D.I.V. of A.D. 1996 321 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: DAVID ANTHONY SOUCY and MEENA KUMARI VARMA RESPONDENT D.N. ARMSTRONG for the petitioner R.J.F. LEPAGE for the respondent FIAT MCINTYRE, J. AUGUST 2, 1996 The petitioner seeks interim custody of his sonStefan. The respondent takes the position:1. The petition for divorce is a nullity and Saskatchewan courts donot have jurisdiction to hear and determine the divorceproceedings;2. The court lacks, or ought to decline to exercise jurisdictionunder The Children\'s Law Act, R.S.S. 1990, c.C-8.1; 3. If the court accepts and exercises jurisdiction under The Children's Law Act interim custody should be granted to the respondent. THE DIVORCE ACT The petition was filed May 31, 1996. In it the petitioner said he had only been resident in Saskatchewan since April 30, 1996. Section of the Divorce Act requires either spouse to have been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. find that the court does not have jurisdiction under the Divorce Act. CHILDREN'S LAW ACT To determine jurisdiction under The Children's Law Act reference is made to sections 15 and 1. For the purpose of section 15(1)(a) one must look to section (2). The petitioner argued that the respondent had consented to or acquiesced in Stefan residing in Saskatchewan with the petitioner. The petitioner moved from Alberta to Saskatchewan in April 1996 bringing Stefan with him. In Re G.E.P., [1965] Ch. 568, [1964] All E.R. 977 (C.A.), Lord Denning said: When father and mother are at variance and living separate and apart and by arrangement the child resides in the house of one of them then that home is his ordinary residence, even though the other parent has access and the child goes to see him from time to time. do not see that child's ordinary residence, so found, can be changed by kidnapping him and taking him from his home, even if one of his parents is the kidnapper. Quite generally, do not think child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change or delays it so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less. (The italics are Maxwell's.) do not wish to be taken as adopting rigid formula so far as how much time must pass before parent may have been said to have acquiesced in child's change of residence. On the affidavit evidence before me it is clear thatby June 1996 the parties were at odds with respect to Stefan\'sresidence and I find that the respondent did not acquiesce toStefan\'s residing in Saskatchewan such that it may be said he washabitually resident in Saskatchewan for the purposes of TheChildren\'s Law Act. It was also argued on the basis of section 15(4) that the court had jurisdiction as result of the respondent's acquiescence. For the reasons stated find the respondent did not acquiesce such as to found jurisdiction. With respect to section 15(1)(b) agree with the respondent that the seven factors listed are conjunctive and the petitioner must satisfy all seven in order for the court to exercise jurisdiction on the basis of this provision. The respondent argues that the factors (iii), (vi) and (vii) have not been satisfied. With respect to (iii) the respondent says there is an application pending in Alberta. Indeed the respondent commenced petition for divorce in Alberta July 17, 1996. For this court to be deprived of jurisdiction on the basis of 15(1)(b)(iii) an application for custody or access in another jurisdiction must have been pending at the time proceedings were commenced in Saskatchewan. Obregon v. Obregon (1984), 39 R.F.L. (2nd) 14 at 170 (Ont. U.F.C.); Gilbert v. Gilbert (1985) 47 R.F.L. (2nd) 199 at 208 (Ont. U.F.C.). With respect to (vi) and (vii) Stefan was born in Kelowna, British Columbia in July 1993 where the parties were residing at the time. He resided there with his parents until the end of April 1995 when they moved to Calgary and put their belongings in storage, coming on to Regina. The only connection with Calgary is that the parties moved there in the fall of 1995. However the respondent was back working in Regina from November 1995 until February 1996 and had Stefan with her. She returned to Calgary with Stefan in February 1996. By February 15 the parties had separated. By April 1996 Stefan was living in Regina with his father. Both sets of grandparents reside in Regina and itappears they will have a role to play in the disposition of theseproceedings. There are also other family members on both sideswho reside in Saskatchewan. The child has no connection ofconsequence to the Province of Alberta. I find that the childhas a real and substantial connection with Saskatchewan and it isappropriate for jurisdiction to be exercised in Saskatchewan. As aresult the court has jurisdiction pursuant to section 15(1)(b). Inthe event the court did not have jurisdiction under 15(1)(b) I wouldfind jurisdiction to exist pursuant to 15(3) as the childclearly has a closer connection to Saskatchewan than to Alberta. INTERIM CUSTODY Having found jurisdiction the issue is interim custody. Both parties make serious allegations against theother. There is substantial conflict in the affidavit evidence. In so far as the affidavit evidence is concerned note that it would appear one of the parties attempted to mislead the court. Both parents claimed that Stefan resided with them after the parties separated in February 1996. have difficulty understanding how one could be mistaken about this fact. prefer not to comment in detail on the affidavit evidence as cannot find, on the basis of the material before me, which parent is better able to meet Stefan's needs in the interim and there will be no interim custody order. However provision does have to be made for Stefan's residence and care on an interim basis. There will be an order that Stefan shallreside with the petitioner on an interim basis and the petitionershall have care and control of Stefan. It is a condition of thisorder that Stefan and the petitioner shall continue to residewith the petitioner\'s parents in the city of Regina. In the event that there is to be any change in the petitioner or Stefan's residence the matter is to be brought back before the court for review. It is a condition of this order that Stefanshall not be removed from the city of Regina without furtherorder of this court. In my view it is necessary that this matter move promptly to pre-trial. The Local Registrar is directed to set an early pre-trial conference date.
FIAT. The petitioner sought interim custody of his son. The respondent contested that the petition for divorce was a nullity and Saskatchewan courts did not have jurisdiction to hear the divorce proceedings and lacked jurisdiction or ought to decline to exercise jurisdiction under the Children's Law Act. Both parties made serious allegations against the other and there was substantial conflict in the affidavit evidence. HELD: An order for interim custody was granted on the condition the petitioner continued to reside with his parents in Regina and that the child not be removed from Regina without further court order. 1)The respondent did not acquiesce to the child's residing in Saskatchewan such that it may be said he was habitually resident here for the purposes of the Children's Law Act.  2)The seven factors listed in s15(1)(b) are conjunctive and the petitioner must satisfy them all. With respect to (iii) a petition for divorce was commenced in July 1996. 3)The child had a real and substantial connection with Saskatchewan and it was appropriate to exercise jurisdiction pursuant to s15(1)(b). Jurisdiction existed pursuant to s15(3) as the child had a closer connection to Saskatchewan then to Alberta. Both sets of grandparents and other family members on both sides reside in Saskatchewan. The child had no connection of consequence to the Province of Alberta.