Custody Orders - Jurisdiction and Recognition

Abstract

Profxsor Castel discusses the methods used by Canadian Courts in asserting jurisdiction with respect to custody orders. Where conflicts exist between the statutes of one province, they are resolved by closely analysing the intent and scope of the statute concerned and its applicability to the circumstances of the particular case. With regard to conflicts between custody orders made corollary to divorce decree under the Divorce Act, and those made pursuant to provincial legislation, the author suggests that no inflexible rule dictating which order would prevail can be given. The merits of the respective federal and provincial claims within this "co-extensive jurisdiction" can only be decided by means of wide measure of judicial discretion. After enumerating the types of situations where conflicts of jurisdiction may arise and the means used by the courts to assert jurisdiction, Professor Castel argues that the test of ordinary residence should be universally accepted as the most reasonable and realistic basis upon which the courts can exercise jurisdiction, although the courts should still be able to use the criteria of physical presence and domicile if this is in the best interests of the child. With regard to the recognition of foreign custody orders the law, as laid down by the Privy Council in McKee v. McKee is that custody order made by foreign court does not preclude Canadian Court from making an order as it sees fit since the foreign order does not have the effect of foreign judg ment and therefore comity does not demand its enforcement. The author, after observing that this approach encourages a wealthy parent to move child from one jurisdiction to another in search of court that will award custody to him, notes that the McKee decision is not necessarily binding on Canadian Courts and that it has not consistently been followed. He advocates the exercise of wide discretionary power by the courts in the best interests of the child, thus following via media betw