21 April 2009
Asuntos no regulados por el Convenio
Japan not being a Party to the 1980 Hague Child Abduction Convention, Part III of the Family Relations Act of British Columbia, relating to extra-provincial access and custody orders, was applied. Section 43(a) of the Act provides that a purpose of Part III is to ensure that applications regarding the custody of children will be determined on the basis of the best interests principle. Section 43(b) adds that concurrent jurisdiction by judicial tribunals relating to custody in more than one State is to be avoided, and that British Columbia will refrain from or decline to exercise jurisdiction where it is more appropriate for the matter to be determined elsewhere. Under Section 43(c) the abduction of children is to be discouraged. The court found that in this case both parents shared equal rights of custody at the time of the removal of the child, and as such the mother was not abducting the child but exercising that right.
Under Section 44(1)(a) a court must exercise its jurisdiction to make an order for custody of, or access to a child where that child is habitually resident in British Columbia, as defined by Section 44(2) of the Act. Habitual residence in most cases is the last place the child resided with both parents. The child's habitual residence in the present case was found to be Japan. As such, British Columbia could exercise jurisdiction only under Section 44(1)(b) of the Act. For the court to exercise that jurisdiction:
(i) the child must be physically present in British Columbia;
(ii) substantial evidence concerning the best interests of the child must be available in British Columbia;
(iii) no prior application for custody of or access to the child may be pending in another jurisdiction;
(iv) there must be no extra-provincial order relating to custody or access;
(v) the child must have a real and substantial connection with British Columbia; and (vi) on the balance of convenience, it must be appropriate for jurisdiction to be exercised in British Columbia.
In this case, the court was not satisfied that criteria (ii), (v), and (vi) were met. Therefore, the court was not required to assert jurisdiction to determine custody pursuant to this provision.
The Court further added that even if all six criteria of Section 44(1)(b) of the Act had been satisfied, it would, pursuant to Section 46, have declined to exercise its jurisdiction, there being a more appropriate jurisdiction elsewhere. This was because of the child's more substantial connection to Japan and the existence of relevant evidence there.
Under Section 47 on application for custody of or access to a child, a court that may not exercise jurisdiction under Section 44 or that has declined jurisdiction under Section 46 may make an interim order. The Court duly awarded interim custody to the mother. It further ruled that if the father neglected to pay, it would exercise its jurisdiction to make a custody order. However, if the mother, upon receipt of the payment refused to go to Japan, then the father could apply for an interim custody order.
Preparation of INCADAT commentary in progress.
Résumé INCADAT en cours de préparation.