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  #11 (permalink)  
Old 09-14-2016, 11:37 AM
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Reading through the CanLii case notes, wow...

Quote:
In this consensual period, the change in habitual residence, if one occurred, resulted from the circumstances created by the appellant and respondent’s joint decision to move the children to Ontario for an extended period of time; it did not occur as a result of one parent’s unilateral action.
So, it seems it hurt the father, to consent to a temporary period of custody to Mother in Canada, even though it was made with an end-date? That seems to be how the Divisional court came to its conclusion.

Last edited by dad2bandm; 09-14-2016 at 11:41 AM. Reason: Added thought.
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Old 09-14-2016, 11:41 AM
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I'd be interested in seeing the Appeals court CanLii reference, but can't seem to find it, as it would be the most recent one.
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Old 09-19-2016, 10:52 AM
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The latest "Appeals court" decision made it to CanLii, so here is the link, for anyone interested:

http://www.canlii.org/en/on/onca/doc...?resultIndex=2




Quote:
In my respectful opinion, the Divisional Court’s decision would, if upheld, undermine the purpose and proper operation of the Hague Convention. To find that a child’s habitual residence can be changed by the unilateral actions of one parent during the period of a time-limited consensual absence undermines the purpose and efficacy of a carefully crafted scheme to deal with child abduction and wrongful retention. It renders time-limited travel consents essentially meaningless, and would allow one parent to lay the foundation for child abduction by obtaining a defined, temporary consent of the other parent to travel with the child.

Last edited by dad2bandm; 09-19-2016 at 10:55 AM.
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Old 09-19-2016, 11:54 AM
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Quote:
Originally Posted by blinkandimgone View Post
Custody was transferred to the mother, she didn't abduct them.
Custody doesn't give you the right to move children. Never.
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Old 09-19-2016, 11:58 AM
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Going to do some reading on this one. Thanks dad2bandm for the CanLII links. Generally, I agree with the judge's position regarding agreements. If they are not respected and are temporary they should be seen as that by the court. The mother doesn't have the right to create a false status quo.
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Old 09-19-2016, 12:13 PM
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Quote:
Originally Posted by Tayken View Post
Custody doesn't give you the right to move children. Never.

True, but according to the article he consented to thwm moving to Canada and enrolling in school.
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Old 09-19-2016, 12:28 PM
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Quote:
Originally Posted by blinkandimgone View Post
True, but according to the article he consented to thwm moving to Canada and enrolling in school.
Key point: On a temporary basis. Which was a smart move. If you read the case law he did not agree to them staying in Canada after a specific date which has passed.

The only time a habitual residential location can change is on consent or an order of the court. The moving parent in this matter let the deadline passed and tried to claim that the other parent had assessed to the move. The other parent in Germany didn't and brought forward a motion to return the children.

It wasn't like the other parent in Germany was absent and had given up their rights. Even if they had given up custody it is long established that custody does not include the right to move the children wherever they want. Sole custody is about medical, educational needs, etc... You need court orders to move children in absence of an agreement.

The other parent didn't agree to the long-term move. The other parent is trying to create a false status quo by not getting consent and by not returning the children to their habitual residential location.

Put the situation in reverse. Children who live in Canada and were moved to say... Poland against the rights and wishes of the other parent. Thankfully, Canada is NOT Poland and these children would be returned. This is a very similar situation that Stephen Watkins faced. The only difference is that it is two countries who actually enforce international laws correctly. Canada could pull a Poland and ignore the whole situation. Thankfully Canada is not.

I think the judges have all ruled appropriately in this matter. The children should be returned to their regular habitual residential location. We would be no better than Brazil, Poland or Japan if our courts ordered the children to stay in Canada.

Failing to return the children to Germany should result in criminal charges against the mother in accordance with section 283.(1) of the Criminal Code of Canada. The supreme court will not rule differently than the lower courts on this matter.

Good Luck!
Tayken

Quote:
[20] In furtherance of this plan, the father signed a Consent Letter for Children Travelling Abroad confirming his consent for the children to visit Canada from July 5, 2013 until August 15, 2014. Subsequently and on April 2, 2013, the father signed a notarized letter transferring physical custody of the children to the mother and giving permission for the mother to travel to, and reside in, Canada with the children until August 15, 2014, which period of residence could be extended. The father stated that he provided this consent at the request of the mother and for the purpose of enrolling the children in school in Ontario and did so without the benefit of legal advice.

Source: Balev v Baggott, 2015 ONSC 5383 (CanLII), par. 20, http://canlii.ca/t/gkw79#par20
The email exchange between judges in the very first CanLII posting in this matter are a really interesting read!

Also the mother in this matter has been hit with 10K in costs:

Quote:
[26] After considering all of the circumstances of this case, the provisions of Rule 24 of the Family Law Rules and the factors set out above, the mother shall pay costs to the father in the amount of $10,000.00 inclusive of HST and disbursements.

Source: Balev v Baggott, 2015 ONSC 7256 (CanLII), par. 26, http://canlii.ca/t/gm755#par26
In addition... Everyone needs to remember:

Quote:
[24] The Divisional Court also referred to s. 22(2)(b) of the CLRA, and stated the following at paras. 35-36:
[Section] 22(2)(b) of the Children’s Law Reform Act makes it clear that a child can be habitually resident in a place where he or she resides with one parent “with the consent, implied consent or acquiescence of the other.” Since the children in question were residing in Ontario with their mother with the consent of their father their habitual residence could have changed to Ontario.

Further, as the Court of Appeal made clear in Korutowska-Wooff, a person’s habitual residence is the place where a person resides for an appreciable period of time with a settled intention to stay there either permanently or temporarily for a particular purpose. [Emphasis in original.]

Source: Balev v. Baggott, 2016 ONCA 680 (CanLII), par. 24, http://canlii.ca/t/gtq9s#par24
The father did not consent, nor did he imply consent nor did he acquiesce on the matter. Glad to see the Canadian courts are behaving correctly.

Last edited by Tayken; 09-19-2016 at 12:46 PM.
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Old 09-19-2016, 12:52 PM
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Suffice to say... The mother in this matter is blowing hot air and wasting taxpayer dollars.
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