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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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  #11  
Old 10-05-2012, 09:41 PM
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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
My hats go off to you Slughead10. Congratulations are in order and it is great to see that the courts did the right thing.
  #12  
Old 10-05-2012, 09:42 PM
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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 have. Took less than a week to file the motion and have the kids ordered back.

If such an order it made, it's considered to be "immediate return" unless it gives you a time to be compliant within. If you cannot be found, the order will be for the police to locate and return the children.

Basically if he's successful, he sets himself up for status quo sole custody until you either return, or successfully fight the motion.

7 months of status quo is in your favor, if he was legitimately against you moving out there, he would have file an emergency motion when you did not return at the end of the summer.

It's likely a bluff, but you may want to nip it in the bud by offering up what has been indicated here by others, and then getting that ratified into a new court order.

You don't need to have a mobility clause in the agreement, uprooting the child is considered a material change in circumstances, which is grounds to revisit the custody situation.
  #13  
Old 10-05-2012, 09:52 PM
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Originally Posted by NBDad View Post
I have. Took less than a week to file the motion and have the kids ordered back.
Excellent news to hear.
  #14  
Old 10-06-2012, 03:13 AM
calgarymom57 calgarymom57 is offline
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Taken, I appreciate your concern. I had initially moved my child from western Canada to be closer to the other parent. After spending 2 years in Ontario, with very little involvement being put into the childs life from his father, I decided to leave back to where we initially resided (both me and the child, as well as the father. The father actually moved to Ontario from Alberta less than a year ago). I made it clear I was leaving before I left, and kept updated to the childs whereabouts as we left. I even came back to NWO after leaving initially and no one from the fathers family, especially the father, made an effort to see our son. The father still has ties in our current city, I mean, he spent over a decade living here before he made his recent move to NWO.

I feel like maybe what you're saying is a bit extreme. Child abduction is the unlawful removal of a child from their natural parents or lawfully ruled guardian(s). I have always had sole custody of the child as there was never a marriage or common law relationship. Was signed March 2011 in court that I legally had sole custody. What I did was not remove a child from his guardian. I have made it clear that I am willing to be open to visitation schedules and 7 months later have gotten nothing.

The father knew the child was going before we left, and has known exactly where he has been since we have left. Not once have I heard any arrangements of a visit. Barely any phone calls either. 2 since we left.
  #15  
Old 10-06-2012, 03:52 AM
calgarymom57 calgarymom57 is offline
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Originally Posted by NBDad View Post
I have. Took less than a week to file the motion and have the kids ordered back.

If such an order it made, it's considered to be "immediate return" unless it gives you a time to be compliant within. If you cannot be found, the order will be for the police to locate and return the children.

Basically if he's successful, he sets himself up for status quo sole custody until you either return, or successfully fight the motion.

7 months of status quo is in your favor, if he was legitimately against you moving out there, he would have file an emergency motion when you did not return at the end of the summer.

It's likely a bluff, but you may want to nip it in the bud by offering up what has been indicated here by others, and then getting that ratified into a new court order.

You don't need to have a mobility clause in the agreement, uprooting the child is considered a material change in circumstances, which is grounds to revisit the custody situation.
THANK YOU! Great answer, I found it extremely useful! No judgement and right to the point, with a few different angles being covered.

Unfortunately I am in a spot where money is tight and cannot afford a retainer fee on a lawyer in Ontario, nor do I have any connections of anyone to help me put together a new order. He claims I will be getting this order any day now. I was instructed by the FLIC to wait until I was served with papers before I could qualify for legal aid. So for right now, I am waiting for that.

Do you think that waiting as I am is something I should be doing?
  #16  
Old 10-06-2012, 05:03 AM
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well here we are.... not exactly as you stated in your first post but that's ok.

My advice to you is to get you and your kid back to ontario and kiss whatever butt you have to. What you did wrong. Suck it up and deal with it.
  #17  
Old 10-06-2012, 08:09 AM
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What you should be doing is making an offer to settle with him. Ie. Offering a reduction or waiver of cs in lieu of his access costs. Offering most of summer vacation, march break, etc. Get agreement in writing then file a motion on consent to have those new items made into the order.
  #18  
Old 10-06-2012, 08:40 AM
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Originally Posted by calgarymom57 View Post
Taken, I appreciate your concern. I had initially moved my child from western Canada to be closer to the other parent. After spending 2 years in Ontario, with very little involvement being put into the childs life from his father, I decided to leave back to where we initially resided (both me and the child, as well as the father.
In response here is the opposing case law to your conduct:

Berry v. Berry, 2011 ONCA 705 (CanLII)
Date: 2011-11-14
Docket: C52936
URL: CanLII - 2011 ONCA 705 (CanLII)
Citation: Berry v. Berry, 2011 ONCA 705 (CanLII)

