Jurisdiction in Family Matters: Forum Shopping Can Backfire

What is “Forum Shopping”?

“Forum shopping” is a term used by lawyers and judges to describe a litigant who has chosen to have their case heard or orders made by a court in a place where they think they will get the best outcome for themselves, even though the relationship to the jurisdiction is tenuous.

This generally involves two jurisdictions, but three are not unknown. In Canada, there is not much difference in the family law, or the courts’ approach to family law, as among the various provinces (excluding Quebec), expecting a more favourable outcome in one province over another is probably misguided, except for property division issues. However, there can be significant differences in the law between other territories and B.C./other Canadian provinces.

Jurisdiction outside of British Columbia

In a recent case of forum shopping, a spouse who was not the child’s biological parent and had not adopted the child found that her status in Arizona, where she lived, resulted in less favourable treatment than in B.C. suppose the B.C. court were to take jurisdiction over the case. In Arizona, she did not have parental rights but would have only third-party visitation rights if she made an application to the court.

In British Columbia, she could apply for an order making her a child’s guardian, providing her with virtually equivalent status to that of a parent. Her partner had commenced divorce proceedings in Arizona while she filed her family claim in B.C.

Both courts found that she was ordinarily resident in Arizona, not B.C. when she filed her claim. There was no other basis upon which the B.C. court could consider taking jurisdiction over the issues of parenting arrangements, child support, or spousal support. Both courts also found that the child was habitually resident in Arizona at the time of her application.

The claimant had tried to establish habitual or ordinary residence in B.C. (through evidence showing factors connecting her to the jurisdiction), but this was done after the fact, i.e. after she had started her family claim.

Forum Shopping with a spouse in another state

A not uncommon example of forum shopping occurs in cases where a spouse in Canada also has connections to another state where the family laws are quite different from Canadian law (and, to our eyes, usually unfair to one of the spouses). A spouse might try to have the divorce handled in the other country to gain advantages under that law, often relating to the children and support.

Our courts are very aware of forum shopping, particularly in family cases. However, to avoid the possibility of different outcomes where more than one court could decide the same issues, the law in British Columbia does require our courts to consider several factors to satisfy themselves that (1) they do have jurisdiction, i.e. the power to resolve the parties’ dispute, and (2) that there is no other court that is more appropriate to decide the issues.

For example, to apply for a court order in B.C. for parenting time or child support, where a court in another province, state or country could also make similar orders, the applicant parent must meet specific criteria relating to the child’s habitual residence.

If the B.C. court decides that the child was not habitually resident in the province on the date when the application was filed, it does not have jurisdiction and will not make the orders sought.

Even if it does have jurisdiction, the B.C. court can still decline to exercise jurisdiction in favour of the other (foreign) court. The child resides in the foreign state with the other parent in many cases. The child’s actual presence in a jurisdiction is often a critical factor in a court’s decision to take over these matters, but not always.

Forum Shopping can backfire

Forum shopping does bring the risk that the court will refuse to take jurisdiction over the case resulting in a waste of time, effort and expense.

In cases of removal from the place where the child is habitually resident, the court may also order the child returned to that jurisdiction, especially if a parent has taken or retained the child in the new location without the consent or knowledge of the other parent. When contemplating a change of location/jurisdiction to take advantage of a more favourable legal environment, it is highly recommended that you obtain the appropriate legal advice before taking any action that you may later regret.