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The Court as Custodial Parent?

Written by: Kevin Heinrichs (View All Posts • View Bio ) Published: November 6, 2012
Categorized: Case Analysis, Custody and Access, Mobility.

What rights does a court have over child related decisions when an interim custodial parent has been named?  This question, in the context of the custodial parent’s decision to move out of the country with the child, was examined by the BC Court of Appeal in Johnson v. Jessel, 2012 BCCA 393.

In the context of a Hague Convention application (an application to the court to have a child returned after having been taken out of the court’s jurisdiction), the court had to deal with the questions of whether it still had jurisdiction over the issue.  The argument raised was that, because the child was now resident in another country, that new country had the power to determine the child’s residency.  The BC Court of Appeal rejected that proposition.  It took the position that “… when custody is a live issue, and a court awards custody on an interim basis, the court does retain custody rights under the Convention …”. [para.49]  Because of this, the court went on, it is not necessary for a court to order a non-removal clause after making an interim custody order:  the fact that the court retains some degree of custody under the Hague Convention, “…removal of the child is unlawful within the meaning of the Convention…” [para.50]

In other words, an interim custodial parent does not have unfettered discretion to move the child wherever he or she chooses.  The BC courts, having taken jurisdiction, will retain that jurisdiction until a final determination.

The Vancouver divorce lawyers at Henderson Heinrichs have the knowledge and experience to deal with inter-jurisdictional issues, including child abduction.

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