Jurisdiction in Child Custody Matters
In the case of Chartier v. Furuta, the parties met in Canada in 2011, married in Japan in 2012, and had one child together in 2014. The father returned to Canada, and the mother visited with the child. The mother found out that the father had taken all of her credit cards, cash and their child’s passport. The father’s behavior became hostile and threatening, resulting in the mother calling the police and moving into a shelter.
The father commenced proceedings on an ex-parte basis, limiting the child’s mobility in November of 2016. An order was made preventing the mother from returning to Japan with the child.
In August 2017, it became clear to the mother that she and the father would not be able to come to an agreement and she became very fearful that her request to extend her visa to stay in Canada would be denied.
She had obtained legal advice from an immigration lawyer that she should be applying for permanent residency status under humanitarian and compassionate grounds. Unfortunately, a decision could take up to 29 months and her temporary visa was only valid until September 1, 2017.
The mobility motion was subsequently argued on August 18, 2017. At that time, the mother was granted a temporary order of custody of the child and granted permission to relocate with the child to Japan. Arrangements were made for extended access visits for the father until her departure. Reasonable access in the form of Skype/Face Time was also arranged for the father and child after the relocation was complete.
However, approximately one month after the mobility order was granted the father relocated to Japan to be near his son. He was able to secure a temporary visa and a job. A hearing on the issue of jurisdiction was then held.
The court looked to section 22 of the Children’s Law Reform Act. 22, which states, “A court shall only exercise its jurisdiction to make an order for custody of or access to a child where”:
- The child is habitually resident in Ontario at the commencement of the application for the order
- Although the child is not habitually resident in Ontario, the court is satisfied
- That the child is physically present in Ontario at the commencement of the application for the order
- That substantial evidence concerning the best interests of the child is available in Ontario
- That no application for custody of or access to the child is pending before an extra-provincial Tribunal in another place where the child is habitually resident
- That no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario
- That the child has a real and substantial connection with Ontario
- That, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario
The court found that since the child was born in Japan and had lived there for almost the entirety of his life, he was not a habitual resident of Ontario. Therefore the court assessed whether the matter met all six criteria set out under section 22(b).
At the commencement of the proceeding, all parties were present and the criteria were met. However, now that the parties had moved to Japan with the child, and relevant witnesses and evidence were all in Japan, the second, fifth and sixth criteria could not be satisfied. Accordingly, the court decided it no longer had jurisdiction to deal with this matter.
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