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Newfoundland and Labrador
Regulation 2008


NEWFOUNDLAND AND LABRADOR REGULATION 75/08

NEWFOUNDLAND AND LABRADOR
REGULATION 75/08

Rules of the Supreme Court, 1986 (Amendment)
under the
Judicature Act

(Filed December 18, 2008)

Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division makes the following rules.

Dated at St. John’s, December 17, 2008.

Christopher P. Curran, Q.C.
Registrar of the Supreme Court
Secretary, Rules Committee

RULES

Analysis


        1.    Division XI Added

 

              Applications for the Return of a Child under the Hague Convention on International Child Abduction

 

              56A.72  Definitions
56A.73 Use of these Rules
56A.74 Proceedings shall
             be dealt with
             expeditiously
56A.75 Application of the
             Family Law Rules
56A.76 Commencing an
             application for the
             return of a child
56A.77 Service of the
             application
56A.78 Notice to the
             central authority
             and the contact
              judge
56A.79 Responding to an
             application for the
             return of a child
56A.80 How to oppose a
             claim
56A.81 How to respond
             without opposing
56A.82 Default
56A.83 Hearings
56A.84 Disposition
56A.85 Order
56A.86 Family Justice
             Services
56A.87 Case management

        2.   Forms 56A.76A, 56A.76B and 56A.78A Added

        3.   Commencement

 


 

        1. Rule 56A of the Rules of the Supreme Court, 1986 is amended by adding immediately after rule 56A.71 the following:

Division XI
Applications for the Return of a Child under the Hague Convention on International
Child Abduction

Definitions

56A.72. In this division,

             (a)  "central authority" is the person so designated for each contracting state under Article 6 of the Hague Convention on International Child Abduction;

             (b)  "contact judge" is the person so designated in the province of Newfoundland and Labrador to ensure that interjurisdictional cases of parental child abduction are dealt with expeditiously;

             (c)  "contracting state" means a country that is a signatory to the Hague Convention on International Child Abduction; and

             (d)  "Hague Convention on International Child Abduction" means the Convention on the Civil Aspects of International Child Abduction as set out as a schedule to the Children’s Law Act.

Use of these rules

56A.73. (1) The rules in this division apply to the wrongful removal or retention of a child occurring in a contracting state under the Hague Convention on International Child Abduction.

             (2)  The child who has been wrongfully removed or retained must be under the age of 16 years.

             (3)  Wrongful removal or retention shall have the meaning set out in Article 3 of the Hague Convention on International Child Abduction.

Proceedings shall be dealt with expeditiously

56A.74. All proceedings under this division shall be dealt with expeditiously and these rules shall be interpreted and applied so as to provide the most timely and efficient disposition that is consistent with fairness to the parties involved.

Application of the Family Law Rules

56A.75. The Family Law Rules shall apply to all proceedings for the return of a child under the Hague Convention on International Child Abduction unless this division provides otherwise, in which case the rules in this division take precedence.

Commencing an application for the return of a child

56A.76. (1) An application for the return of a child under the Hague Convention on International Child Abduction shall be commenced in the Court by presenting an original and two signed copies of an Originating Application for the Return of a Child in Form 56A.76A.

             (2)  Applications under this division shall only address the return of a child and shall not include a request for any other relief except for consequential relief related to the return of a child.

             (3)  Rules 56A.06(5) and 56A.08 apply with respect to applications under this division.

             (4)  All applications under this division shall be accompanied by affidavit evidence in Form 56A.76B which complies with rule 56A.20 and contains:

             (a)  information concerning the identity of the applicant, the child and the person or persons alleged to have removed or retained the child;

             (b)  where available, the date of birth of the child;

             (c)  the grounds upon on which the applicant’s claim for the return of the child is based; and

             (d)  all available information relating to the whereabouts of the child and the identity of the person in whose care the child is presumed to be.

