Extraprovincial court orders

Sections 72 through 79 deals with extraprovincial matters respecting parenting arrangements.

Definitions and interpretation

72 (1) In this Division:

“extraprovincial order” means an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements or contact with a child;

“extraprovincial tribunal” means a court or tribunal, outside British Columbia, having authority to make an extraprovincial order.

(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided

(a) with his or her parents,

(b) if the parents are living separate and apart, with one parent

(i) under an agreement,

(ii) with the implied consent of the other parent, or

(iii) under an order of a court or tribunal, or

(c) with a person other than a parent on a permanent basis for a significant period of time.

(3) The removal or withholding of a child without the consent of a guardian does not affect the child’s habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal.

Purposes

73 The purposes of this Division are as follows:

(a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child;

(b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction;

(c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child;

(d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders.

Determining whether to act under this Part

74 (1) This section applies if an order respecting guardianship, parenting arrangements or contact with a child may be made, respecting the same child, in more than one jurisdiction.

(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met:

(a) the child is habitually resident in British Columbia when the application is filed;

(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(i) the child is physically present in British Columbia when the application is filed,

(ii) substantial evidence concerning the best interests of the child is available in British Columbia,

(iii) no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,

(iv) no extraprovincial order has been recognized by a court in British Columbia,

(v) the child has a real and substantial connection with British Columbia, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;

(c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to

(i) remain with, or be returned to, the child’s guardian, or

(ii) be removed from British Columbia.

(3) A court may decline to make an order under this Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.

Recognition of extraprovincial orders

75 (1) A court must recognize an extraprovincial order if all of the following apply:

(a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia;

(b) each party to a proceeding in which the extraprovincial order was made had

(i) reasonable notice that the order would be made, and

(ii) a reasonable opportunity to be heard respecting the order;

(c) the extraprovincial tribunal was required by law to consider the best interests of the child;

(d) it would not be contrary to public policy in British Columbia to recognize the order.

(2) On recognition by a court,

(a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under section 45 [orders respecting parenting arrangements], 51 [orders respecting guardianship] or 59 [orders respecting contact], as applicable, and

(b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.

(3) If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must recognize the order that is most consistent with the best interests of the child.

Superseding extraprovincial orders

76 (1) On application, a court may make an order that supersedes an extraprovincial order that has been recognized under section 75 [recognition of extraprovincial orders] if satisfied that

(a) the child would suffer serious harm if that child were to

(i) remain with, or be returned to, the child’s guardian, or

(ii) be removed from British Columbia, or

(b) a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of this section applies.

(2) For the purposes of subsection (1) (b), an order may be made only if

(a) the child is habitually resident in British Columbia when an application is filed, or

(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(i) the circumstances described in section 74 (2) (b) (i), (ii), (v) and (vi) [determining whether to act under this Part] apply, and

(ii) the child no longer has a real and substantial connection with the place where the extraprovincial order was made.

Wrongful removal of child

77 (1) This section applies if a court

(a) may not make an order or declines to make an order under section 74 [determining whether to act under this Part], or

(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.

(2) In the circumstances set out in subsection (1), a court may do one or more of the following:

(a) make any interim order that the court is satisfied is in the best interests of the child;

(b) stay an application to the court for an order, subject to

(i) the condition that a party to the application promptly start a similar proceeding before an extraprovincial tribunal, or

(ii) any other conditions the court considers appropriate;

(c) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order a party to pay all or part of the expenses reasonably and necessarily incurred for travel and other expenses of the child and of any parties to or witnesses in the proceeding.

Extraprovincial evidence

78 (1) In this section, “senior legal executive” means the Attorney General, Minister of Justice or similar officer of a place outside British Columbia.

(2) If a court considers it necessary to receive evidence from a place outside British Columbia before making an order respecting guardianship, parenting arrangements or contact with a child, the court may send to the senior legal executive of the place a request, along with any necessary supporting material, that

(a) the senior legal executive take any necessary action to require a named person to attend before the proper tribunal in that place and produce or give evidence respecting the subject matter of the application, and

(b) the senior legal executive, or the tribunal, send to the court a certified copy of the evidence produced or given before the tribunal.

(3) A court that acts under subsection (2) may order payment of all or part of the expenses reasonably and necessarily incurred for the purposes of this section.

Referral to court

79 (1) If the Attorney General receives from an extraprovincial tribunal a request similar to that referred to in section 78 [extraprovincial evidence], along with any necessary supporting material, the Attorney General must refer the request and the material to the proper court.

(2) A court to which the Attorney General refers a request under subsection (1) must require the person named in the request to attend before the court and produce or give evidence in accordance with the request.