Jurisdiction in B.C. Parenting Disputes: How the Family Law Act Decides Interjurisdictional Cases
Parenting disputes that cross provincial borders can quickly become complicated, especially when each parent has ties to different jurisdictions. Under British Columbia’s Family Law Act, the courts follow strict rules when determining whether they can hear an interjurisdictional parenting case.
At Legalbird, our family law team regularly guides parents through these challenges, ensuring that the focus remains on the child’s best interests while protecting against wrongful removals or forum shopping.
The Framework for Jurisdiction Under the Family Law Act
One of the most contested questions in interprovincial parenting disputes is whether the Supreme Court of British Columbia has jurisdiction to make parenting orders when a child has connections to more than one province.
The Family Law Act sets out a detailed statutory framework to resolve these disputes and the case law has consistently emphasized that the best interests of the child remain the paramount consideration while also ensuring that jurisdiction is not improperly shifted through wrongful removals or forum shopping.
Section 74(2) of the Family Law Act provides three pathways through which the court may assume jurisdiction.
- First, jurisdiction exists if the child is habitually resident in British Columbia at the time the proceeding is commenced.
- Second, jurisdiction may be assumed where the child is physically present in British Columbia and certain statutory criteria are met including that there is a real and substantial connection to this province, that no other proceeding is pending elsewhere, and that it is appropriate for the court to act.
- Third, jurisdiction may be assumed where the child is present in British Columbia and the court is satisfied that returning the child to their home jurisdiction would likely cause serious harm.
Even where jurisdiction is established, section 74(3) provides the court with discretion to decline if another province is the more appropriate forum having regard to the principles of forum non conveniens under the Court Jurisdiction and Proceedings Transfer Act.
Determining Habitual Residence as the Starting Point
The starting point in every case is the determination of the child’s habitual residence. Section 72(3) of the Family Law Act clarifies that habitual residence does not change simply because one parent has wrongfully removed or withheld a child. In Shortridge-Tsuchiya v. Tsuchiya 2017 BCSC 1418 the mother unilaterally moved the children from Yukon to Kamloops.
The court held that the children’s habitual residence remained Yukon notwithstanding the move and emphasized that wrongful removals cannot be rewarded by altering jurisdiction. This principle ensures stability and discourages unilateral actions by parents who may seek a more favourable forum.
The Serious Harm Exception in British Columbia
Where habitual residence lies outside British Columbia, the court must then consider whether the serious harm exception applies. The jurisprudence has consistently described this exception as narrow and demanding. In DMS v. CLS 2016 BCSC 1551 the court stressed that serious harm must be likely and that speculative or potential risks are insufficient.
The evidence must demonstrate on a balance of probabilities that returning the child would expose them to real danger. In Charnock v. Charnock 2016 BCSC 44 the court held that serious harm may encompass significant risks of physical, psychological, or emotional abuse but that the threshold requires cogent and compelling evidence.
In Shortridge-Tsuchiya the court found that although the children’s habitual residence was Yukon there was evidence of family violence and that returning them would expose them to serious harm. On this basis British Columbia assumed jurisdiction notwithstanding the wrongful removal. These cases make clear that the serious harm exception is not easily invoked but remains a vital safeguard where credible evidence demonstrates that the child would be at risk if returned.
Discretion to Decline Jurisdiction in BC
The court’s jurisdictional discretion does not end with the serious harm analysis. Section 74(3) empowers the court to decline jurisdiction if another forum is clearly more appropriate.
The factors considered mirror those applied in forum non conveniens applications. The court will examine where the best evidence is located, which court can most efficiently hear the matter, the nature of the child’s ties to each jurisdiction, and whether assuming jurisdiction in British Columbia would undermine the principles of comity between provinces.
In DMS v. CLS the court concluded that Saskatchewan was the more appropriate forum notwithstanding the mother’s arguments, finding that the evidence did not meet the serious harm threshold and that the children’s stronger connections lay outside British Columbia.
Key Lessons for Parents and Practitioners
The developing jurisprudence reveals a careful balancing exercise. Courts are vigilant not to encourage wrongful removals or forum shopping. At the same time they will not ignore credible evidence of danger to the child. The statutory scheme places habitual residence as the anchor point, restricts the serious harm exception to cases of proven risk, and preserves judicial discretion to decline jurisdiction even where a technical basis for jurisdiction exists.
The key lessons for parents and practitioners are clear. Habitual residence remains the controlling factor. Wrongful removal or withholding of a child does not shift jurisdiction. Serious harm requires strong and persuasive evidence of significant risk to the child’s safety or psychological well-being. Finally, even if jurisdiction is established, the court may decline to act where another province is better suited to resolve the dispute.
This body of case law underscores the principle that jurisdiction under the Family Law Act is not determined by parental preference but by the child’s true home and the imperative of protecting the child from harm.
Contact Our Legalbird Family Lawyers Today
Jurisdictional disputes under the Family Law Act highlight the importance of working with experienced family lawyers who understand both the statutory framework and evolving case law.
At Legalbird, we help parents navigate these complex situations with clear guidance and strong advocacy. If you are facing an interjurisdictional parenting dispute in British Columbia, contact our partner Benti Atwal for a 30-minute free case evaluation to protect your child’s best interests and secure the right legal path forward.
