Motion for Case Transfer, Access and Custody

March 5th, 2015 by John Schuman

Family law lawyer John Schuman was recently asked the following: “My husband and I are separated. It will be one year in March. I am the applicant and I started my case at the Ontario Court of Justice since I was not aware that I cannot file for divorce or property division in that court. I want to move my case to the Superior Court of Justice. I asked my husband to consent to transfer the case but he did not agree. He is the one who wanted the divorce in first place but now he will not agree. I am making a motion for access and custody. Can I ask the Ontario Court of Justice to make an order to transfer my case to Superior Court of Justice at the same time? Do I need to make separate motions for access, custody, case transfer on basis of divorce and property division, or can I make one motion to deal with all of these issues?

If you and your spouse want to be divorced, you have to address all of your family law issues in the Ontario Superior Court of Justice.  The Superior Court of Justice is the only court that can address property division or other financial matters other than the determination of child support.  However, if you are in the Ontario Court of Justice and you want to deal with the divorce or property issues, it is not a matter of transferring your case.

If you want a divorce, then the Court granting the divorce will make custody and access orders  under s. 16 of the Divorce Act, child support orders under s. 15.1 of the Divorce Act, and spousal support orders under s. 15.2 of the Divorce Act.  Due to some complicated constitutional reasons, Divorce Act Orders supersede orders made under Ontario’s Family Law Act and Children’s Law Reform Act, which are the statutes that the Ontario Court of Justice uses (as it cannot make Divorce Orders.)  For that reason, section 36 of the Family Law Act and section 27 of the Child and Family Services Act both state that any proceedings under those laws (meaning proceedings in the Ontario Court of Justice) are stayed if one of the parties starts a divorce proceeding.

So, what that means is that if you start a Divorce proceeding in the Ontario Superior Court of Justice, the court proceedings in the Ontario Court of Justice stop automatically.   The Judges at the Superior Court of Justice will want to hear what the judges said in the Ontario Court of Justice, and will likely re-make the same orders (as long as they were not successfully appealed).  But, that is something you will have to address, probably at the case conference.

But, be warned: If you are moving the case just because you do not like what the judges are saying in the Ontario Court of Justice, this case illustrates that you could get punished by an order to pay your spouse’s costs (legal fees) for moving the case for an improper reason.

You can learn a bit more about the family court process by watching this video or listening to these podcasts (iTunes version here).  You can get a lot more information about Ontario Family Law issues, including a further explanation of family court process by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer.

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