Quote:
...While the maximum contact principal is not absolute, it is mandatory. ....As the court decided in Woodhouse v. Woodhouse 1996 CanLII 902 (ON CA), (1996), 29 O.R. (3rd) 417 (C.A.), while being with a happy parent has a positive effect on a child, the legal test focuses on maximizing contact with both parents and minimizing disruption to the child.
Hong v. Rooney, 2012 ONSC 120 (CanLII)
Date: 2012-01-05
Docket: FC-10-034352-00
URL: CanLII - 2012 ONSC 120 (CanLII)
Citation: Hong v. Rooney, 2012 ONSC 120 (CanLII)

Quote:
[110] But a person entitled to custody of a child must demonstrate more than an ability to care for a child. A person entitled to custody must demonstrate insight into the needs of a child which are separate from his or her own needs, and must be able to meet those needs even when - and especially when - the child’s needs are different from those of the parent.
Date: 2012-04-04
Docket: D55674/11
URL: CanLII - 2012 ONCJ 187 (CanLII)
Citation: Pearson v. Whittingham, 2012 ONCJ 187 (CanLII)

[quote]“Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children.

[18] I dismiss the Respondent’s motion.

[19] Although not necessary to resolve the motion, I wish to comment upon another submission made by the Respondent: that absent a court order or separation agreement providing for specified access, or prohibiting a change of a child’s residence, a custodial parent is entitled to determine the place of a child’s residence and to change that place, and thus to determine the jurisdiction for any future litigation concerning the child. Respondent’s counsel cites two cases in support of this proposition, Wright v. Wright, 1973 CarswellOnt 148 (C.A.) and Wickham v. Wickham, 1983 CarswellOnt 313 (C.A.).

[20] I question whether these cases accurately represent the current state of the law in Canada, in the light of the decision of the Supreme Court of Canada in Gordon v. Goertz, (1996) S.C.J. 52.[1] The court in that case rejected the use of “mechanical propositions” (such as that proposed by the Respondent) to determine issues of mobility of children:
“Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of "the child" whose best interests the court is charged with determining."
[21] The court held that the best interests of the child is the only test in such cases.

[22] Gordon v. Goertz was a variation case heard under the Divorce Act. Its principles, however, have been applied to mobility cases of first instance and cases under provincial statutes.[2][quote]


Quote:
Originally Posted by calgarymom57 View Post
The father actually moved to Ontario from Alberta less than a year ago). I made it clear I was leaving before I left, and kept updated to the childs whereabouts as we left. I even came back to NWO after leaving initially and no one from the fathers family, especially the father, made an effort to see our son. The father still has ties in our current city, I mean, he spent over a decade living here before he made his recent move to NWO.
Your "evidence" is wrought with issues. The time line of events is changing between posts. I am not even going to bother breaking it down as you are clearly operating on the belief that as a custodial parent your rights override the best interest of the child and the principals of maximum contact. (See quote from CASE LAW on how the courts view this kind of belief and conduct.)

Quote:
Originally Posted by calgarymom57 View Post
I feel like maybe what you're saying is a bit extreme. Child abduction is the unlawful removal of a child from their natural parents or lawfully ruled guardian(s). I have always had sole custody of the child as there was never a marriage or common law relationship.
See the above quote with regards to your "belief" already provided from the following case law and how "successful" your "belief" is about being the custodial parent in:

Date: 2012-04-04
Docket: D55674/11
URL: CanLII - 2012 ONCJ 187 (CanLII)
Citation: Pearson v. Whittingham, 2012 ONCJ 187 (CanLII)

Quote:
Originally Posted by calgarymom57 View Post
Was signed March 2011 in court that I legally had sole custody. What I did was not remove a child from his guardian. I have made it clear that I am willing to be open to visitation schedules and 7 months later have gotten nothing.
See above cited case law regarding your "belief" that being the custodial parent gives you the right to move children in contravention of Section 282.(1) of the Criminal Code and the CLRA to decide the child's jurisdiction. Case law stands and the opinion of the court on your "argument" you are attempting to present is addressed in Gortez v. Gomez as outlined in the case law.

Quote:
Originally Posted by calgarymom57 View Post
The father knew the child was going before we left, and has known exactly where he has been since we have left. Not once have I heard any arrangements of a visit. Barely any phone calls either. 2 since we left.
Well, if you had a phone a call could happen.

I hope that the left behind parent reads this thread and seeks legal counsel. Furthermore, the CLRA requires that you continue the matter in the court of prior jurisdiction. Order made in North Western Ontario and hopefully the Alberta court, as it has on a number of ocassions already when parents "forum shop" like this to meet their "best interests" and put their "best interests" before that of the only determining factor of the court which is THE CHILD'S BEST INTERESTS.

