Children
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 464-486 |
CHAPTER
24
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:
custody
of
chil
dren,
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,
En
forcement
and
Co-operation
in
Respect
of
Parental
Responsibility
and
Mea
sures
for
the
Protection
of
Children,
4
which
entered
into
force
in
2002.
However
Canada
has
not
yet
signed
or
ratified
this
convention.
1
See,
for
example,
Young
v
Young,
[1993]
4
SCR
3;
Gordon
v
Goertz,
[1996]
2
SCR
27.
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
For
more
detail
on
this
topic,
see
Berend
Hovius,
“
Territorial
Jurisdiction
and
Civil
Enforcement
Issues
in
Interprovincial
Custody
and
Access
Disputes
in
Can
adian
Common
Law
Provinces
”
(2002)
20
Canadian
Family
Law
Quarterly
155.
4
35
ILM
1391
(1996).
464
Children
465
B.
CUSTODY
1)
Jurisdiction
If
a
custody
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
custody
order
is
sought.
6
The
provincial
su
perior
courts
have
jurisdiction
to
grant
a
custody
order
if
either
former
spouse
is
“
ordinarily
resident
”
in
the
province
when
the
proceedings
are
commenced
or
if
both
former
spouses
accept
the
court
’
s
jurisdic
tion.
7
These
are
also
the
jurisdictional
requirements
for
a
proceeding
seeking
to
vary
a
custody
order.
8
However,
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
custody
is
made
in
a
divorce
proceeding
in
circumstances
where
the
custody
application
is
opposed
and
the
child
is
more
closely
connected
with
a
province
other
than
the
one
seized
of
the
divorce
proceeding,
the
di
vorce
proceeding
may
be
transferred
to
that
other
province.
10
While
divorce
is
a
matter
of
federal
law,
each
province
has
enacted
statutes
that
deal
with
custody.
11
For
example,
the
Ontario
Children
’
s
Law
Reform
Act
allows
a
parent
or
any
other
person
to
apply
for
a
cus
tody
order.
12
There
are
three
ways
the
court
can
have
jurisdiction
to
hear
such
an
application.
First,
the
child
is
habitually
resident
in
Ontario
at
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)
&
(3).
8
Ibid,
s
5(1).
Parallel
proceedings
for
the
same
variation
order
are
avoided
through
the
operation
of
ss
5(2)
&
(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).
Corollary
relief
proceedings
and
proceedings
for
a
varia
tion
order
that,
in
each
case,
do
not
involve
custody
can
similarly
be
transferred
if
a
custody
order
or
variation
of
a
custody
order
is
sought:
ss
6(2)
&
(3).
11
The
provincial
power
to
do
so
was
confirmed
in
Reference
re
Family
Relations
Act
(BC),
[1982]
1
SCR
62.
12
RSO
1990,
c
C.12,
s
21
[CLRA
(Ont)].
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