It can be challenging to obtain an order for child custody when parents live in different countries, particularly where one parent has moved to a new country following breakdown of the marriage. In situations where the court is faced with an application for child custody when parents live in different countries, the court must first determine whether it has jurisdiction to make such an order. A recent example is Atout v. Atout, 2016 ONSC 5487, where the court determined that given the particular facts it lacked jurisdiction to make an order for child custody when parents live in different countries. It is useful to examine the Atout decision to understand how a court determines whether it has jurisdiction to make a child custody order and to demonstrate what the court is empowered to do in situations where it lacks jurisdiction.
Application for child custody when parents live in different countries
In Atout the mother brought an application in Ontario seeking custody of two children born in Qatar. The path leading to the Ontario application was a winding one. The mother was born in Vancouver. While attending university in Arizona in 1995 she met her future husband. They married in Israel in 1997, and then resided in Arizona until moving to Washington for the mother’s work. The couple subsequently moved to Jordan where the father worked in a family business. In 2010, the mother found work in Qatar and was able to sponsor the father on her work visa. The children were born in Qatar in 2011 and 2013, where they lived until March 2016 when the parties separated due to the mother’s alleged infidelity. The mother alleged the father was emotionally abusive to her and her children. She withdrew her sponsorship of the father and he returned to Jordan to avoid being deported. The mother took the children to visit family in Arizona.
In May 2016 the father commenced urgent child custody proceedings in Arizona, but the Arizona court determined that it lacked jurisdiction over the parties, as neither party was domiciled there. By that time, the mother had obtained work in Toronto. The Arizona court ordered that the mother could travel to Canada with the children in light of her intention to reside in Ontario with them. Upon arriving in Toronto in June 2016, the mother commenced an application in the Ontario court seeking child custody. The father argued that the Ontario court lacked jurisdiction to hear the mother’s application and requested that the children be sent back to Arizona.
Court’s jurisdiction to decide on child custody when parents live in different countries
In the Atout matter, the Ontario court determined that it did not have jurisdiction to hear the child custody application and that the courts of Qatar plainly had the best basis for jurisdiction. Neither party wanted to go back to Qatar and neither had a basis to stay there except under tourist visas. They preferred that a different court take jurisdiction (either Ontario or Arizona). Unfortunately for the parties, that is not the test. The legislative scheme defers jurisdiction where there is another jurisdiction that already has the evidence about the children’s best interest and to which the children already have a real and substantial connection. The fact of the matter was that apart from vacations, the children had lived their entire lives in Qatar and the most important evidence concerning their best interests was from witnesses in Qatar.
The legislative scheme in BC’s Family Law Act
In interjurisdictional matters, to make an order for child custody, child access, or guardianship, a court has to have jurisdiction over the parties. While the Atout matter was decided in Ontario, the test for jurisdiction in BC is very similar to the Ontario statute. Section 74 of British Columbia’s Family Law Act states that jurisdiction is granted to the court based on either of the following:
- The child is habitually resident in British Columbia when the application is filed; or
- If the child is not habitually resident in British Columbia, all six conditions in the six-part test set out in s. 74(2)(b) are fulfilled.
The applicant in Atout was unable to satisfy either of those tests. To understand why, this article will examine the legislative scheme in greater detail.
As I recently discussed, habitual residence of the child is critical to deciding child custody when parents live in different countries <add link to Onyx blog post called International Child Custody: Child’s Habitual Residence & Temporary Stays Abroad>. Section 72(2) of BC’s Family Law Act contains the definition of habitual residence:
(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.
In the Atout case, the children were not habitually resident in Ontario. They had “barely just arrived” in Ontario and were not residing in Ontario with both parents or with a person other than a parent. Nor was there a separation agreement, consent of the other parent, or court order permitting residence in Ontario (the Arizona order allowed the mother to travel to Canada with the children but did not authorize residency).
Six-part test for determining whether the BC court can make a child custody order
If the child is not habitually resident in the province when the application is filed, the court can obtain jurisdiction if all six parts of this test in s. 74(2)(b) are satisfied:
- the child is physically present in British Columbia when the application is filed,
- substantial evidence concerning the best interests of the child is available in British Columbia,
- no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
- no extraprovincial order has been recognized by a court in British Columbia,
- the child has a real and substantial connection with British Columbia, and
- on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;
In the Atout matter, the mother was not able to satisfy the Ontario equivalents of parts (ii) or (v). There was no evidence in Ontario concerning the best interests of the children other than the evidence of the mother. All other witnesses, such as the children’s nannies, teachers, doctors, and friends, were in Qatar. The children has never been to Canada before and had no family there. The only home they had ever known was Qatar and all their ties were there.
Serious harm: A third basis for obtaining jurisdiction to make a child custody order
Note that s. 74(3) contains a third basis for the court to obtain jurisdiction to make an order for child custody when parents live in different countries. The court can make an order for child custody if it is satisfied that the child would suffer serious harm if the child were remain with, or be returned to, the child’s guardian, or be removed from British Columbia. Serious harm was not a factor in the Atout matter.
Power to make interim child custody orders
Where the court does not have jurisdiction to entertain an application for child custody, the legislative scheme grants the court the power to deal with child custody in the interim. Section 77 of the BC Family Law Act empowers the court to make an interim order for child custody or access that is in the best interests of the child; to stay an application for child custody when parents live in different countries on condition that a party commence a proceeding in another jurisdiction (or such other condition the court considers appropriate); and to order a child be returned to an appropriate place.
Despite lacking jurisdiction to make a final order for child custody in Atout, the court used its power to grant sole child custody to the mother on an interim basis. There was no basis for sending the children to Arizona, and remaining with the mother while the jurisdictional issues were sorted out was clearly in the children’s best interests. The evidence before the court showed the father to be a “bully” who demonstrated no ability to care for the children other than to say that he was prepared to hire caregivers in Arizona. The court ordered that if the father failed to commence child custody proceedings in Qatar by October 1, 2016 (a period of two months), he would be taken to have implicitly consented or acquiesced to the children residing in Ontario, thereby confirming the Ontario court’s jurisdiction.
The bottom line on child custody when parents live in different countries
On hearing an application for child custody when parents live in different countries, the court must first determine whether it has jurisdiction to make such an order. The test for jurisdiction is set out in BC’s Family Law Act. If the applicant fails to satisfy the test for jurisdiction, the BC Family Law Act empowers the court to make an interim child custody order that is in the best interests of the child – a temporary solution while the parties work out the question of jurisdiction.