You brought your child in Canada… what now?
If you child is living outside Canada, but is now present in your province, the provincial Court — in exceptional circumstances (urgency of the situation, importance of avoiding multiplicity of proceedings and inconsistent decisions, discouraging child abduction, etc.) — can make a parenting (former “custody” or “access”) order. It will be on the applying person to show sufficient connection between the Canadian province and the child and the exceptional character of the circumstances.
Yet in general it is the Court of the country where the child is habitually living is seen as the best place to make and modify parenting and contact orders. The idea is that the evidence is fully available there, allowing a local Court to assess the child’s situation better.
The Convention to come in force
Also, when the 1996 Child Protection Convention (Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children) becomes in force in Canada, it will take precedence over the rules of the Divorce Act if the child ordinarily lives in a signatory country.
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances, it is not clear if this date will be observed. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected].
Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously and with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
