D.A.S. v. M.K.V., (1996) 149 Sask.R. 5 (FD)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 02, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 149 Sask.R. 5 (FD)

D.A.S. v. M.K.V. (1996), 149 Sask.R. 5 (FD)

MLB headnote and full text

D.A.S. (petitioner) v. M.K.V. (respondent)

(1996 D.I.V. 321)

Indexed As: D.A.S. v. M.K.V.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

McIntyre, J.

August 2, 1996.

Summary:

A father applied for interim custody of his son. The mother, who resided in Alberta, took the position that the divorce petition was a nullity, the court lacked or ought to decline jurisdiction under the Children's Law Act and that if the court accepted and exer­cised jurisdiction under the Children's Law Act, the court should grant interim custody to her.

The Saskatchewan Court of Queen's Bench, Family Law Division, held that the court did not have jurisdiction under the Divorce Act where the father had not been ordinarily resident in the province for one year prior to commencing the proceeding. The court held that it had jurisdiction under s. 15(1)(b) of the Children's Law Act or, alternatively, s. 15(3) and granted interim custody to the father.

Family Law - Topic 2055

Custody and access - Interim custody - Removal of child from jurisdiction - [See Family Law - Topic 2123 ].

Family Law - Topic 2123

Custody and access - Jurisdiction - Where child taken from one jurisdiction to another without other parent's consent or acquiescence - A father moved from Alberta to Saskatchewan with his son - He applied for interim custody - The mother, still in Alberta, opposed the application - The Saskatchewan Court of Queen's Bench, Family Law Division, held that it did not have jurisdiction to hear the mat­ter: under the Divorce Act, because the father was not ordinarily resident in Saskatchewan for one year before com­mencing divorce proceedings; under ss. 15(1)(a) or 15(4) of the Children's Law Act, because the son was not habitually resident in Saskatchewan and the mother had not acquiesced to the child's removal - The court held that it had jurisdiction under ss. 15(1)(b) and 15(3) of the Children's Law Act and granted interim custody to the father.

Cases Noticed:

G.E.P., Re, [1965] Ch. 568; [1964] 3 All E.R. 977 (C.A.), refd to. [para. 5].

Obregon v. Obregon (1984), 39 R.F.L.(2d) 164 (Ont. U.F.C.), refd to. [para. 9].

Gilbert v. Gilbert (1985), 47 R.F.L.(2d) 199 (Ont. U.F.C.), refd to. [para. 9].

Statutes Noticed:

Children's Law Act, R.S.S. 1990, c. C-8.1, sect. 15, sect. 16 [para. 3].

Counsel:

D.N. Armstrong, for the petitioner;

R.J.F. Lepage, for the respondent.

This application was heard by McIntyre, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following decision on August 2, 1996.