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Old 10-05-2012, 04:00 PM
calgarymom57 calgarymom57 is offline
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Question Return to Jurisdiction order?

So I am being threatened by my ex, that he is going to have an order filed that states my child be returned to his jurisdiction (in NWO)

I am wondering if anyone has ever filed, or has had to return a child(ren) to the jurisdiction in which they had previously resided. I am not asking for judgement to be passed on me as I am not asking how to be told I'm right or wrong. I am asking for some insight.

How long does one usually have after this motion has been filed. Can I protest it in court first? Or would I have to return to NWO to prove that being out west is in the best interest of my child? Any insight would be greatly appreciated. And if I see any "why would you move your child across the country?" I will just ignore it as I am making the smart choices to benefit my child as I see fit.
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Old 10-05-2012, 04:03 PM
standing on the sidelines standing on the sidelines is offline
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He can do it and you can be forced to return the child back. You dont have to move back if you dont want to.
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Old 10-05-2012, 04:05 PM
calgarymom57 calgarymom57 is offline
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Quote:
Originally Posted by standing on the sidelines View Post
He can do it and you can be forced to return the child back. You dont have to move back if you dont want to.
oh I will definitely move back as I have sole custody as my son and do not plan on taking a parenting hiatus at any point of his life. I will always be there for him. I guess my next move would be to have a court approve of a move for me to be out west. Do you also have any idea how much of a time frame is allowed between me being given the notice to return the child and when I have to be there?
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Old 10-05-2012, 04:11 PM
standing on the sidelines standing on the sidelines is offline
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Quote:
Originally Posted by calgarymom57 View Post
oh I will definitely move back as I have sole custody as my son and do not plan on taking a parenting hiatus at any point of his life. I will always be there for him. I guess my next move would be to have a court approve of a move for me to be out west. Do you also have any idea how much of a time frame is allowed between me being given the notice to return the child and when I have to be there?
I am not sure on time frames etc. It may look bad on you that you did not get the approval of the court before you moved orginally. Did the ex know you were moving before you did the move??

You may be getting worried over nothing. He is threatening to have a court order but it may just be a threat. How long ago did you move? What access agreements were in place and how to you plan to make up the access time lost (I am assuming an EOW father)
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Old 10-05-2012, 04:16 PM
JB514 JB514 is offline
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Don't have an experience on those motions, but I think it might depend on what type of motion he will file. If he files an emergency motion (I think thats what it is called) it might be sooner, if the child was removed from the jurisdiction without his consent. That is what I would have done and probably many more fathers, thats why I think he will probably do it as well. On time frames of this motion you could refer to court procedures guide.
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Old 10-05-2012, 04:24 PM
calgarymom57 calgarymom57 is offline
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I went to a lawyer before I left and he said that it would be harder for the father to make me come back that it would be for me to be approved a move. The father is not an EOW father but a "once or twice a month, maybe once every 3 months, depending on his mood and party schedule" kind of father. I have been gone from NWO for almost 7 months now. He did know we were leaving. But I had said that I was unsure if we would return at the end of summer or not (I initially returned home to spend time with family in both Manitoba and BC), and was exploring the possibility of returning to Alberta should I get a good job offer, which I did, and which leads us to where we are now.
He is claiming that I insisted I was returning even though I have emails stating that I said I was unsure if whether I would come back or not. He knew we were leaving NWO for over a month before our date of departure. Even when I came back to NWO to get some of my remaining things, he didn't make an effort to see his child. He has called his son twice in the last 7 months. He blames this on me due tot he fact that I didn't have a phone. But I still had skype (which he never set up, despite it being brought up) and I only was out of a phone for a month and a half.

I really hope it is a threat because the quality of life for my son has improved vastly since moving back to AB. A safe neighborhood that has many kids his age, a wide selection of schools and activites, and better access to family members. (fathers family live in NWO also, but rarely made an effort to see my son, leaving him with less family there than he has now)

Sorry for the long post, wanted to add some facts to the story.

Also, I was granted sole custody March 2011 with reasonable access granted to the father. There is nothing specified in terms of mobility listed in our order.

I know I am at fault for not having in writing, his consent for my move. But he is so hot/cold that I knew that even if he signed it, he could later twist it into a lie, that I forged his signature, etc. He is a pathological liar, "will do anything just to ruin my life, as he feels I ruined his by having this child. " his words, not mine.
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Old 10-05-2012, 04:36 PM
calgarymom57 calgarymom57 is offline
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Quote:
Originally Posted by slughead10 View Post
i successfully filed an emergency motion to have my one child returned after my ex left with her. the motion was heard without her having any input and the order included an order for the police to locate and return child...will look up the order to see exactly what it says as it was a few years ago
hmm, interesting. But I had kept in clear contact with the father before and after leaving the jurisdiction. He was entirely aware of our whereabouts at every moment. I updated him with addresses when I was visiting both MB and BC as I was expecting a change of child support motion from him (to have it reduced due to his new job having a lower salary). I even urged him to continue to have a relationship with his son. He chooses not to. Will me effort to encourage communication be rewarded in this situation? I never once told him he wasn't going to see his child again. Because I never intended on holding his child from him. It's his responsibility to keep a relationship with his child, no matter where any of us live (he lived in northern AB and YT and only moved to NWO a few months ago officially) So he spent more time outside of the jurisdiction his child formerly resided in that he did himself. Will these be things that can benefit me?
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Old 10-05-2012, 04:58 PM
HammerDad HammerDad is offline
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It is kind of hard for him to continue having a meaningful relationship with the child 3 provinces away.

