Does a court from Alberta have the right to order that my children be returned from another jurisdiction? Or how is it decided which location or jurisdiction will decide the matter?
Generally, a court in Alberta pursuant to provincial legislation, only has the power over parties that are geographically within Alberta. However, an Alberta court custody order can be reciprocally registered in other provinces or territories in Canada and enforced as though the Alberta custody order was granted in that other province. An Alberta custody order can also be enforced in the us under their uccjea.
If the custody order is pursuant to the divorce act, which is federal legislation, it is a very simple process to file an Alberta divorce custody order in another province or territory and have it enforced.
Under The Hague convention it is not necessary to have a court grant a custody order after a child has been abducted. All that is required is that the left behind parent demonstrate that they had custody rights, which can arise by operation of law, agreement, or by a judicial or administrative decision and that they were exercising those custody rights prior to the abduction. The other member state where the child has been taken to will then subject to defenses, order the return of the child.
Generally, the court that decides the matter is the one that is most convenient and has the closest connection with the child. It is referred to as “forum conveniens.” As between the court in the place where the child was taken from and the court in the place where the child was taken to would defer to the court that the child was most closely connected to in terms of where the best evidence could be found. Such evidence would relate to the child’s schooling, medical care, family ties, and connections to the community amongst others.
The judges of the two competing jurisdictions can also engage in judicial communication with the parties and their lawyers present in both courts to determine which court should take jurisdiction.