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Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 98517
Experience:  Lawyer
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I separated from my husband in August 2014 and he in August

Customer Question

Hello. I separated from my husband in August 2014 and he in August 2015 he signed a separation agreement giving me sole custody of my son. He also gave me permission to relocate to the US and permission to file for an uncontested divorce. He filed an answer and the divorce became contested. He is seeking sole custody and claiming that my child is in danger living in the US with my partner and me. I filed a response to his false claims. Its been nearly a month since he was served and he has yet to schedule a case conference. I want to marry my partner ASAP in the US so do you think I should apply fo sever the divorce from the corollary issue i.e custody? Thanks.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

Yes.

That is exactly what you should do.

This can and likely will take a year or even two.

So applying to sever the divorce from the other issues makes the most sense and you have a good reason to want to do so.

You also have the grounds so for the divorce itself there is nothing to contest of course.

Customer: replied 1 year ago.
you're saying even though i have a signed separation agreement granting me sole custody, it may take a year or longer to sort out the issue of custody with a court? My lawyer filed a response saying that the separation agreement is valid and that the case has no canadian jurisdiction since i moved away from canada in August 2015. My lawyer wants to wait a few more months to apply to sever the divorce. However, I feel we should do it ASAP. What do you think?
Expert:  Debra replied 1 year ago.

In Canada a separation agreement is not binding as it relates to custody or access. That is because the only thing a court will ever consider when dealing with custody and access is what it finds to be in the best interests of the child.

So in Canada if the father says the child is not safe in his new home the Court will hold a trial and you will each have to prove what you want is in the child's best interests.

The Court in Canada will not have jurisdiction over the child if the child habitually resides in the US.

So you may have an argument that the move was permanent and so the child now resides in the US and the father has to deal with this in the court in the US>

But waiting for a while to deal with custody is a good idea because not only are you further establishing the status quo and courts don't like to interrupt the status quo but you are making it harder and harder for the father to convince the court in Canada to assume jurisdiction.

I don't see the reason why you cannot seek to sever the divorce application now though. I cannot really think of a reason.

Customer: replied 1 year ago.
My lawyer said she is scared to ask my ex's lawyer to sever the divorce now because she is afraid the attorney will in turn ask for a case conference. She has filed a response asking the court to dismiss the case because there is a separation agreement in place and I have moved away. Can she not file the motion to sever the divorce as well as attend the case conference?
I assume the case will not be dismissed after the first case conference. Am I right?
My ex notified Child Protective Services here in
Texas that my son was in danger so they came to our residence and they are in the process of closing the case because they feel my child is perfectly safe here in
Texas.
Should my lawyer even ask my ex's lawyer permission to sever the divorce or should she just file the motion ASAP?Thanks.
Expert:  Debra replied 1 year ago.

There is no way this case will be dismissed if it's about custody and the father can show that there has been a material change of circumstance since the agreement was signed. I am not saying you will not win or that this cannot be settled before but the father will have his day in court I am sure.

She can seek to sever the divorce now as it has nothing to do with the custody issue except if she is thinking that since your case grows stronger with the passage of time there is no reason to try and give the father a reason to rush.

That may be true and if it is then you should wait.

Customer: replied 1 year ago.
My only problem is that I have an immigration issue here in Texas and my visa ends end of Feb 2016 so we need to marry ASAP so that I can stay here legally. That is why I dont care if the case conference drags on. I just need the divorce severed. Is severing the divorce going to have a negative impact on the case?
Customer: replied 1 year ago.
I am not understanding what severing the divorce has to do with how strong my case is because the case is about custody, not divorce.
Expert:  Debra replied 1 year ago.

It won't hurt your case in the sense that there is nothing wrong with severing your divorce. It is just that the longer you wait to get the court to deal with the custody issues the stronger your case is.

But there is another concern. As you are only on a visa it is not likely possible to successfully argue in Texas or Canada that the child habitually resides in the US as that is not the case where you have such a limited legal status.

Customer: replied 1 year ago.
The child is a US citizen and has lived in America for most of his life. He is only 4 years old. He has resided in Canada for only 6 months out of the 4 years.
Does my lawyer need permission from my ex's atty to sever the divorce or can she just go ahead and do it since only custody is being contested?
Expert:  Debra replied 1 year ago.

OH

That is great to hear this. I thought your child and you moved their recently. Phew.

She has to serve your ex with the application to sever and he can ignore this or contest it.

Customer: replied 1 year ago.
My ex is using the child as a way to hold up the divorce. In his reply he even says "Stop divorce until custody is sorted out." I want to show him that he cannot control me. He is an abuser and has abused me for 14 years.Do you think I should sever now or wait a few more months like my attorney said?
Thanks.
Customer: replied 1 year ago.
I forgot to mention he was charged with uttering a death threat against me and is currently on probation 'til July 2016. I also have hospital and police records of his abuse. How can I get this man out of my life ASAP?
Expert:  Debra replied 1 year ago.

If you are going to be deported from the US what choice do you have? You cannot take that chance.

Customer: replied 1 year ago.
If my ex contests the severance, can my attorney file a motion with the court before the case conference?
Expert:  Debra replied 1 year ago.

I don't know if your lawyer can get into the court that quickly. At this time of year the legal system shuts down. In family law unless you have an emergency, such as one parent denying the other parent holiday time with the child for example nothing is going to happen until the new year.

So my concern for you is the timing as I know the time is of the essence.

Customer: replied 1 year ago.
Getting things done in January is fine. My question is that is it even possible to file a motion without having a case conference? I read online that motions cannot be filed until a case conference has been heard. Is that true in my case too?
Expert:  Debra replied 1 year ago.

No. Your lawyer can get around that. As it is an urgent matter that you marry the lawyer can get into court urgently by bringing an urgent motion to the court to sever the divorce application from the other issues.

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