Parenting time or “access” can quickly turn into a contentious issue following a separation or divorce. Parenting time refers to the amount of time a child spends with each parent or guardian. Matters can be further complicated when courts in different jurisdictions have been asked to determine the division of parenting time, or a parent applies to a court outside the place the child is normally resident.
This article reviews some of the rules that apply to such situations under British Columbia’s Family Law Act (the “FLA”). This blog post will also review a recent decision of the Supreme Court of British Columbia in which a mother brought her child from California to British Columbia and asked the court to decide parenting issues. The father opposed the application on the basis that the court in British Columbia did not have jurisdiction.
The FLA contains specific provisions governing parenting arrangements when there is an out-of-province aspect. Some of these provisions are explored below.
Section 74 of the FLA allows a British Columbia court to make an order respecting guardianship, parenting arrangements or contact with a child in circumstances where such an order could be made in more than one jurisdiction if one of the following conditions is satisfied:
- the child is habitually resident in British Columbia, meaning they most recently resided there with their parents or a parent, or another person on a permanent basis for a significant time (removing a child without consent normally does not affect the place of habitual residence),
- the child is physically present in British Columbia, there is substantial evidence concerning their best interests here, no application is pending before a tribunal in the place the child is habitually resident, no extra-provincial order has been recognized by a court in British Columbia, the child has a real and substantial connection with British Columbia and it is appropriate for jurisdiction to be exercised here, or
- the child is physically present in British Columbia and would suffer serious harm if they were to remain with, or be returned to, their guardian or removed from British Columbia.
In certain circumstances, a court in British Columbia can recognize a parenting order made by an extraprovincial tribunal, enabling it to be enforced in British Columbia.
In J.K.S. v M.L.L.A., the mother commenced family law proceedings in British Columbia, after bringing her child to the province from California without the father’s consent. He sought to dismiss the proceedings and have the child returned to California.
The parties began dating in 2018 and their child was born in California in 2019. The father verbally abused the mother, often in the child’s presence. The parties separated in 2021 and the father eventually moved out. The parties agreed on a parenting time schedule.
On July 4, 2022, the father went to collect the child from the mother’s home but noticed that the house was listed for sale. Shortly after, he was served with the British Columbia family law claim.
Mother claimed the BC court had jurisdiction despite the child being habitually resident in California
The mother argued that the British Columbia Court had jurisdiction to deal with the matter because even though the child was not habitually resident, the two other criteria under section 74 of the FLA were satisfied.
Much of the argument focused on whether it was in the child’s best interest to remain in British Columbia.
Justice Burke examined the second option contained in section 74 of the FLA, finding that all of the requirements were satisfied, as set out below:
- the child was now in British Columbia;
- there was substantial evidence of the child’s best interests available in British Columbia, including from family members;
- while the father had now applied to a Californian court, it appeared this was initiated to try to remove jurisdiction from the British Columbia court, and it had made no orders;
- the child had a real and substantial connection with British Columbia despite being unilaterally relocated to escape alleged family violence; and
- the balance of convenience favoured British Columbia, despite the father being barred due to a criminal record, due to the location of the mother, child and witnesses.
Her Honour also found that the requirements of the third option were met. She arrived at this finding having been satisfied that, on the balance of probabilities, the child would suffer serious harm if returned to California, due to the cumulative effect of the father’s angry outbursts. This contrasted with the current situation where the child was eating well and happier.
The British Columbia Court had jurisdiction under the FLA to make a parenting order. However, the next step for the judge was to decide whether to decline to exercise jurisdiction because it was more appropriate for the case to be heard elsewhere.
Justice Burke decided to allow the British Columbia proceedings to continue. Her Honour thought that this would be in the best interests of the child, there was no evidence supporting California as the more appropriate forum, and the law in the two jurisdictions was similar. In particular, the Californian proceedings were not properly served on the mother. Further, California requires the child to be present in order to assume jurisdiction, which could leave the parties in “legal limbo”.
Let the experienced family lawyers at Meridian Law Group assist with all family law aspects of your separation and divorce. Our team has decades of experience helping our clients achieve their goals while protecting their interests, including matters dealing with parenting time and decision-making responsibility. Do not leave important matters to chance – let us provide you with tailored advice on your options to help you move forward.
Conveniently located across from the courthouse in downtown Vancouver, our firm represents clients throughout British Columbia. To schedule a consultation, please call (604) 687-2277 or reach out to us online.