Child Custody Jurisdiction

By Gary Kirk of Kirk Montoute LLP posted in Child Custody on Sunday, September 8, 2013.

In cases where child custody is in dispute and the parents live in different cities, provinces or countries, the question arises – which court has jurisdiction (or the authority) to make binding decisions about the children? The general rule is that the court located where the children are habitually resident has jurisdiction to make those decisions.

This principle was emphasized in the recent decision of Naibkhil v. Qaderi. In this case, the parties lived in New Westminster, British Columbia. On December 24, 2012, the mother alleged that she and the child had been physically abused by the father, who was arrested. The next day, the mother moved with the child to Calgary, Alberta without the father’s consent. On December 27, 2012, the mother and obtained an ex parte interim Order giving her sole custody of the child, providing that she and the child live in Calgary, and giving the father supervised parenting time. The father brought his own application in British Columbia, and obtained an interim Order granting him care and control of the child. The father’s Order also contained a police enforcement clause to assist him in returning the child to British Columbia. This conflict was resolved in a joint decision of the Alberta Court of Queen’s Bench and the British Columbia Supreme Court. Justice J. Harvey, writing for both courts, addressed the mother’s claim that jurisdiction had shifted from British Columbia to Alberta by virtue of the 7 months that had passed since she and the child first moved to Calgary. Justice Harvey rejected this argument and concluded that British Columbia retained jurisdiction, citing the following reasons:

1. The parties resided in B.C. at the time of the birth of the child and B.C. was their habitual residence throughout the course of their marriage until the mother’s removal of the child in December 2012.

2. The removal was without the permission of the father and is premised upon disputed facts, specifically the father’s abusive behaviour to both the mother and the child over the course of the relationship.

3. The best evidence as to both the parenting regime in place while the child resided in British Columbia and the allegations of abuse as against the father is in British Columbia.

4. Concerns over the disputed allegations concerning both the child and his mother’s safety are best dealt with by an interim parenting regime.

Trial is currently set for late October, 2013.

Contact the lawyers at Kirk Montoute LLP for advice and representation when dealing with the question of jurisdiction, particularly as relates to child custody, parenting and mobility.