Prior to your move you should have received your ex's written consent to the move. The lawyer gave you bad advice stating you should move as it is easier to beg forgiveness than ask permission. In matters of custody, this can only lead to a high conflict situation.

You should have also been clear with your ex as to your intentions. You mentioned it may or may not be permanent. He sat on his hands until he found out it would be permanent and then took the appropriate action.

Yes, he can get an order to have the child returned to their familiar location. If he was even semi-regular with his parenting time his chances of success are fairly good.

You would have to argue that the change in location is in the childs best interests in that it:

1. offers you support of extended family;
2. better employment and income; and
3. better schools for the child.

These are just a few things you will have to argue.

You will also have to show how you are going to facilitate the childs relationship with the other parent. He should not be adversely affected by your unilateral decision to move. That means, he shouldn't lose out on his parenting time and he shouldn't be forced to pay the increased costs of exercising his parenting time.

Are you will to:

a. Give up all of summer and each March break and 1/2 of christmas break so that your ex may have parenting time?

b. Waive C/S payments in lieu of him accepting the increased costs of transportation to exercise his parenting time or will you fly the child back and forth on your dime?

c. What form of communications will you make available to facilitate the childs relationship? Skype, phone etc...

The precedent for moving the child is Gordon v Goertz. You can look it up on Canlii.

But you will have to prove that the move is in the childs best interests. Now, if you get a substantially better job, a more stable environment etc., that could be found to be in the childs best interests. But you will need to argue that these trump the childs right to a meaningful relationship with their other parent.
  #9  
Old 10-05-2012, 08:28 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by calgarymom57 View Post
So I am being threatened by my ex, that he is going to have an order filed that states my child be returned to his jurisdiction (in NWO)
This isn't a threat but the application of the Children's Law Reform Act and the Criminal Code of Canada and he is well within his right to notify you that you removed the children from their habitual residence and will proceed to court if they are not returned.

Unless you have written consent from the other parent you will have to provide significant evidence on a prima facia basis that the move was done within the children's "best interests".

Quote:
Originally Posted by calgarymom57 View Post
I am wondering if anyone has ever filed, or has had to return a child(ren) to the jurisdiction in which they had previously resided. I am not asking for judgement to be passed on me as I am not asking how to be told I'm right or wrong. I am asking for some insight.
Yes. It is done all the time when a parent makes a unilateral decision to remove children from their habitual residence.

Please see the following threads regarding possible results of the conduct you are describing and what could and possibly should be ordered against you:

http://www.ottawadivorce.com/forum/f...shoping-12010/

http://www.ottawadivorce.com/forum/f...ase-law-12665/

http://www.ottawadivorce.com/forum/f...duction-11646/

Quote:
Originally Posted by calgarymom57 View Post
How long does one usually have after this motion has been filed.
It all depends on how long you have harboured the children outside the jurisdiction where they habitually resided from the other parent. If this just occurred in the past 2-3 weeks my advice to the left behind parent would be to bring forward an emergency ex-party motion against you in the court of competent jurisdiction where the children resided prior to their unlawful removal and for an order for the police to return the children to their habitual residence.

If you left with consent then his claims are of no merit and wouldn't be heard by the court. Time is of the essence for the left behind parent to have the children removed to their habitual residence. Every day they do not act in the matter is a day marked against them in their claim.

My advice to the left behind parent would be to file immediately and on an emergency ex-parte basis depending on how the children were removed from their habitual residence.

Quote:
Originally Posted by calgarymom57 View Post
Can I protest it in court first? Or would I have to return to NWO to prove that being out west is in the best interest of my child?
The court of competent jurisdiction is where the children habitually resided prior to their removal and how the removal was conducted. Remember, the Criminal Code of Canada section 283.(1) Abduction does not permit you to remove children without consent or a court order.

What you are possibly doing is known as "forum shopping" and justices are very educated on the conduct of highly conflicted litigants who jump jurisdiction to gain an advantage in a custody and access dispute.

Quote:
Originally Posted by calgarymom57 View Post
Any insight would be greatly appreciated. And if I see any "why would you move your child across the country?" I will just ignore it as I am making the smart choices to benefit my child as I see fit.
My response to this clearly highly conflicted comment which demonstrates your desire to "control" the other parent through your conduct (the way I recommend this other parent litigate the matter) exposes your desire to eliminate the other parent from the children's lives. If you won't listen to ration and reason then my advice to the other parent would be to bring forward immediately an emergency ex-parte motion and attend at the Justice of the Peace in the local court house and seek criminal charges of child abduction in accordance with CCC 283.(1).

