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Alberta Court of Appeal - October ruling/children to be returned

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  • Alberta Court of Appeal - October ruling/children to be returned

    I read this today. Mother moved children from Cold Lake AB to Calgary. I believe it is approximately 5.5 hrs drive. It sounds as though both sides had compelling arguments. An interesting read for those who might be in a similar situation, or rather, contemplating something similar?



    C.L.S. v. B.R.S., 2013 ABCA 349 (CanLII), <http://canlii.ca/t/g0zd4
    Last edited by arabian; 10-19-2013, 07:29 PM.

  • #2
    A, thank you, eerily similar to my situation, and extremely encouraging as I have 13 years in with my kids and now that I see them alot more they are asking to come home. I indicated that they should be asking this to the OCL.

    Can AB case law be sited in Ontario ?

    Comment


    • #3
      you most definitely can and should use case law from anywhere in Canada.

      cases such as the one cited here should definitely be used as it is a case in the Court of Appeals.

      I found it interesting because we hear so often on this forum about one parent up and moving away with the children, despite orders that children stay. It was interesting that the judge weighed any "ping pong" effect before delivering his decision.

      I'll bet the mother is pissed that there is an offer for her to return to the former marital home.... no financial excuse for her to not comply with the original order it seems.

      Comment


      • #4
        The Divorce Act is federal, and applies across Canada.

        Each province has its own version of a family law act. Some province, like Ontario, NB, and BC have a lot of similarities in their acts, but none are identical.

        A decision based on one province's act would not be in any way a precedent for another province if the legislation isn't worded the same.

        A decision from another province may be useful in terms of having well thought out and well worded arguments, but it may not be useful as case law.

        Depending on the province you may see decisions from provincial courts, federal courts, or in family law you may have combined courts. A decsion from a provincial court, even an appeals court, will carry less weight in a different province.

        Comment


        • #5
          In the Alberta Court of Appeal case that I cited, I note the justice considered a decision, among others from Alberta, from PEI in his final deliberations.

          Yes, we are indeed all one country. If one makes an argument that is backed solidly by case law in another province, I believe it will indeed be considered.

          That is, however, merely my personal opinion.

          Comment


          • #6
            I think you want to look more closely at what part of that PEi decision was cited, and exactly why. It was just a reference to a quote form the related federal case.

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            • #7
              I am free to cite any decision made in Canada. In fact, sometimes one has to look to other provincial rulings for a more closely-aligned/relevant case to refer to.

              I could care less if my lawyer cites case law from NWT or PEI - as long as it is directly relevant to my motion.

              As far as I'm concerned what is most important is if the judge reviews the case law that is being cited and finds there is, indeed, relevance.

              This is what lawyers go to law school for (among other things) - to learn how to weigh pertinent relevance in citing case law.

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              • #8
                Good luck to you.

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                • #9
                  Case law in fact very important and can carry significant weight. While pointing out the areas that support your position with said case law its always good to go over the points not in your favor and show why they don't relate to your specific situation. It shows the judge that you're not just cherry picking the good stuff.

                  Just wanted to mention....the higher the court decision...the more weight it carriers.
                  Last edited by LostFather; 10-21-2013, 10:59 AM.

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                  • #10
                    ...carriers ....type O ....carries....gotta love predictive text

                    Comment


                    • #11
                      Originally posted by plainNamedDad44 View Post
                      A, thank you, eerily similar to my situation, and extremely encouraging as I have 13 years in with my kids and now that I see them alot more they are asking to come home. I indicated that they should be asking this to the OCL.

                      Can AB case law be sited in Ontario ?
                      There is piles of Ontario jurisprudence that represents the same results. Search my threads on habitual residential location of children. You will eventally have the full BoA for Ontario courts on parental moves.

                      Start with Van Rassel v. Van Rassel, [2008] O.J. No. 4410 and reflex from there. You will have all you need:

                      As Mossip J. noted in Van Rassel v. Van Rassel, [2008] O.J. No. 4410, issues involving mobility generally do not lend themselves to matters that are easily settled. As Mossip J. said at para. 9:

                      [1] There is no other area of family law litigation in which the idea of winner and loser is less applicable than that of mobility cases. It is also true, that even with the very best parents, it is the area where “win-win” solutions can rarely, if ever, be fashioned. Parents involved in a mobility dispute often have to resort to the courts, as even with the best of intentions, and with both parties doing their best to put their child’s interest before their own, they cannot find a solution to the desire of one parent to move with the child, and the other parent vehemently resisting that move.

                      As Mossip J. continued:

                      [2] Offers to Settle – I find that analyzing attempts to settle this matter prior to trial is not that helpful in determining who was more or less reasonable. The fact is a mobility issue is not very conductive to settlement. As set out above, a trial was the only way this matter was going to be finally resolved.
                      The case law from Mossip is cited all over the place... Most recently in:

                      CanLII - 2012 ONSC 4953 (CanLII)

                      Comment


                      • #12
                        Originally posted by Mess View Post
                        Good luck to you.
                        I agree. Good luck to you on that belief about case law...

                        Comment

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