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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 05-28-2009, 07:29 PM
boyo boyo is offline
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Hi.
I served my ex a motion & to appear at case conf. She took kids out of prov. She then served me motion to appear out of prov for I suppose a case conf. before the one here.

I spoke to my lawyer & he said that the Hague recognizes that this is not permitted, however, I still require a lawyer & potentially have to show up, in order to have that motion thrown out.

Does anybody have any information on this and/or potential links.
thanks
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Old 05-29-2009, 12:16 PM
logicalvelocity logicalvelocity is offline
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See Section 22 and 23 of the Childrens Law Reform Act

Quote:
Jurisdiction

22. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(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 substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).

Habitual residence

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or


(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2).

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

Serious harm to child

23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario. R.S.O. 1990, c. C.12, s. 23.

-or-

Children's Law Reform Act, R.S.O. 1990, c. C.12


Time is of the essence - The longer you wait to bring forth Application for custody and access, acquiescence will set in if you remain silent.

lv

Last edited by logicalvelocity; 05-29-2009 at 12:19 PM.
  #3  
Old 05-29-2009, 04:57 PM
boyo boyo is offline
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thanks LV.

I filed an application back in april w/ the case conf. beginning june. After my ex was served the motion and requested to appear in ontario, she then filed her motion w/ her lawyer and had me served.

I am to appear in her province before my case conf. She probly filed an emergency motion as she is claiming verbal/emotional abuse. Her response to my motion was to file an emergency motion in order to switch jurisdiction.

So I have put forward my application long ago.

In my opinioin, if what she is doing is allowed, then all people who want custody of their kids will just up & move to another province. By the time all apps are filed, case conf. set up, etc time will be on side of the person who took the kids out of province.

Is there any info regarding if this is permitted? How I can go about having her motion thrown out, much like she served me w/ emergency motion to trump my case conf?

any info on this would be great appreciated.
thanks
Boyo
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Old 05-29-2009, 11:52 PM
singledad99 singledad99 is offline
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Quote:
In my opinioin, if what she is doing is allowed, then all people who want custody of their kids will just up & move to another province. By the time all apps are filed, case conf. set up, etc time will be on side of the person who took the kids out of province.
Unfortunately this is how family law works. If you do some research using "child abduction" as key words you will come across some very scary information. Because its all about children, some times the judge won't force the children to be returned to home country even if the other parent had abducted them. Reason? Same old same old that children are now accustomed to living in that new country and it would cause more harm than the good if they are brought back blah blah blah.

I am surprised that your lawyer is not suggesting bringing an emergency motion to have the children brought back??? You waiting till case conference only implies that you are okay with children living in other province for now.
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