Deciding ‘Jurisdiction’ in BC Family Law

Civil Litigation

How Inter-provincial & International Parenting Disputes Work in BC Courts

Family Law disputes in British Columbia can be emotionally charged and can involve complex legal arguments and issues.  There can be a heightened sense of complexity when questions of jurisdiction need to be resolved. When both parties (and/or their children) live in the same province, there is no question where the matter should tried; however, if one party leaves the province (or the Country), there can be a conflict as to what Court should have the jurisdiction to hear the matter.

In the recent decision of Stebbings v. Greenleaf, 2017 BCSC 453, Mr. Justice Bowden heard an application seeking an order that the Supreme Court of British Columbia did not have jurisdiction. The applicant mother, along with her daughter, were naturalized citizens of the United States but had been residing in Canada with the father. The Applicant mother sought to relocate to the United States but did not obtain the consent of the father or make a relocation application. The Court was asked to consider whether under the Family Law Act, the child was a “habitually resident” in British Columbia. The Court made the following analysis:

How the BC Supreme Court decided on “habitually resident”

 [14] The term “habitually resident” is defined in s. 72(2) of the FLA which provides:

 72 (2)  For the purposes of this Division, a child is habitually resident in the place where the child most recently resided

 (a)  with his or her parents,

 (b)  if the parents are living separate and apart, with one  parent

  (i)  under an agreement,

 (ii)  with the implied consent of the other parent, or

 (iii)  under an order of a court or tribunal, or

 (c)  with a person other than a parent on a permanent basis  for a significant period of time.

 (3)  The removal or withholding of a child without the consent of a guardian does not affect the child’s habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal.

 [15] In the circumstances, s. 72(2)(a) applies. The child’s most recent place of  residence with his parents was British Columbia from July 2016 until September 2016 when the child was taken to Utah by the applicant and the respondent did not consent to a change of the child’s residence.

[16] It appears that s. 72(3) prevents a parent from ousting the jurisdiction of this court by removing a child from B.C. without the consent of the other parent.

[17] Alternatively, if the child’s habitual residence is determined under s.72(2)(b)  then, based on my understanding that the child currently lives with the applicant in B.C.  pursuant to a court order, the child would also be considered to be habitually resident in  B.C.

[18] In my view the child’s habitual place of residence is British Columbia.

Related BC Family Law Information

Family Law & Litigation Lawyers in Vancouver BC

If you are involved in a family law dispute and require legal advice, contact the Kushner Law Group today at 604-629-0432 to schedule a consultation.

Similar Posts

Comments are closed.