CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
mental concept under the Hague Convention, which Canada has implemented through both federal and provincial legislation. In rare circumstances, a court may assume jurisdiction based on the child’s physical presence in the province or territory. This is typically limited to situations requir ‑ ing immediate protective intervention – for example, where the child would otherwise be left without ade ‑ quate protection, or where urgency, exigent circum ‑ stances, or a material risk of harm requires prompt court action despite uncertainty or dispute regarding the child’s habitual residence. Certain provincial statutes, together with relevant common law principles, also permit a court to assume jurisdiction where there is a “real and substantial con ‑ nection” between the child and the province or terri ‑ tory, even if the child is not habitually resident there. This approach may be used where habitual residence cannot be clearly determined, or where the child’s best interests necessitate judicial intervention. Under Section 6.3 (1) of the Divorce Act, where a child is habitually resident outside Canada, a Canadian court may assume jurisdiction only in “exceptional circumstances”, and only if the child is physically pre ‑ sent in the province or territory at the time. When determining whether to assume jurisdiction, courts commonly consider factors including the fol ‑ lowing. • The child’s habitual residence immediately before the start of the application or the alleged wrongful removal or retention. • The best interests of the child, which remain the paramount consideration in all parenting proceed ‑ ings. • The presence and seriousness of any risk of harm to the child if the court declines jurisdiction. • Principles of judicial comity and efficiency, includ ‑ ing avoiding conflicting orders and preventing multiple proceedings on the same issues. • Forum non conveniens: even if jurisdiction exists, a court may choose not to exercise it if another forum is clearly more appropriate – considering factors such as the location of evidence and wit ‑
nesses, the availability of a foreign court to hear the matter, and the strength of the child’s connec ‑ tions to each jurisdiction. Across Canada, habitual residence remains the pri ‑ mary connecting factor for jurisdiction in children’s matters. Courts generally ground jurisdiction in the place where the child has the most stable, ordinary, and settled connection. This principle underpins juris ‑ dictional analysis under both the Divorce Act and pro ‑ vincial/territorial legislation. Domicile is generally not a determinative factor in Canadian jurisdictional disputes involving children. Although domicile may play a role in other areas of law, it is not typically the operative concept in parent ‑ ing or custody matters. Similarly, nationality does not determine jurisdiction. While a child’s citizenship may form part of the factual context when assessing connections, it does not con ‑ fer jurisdiction and does not displace the habitual resi ‑ dence analysis. Canadian courts consistently affirm that citizenship cannot override habitual residence principles. In summary, Canadian jurisdiction over children’s pro ‑ ceedings is grounded primarily in the child’s habitual residence, supplemented in some cases by physical presence, real and substantial connection, or excep ‑ tional circumstances depending on the legislative framework and facts. Domicile and nationality do not control jurisdictional outcomes. In all situations, courts remain guided by the best interests of the child, which serve as the paramount consideration. 3.2 Living/Contact Arrangements and Child Maintenance If parents cannot agree on a child’s living arrange ‑ ments or parenting time/contact after separation, either parent may apply to the court – either within a divorce proceeding or through a separate applica ‑ tion. When addressing these applications, the court’s paramount consideration is the child’s best interests. In making this assessment, courts generally consider: • the child’s physical, emotional, and psychological needs;
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