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Travel details, costs should be in cross-border agreements

As work and lifestyle arrangements become more fluid, so do family dynamics for separated couples and their children, says Toronto family lawyer Erin Chaiton-Murray.

And while every situation is unique, generally speaking, the provisions of court orders relating to custody and access must be followed in both parents’ jurisdictions, Chaiton-Murray, Senior Associate with Fogelman Law, tells

She made the comments in relation to news of a protracted custody dispute between actress Kelly Rutherford, who lives in the U.S., and the father of their two children, who lives in Monaco, People Magazine reports.

A Los Angeles Superior Court judge recently granted temporary sole custody of the children to Rutherford, says the report, after a long battle over whether the children — aged eight and six — should be brought back to the U.S. from Monaco. But days later, a California judge halted the order, the report continues, noting a hearing is scheduled later this month where the parenting arrangement will be evaluated.

People reports the children have lived with their father in Monaco since 2012.

While Ontario has its own rules for dealing with such an issue, Chaiton-Murray says it’s not surprising to see a multi-jurisdictional dispute like this one unfold.  

“These situations arise more and more as people travel or relocate for work or for school; it’s not uncommon after separation to have one parent living in a different jurisdiction from their child,” she says.

Ideally, says Chaiton-Murray, the parents would negotiate an agreement themselves without requiring court assistance.

“You could have a situation where you have parents living in different countries or different jurisdictions who are able to work out time-sharing arrangements without the need to escalate it to the courts,” she says. “If the parents aren’t able to agree about it through lawyers or mediation or some other alternative dispute resolution process, the next resort would be to deal with the matter through court.”

When starting the court process, Chaiton-Murray says the first step would be to consider which jurisdiction should handle the matter.

“An initial question will be what is the appropriate jurisdiction in which a determination of the custody and access arrangements should be made,” she says. “Typically, the starting point is to consider where the children habitually reside, although another potential factor may be whether a court application has already been commenced in one jurisdiction to deal with other issues arising from the separation.”

The age of the children will also play a large role in parenting arrangements made where parties do not reside in the same jurisdiction, she says.

“When children are young it is well recognized that it is important for them to have more frequent contact with both parents. As children age the frequency with which they see each parent is less important and alternative arrangements that involve longer visits that occur less frequently may be more appropriate.”

In the situation where the parents do not reside in the same jurisdiction, a separation agreement, court order or parenting plan should include, among other things, details around scheduling of visits, travel arrangements — including who covers the cost of the child’s transportation — along with mechanisms for dealing with disputes between the parents and provisions that allow for a revisiting of the agreement as the child ages, says Chaiton-Murray.

When the arrangements are ultimately set out by way of a court order granted in one jurisdiction, “the order made by that court has to be followed by both parties,” she adds.

In cases that not only deal with multiple jurisdictions but also allegations of abduction across international boundaries, the Hague Convention on the Civil Aspects of International Child Abduction may be triggered, which comes with its own set of rules, timelines and procedures, says Chaiton-Murray.

The multilateral treaty is in place to protect children from the harmful effects of cross-border abduction and retention by providing a procedure to bring about their prompt return.

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