Children

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 440-460

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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 chi ld” 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 t hree specif‌ic issues: custody

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

As will be discussed, several aspects of the law relating to chil-

dren in the conf‌lict of laws are governed by international conventions

which have been adopted in Canada. A broader range of issues is ad-

dressed in the Hague Convention on Jurisdiction, Applicable Law, Recog-

nition, Enforcement and Co-operation in Respect of Parental Responsibility

1See, for example, Yo ung v. Young , [1993] 4 S.C.R. 3; Gordon v. Goertz, [1996] 2

S.C.R. 27.

2See Peter M. North, “Re form, But Not Revolution: Children” (1990) 220 Rec. des

Cours 127. See also Gunsay v. Gunsay (1999), 70 B.C.L.R. (3d) 104 at para. 27

(C. A.) [Gunsay].

3For more detail on thi s topic see Berend Hovius, “Territori al Jurisdiction and

Civil Enforcement I ssues in Interprovinc ial Custody and Access Dispute s in

Canadia n Common Law Provinces” (2002) 20 Can. Fam. L .Q. 155.

Children 441

and Measures for the Protection of Children,4 which entered into force in

2002. However Canada has not yet signed or ratif‌ied this convention.

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. Sep-

arate from divorce, the Divorce Act also deals with “corollary relief

proceedings,” which include a proceeding in which a custody order is

sought.6 The provincial super ior courts have jurisdiction to gra nt a cus-

tody order if either former spouse is “ordinarily re sident” in the province

when the proceedings are commenced or if both former spouse s accept

the court’s jurisdiction.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 ci rcumstances 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 divorce 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

4(1996) 35 I.L.M. 1391.

5R.S.C. 1985 (2d Supp.), c. 3, s. 2(1).

6Ibid.

7Ibid., s. 4(1). Parallel proce edings for the same corollar y relief are avoided

through the oper ation of ss. 4(2) & (3).

8Ibid., s. 5(1). Parallel proce edings for the same vari ation order are avoided

through the ope ration of ss. 5(2) & (3).

9Leonard v. Booker (2007), 321 N.B.R. (2d) 340 (C.A.); V.(L .R .) v. V.(A. A.) (2006),

52 B.C.L.R. (4th) 112 (C.A.); Rothgiesser v. Rothgiesser (2000), 46 O.R. (3d) 577

at paras. 58 –59 (C.A.). For further discu ssion of this issue in the c ontext of sup-

port orders, see Ch apter 25.

10Above note 5, s. 6(1). Corollary re lief proceedings and proceed ings for a varia-

tion order that in e ach case do not involve custody can s imilarly be trans ferred

if a custody order or va riation of a custody order is soug ht: ss. 6(2) & (3).

11The provincial power t o do so was conf‌irmed in Refere nce re Family Relations

Act (B.C.), [1982] 1 S.C.R. 62.