Enforcement of Family Law Orders When Parents Live in Different Places: Part 2.

Author:Dargatz, Sarah
 
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Generally, Alberta court orders are only enforceable in Alberta. And, generally, Alberta judges can only grant family law orders about people who reside in Alberta. However, families are mobile and many relocate from province to province or even from country to country. Therefore, Alberta has entered into agreements with the other Canadian provinces and territories, and with many other countries, to recognize, enforce, and change each other's family law orders. Agreements or orders that have effect across political boundaries are usually referred to as "interjurisdictional".

In Part 1, the Interjurisdictional Support Orders Act (ISOA) will be discussed. In Part 2, we will discuss the Extra-Provincial Enforcement of Custody Orders Act (EPECOA) and the Hague Convention.

Extra-Provincial Enforcement of Custody Orders Act (EPECOA)

EPECOA states that the court of a province, state, territory, or country generally has the authority (or "jurisdiction") to make an order about the custody of a child if that child has real and substantial connection to that place. A "real and substantial connection" usually means that the child lives or has lived in that place but other factors may be relevant.

If a court outside of Alberta granted a custody order regarding a child that did have a real and substantial connection to that place, EPECOA states that the Alberta court can enforce that extra-provincial custody order if Alberta has the jurisdiction to grant orders regarding that child. An Alberta judge can make any order to give effect to the extra-provincial custody order as if the order had been made in Alberta. An Alberta judge who now has jurisdiction over a child can also change the extra-provincial custody order just as it would vary an Alberta order.

If an Alberta judge believes that the extra-provincial court did not have a real and substantial connection to the child when the order was granted, they may decline to enforce or vary the extra-provincial order. In this case, the Alberta court would proceed as if there was no custody order for the child. A person applying for custody would have to bring an application under the relevant Alberta legislation such as the Family Law Act.

In some cases, more than one place could take jurisdiction over a child, for example, if a child had recently relocated with one parent. This could result in different courts hearing competing custody applications. The judge must make a decision about which place should...

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