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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 100050
Experience:  Lawyer
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I used to live in the Philippines with my son and his

Customer Question

I used to live in the Philippines with my son and his father. I had sole custody and left the Philippines for Canada, entirely legally, with my son in May 2013. In Dec 2014, my sons father, who knew fully that we were in Canada as he had visited us here, filed for sole custody in The Philippines. Sewer service of summons practice was used, and in dec 2015 he was granted sole custody based on a default judgement. He's now filed a petition in Canadian court to have this fraudulently obtained court order upheld? What are my options. Please.
JA: You're dealing with a tough issue. But don't worry -- you're in good hands. Because laws vary from state to state, could you tell me what state is this in?
Customer: Canada
JA: Have you consulted a lawyer yet?
Customer: yes. but only over the phone. will see in person Tuesday
JA: What advice did they give you? Is there anything else important you think the Lawyer should know?
Customer: no advice yet
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Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.
Can you confirm that your son was living in Canada for over year before the father brought the application?
Customer: replied 1 year ago.
which application? the one to The Philippines court?
Customer: replied 1 year ago.
we came to Canada May 2013. In April 2014 we went to Bali, Indonesia for 10 months. Back to Canada in February 2016. My son may not have been out of The Philippines for an entire year before the application was brought. However, my concern is that he deliberately served a summons to an old address, when he knew we were in Canada (he visited there) and Bali (he visited there several times).
Expert:  Debra replied 1 year ago.
The Court in Canada has to decide if it has jurisdiction over your son.If your son was traveling with you but Philippines is his habitual place of residence was then the court in Canada would say that the court in the Philippines may be court has jurisdiction over your son.The law in Canada is that the court in the jurisdiction where the child habitually resides is a court has jurisdiction over your son.If the court in Canada decides that the child is habitually a resident of the Philippines but that you just took the child and moved around with the child the court in Canada may say that it has no jurisdiction over the child. That means that the court in Canada would enforce an order from another jurisdiction in most cases. If that is the case this will mean that you will be required to deal with the court in the Philippines.However, if you can show that the child has not been habitually resident in the Philippines for some time then the court in Canada will not consider the order from the Philippines. If the child is now habitually resident in Canada the court in Canada is the only court that can make an order about your child as far as the law in Canada is concerned.Does that help as a starting point?
Customer: replied 1 year ago.
My son is a habitual resident of Canada. He is a Canadian son, attends school here, is a Canadian citizen, and has not lived in the Philippines since May 2013.What I am more interested in, however, is that this judgement was achieved fraudulently (in my opinion). They intentionally served a summons to a residence they knew I did not reside at in order to receive a default judgement.
Expert:  Debra replied 1 year ago.
long as the court in Canada agrees with you then you will be fine. But it has nothing to do with citizenship. The judgment was clearly obtained fraudulently but I don't know the law in the Philippines and cannot advise about what to do there. The court here will not only see it is a fraudulently obtained order but won't care about the order as the court there has no jurisdiction over your son.

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