BC Court Of Appeal Clarifies The Law Around Jurisdictional Questions In Custody Applications

By Taryn Moore
Categories: Blog, Family Law

The Court of Appeal of British Columbia recently clarified the law and procedure surrounding when the British Columbia Court will take jurisdiction of a case where one parent removes a child who was cared for by both his or her parents and takes the child to another jurisdiction and commences a court proceeding in the new jurisdiction. Of particular importance in this case was that Japan was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction which provides a governing procedure where children are removed from one country to another if those countries are signatories to the convention. Thus, although this case dealt with international jurisdictional issues, it will hopefully be helpful to parties dealing with inter-provincial jurisdictional issues.

The case of Shortridge-Tsuchiya v. Tsuchiya, B.C.C.A., 2009 BCSC 541 dealt with a case where the mother of child had taken the child and relocated to British Columbia from their home in Japan. The father was a Japanese national and the mother was a Canadian national who had lived in Japan for some time. The parties were married in Japan in 2000 and had resided there until the mother, without the knowledge or consent of the father, removed the parties’ son  and relocated to Canada.

The parties were having marital difficulties in Japan and were participating in a mandatory mediation process required by the matrimonial courts in Japan prior to the mother’s clandestine departure.

The mother took the child and moved to Nanaimo with her parents and commenced a Family Law Proceeding in the Supreme Court of British Columbia seeking custody, access, guardianship of the child and other corollary relief from the father who remained in Japan.

The father responded to this proceeding by making an application under Part 3 of the Family Relations Act R.S.B.C. 1996, c. 128 (the “Act”) for an order that the B.C. Supreme Court decline to exercise its territorial competence in the proceeding. He also asked that the mother’s proceeding be struck out or stayed and that the child be returned to Japan.

The matter was heard by a chambers judge who found the British Columbia did not have jurisdiction under s. 44 of the Act and ordered that the child ought to be returned to Japan and ordered some additional expense and costs related relief. The mother appealed the decision.

The British Columbia Court of Appeal found that the chambers judge had erred in failing to recognize that British Columbia had jurisdiction pursuant to section 44 of the Act and in treating section 44 as a jurisdiction conferring provision.

The Appellate court clarified that section 44 outlines circumstances under which it is mandatory for the British Columbia courts to recognize that it has jurisdiction but it does not force the courts to exercise such jurisdiction. The Appellate court found that, while the B.C. court may recognize its jurisdiction over a matter, it has the discretion to decline to exercise this jurisdiction if it determines that there is a more appropriate jurisdiction wherein the proceeding should continue under section 46 of the Act.

The Court of Appeal found that, although B.C. must recognize its jurisdiction over the matter, it ought to decline exercising such jurisdiction under s. 46 of the Act finding that Japan was the more appropriate forum within which the matters should proceed.

The Court of Appeal found that the child was wrongfully removed from Japan and that the child should be returned to Japan that Japan was the proper forum within which the custody proceedings between the parties should proceed.

Taryn can be reached at 250-869-1265 or at moore@pushormitchell.com