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Collaborative Law Might Prevent Years of Child Custody Litigation

September 21, 2016 by West Coast ADR

A litigated divorce in British Columbia, or anywhere in Canada, can become a messy situation. Even couples that were once on the same page, may find themselves in heated and protracted struggles to get what each individual wants. Child custody arrangements are often the most hotly contested decisions made during and after a separation. A Canadian couple that opted for legal battles over collaborative law has been mired in the courts for three years as they seek to establish a home for their two children.

Married in Toronto in 2000, the couple moved overseas in 2001. Their children were born abroad in 2002 and 2005. Though primarily raised outside the country, the children are citizens of Canada, only. The couple separated in 2011, and temporary custody of the children was granted to the father.

In April 2013, the mother brought the children from Germany to Canada to attend school. The father gave his written permission, and temporary custody was passed to the mother. The father tried to bring the children back in 2014, but the mother refused. An Ontario Superior Court ruled the children’s principal residence was in Germany, and an order was made for them to return.

A Divisional Court overturned that decision, determining that the principal residence had changed, and that there was no violation of the Hague Convention, a treaty dealing with international child abduction. In 2016, three years after they came to Canada, an Appeals Court ordered that they be sent back to Germany, thus reversing the Superior Court’s reversal. The court determined the visit to Canada was supposed to be temporary, and that the children’s true home was in Germany.

This lengthy legal process has no doubt been very hard on the parents and the children. The legal system strives but struggles to balance the wording of the laws with the needs of all those involved in child custody cases. Choosing collaborative law over the British Columbia courts may provide couples who are willing to work together a way to settle their differences in a less stressful and time-consuming manner.

Source: National Post, “Canadian kids must go back to Germany where father lives, court rules“, Colin Perkel, Sept. 14, 2016

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