The best International Child Parenting Jurisdiction Lawyers explain the rules for deciding where the best place to decide a child’s best interest should be. Will the BC Court take jurisdiction over your children, even if they were born and/or raised in another country? In what circumstances would they do this, and why? The key point is what jurisdiction would have better evidence as to what is best for the child, and sometimes if there is a serious risk of harm a court where the children have resided for a short time may take protective action. In this article, senior lawyer Jonathan Wai of MacLean Law’s Vancouver office discusses a recent case that looks at Jurisdiction over Children in British Columbia, where the BC court assumed jurisdiction over a child in BC, despite the child being born outside of Canada.
MacLean Law has offices across BC and in Calgary Alberta.
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In the recent case of J.K.S. v. M.L.L.A.,2022 BCSC 2238, the child in question was born in California, USA in 2019, where the parties lived. The parties separated in 2021, though they remained in the same household. It was clear the mother was the primary caregiver to the child. While there was no physical violence, there was evidence of the father’s threats and other abusive behaviour. In 2022, the mother came to BC with the child, without the father’s consent, and started a BC court action. The father challenged BC’s jurisdiction over the children. Hiring the best International Child Parenting Jurisdiction Lawyers matters in these high stakes cases. Getting immediate legal advice from skilled family lawyers like the award winning lawyers at MacLean Law is critical.
What Are The Rules For Jurisdiction? 604 602 9000
International Child Parenting Jurisdiction Lawyers point out that the legal test under the Family Law Act, for deciding whether or not there was Jurisdiction over Children in British Columbia is:
74(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met:
(a) the child is habitually resident in British Columbia when the application is filed;
(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that
(i) the child is physically present in British Columbia when the application is filed,
(ii) substantial evidence concerning the best interests of the child is available in British Columbia,
(iii) no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
(iv) no extraprovincial order has been recognized by a court in British Columbia,
(v) the child has a real and substantial connection with British Columbia, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;
(c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to
(i) remain with, or be returned to, the child’s guardian, or
(ii) be removed from British Columbia.
(3) A court may decline to make an order under this Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.
In this case, the mother conceded under 74(2)(a) that the child was not “habitually resident” in BC by definition under s.72(2), as the child had not lived in BC previously and the father had not agreed or implied consent.
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MacLean Law’s International Child Parenting Jurisdiction Lawyers point out that instead, the court looked at the requirements of s.74(2)(b), and noted that all the sub-requirements must be satisfied, or else this section does not apply. In this regard:
- As is obvious, the child was physically present in BC;
- There was substantial evidence in BC, as the child’s aunts, uncles and maternal grandmother live in BC and have all spent considerable time with the child. The child was also in daycare and had other activities. The court noted that was only because the mother brought the child here without the father’s consent, but did not discount that evidence entirely.
- The court found insufficient evidence for an application pending in an extraprovincial court. In this case, there was a California proceeding, but it was commenced after the BC one, and the material before the court was unclear as to as to the specific nature of the application and whether an order is sought. Furthermore, there is evidence in the material of a previous application filed that was not proceeded with.
- There was no extraprovincial order that has been recognized by a BC court.
- The court considered whether there was a real and substantial connection of the case to BC. In this regard, the court noted previous cases supported the proposition that a court should be reluctant to find a real and substantial connection, where a parent had unilaterally relocated to BC. However, in this case, the history of family violence in this case was important to distinguish those cases. The court found the real and substantial connection to BC, because of the extended family, daycare and activities, and attachment to his cousin.
- The balance of convenience favoured BC. The father had argued that he could not enter BC given his criminal record, but the court noted that was not decisive, particularly where there were allegations of family violence.
As such, the court decided that BC had jurisdiction under s.74(2)(b).
