6 (1) If an application for an order under section 16.1 is made in a divorce proceeding or corollary relief proceeding to a court in a province and the child of the marriage in respect of whom the order is sought is habitually resident in another province, the court may, on application by a spouse or on its own motion, transfer the proceeding to a court in that other province.
Transfer of variation proceeding in respect of parenting order
(2) If an application for a variation order in respect of a parenting order is made in a variation proceeding to a court in a province and the child of the marriage in respect of whom the variation order is sought is habitually resident in another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.
(3) [Repealed, 2019, c. 16, s. 5]
Exclusive jurisdiction
(4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this section has exclusive jurisdiction to hear and determine the proceeding.
Jurisdiction — application for contact order
6.1 (1) If a court in a province is seized of an application for a parenting order in respect of a child, the court has jurisdiction to hear and determine an application for a contact order in respect of the child.
Jurisdiction — no pending variation proceeding
(2) If no variation proceeding related to a parenting order in respect of a child is pending, a court in a province in which the child is habitually resident has jurisdiction to hear and determine an application for a contact order, an application for a variation order in respect of a contact order or an application for a variation order in respect of a parenting order brought by a person referred to in subparagraph 17(1)(b)(ii), unless the court considers that a court in another province is better placed to hear and determine the application, in which case the court shall transfer the proceeding to the court in that other province.
No jurisdiction — contact order
(3) For greater certainty, if no parenting order has been made in respect of a child, no application for a contact order may be brought under this Act in respect of the child.
Removal or retention of child of marriage
- 6.2 (1) If a child of the marriage is removed from or retained in a province contrary to sections 16.9 to 16.96 or provincial law, a court in the province in which the child was habitually resident that would have had jurisdiction under sections 3 to 5 immediately before the removal or retention has jurisdiction to hear and determine an application for a parenting order, unless the court is satisfied
- (a) that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention;
- (b) that there has been undue delay in contesting the removal or retention by those persons; or
- (c) that a court in the province in which the child is present is better placed to hear and determine the application.
Transfer
(2) If the court in the province in which the child was habitually resident immediately before the removal or retention is satisfied that any of paragraphs (1)(a) to (c) apply,
-
- (a) the court shall transfer the application to the court in the province in which the child is present; and
- (b) the court may transfer any other application under this Act in respect of the parties to the court in the province in which the child is present.
Federal Court
(3) If after the child’s removal from or retention in a province, two proceedings are commenced on the same day as described in subsection 3(3), 4(3) or 5(3), this section prevails over those subsections and the Federal Court shall determine which court has jurisdiction under this section. A reference in this section to “court in the province in which the child was habitually resident” is to be read as “Federal Court”.
Child habitually resident outside Canada
- 6.3 (1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province.
Exceptional circumstances
(2) In determining whether there are exceptional circumstances, the court shall consider all relevant factors, including
-
- (a) whether there is a sufficient connection between the child and the province;
- (b) the urgency of the situation;
- (c) the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and
- (d) the importance of discouraging child abduction.
AP Commentary: Where a parent removes a child from a province without permission, the court in the jurisdiction of the non-removing parent still retains jurisdiction to make an order regarding the child. The court can transfer jurisdiction to the court in the province where the child has been moved if the parties have expressly or impliedly agreed to the move.