{"id":6058,"date":"2026-02-01T07:54:55","date_gmt":"2026-01-31T23:54:55","guid":{"rendered":"https:\/\/yhalaw.com.my\/?p=6058"},"modified":"2026-02-01T07:57:19","modified_gmt":"2026-01-31T23:57:19","slug":"family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority","status":"publish","type":"post","link":"https:\/\/yhalaw.com.my\/zh\/family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority\/","title":{"rendered":"FAMILY LAW – CANADIAN PARTIES – CUSTODY BASED ON HABITUAL RESIDENCE – WELFARE OF CHILDREN IN MALAYSIA TAKES PRIORITY"},"content":{"rendered":"\n

1. Summary and Facts:<\/strong>
DPG V LAMG [2025] 12 MLJ 864, the parties are Canadian citizens living in Malaysia with two children who had been habitually resident in Penang since 2022. On 7.5.2024, the defendant wrongfully removed the children to Canada without the plaintiff\u2019s consent. The Supreme Court of British Columbia held that the removal was wrongful, the children were habitually resident in Malaysia, and Canada lacked jurisdiction over custody. The plaintiff returned to Malaysia with the children on 8.9.2024, where they remained in his care. He subsequently applied for sole custody, care, and control, while the defendant sought to set aside the earlier ex-parte interim custody order.<\/p>\n\n\n\n

2. Legal Issues:<\/strong>
\u2022 Whether the Malaysian High Court had jurisdiction to adjudicate custody where all parties are foreign nationals.
\u2022 Whether custody should be granted to the plaintiff-father pending foreign divorce proceedings.
\u2022 Whether the prior ex parte interim order was irregular and ought to be set aside.
\u2022 Whether the defendant\u2019s application to annul the ex parte order remained relevant after a full inter partes hearing.<\/p>\n\n\n\n

3. Court\u2019s Findings:<\/strong>
\u2022 The Court has the jurisdiction under section 3(1) Law Reform (Marriage and Divorce) Act 1976 (\u201cLRA 1976\u201d) as the parties are physically in Malaysia.
\u2022 The children were habitually resident in Malaysia where the court will only make temporary welfare orders but the permanent custody lies with Canada.
\u2022 The custody was granted to the father but mother gets reasonable access since the children are stable and settled in Penang which maintained by the father including child A\u2019 special needs.
\u2022 Section 88(3) presumption rebutted because the father provided stability, while the mother lacked housing and employment.
\u2022 The defendant argued that the ex parte injunction lapsed under O 29 r 1(2BA) ROC, but the Court held the interim order was made under s 89 LRA, not under ROC O 29. Therefore, the timelines for inter partes hearing did not apply.
\u2022 Any irregularity became irrelevant because the parties later recorded a consensual interim order.
\u2022 The defendant\u2019s application was struck of with no order as to costs since Encl. 1 was already heard inter partes, so the ex parte issue was academic.<\/p>\n\n\n\n

4. Practical Implications:<\/strong>
This judgment affirms the several principle of laws including;
\u2022 Malaysian Courts can act to protect children physically in Malaysia even if the parents are foreign.
\u2022 Malaysian Court will not decide permanent custody for foreign nationals.
\u2022 The welfare of the child is always the strongest factor despite the citizenship, domicile or parental status.<\/p>\n","protected":false},"excerpt":{"rendered":"

