Good day, I believe I have an interesting case, in terms of and maintenance and need some guidance as to process from here.
2015 I initiated a reciprocal maintenance application against my child’s father, as Ontario Canada is one of the proclaimed states. And he is a south African with a Canadian dual citizenship. Because even though he had a South African Attorney, he refused to entertain any form of maintenance discussion here in SA. SA sent the provisional order to Canada
In 2016 my ex with his South African lawyer tried to stop the file being sent to the Ontario General in Ontario, a case that was dismissed by the Magistrates court here in South Africa
In 2017 the matter was in Canada. My ex then launched a further application in Canada against me, to state he was not resident.
Which is fair and well, but this caused a 12 month delay in the matter been heard in Canada (December 2017) , during which the legislation there changed from ordinarily resident to habitually resident, which as he is currently on contract in Saudi, meant the order could not be enforced in Canada. My ex spent over $ 50 000 on the Canadian case alone, and even though he tried to get a costs order against me, the judge said the following in his reasons and judgement release in March 2018
“ it is to be noted that subsequent to the Respondent’s Motion being issued, ISOA was amended. The words “ordinarily resides” were replaced with the words “habitually resides”. That amendment is relevant to the determination of the issues before the court. And (Page 6, Para 38) this court confirms that it does not have the jurisdiction to deal with the Application seeking the confirmation of the South African Provisional Order because the Respondent does not habitually reside in Ontario.
(Page6, para 40) However the Respondent had apparent knowledge of the Application and took it upon himself to commence this Motion. The result was to bring the Application back before the court. Accordingly, this court is not prepared to entertain submissions as to costs. It is the court’s view that any costs incurred by the Respondent with respect to the Motion before the court were unnecessary.
Of interest is during this whole process, the South African attorney sent me a settlement agreement in South Africa in October 2017, which as the matter was so advanced in Canada, I was unable to accept, in fact she would not even allow discussion.
At the same time the Canadian Attorney was advising me that the South African Attorney had no right to offer said settlement. And that we would all need to wait until matter was concluded in Canada. Which it has now
The south African attorney withdrew her mandate the day after the Canadian judgement was shared.
It was a delightful time with threats all round from both attorneys
The matter is now back in South Africa.
My basic understanding is that by responding to the South African case file both in terms initially trying to stop the reciprocal matter going forward and by offering a settlement in South Africa that my ex has accepted the jurisdiction of the South African Maintenance court, but am unable to find the correct wording or case files that refer.
By having accepted jurisdiction, it should be a simpler matter of having the South African Order confirmed? And Substituted service application, as to date all documents have been sent by email, setting precedent again.
I am unrepresented, as I cannot afford more years of attorney fees ( 2105 to now on maintenance alone) and our combined household income exceeds legal aid’s base requirements.
Thus any advice and pointers in the right direction would be greatly appreciated as how to get the 2017 offer made an order of court or the original provisional order from 2015 made a final order.