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This is an official version. Copyright © 2008: Queen's Printer, Important Information
Newfoundland
and Labrador
Rules
of the Supreme Court, 1986 (Amendment) (Filed Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division makes the following rules. Dated at Christopher P. Curran, Q.C. RULES Analysis 1. Division XI Added Applications for the Return of a Child under the Hague Convention on International Child Abduction 56A.72 Definitions 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 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 (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
Court
No. ____________ BETWEEN: ____________ APPLICANT 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:
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 Commissioner
of Oaths/Justice of the Peace Signature
of Applicant(s) A hearing in
this matter will take place on ______________________, 20____ at ________ am/pm
at the courthouse located at ____________ in the 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 Deputy Registrar/Clerk of the Supreme
Court Form 56A.76B (rule 56A.76) In the Supreme Court of Newfoundland and
Court
No. ____________ BETWEEN: ____________ APPLICANT Affidavit
in Support of Originating Application 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:
SWORN TO OR
AFFIRMED at __________, in the Commissioner
of Oaths/Justice of the Peace Signature In the Supreme Court of Newfoundland and
Court No. ____________ BETWEEN: ______________________________ APPLICANT ______________________________ 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 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 If you do not attend the hearing, the Court may
proceed in your absence. DATED this _________ day of _________________, 20____. Deputy Registrar/Clerk of the Form 56A.78A (rule 56A.78) In the Supreme Court of Newfoundland and
Court
No. ____________ BETWEEN: ____________ APPLICANT 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 Filed at ___________________, in the Deputy Registrar/Clerk of the Supreme
Court Commencement 3. This rule comes into force on ©Earl G. Tucker, Queen's Printer |