Jurisdiction Issues in Custody on Inter-Provincial, Divorce Act, and International Levels | Krysta Ostwald
50th Annual Refresher: Practice Excellence (2016/2017)
In recent years, inter-jurisdictional custody disputes and child abductions have become more frequent. In these disputes, issues arise around the conflict of laws which make the non-consensual relocation of children difficult.
In this paper, Krysta Ostwald reviews what to do when inter-jurisdictional disputes arise. Read a summary of this paper below to learn more.
The starting point for an inter-jurisdictional dispute should be the Divorce Act, RSC 1985, c 3 (2nd Supp) [Divorce Act]. The paper sets out a number of relevant sections of the Divorce Act, including s 2(1), which defines the term “divorce proceedings,” and s 4, which considers the jurisdiction in corollary relief proceedings. Importantly, s 3(1) of the Divorce Act has been applied to determine the issue of the proper jurisdiction on the basis of the substantial connection test. This test requires the claimant to show that there is a real and substantial connection between the subject matter and the jurisdiction issuing the judgment.
Following an overview of the Divorce Act, the paper reviews the analytical framework set out by the Supreme Court of Canada (SCC) in 3 cases:
• Van Breda v Village Resorts (2012), 2012 SCC 17,
• Black v Breeden, 2012 SCC 19, and
• Editions ecosociete Inc v Banro corp,  1 SCR 636.
These cases raise 2 main issues: whether the court can assume jurisdiction, and if so, whether the court should decline to exercise its jurisdiction. Ultimately, the court must engage in a contextual analysis that is specific to each case.
The paper also reviews the 3-part test for determining the jurisdiction of custody disputes between provinces within Canada, and case law that has applied that test. The test asks:
1. What is the habitual residence of the child?
2. Where is the child physically present?
3. Is there a risk of serious harm to a child if he or she is returned?
The test is also a contextual one that will be decided based on the facts of the case.
After discussing the tests for determining jurisdiction within Canada, the paper considers the ramifications of the Hague Convention on the Civil Aspects of International Child Abduction [Hague Convention]. This is a multilateral treaty which serves to ensure that custody litigation occurs in the jurisdiction that the child habitually resides in. When determining the child’s habitual residence, one must consider “settled intention” (i.e. the intent to stay in one place for a certain period of time). A “settled intention” can be approached in 2 different ways, either from the parents’ perspectives or from the child’s perspective. The paper discusses the scope of the Hague Convention and “settled intention” within the context of applicable case law.
While matters of jurisdiction in custody disputes are difficult to navigate due to complexities arising from where the relocation occurs and differing legal tests depending on the jurisdiction, this paper navigates the labyrinth created by inter-jurisdictional custody disputes by reviewing national and international legislation in conjunction with case law.
Want to learn more? Click here to view some sample pages of this paper.
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