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Can I keep the kids with me there in BC?

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Anonymous Asked:

We currently live in Ontario, but if we move to BC and separation happens soon after (say 6-12mths), can I keep the kids with me there in BC? Kids are under under 18. Or can my spouse insist they be brought back to Ontario?

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Thank you for your question. There are two issues that need to be addressed. First, in terms of whether you are able to keep the children with you in British Columbia that would be a decision for a Judge to make, assuming that you and your spouse cannot reach an arrangement. A Judge will make a determination based on what the best interest of the children happens to be based on your facts at that time.

The second issue is where the Court matter would have to take place, assuming that Court was required. Courts in Canada must find that the ordinary residence of the child is in that particular province before agreeing to take jurisdiction over the custody and access issues. As an example, if you were only in British Columbia for a short period of time prior to separating then the proper jurisdiction may still be Ontario. In contrast, if you have been in British Columbia for 6 to 12 months then the likely jurisdiction would be British Columbia. I cannot offer an exact answer on this point as it would depend on the factual circumstances at the time of the separation. However, I am alerting you to the fact that there are two issues that need to be determined, as noted above. If you wish further guidance you would have to provide me with your exact factual circumstances at the time of an actual separation. You are welcome to contact me any time at (866) 557-3222 for a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact Andrew Kania for a free consultation).

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