Considering jurisdiction in interprovincial custody applications.

• Author: Dargatz, Sarah

Canadians are mobile and it is not uncommon for families to move between provinces. It is also not uncommon for parents to live in different provinces after a separation. So, if they need to go to court to settle a parenting dispute, which province should make this decision? This is a question of which court has "jurisdiction" over the matter. (For more detail about jurisdiction see the family law column: What, Why and Where: Untangling Jurisdiction in Family Law)

It may be tempting for a parent to simply apply to the court closest to them. Across Canada the laws regarding children are very similar: the "best interests of the child" is the primary consideration. Therefore, arguing about jurisdiction can sometimes be a distraction from the true issue: what is the best parenting regime?

Take, for example, a case I witnessed last month. 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 that the children should continue to live with him for the whole year. He brought an application for custody in Alberta in late July. When the matter was heard in court 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 brought his application 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, were then sent back to B.C., and are likely still waiting 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.

Often, legislation will set out when a court can take jurisdiction, but not always. Regarding parenting of children, married parents would usually apply under the Divorce Act. Sections 4 and 5 of the Divorce Act allows a court to hear and determine custody and access applications (also called "corollary relief") if either parent is ordinarily resident in the province at the commencement of the proceedings, or if both parents accept the jurisdiction of the court. If each parent brings an application, the first application will go ahead. However, s. 6 of the Divorce Act allows a parent to...