What is the test for superseding an extra-provincial order in custody of a child?

Ontario, Canada


The following excerpt is from Green v. Nixon, 2008 CanLII 22126 (ON SC):

Section 42 of the Children's Law Reform Act reads as follows: Superseding order, material change in circumstances 42(1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and, a) the child is habitually resident in Ontario at the commencement of the application for the order; or b) although the child is not habitually resident in Ontario, the court is satisfied, i. that the child is physically present in Ontario at the commencement of the application for the order, ii. that the child no longer has a real and substantial connection with the place where the extra-provincial order was made, iii. that substantial evidence concerning the best interests of the child is available in Ontario, iv. that the child has a real and substantial connection with Ontario, and v. that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. Declining jurisdiction (2) A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.

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