Costello v. McLean, 2014 ONSC 7332 (CanLII)
CanLII - 2014 ONSC 7332 (CanLII)
As with many things caselaw takes time to evolve. The evolution of this one starts with a matter many of us are very familiar with. Some of us too familiar.
If you need a history lesson it has to do with the now well known issues surrounding establishing a "false status quo".
http://www.ottawadivorce.com/forum/f...ily-law-15139/
In this matter recently posted the Honourable Justice Campbell does an excellent job outlining the abduction of a child and immediate return from Newfoundland and how parents should address these kinds of matters. The justice relies upon the wises words of the Honourable Mr. Justice Pazaratz who first coined the phrases now found enshrined in case law.
Thank you to Justice Pazaratz and the fellow responsible for bringing so much change forward in our system of family law as a result of his hard work and dedication.
In para. 11 the Justice relies directly on Justice Pazaratz's wise words in Coe v. Tope outlining why emergency temporary motions are challenging. See point "f" in particular:
In para 13 the honourable Justice relies upon material that I was not even aware of. Which for one poster (LF32) may be of VERY important significance:
As always I recommend to any facing the abduction of their child in contravention of section 283.(1) to immediately file a motion with the court as this honourable Justice points out in para 16:
In fact, the justice does indeed label the matter as "abduction" in para. 17:
For those who are daft and often quick to jump on me to find fault. I recommend you read the Children's Law Reform act. Here I will make it easy for you.
Section 22.2.(b) reads:
Section 22.3 is titled "Abduction" and reads in full:
Although subtle and missed by many (and probably the media who should report this case) the mother was indeed found to have Abducted the child in accordance with the Children's Law Reform Act.
More interestingly the justice has interestingly alinged the conduct of the mother with that of Section 283.(1) of the Criminal code of Canada:
Again, for those who seem to need it here is the exact wording of Section 283.(1) "Abduction":
Interesting parallel between what the justice wrote and the CCC. I suspect it was very intentional by this justice.
The good news is that the child has been ordered back to their habitual residential location immediately and by January 1st of 2015. If the mother does not comply the police shall take control of the matter and there is more than enough in this order for them to lay criminal charges upon the mother for abduction in accordance with Section 283.(1) of the CCC.
I can't wait to see the costs order against this child abductor and I hope it is reflects the sizable award that Justice Pazaratz ordered in Coe v. Tope. It is a shame that the justice didn't forward this matter and evidence forward to the Crown to process formal charges against the mother.
Eventually... Someone will be charged for child abduction in accordance with Section 283.(1) for these self help methods... This is the first concrete step towards this happening.
Thank-you Justice Campbell for this caselaw.
Good Luck!
Tayken
CanLII - 2014 ONSC 7332 (CanLII)
As with many things caselaw takes time to evolve. The evolution of this one starts with a matter many of us are very familiar with. Some of us too familiar.
If you need a history lesson it has to do with the now well known issues surrounding establishing a "false status quo".
http://www.ottawadivorce.com/forum/f...ily-law-15139/
In this matter recently posted the Honourable Justice Campbell does an excellent job outlining the abduction of a child and immediate return from Newfoundland and how parents should address these kinds of matters. The justice relies upon the wises words of the Honourable Mr. Justice Pazaratz who first coined the phrases now found enshrined in case law.
Thank you to Justice Pazaratz and the fellow responsible for bringing so much change forward in our system of family law as a result of his hard work and dedication.
In para. 11 the Justice relies directly on Justice Pazaratz's wise words in Coe v. Tope outlining why emergency temporary motions are challenging. See point "f" in particular:
Courts must be mindful of – and actively discourage – efforts of parents to unilaterally create a new status quo through manipulation, exaggeration or deception.
… A parent cannot unilaterally change a child’s habitual residence by surreptitiously removing the child from one province to another. At one time, it was thought that a parent who had custody of a child could, as an incident of custody, change the child’s residence. Such a conclusion assumes that a custodial parent has the right to change the child’s residence...
The Applicant commenced his application immediately upon realizing that the Respondent had surreptitiously removed the child from his “home” in Cambridge. Hence the Applicant’s text sent November 29, 2014 (after he had started his action) did not acquiesce to this removal to Newfoundland. The test merely represents evidence of a despondent and depressed parent.
[17] I also find that after he launched this legal proceeding, in these circumstances the text is not an informed acquiescence, agreement or consent, as is intended by the legislation (s.22(2)(b) of C.L.R.A.) nor does it meet the intention of the legislation as set out in s.22(3) of the C.L.R.A.
Section 22.2.(b) reads:
(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
(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).
More interestingly the justice has interestingly alinged the conduct of the mother with that of Section 283.(1) of the Criminal code of Canada:
[18] I also find that the Respondent has intentionally removed and withheld Hunter from this jurisdiction with the intention of depriving the child from any contact or relationship with his father and that by doing so, the court cannot (for public policy reasons) condone, accept or disregard the effect of the Respondent’s unilateral decision upon Hunter.
Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of...
The good news is that the child has been ordered back to their habitual residential location immediately and by January 1st of 2015. If the mother does not comply the police shall take control of the matter and there is more than enough in this order for them to lay criminal charges upon the mother for abduction in accordance with Section 283.(1) of the CCC.
I can't wait to see the costs order against this child abductor and I hope it is reflects the sizable award that Justice Pazaratz ordered in Coe v. Tope. It is a shame that the justice didn't forward this matter and evidence forward to the Crown to process formal charges against the mother.
Eventually... Someone will be charged for child abduction in accordance with Section 283.(1) for these self help methods... This is the first concrete step towards this happening.
Thank-you Justice Campbell for this caselaw.
Good Luck!
Tayken
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