             (5)  The application may be accompanied or supplemented by:

             (a)  an authenticated copy of any relevant decision or agreement pertaining to custody and/or access of the child;

             (b)  a certificate or an affidavit emanating from a central authority of a contracting state, competent authority or other qualified person where the child habitually resides setting out the relevant law of that jurisdiction; or

             (c)  any other relevant document.

             (6)  On receipt by the Court of an application under this division, a first hearing date shall be assigned and noted on the application.

Service of the application

56A.77. (1) The originating application along with

             (a)  an affidavit in support of the application under rule 56A.76(4);

             (b)  information under rule 56A.76(5) (if applicable); and

             (c)  the Notice to Respondent

shall be served personally on the respondent(s) in accordance with rule 6.02 (Personal Service) within 7 days of filing the application with the Court.

             (2)  If he or she is not named as a respondent, the person with whom the child is presumed to be shall also be personally served with the application.

             (3)  If timely service cannot be affected, an application may be made to the Court for substituted service or to extend the time for service in accordance with the Rules of the Supreme Court, 1986.

Notice to the central authority and the contact judge

56A.78. A Notice of Application to the central authority and contact judge in Form 56A.78A must be filed at the same time as the application under rule 56A.76 and a copy shall forthwith be provided to the central authority of the province of Newfoundland and Labrador and the contact judge.

Responding to an application for the return of a child

56A.79. Notwithstanding rules 56A.12 and 56A.13, a response to the originating application shall be filed within 7 days of being served with the originating application unless ordered otherwise.

How to oppose a claim

56A.80. (1) Unless ordered otherwise, a respondent who wishes to oppose a claim made in an originating application shall serve and file a response in Form 56A.12A.

             (2)  Rules 56A.12(3) and (4) shall not apply to applications under this division.

How to respond without opposing

56A.81. Rule 56A.13 shall apply to a respondent who does not oppose an application under this division.

Default

56A.82. Rule 56A.15 shall apply to proceedings under this division.

Hearings

56A.83. (1) On the first return date of an application under this division, unless no response has been filed, in which case the Court may determine the application, the Court shall:

             (a)  establish appropriate timelines for the filing and service of materials; and

             (b)  set the application down for hearing

and in carrying out these responsibilities, the Court shall have regard to the requirement for an expeditious determination of the matter.

             (2)  Any party may appear by way of telephone or video conference where appropriate facilities are available if that party makes arrangements at least two days prior to the hearing.

             (3)  Where the Court has notice of the alleged wrongful removal or retention of a child, the Court shall not deal with the merits of rights of custody until an application for return of the child under the Hague Convention on International Child Abduction has been determined, unless a return application is not filed within a reasonable time after notice is given to the Court.

Disposition

56A.84. Applications shall be dealt with expeditiously and except in extraordinary circumstances, decisions shall be rendered within six weeks of the filing of the application.

Order

56A.85. Unless the order is signed when a judge decides on the merits of the application for return of a child, an appointment shall be made to meet with the same judge to have the order signed within 24 hours of a decision being rendered.

Family Justice Services

56A.86. Unless otherwise ordered or on the consent of the parties, proceedings with respect to the return of a child under this division shall not be referred to Family Justice Services Division under rule 56C.03.

Case Management

56A.87. Unless otherwise ordered or on the consent of the parties, proceedings with respect to the return of a child under this division shall not be subject to case management.

 

        2. Rule 56A is amended by adding immediately after Form 56A.64A the following:

Form 56A.76A

(rule 56A.76)

In the Supreme Court of Newfoundland and Labrador
Trial Division/Unified Family Court

Court No.  ____________
Court File No.  ____________
Central Divorce Registry No. ____________ (if applicable)

BETWEEN:  ____________ APPLICANT

                      AND:  ____________ RESPONDENT

Originating Application for the Return of a Child

To this Honourable Court:

I hereby seek an order for the return of the following child/ren under the Hague Convention on International Child Abduction:

 

(a)

_____________________,

born _________________;

 

(full name of child)

(date of birth)

(b)

_____________________,

born _________________;

 

(full name of child)

(date of birth)

I, ___________________________, the Applicant, declare the contents of the within originating application are true to the best of my information and belief.

