Vancouver Lawyers Post Article about Deciding Jurisdiction

Local lawyers examine how jurisdiction works in inter-provincial and international parenting disputes

VANCOUVER, BC–(Marketwired – April 30, 2017) – As a Vancouver-based legal firm, the lawyers at Kushner Law Group know that family law in BC can be difficult and emotionally charged, with complex legal arguments and issues. However, when parents live in different locations and questions of jurisdiction need to be resolved, there can be a heightened sense of complexity. For more, go to: http://kushnerlaw.ca/deciding-jurisdiction-in-bc-family-law/

One of the latest articles on the Kushner Law website delves into the complex subject of jurisdiction. For example, if one of the parents leaves the province-or the country-where should the case be heard? It’s no problem if both parents reside in BC, but what happens when there’s a dispute as to which Court should 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.

When asked to consider under the Family Law Act whether the child was „habitually resident,” the Court provided the following analysis:

[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.

Anyone recently separated, defending a claim, or involved in ongoing custodial battles needs the right support to make the best choices. For advice on all sorts of family law disputes, contact the Kushner Law Group today at 604-629-0432 and schedule a consultation.

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For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.