You are constantly trying to justify your unilateral decision on a "belief" that as a custodial parent you have the right to do this. I have provided case law counter to your "belief". Your arguments that the other parent is not a good parent. The counter argument is that your conduct and unilateral decisions may be the reason and the only way to determine this is to see what the left behind parent provides as evidence if brought to court.

Your attempt to "justify" your conduct and unilateral decision to remove a child in contravention of CCC, CLRA, the Divorce Act and case law is transparent as glass as the standard blanked statements against the other parent as being 'absent' in the child's life.

Suffice to say, it is my personal opinion that you are attempting to find support for what you did and not looking for solutions on how to solve this problem.

I highly recommend you find legal counsel now.

I hope that the left behind parent seeks legal counsel and executes an Application to court just as Slughead10 and NBDad did.

Forum shopping, child abduction, false status quo building, et all... Whatever you are trying to figure out how to do will and should be used against you.

Good luck to the left behind parent and I hope they seek legal counsel against calgarymom57,

Tayken
  #19  
Old 10-06-2012, 08:42 AM
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Originally Posted by arabian View Post
well here we are.... not exactly as you stated in your first post but that's ok.
Not "ok" in my opinion when a parent makes a unilateral decision to remove children from their habitual residence in contravention of the CCC and CLRA.
  #20  
Old 10-09-2012, 08:06 AM
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Some additional case law for the OP to consider as well regarding their conduct:

Sangha v. Meighan, 2012 ONSC 2362 (CanLII)
Date: 2012-04-18
Docket: FS-12-74329-00
URL: CanLII - 2012 ONSC 2362 (CanLII)
Citation: Sangha v. Meighan, 2012 ONSC 2362 (CanLII)

Quote:
28 In Brooks v. Brooks 1998 CanLII 7142 (ON CA), (1998), 163 D.L.R. (4th) 715 (Ont. C.A.), the Ontario Court of Appeal recognized those purposes in the following words at para. 22:

Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children. To secure the best information relevant to the children's best interests, it is also important that jurisdiction over custody/access disputes not be unduly fragmented and prolonged, as has occurred here.


[15] Section 22(2) of the Children’s Law Reform Act (CLRA) defines “habitually resident” as follows:

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

With both parents;

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

With a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

...

[14] In Riley v. Wildhaber 2011 ONSC 3456 (CanLII), 2011 ONSC 3456 (Ont. S.C.J.)(Div.Ct.) the Court stated as follows at para. 28:

[18] In Donley v. Donley, [2008] W.D.F.L. 1959 (Ont. S.C.J.) R.J. Harper J. stated the following at para. 91, 92 and 99:

91 In the case of Norland v. Norland, [2006] O.J. No. 5126, 2006 CarswellOnt 8253, [2007] W.D.F.L. 2775, [2007] W.D.F.L. 2768, [2007] W.D.F.L. 2812 (Ont. S.C.J.), Smith J. made the following comment at paras. 32 to 34:

It is well established that the onus is on the party seeking to disturb a status quo arrangement with respect to the custody of children. The evidence required by a court to do so must reliably demonstrate that there are compelling reasons to change the arrangement in order to meet the needs of the children.

Essentially, the status quo will be maintained on an interim custody motion unless there is evidence that to do so will be harmful to the children.
I adopt the words of Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367, when he stated: There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631, [...] by Laskin J.A. again in Papp v. Papp, [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster reflex, (1992), 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin reflex, (1986), 3 R.F.L. (3d) 403 and the annotation of I.G. McLeod to Moggey v. Moggey reflex, (1990), 28 R.F.L. (3d) 416.

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

92 In the case before me, I have already commented that the evidence is seriously conflicting, on the issues that Mrs. Donley advances should be considered by me as evidence that is clear, cogent and compelling reasons for this court to upset long-standing status quo of the children living in the community that they were in prior to January 15, 2008. Although the above case refers to a legal status, I am of the view that in this particular case there was an exercise of self-help by Mrs. Donley that was an effort on her part to create a status quo to gain a tactical advantage. I have reviewed, at great length, all of the evidence of the allegations with respect to domestic violence and the allegations with respect to the claim by Mrs. Donley that Mr. Donley is addicted to pornography.

...

99 I find that Mrs. Donley's plan is ill-conceived and self-serving, without regard to the best interests of the children. She removed them from the community, in which they have many roots, to reside with her mother. By her mother's own admission, in her affidavit, the historical pattern of contact that she had with the children was limited to approximately one time per month. Both Mrs. Donley and her mother describe their own relationship as one characterized by ups and downs.
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