Canadian Lawyer

44 J u l y 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m protection authorities were over. The inter-jurisdictional movement of children is nothing new. But accord- ing to Nicholas Bala, a law profes- sor at Queen's University, as travel has become cheaper, the number of cases has increased significantly, and nei- ther legislation nor the common law in Canada has kept pace with the issues that arise. "We're certainly seeing an increase in international mobility of both adults and children and we will increasingly be facing these kinds of issues," he says. Even among isolated religious com- munities like Lev Tahor, international ties are common and a suspicion of gov- ernment forces is prevalent. Bala points to Bountiful, B.C., which was settled by the Fundamentalist Church of Latter Day Saints, a polygamist Mormon denomination. Movement of children between other FLDS settlements in the United States and Mexico occurred often, even with authorities investigat- ing the welfare of children. "It is often the case that fundamentalist religious groups like this have members around the world or at least in more than one jurisdiction. When they run into dif- ficulties in one jurisdiction, there's a tendency to move to another or to send people back and forth." But if governments try to intervene, the legal tools at their disposal are limited. In the Lev Tahor case, when the Chatham-Kent child protection authori- ties petitioned the Ontario courts to allow them to send the children back to Quebec, the courts at first agreed. But in Chatham-Kent Children's Services v. J.S., Superior Court Justice Lynda Templeton overturned the decision on appeal. She found the Child and Family Services Act did not allow for enforcement of extra-provincial child protection orders. "There is a fundamental premise that if children are at risk, the local agency that acts on behalf of the state where the children are located has and must have the power to act on the basis of its own information," she wrote. She went on to say: "Consistency in the foundation and application of the principles of law throughout the country with respect to child protection ensure that the consequence of flight by parents with respect to the children is not visited upon the children. "In other words, it does not matter where you go in Canada, no parent will be allowed to place a child at risk and/ or infringe upon that child's rights with impunity." Bala worries about the precedent set by this case. "Certainly a case like this doesn't discourage people who are embroiled within the child protection system from moving from one jurisdic- tion to another," he says. "We have to look at our child welfare legislation and make sure in my view that [it] permits the enforcement of orders from other provinces." And when international travel lEgal rEport/FaMIly law The Comprehensive Guide to Handling a Family Law Case October 2, 2014 (Live & Online) $525 plus HST Recent Developments and Complex Issues in Child and Spousal Support November 13, 2014 (Live & Online) $525 plus HST The Professional LLM in Family Law Two-year, part-time program; Distance Learning Available Begins Winter 2015 OSGOODE PROFESSIONAL DEVELOPMENT Osgoode Professional Development | 1 Dundas St. W., 26th Floor | Toronto, ON M5G 1Z3 Upcoming Learning Opportunities for Family Law Practitioners To Register: www.osgoodepd.ca; Or Call: 416.597.9724 or 1.888.923.3394 Or E-mail: opd-registration@osgoode.yorku.ca A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING Priority Service Code: 14-99CL Osgoode Professional Development has been approved as an Accredited Provider of Professionalism Content by The Law Society of Upper Canada. ntitled-2 1 14-06-17 7:52 AM

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