CHAPTER 24 Children

• Date: 07 April 2025

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CHA PTER 2 4

CHILDREN

A. INTRODUCTION

Legal issues relating to children can involve private international law

issues in cases where the factual situation has connections to more than

one jurisdiction. In Canada, domestic family law considers that the “best

interests of the child” are of paramount importance.1 In cross-border

cases, it is possible for those interests to be in conf‌lict with the notion of

comity.2 This chapter focuses on three specif‌ic issues: parenting arrange-

ments for children,3 abduction of children across borders, and adoption.

As will be discussed, several aspects of the law relating to children in

the conf‌lict of laws are governed by international conventions that have

been adopted in Canada. A broader range of issues is addressed in the

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforce-

ment and Co-operation in Respect of Parental Responsibility and Measures

1 See, for example, Young v Young, [1993] 4 SCR 3; Gordon v Goertz, [1996] 2 SCR

27; Barendregt v Grebliunas, 2022 SCC 22 at para 96; F v N, 2022 SCC 51 at para

61.

2 See Peter M North, “Reform, but Not Revolution: Children” (1990) 220 Recueil

des Cours 127. See also Gunsay v Gunsay (1999), 70 BCLR (3d) 104 at para 27

(CA) [Gunsay].

3 In Canada, the older terminology of custody and access has largely been replaced

by references to decision-making responsibility, parenting and contact. For ease

of reference, the discussion will generally refer to parenting unless otherwise

required. For more detail on this topic, see Berend Hovius, “Territorial Jurisdic-

tion and Civil Enforcement Issues in Interprovincial Custody and Access Disputes

in Canadian Common Law Provinces” (2002) 20 Canadian Family Law Quarterly

155.

Children 527

for the Protection of Children,4 which entered into force in 2002. Canada

has not yet ratif‌ied this convention.

B. PARENTING ARR ANGEMENTS

1) Jurisdiction

If a parenting order is sought alongside a divorce, the proceeding comes

within the federal Divorce Act’s def‌inition of a “divorce proceeding.”5

Jurisdiction over divorce proceedings is discussed in Chapter 22. The

Divorce Act also deals with “corollary relief proceedings,” which include

a proceeding in which a parenting order is sought.6 The provincial

superior courts have jurisdiction to grant a parenting order in a corol-

lary relief proceeding if either former spouse is “habitually resident” in

the province when the proceedings are commenced or if both former

spouses accept the court’s jurisdiction.7 These are also the jurisdictional

requirements for a proceeding seeking to vary a parenting order.8 How-

ever, somewhat at odds with the statutory language, appellate courts

have held that in each of these situations, there must have f‌irst been a

Canadian divorce for the court to have jurisdiction under the statute.9

If an application for a parenting order is made in a divorce proceeding

or a corollary relief proceeding and the child is more closely connected

with a province other than the one in which the application is made, the

proceeding may be transferred to that other province.10 Newer provisions

extend the jurisdiction under the Divorce Act to make or vary parenting

or contact orders in specif‌ic situations.11

In addition, each province has enacted statutes that deal with par-

enting arrangements.12 For example, the Ontario Children’s Law Reform

4 35 ILM 1391 (1996).

5 RSC 1985 (2nd Supp), c 3, s 2(1).

6 Ibid.

7 Ibid, s 4(1). Parallel proceedings for the same corollary relief are avoided through

the operation of ss 4(2) and (3).

8 Ibid, s 5(1). Parallel proceedings for the same variation order are avoided through

the operation of ss 5(2) and (3).

9 Leonard v Booker (2007), 321 NBR (2d) 340 (CA); V(LR) v V(AA) (2006), 52

BCLR (4th) 112 (CA); Rothgiesser v Rothgiesser (2000), 46 OR (3d) 577 at paras

58–59 (CA). For further discussion of this issue in the context of support orders,

see Chapter 25.

10 Above note 5, s 6(1). Proceedings to vary a parenting order can similarly be trans-

ferred: s 6(2).

11 Above note 5, ss 6.1, 6.2 and 6.3.

12 The provincial power to do so was conf‌irmed in Reference re Family Relations Act

(BC), [1982] 1 SCR 62. For detailed analysis of the jurisprudence under these