SWORN TO OR AFFIRMED at __________, in the Province of Newfoundland and Labrador this _________ of _________, 20 _____.

Commissioner of Oaths/Justice of the Peace

Signature of Applicant(s)
Name/Address of Applicant’s Solicitor
(if applicable)

A hearing in this matter will take place on ______________________, 20____ at ________ am/pm at the courthouse located at ____________ in the Province of Newfoundland and Labrador, Canada.

This document, which includes the Originating Application for the Return of a Child, the Affidavit in Support of Originating Application for the Return of a Child and the Notice to Respondent, shall be personally served on the Respondent by an adult other than the Applicant.

Filed at ___________________, in the Province of Newfoundland and Labrador this __________ day of ___________________, 20___.

Deputy Registrar/Clerk of the Supreme Court
of Newfoundland and
Labrador
Trial Division/Unified Family Court


Form 56A.76B

(rule 56A.76)

In the Supreme Court of Newfoundland and Labrador
Trial Division/Unified Family Court

Court No.  ____________
Court File No.  ____________
Central Divorce Registry No. ____________ (if applicable)

BETWEEN:  ____________ APPLICANT

                      AND:  ____________ RESPONDENT

Affidavit in Support of Originating Application
for the Return of a Child

I, ____________________, make oath (or affirm) and say as follows:

        1. That I am the Applicant in the within matter and have personal knowledge of the matters referred to herein except where otherwise specified.

(set out the reasons that you are making the application)

        2.

        3.

        4.

        5.

        6. That I make this application in support of my Application for the return of the following child/ren under the Hague Convention on International Child Abduction:

(a)

_____________________,

born _________________;

 

(full name of child)

(date of birth)

(b)

_____________________,

born _________________;

 

(full name of child)

(date of birth)

SWORN TO OR AFFIRMED at __________, in the Province of Newfoundland and Labrador this _________ of _________, 20 _____.

Commissioner of Oaths/Justice of the Peace

Signature

In the Supreme Court of Newfoundland and Labrador
Trial Division/Unified Family Court

Court No.  ____________
Court File No.  ____________
Central Divorce Registry No. ____________ (if applicable)

BETWEEN:

                      ______________________________ APPLICANT

AND:

                      ______________________________ RESPONDENT

Notice to Respondent

An Originating Application has been made for an order against you. The details are set out in the attached Originating Application.

If you dispute the claim, you shall file a Response at the Supreme Court of Newfoundland and Labrador, Trial Division/Unified Family Court located in ________________________, Newfoundland and Labrador, Canada within 7 days.

If you do not file a Response, the Court may determine the application in your absence without giving you further notice.

A hearing in this matter will take place on ______________________, 20____ at ________ am/pm at the courthouse located at ____________ in the Province of Newfoundland and Labrador, Canada.

If you do not attend the hearing, the Court may proceed in your absence.

DATED this _________ day of _________________, 20____.

Deputy Registrar/Clerk of the
Supreme Court of Newfoundland and
Labrador
Trial Division/Unified Family Court


Form 56A.78A

(rule 56A.78)

In the Supreme Court of Newfoundland and Labrador
Trial Division/Unified Family Court

Court No.  ____________
Court File No.  ____________
Central Divorce Registry No. ____________ (if applicable)

BETWEEN:  ____________ APPLICANT

                      AND:  ____________ RESPONDENT

Notice of Application to the Central Authority and Contact Judge

Take notice that an application for the return of a child under the Hague Convention on International Child Abduction has been made in the above noted proceeding.

A hearing in this matter will take place on ______________________, 20____ at ________ am/pm at the courthouse located at ____________ in the Province of Newfoundland and Labrador, Canada.

Filed at ___________________, in the Province of Newfoundland and Labrador this __________ day of ___________________, 20___.

Deputy Registrar/Clerk of the Supreme Court
of Newfoundland and
Labrador
Trial Division/Unified Family Court

Commencement

        3. This rule comes into force on January 19, 2009.