What Must Be Shown To Prove Harm? 604 602 9000
Our experienced International Child Parenting Jurisdiction Lawyers want you to understand that the judge went further and considered whether the court would also have jurisdiction under s.74(2)(c), namely whether the child would suffer harm if removed from BC. Our International Child Parenting Jurisdiction Lawyers emphasize that the court noted that:
[52] …The potential for serious harm is not sufficient. The court must be satisfied that, on a balance of probabilities, the child would suffer serious harm: D.M.S. at para. 51.
[53] In the context of a legislative provision in Ontario that is analogous to s. 74(2)(c), the Supreme Court of Canada has stated that the onus is on the “abducting parent” to establish serious harm: F. v. N., 2022 SCC 51 at para. 69 [F. v. N.]. The Supreme Court characterized this as a “high threshold” with a “demanding” burden: F. v. N. at para. 69.
[54] Determining whether serious harm would result is a highly individualized and fact specific exercise: F. v. N. at para. 72. The approach taken by the court must be child-centered, focusing on the particular circumstances of the child: F. v. N. at para. 72.
[55] While the FLA does not provide a definition for serious harm, it does provide a definition for family violence which includes physical, psychological or emotional abuse, and damage to property. A plain reading of the term “serious harm” taken in conjunction with the objectives of the FLA requires physical, psychological, or emotional abuse that is significant: Charnock v. Charnock, 2016 BCSC 44 at para. 33 [Charnock]; F. v. N. at para. 74.
[56] Importantly, in Charnock, this Court concluded that the cumulative effect of repeated minor derogatory remarks made to a child can cause serious emotional harm: Charnock at para. 35.
In this case, the court concluded:
[57] The claimant submits that A. would suffer serious harm if returned to California as a result of the respondent’s continual infliction of family violence on the claimant. Further, the respondent does not appear to appreciate the seriousness of his actions and has not taken any steps to specifically address his anger. This has been demonstrated by his conduct towards the claimant in front of A. over Facetime since she has been in BC.
[62] With respect to family violence being directed at the child, as pointed out by the claimant, the numerous instances of loud yelling and derogatory comments at the claimant were made in the presence of A., including when A. was a baby. These events adversely affected the child, evidenced by his loss of appetite and listlessness. This is in stark contrast with the present situation for A. in which he appears happy, healthy and eating well.
[67] The respondent’s complete lack of insight is troubling. While he has even in the affidavit material admitted to this behaviour and says he seeks to change it, there is simply no evidence of that change being seriously pursued.
[68] I find that, on the basis of the repetitive pattern of verbally abusive behaviour exhibited by the respondent to the claimant, in the presence of A., removing A. from BC and returning him to California, would cause him serious harm.
The court further considered s.74(3), wherein the court has discretion whether or not to take jurisdiction, or decline in favour of another court, in this case California. The court decided that BC should take jurisdiction over the child, for reasons similar to the above.
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This case serves as an example of where a parent unilaterally takes a child to BC from another jurisdiction, and BC takes jurisdiction. We emphasize that absent compelling reasons, a parent unilaterally taking a child to another jurisdiction is generally to be discouraged, and that there were specific factors in this case, including particularly the father’s abusive behaviour and apparent lack of insight in the same, implying he would commit more in the future, that carried significant weight in the court’s decision to take Jurisdiction over Children in British Columbia.
We note as well that this is not necessarily the end of this case. BC has taken jurisdiction, but that means the BC court may later have a trial to determine what is in the child’s best interest, with regards to where the child should reside and with whom, and how much parenting time the other parent should have, and any conditions of the same. While it would appear at first glance that trial might result in the child remaining primarily in BC with his mother, that has not yet been decided.
In any case, as you can see, there are a number of factors that affect any Jurisdiction over Children in British Columbia application. Any of these factors might affect the outcome of the case. We at MacLean Law, in all of our offices Greater Vancouver, Victoria, Kelowna, Calgary and Toronto remain open by telephone, video and email to advise you regarding your case of whether the court has Jurisdiction over Children in British Columbia.
