Family Law
Interjurisdictional Custody, Access Disputes, And Mobility Issues
Family Law
Interjurisdictional Custody, Access Disputes, And Mobility Issues
Child custody is one of the most contested issues in divorce cases. If the former spouses live in different provinces or countries, this will complicate things even further, as the parent without custody will face difficulties scheduling visits and gaining access to the children. In the event of a dispute between such parents, the court will also have to figure out which jurisdiction applies to the case. Child custody laws are not always the same across provincial and international borders. Further complications arise when one parent leaves the country with the child without the consent of the other parent. In such cases, having an experienced and knowledgeable child custody lawyer to fight on your behalf ensures that your parental rights are protected and the welfare of your child is safeguarded.
Interjurisdictional Custody Issues
Various work or personal commitments might force a parent to move from one province to another or even to another country. This will obviously complicate matters if the relocation makes it difficult for the other parent to visit the child as often or not at all. If there was already a divorce settlement agreement or a court order in place, it is not legally allowed for the parent to move the child to a different location without permission from the other parent. Such disputes are generally settled in courts. But even before the court proceeds with the case, they need to figure out which jurisdiction applies to the case.
The court will look at:
What is the jurisdiction of the current child custody case?
If there are proceedings already in place in one jurisdiction, the court might ask the parent approaching it to continue with the same.
Where is the habitual residence of the child?
The court will look at where the child has predominantly resided in the past and where he is living at the moment.
What is in the best interests of the child?
Family law requires the court to consider the best interests of the child when making such decisions and keep the disputes between the parents out of the equation.
If the child is mature enough, what is the preference of the child?
If the child is old enough, the court might inquire about his preference of location and might decide accordingly.
When the child is relocated without the consent of the other parent:
If one parent who has custody of the child moves to another country, taking the child with them without the knowledge and consent of the other parent, this will be treated as international child kidnapping under Canadian law. The affected parent may approach the court to request the return of the child. If that country is part of the Hague Convention, there are legal procedures in place for the Canadian government to cooperate with them on such matters, as per the Hague Convention on the Civil Aspects of International Child Abduction. This will simplify the process of returning and reuniting the child with the other parent. However, if that country is not part of the Hague Convention, it might take longer for the authorities in both countries to agree on the resolution. In rare unfortunate cases, the government of that country might refuse to cooperate, making it impossible for the Canadian government to intervene.
Child Access Disputes
Unresolved issues between the parents might cause one of them to alter the existing parenting arrangement and deny access to the child to the other parent. If these issues are not resolved through negotiations, then legal action will be required to enforce the existing agreement or order granting access to the other parent. Canadian family law stipulates that the ideal arrangement will be for the child to have a healthy relationship with both parents. The law requires the court to look only at the child’s best interests and ignore the unresolved issues between the parents. However, if there is a history of violence or abusive behaviour from one of the parents, the court might modify the child custody in favour of the other parent.
Parental Mobility Issues
It is always problematic when one of the parents wants to relocate with the child after a divorce. During the settlement of the divorce, the former spouses must have come to an agreement on the parenting arrangement, child custody, and access. The decision by one of the parents to relocate due to personal or professional reasons will be in violation of that agreement or court order and, therefore, require the consent of the other parent. When this is not obtained, it leads to disputes and legal action. Family law in Canada obliges the court to take into consideration what is best for the welfare of the child when deciding on the relocation. The law prefers to maintain stability in the current living and educational arrangements and will only allow change if it is beneficial to the child. For example, if the child requires a transfer to a new school the next year for educational reasons, the court is likely to allow the relocation.
How can a child custody lawyer help you?
Having a child custody lawyer to help in such complicated child custody cases is crucial. An experienced child custody lawyer can:
Assist you in identifying the right legal jurisdiction for the case
This is important to avoid unnecessary litigations and delays.
Handle child relocation and mobility dispute negotiations with the other parent:
It is always best to try and settle the matters through negotiations rather than going to court. Your lawyer will coordinate the negotiations and try to come to an out-of-court settlement with the other parent.
Dealing with international custody or abduction cases:
You will need the assistance and guidance of a lawyer experienced in such cross-border custody cases.
Help with enforcing the child custody or access order in a different jurisdiction:
Your lawyer will go through the relevant legal channels in the other jurisdiction to ensure that the orders granting you access to the child are enforced.
Modifying the orders in the event of relocation:
If the existing child custody order has to be modified because of the change in circumstances, you may approach the court again through your lawyer.
Legal representation:
If the case goes to court, your lawyer will represent you and fight to ensure that your parental rights over the child are protected.
We can Help
If you are struggling with child custody issues across borders or access disputes, our experienced family lawyers can help ensure that your parental rights are protected and your children’s well-being is safeguarded. Contact our legal team today for a consultation.
Frequently Asked Questions?
What can I do when my former spouse has taken my child to a foreign country without my consent?
Such an action will be treated as a case of international child abduction under Canadian law. You must immediately report the matter to the authorities and approach the court for a resolution. Depending on the case, the court is likely to take one of the following actions:
- Initiate the process under the Hague Convention on the Civil Aspects of International Child Abduction.
- If they are currently in the process of leaving the country, issue an emergency order to stop the parent from leaving with the child.
- Issue an order to locate and return the child to the other parent.
Can my former spouse deny my access to my child just because I reside in a foreign country?
No. This will be against the divorce settlement agreement or the child access order issued by the court. If one parent is located outside the country, the parent having custody is expected to cooperate by facilitating:
- Virtual time: Whenever possible, the parent who has custody must facilitate communication through various channels, such as phone calls, emails, and video calls.
- Visits during holidays and summer break: The parent who has custody of the child must cooperate with the other parent in scheduling visits and their time together with the child during the holidays and summer break.
- Agreement on travelling expenses and arrangements: When one parent moves to another country with the child, the court might order that parent to share the travel expenses of the other parent for the visits or to make the necessary arrangements.
How does the court decide on the jurisdiction of a child custody case?
The court will look at the following factors when deciding the jurisdiction of the child custody case:
- Where is the child’s habitual residence?
- Is there an already existing child custody order or proceedings in place?
- Which jurisdiction has been more involved in different aspects of the child’s life so far?
