HC/E/CA 370
CANADA
Ontario Court of Justice; Divisional Court
Appellate Court
UNITED KINGDOM - ENGLAND AND WALES
CANADA
12 June 1996
Final
Rights of Custody - Art. 3 | Procedural Matters
Application dismissed
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The Provincial Division was exercising rights of custody at the time of the removal of the children on 26 September and those rights of custody were breached by the removal. The parents had further undertaken that they would not leave the jurisdiction of Ontario pending the custody application. The Divisional Court found that the Ontario Court (Provincial Division) had been correct to declare the removal of the children wrongful.
It was noted that the use of the Court's name as plaintiff in the English proceedings was a technical legal matter, based upon the opinion of counsel for the Attorney General of Ontario after consultation with the Lord Chancellor's Department. It was added would not give rise to concern that the individual judges of the Ontario Court (Provincial Division) would in any way be impartial when hearing any future actions were the children to be returned.
The return application in England failed, see: The Ontario Court v. M. and M. (Abduction: Children's Objections) [1997] 1 FLR 475, [1997] Fam Law 227 [INCADAT Reference: HC/E/UKe 33]. The High Court exercised its discretion under Article 13 not to order the return of the children; grave risk of an intolerable situation and objections of the elder child both being established.
It may be noted that the trial judge in England did express concern as to the application being brought by the Ontario court. This matter was not however the subject of argument.
Preparation of INCADAT commentary in progress.
Preparation of INCADAT commentary in progress.