In DPG v LAMG [2025] 12 MLJ 864, the High Court held that Malaysian courts have jurisdiction over custody disputes involving foreign children who are habitual residents in Malaysia, despite both parents being Canadian citizens. The Court found that the children had deep roots in Penang – schooling, therapy, church, and community – and that their welfare was best served by remaining under the father\u2019s custody, care and control, with the mother granted extended weekend and virtual access. The defendant\u2019s attempt to annul the earlier ex parte order was dismissed as academic, and the Court clarified that interim custody orders under s 89 LRA are not O 29 ROC injunctions.<\/p>\n","protected":false},"author":1,"featured_media":6059,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1577],"tags":[1935,3748,3747,3749],"class_list":["post-6058","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-family-law","tag-child-custody","tag-foreign-nationals","tag-habitual-residence","tag-law-reform-marriage-and-divorce-act-1976"],"yoast_head":"\nFAMILY LAW - CANADIAN PARTIES - CUSTODY BASED ON HABITUAL RESIDENCE - WELFARE OF CHILDREN IN MALAYSIA TAKES PRIORITY | Yew Huoi, How & Associates | Leading Malaysia Law Firm<\/title>\n<meta name=\"description\" content=\"In DPG v LAMG [2025] 12 MLJ 864, the High Court held that Malaysian courts have jurisdiction over custody disputes involving foreign children who are habitual residents in Malaysia, despite both parents being Canadian citizens. The Court found that the children had deep roots in Penang - schooling, therapy, church, and community - and that their welfare was best served by remaining under the father\u2019s custody, care and control, with the mother granted extended weekend and virtual access. The defendant\u2019s attempt to annul the earlier ex parte order was dismissed as academic, and the Court clarified that interim custody orders under s 89 LRA are not O 29 ROC injunctions.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/yhalaw.com.my\/zh\/family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority\/\" \/>\n<meta property=\"og:locale\" content=\"zh_TW\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"FAMILY LAW - CANADIAN PARTIES - CUSTODY BASED ON HABITUAL RESIDENCE - WELFARE OF CHILDREN IN MALAYSIA TAKES PRIORITY | Yew Huoi, How & Associates | Leading Malaysia Law Firm\" \/>\n<meta property=\"og:description\" content=\"In DPG v LAMG [2025] 12 MLJ 864, the High Court held that Malaysian courts have jurisdiction over custody disputes involving foreign children who are habitual residents in Malaysia, despite both parents being Canadian citizens. The Court found that the children had deep roots in Penang - schooling, therapy, church, and community - and that their welfare was best served by remaining under the father\u2019s custody, care and control, with the mother granted extended weekend and virtual access. 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The defendant\u2019s attempt to annul the earlier ex parte order was dismissed as academic, and the Court clarified that interim custody orders under s 89 LRA are not O 29 ROC injunctions.","breadcrumb":{"@id":"https:\/\/yhalaw.com.my\/family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority\/#breadcrumb"},"inLanguage":"zh-TW","potentialAction":[{"@type":"ReadAction","target":["https:\/\/yhalaw.com.my\/family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority\/"]}]},{"@type":"ImageObject","inLanguage":"zh-TW","@id":"https:\/\/yhalaw.com.my\/family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority\/#primaryimage","url":"https:\/\/yhalaw.com.my\/wp-content\/uploads\/2026\/02\/canadian.jpg","contentUrl":"https:\/\/yhalaw.com.my\/wp-content\/uploads\/2026\/02\/canadian.jpg","width":1200,"height":630},{"@type":"BreadcrumbList","@id":"https:\/\/yhalaw.com.my\/family-law-canadian-parties-custody-based-on-habitual-residence-welfare-of-children-in-malaysia-takes-priority\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/yhalaw.com.my\/"},{"@type":"ListItem","position":2,"name":"FAMILY LAW – CANADIAN PARTIES – CUSTODY BASED ON HABITUAL RESIDENCE – WELFARE OF CHILDREN IN MALAYSIA TAKES PRIORITY"}]},{"@type":"WebSite","@id":"https:\/\/yhalaw.com.my\/#website","url":"https:\/\/yhalaw.com.my\/","name":"Yew Huoi, How & Associates | Leading Malaysia Law Firm","description":"YHA Law Firm is a leading law firm in Malaysia.Specialises in handling Civil,Maritime,Shipping Matters,Company Law,Family Law,Real Estate and many more","publisher":{"@id":"https:\/\/yhalaw.com.my\/#organization"},"potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/yhalaw.com.my\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"zh-TW"},{"@type":"Organization","@id":"https:\/\/yhalaw.com.my\/#organization","name":"Yew Huoi, How & Associates Law Firm | yhalaw.com.my","url":"https:\/\/yhalaw.com.my\/","logo":{"@type":"ImageObject","inLanguage":"zh-TW","@id":"https:\/\/yhalaw.com.my\/#\/schema\/logo\/image\/","url":"https:\/\/yhalaw.com.my\/wp-content\/uploads\/2020\/06\/YHA-Law-Logo-White-BG-New@2x-e1668772571446.png","contentUrl":"https:\/\/yhalaw.com.my\/wp-content\/uploads\/2020\/06\/YHA-Law-Logo-White-BG-New@2x-e1668772571446.png","width":2080,"height":369,"caption":"Yew Huoi, How & Associates Law Firm | yhalaw.com.my"},"image":{"@id":"https:\/\/yhalaw.com.my\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/yhalaw"]},{"@type":"Person","@id":"https:\/\/yhalaw.com.my\/#\/schema\/person\/f778c60834a29c5ec215ab62d3207bef","name":"YHA Admin","sameAs":["https:\/\/yhalaw.com.my"]}]}},"_links":{"self":[{"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/posts\/6058"}],"collection":[{"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/comments?post=6058"}],"version-history":[{"count":3,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/posts\/6058\/revisions"}],"predecessor-version":[{"id":6062,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/posts\/6058\/revisions\/6062"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/media\/6059"}],"wp:attachment":[{"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/media?parent=6058"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/categories?post=6058"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/yhalaw.com.my\/zh\/wp-json\/wp\/v2\/tags?post=6058"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}