Hopefully the other parent is smart enough to be scanning the internet to find your posting and be able to provide it to law enforcement to demonstrate intent.

I am willing to work with law enforcement and the left behind parent in the event they find this thread in assisting in the successful return of the children in question to their habitual residence in the event the removal of the children in question was done to establish a false "status quo".

Parental abduction in contravention of CCC 282.(1) and the CLRA is a serious offense and is not looked upon lightly by the court and you are seriously putting your custody and access to the children in question if you have made this move unilaterally.

Good Luck!
Tayken

Last edited by Tayken; 10-05-2012 at 08:46 PM.
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Old 10-05-2012, 08:41 PM
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Quote:
Originally Posted by calgarymom57 View Post
I went to a lawyer before I left and he said that it would be harder for the father to make me come back that it would be for me to be approved a move.
Please provide the name of the barrister and solicitor who advised you to do this and provided this instruction. I would like to file a complaint against them with the Law Society of Upper Canada.

Quote:
Originally Posted by calgarymom57 View Post
The father is not an EOW father but a "once or twice a month, maybe once every 3 months, depending on his mood and party schedule" kind of father.
I dare you to put that statement in an affidavit and see what a Judge would have to say. What cogent and relevant evidence do you have to support your "belief"?

Quote:
Originally Posted by calgarymom57 View Post
I have been gone from NWO for almost 7 months now. He did know we were leaving. But I had said that I was unsure if we would return at the end of summer or not (I initially returned home to spend time with family in both Manitoba and BC), and was exploring the possibility of returning to Alberta should I get a good job offer, which I did, and which leads us to where we are now.
So you used a leading statement to gain support of the other parent and then made a unilateral decision. I hope that the left behind parent finds this thread and request under a Norwich Order the release of your information to the court so this can be used as evidence against you.

Quote:
Originally Posted by calgarymom57 View Post
He is claiming that I insisted I was returning even though I have emails stating that I said I was unsure if whether I would come back or not.
Good luck using those emails as evidence. Unless he consents it demonstrates intent to remove the child unilaterally form their habitual residence.

Quote:
Originally Posted by calgarymom57 View Post
He knew we were leaving NWO for over a month before our date of departure. Even when I came back to NWO to get some of my remaining things, he didn't make an effort to see his child. He has called his son twice in the last 7 months. He blames this on me due tot he fact that I didn't have a phone. But I still had skype (which he never set up, despite it being brought up) and I only was out of a phone for a month and a half.
Again, this evidence doesn't benefit you and further demonstrates possibly your efforts to restrict access from the other parent and control the other parent.

Quote:
Originally Posted by calgarymom57 View Post
I really hope it is a threat because the quality of life for my son has improved vastly since moving back to AB. A safe neighborhood that has many kids his age, a wide selection of schools and activites, and better access to family members. (fathers family live in NWO also, but rarely made an effort to see my son, leaving him with less family there than he has now)
Glad this worked out for you but, it is clear that the relationship with the other parent is now at significant risk. My advice to the left behind parent is to file an emergency ex-parte motion immediately should they be reading this thread.

Quote:
Originally Posted by calgarymom57 View Post
Sorry for the long post, wanted to add some facts to the story.
FYI: Those are not facts but statements of "belief" for which no cogent and relevant evidence was provided. They may even a demonstration of cognitive dysfunction known as "emotional reasoning". You appear to be looking for an emotional reason to justify your conduct.

Quote:
Originally Posted by calgarymom57 View Post
Also, I was granted sole custody March 2011 with reasonable access granted to the father. There is nothing specified in terms of mobility listed in our order.
Then case law applies and you are going to have a hard uphill battle should the matter be brought forward on an emergency ex-parte motion and/or a material change in circumstance.

Quote:
Originally Posted by calgarymom57 View Post
I know I am at fault for not having in writing, his consent for my move.
This is often classified as parental abduction in contravention of Section 283.(1) of the Criminal Code of Canada. I highly recommend you report yours and the child's immediate location to the other parent and the local law enforcement agency and provide proof of location.

Quote:
Originally Posted by calgarymom57 View Post
But he is so hot/cold that I knew that even if he signed it, he could later twist it into a lie, that I forged his signature, etc. He is a pathological liar, "will do anything just to ruin my life, as he feels I ruined his by having this child. " his words, not mine.
Yet, you lie and say you don't know if you are coming back to the habitual residence of the child in question, don't have a phone, and then make strong (possibly libel claims) against the other parent whom still resides in the child in question's habitual residential jurisdiction.

Honesty would be working out the details with the other parent and not being "vague" if you were returning.

Your story is wrought with deceptive comments, terminology and claims often made by highly conflicted people who "forum shop" like this to eliminate the other parent from the child's life.

I wish you no luck in your efforts and all luck to the left behind parent who hopefully will seek legal counsel and the return of the child in question to their habitual residence.

Good luck to the left behind parent,
Tayken
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