled “What, Why and Where: Untangling Jurisdiction in Family Law”.)
Making an agreement outside court
As with any parenting dispute, it’s best to first try to reach an agreement without going to court. Parents can get help from anyone in any province, such as a private mediator or family therapist, so long as they both agree and meet the eligibility requirements of the service provider. Many professionals offer services by video conferencing that can accommodate parents who live in different places.
If parents come to an agreement on their own, they can include the terms of it in a written contract between the parents. In some cases, it might be helpful to set out the agreement in a Consent Order. In this case, the parents can generally decide in which province they prefer to have the Order entered, so long as one parent is a resident of the province. When choosing a province’s court, parents might consider how easy it is to navigate the court process or costs. That being said, it is ideal to choose the province where the child lives most of the time (is “habitually resident”) to avoid a future dispute over jurisdiction.
Applying to court for a decision
If parents cannot reach an agreement about parenting time or decision-making responsibilities and believe the only option left is to have a judge grant an order, it may be tempting for a parent to simply apply to the court closest to them. However, if the other parent disagrees, arguing about jurisdiction can be a distraction from the true issue: what is the best parenting plan for the child? Across Canada, the laws about children are very similar: the “best interests of the child” is the primary consideration.
Take, for example, a case I once witnessed. 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 the children should continue to live with him for the whole year. In late July, he applied for primary parenting time in Alberta. When the Alberta court heard the case 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 applied to the court 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, then back to B.C. and likely had to wait several more months 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.
What the law says about the court’s jurisdiction
Canada’s Divorce Act and Alberta’s Family Law Act both apply to parents in Alberta. The Divorce Act applies to divorcing and divorced parents. The Family Law Act applies to unmarried parents or married parents who haven’t yet filed for divorce. (Learn more about which law applies and to whom on CPLEA’s website about family law in Alberta.)
Often, the law says when a court has jurisdiction, but not always. Divorcing and divorced parents usually apply for parenting under Canada’s Divorce Act. Sections 4 and 5 of the Divorce Act allow a court to hear and decide parenting applications (also called “corollary relief”) if either parent is habitually resident in the province at the start of the proceedings, or if both parents accept the jurisdiction of the court. If each parent applies to court, the first application goes ahead. However, section 6 of the Divorce Act allows a parent to apply to court, or for the court on its own, to transfer the issue of parenting to a court in another province if the child is habitually resident in that other place.
If a divorced parent moves a child from a province, they must follow the Divorce Act rules about relocations. (Learn more about these rules in the LawNow article titled “Relocations with Children: The law before and law now” or on CPLEA’s family law website.) If the parent doesn’t follow the rules, then the province where the child was habitually resident before the relocation has jurisdiction, unless a judge is satisfied that:
- all parents have consented or conceded to the relocation, or
- a parent has unduly delayed contesting the relocation, or
- the province the child is currently in is better placed to hear and decide the issue.
Parents in Alberta who were never married usually apply for parenting orders under Alberta’s Family Law Act. However, the Family Law Act does not say when a court has geographic jurisdiction over parenting issues. Therefore, the common law rules about forum conviens (a Latin term meaning “the forum which is most convenient”) apply. The legal test is: where does the child have a real and substantial connection? Family laws in other provinces, such as Ontario, allow a court to take jurisdiction where the child is habitually resident in that province.
Whether the legal test is habitual residence, real and substantial connection, or forum conviens, the factors the court must consider are very similar:
- where the child has spent most of their 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 community members
- where the parents have established a life by setting up a home, finding work, 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 court can resolve the issue, and
- whether there is a difference between the laws that will affect the welfare of the child.
This list of factors is open-ended, and a judge can consider what they believe is relevant. Many of these factors come down to the basic question: where is the best evidence about the child located?
Under the Family Law Act, if a parent moves a child from a province without the consent of the other parent, generally the court will not allow that parent the benefit of taking jurisdiction over the case. 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 take jurisdiction to address these concerns.
Better long-term outcomes
When dealing with interprovincial parenting disputes, one parent is sure to be inconvenienced. It’s up to parents to think about which place has the best evidence and apply to the court there. Using the right court from the start likely means there will be a better, quicker and less expensive outcome in the long run.
Looking for more information?
Looking for articles like this one to be delivered right to your inbox? SUBSCRIBE NOW!
DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Sarah Dargatz
