I, KARINA DUVALL, attorney, of Saint Petersburg, Russian Federation, affirm that:
1. I am the Russian attorney for the respondent in these proceedings, and as such have personal knowledge of the facts hereinafter deposed to except where those facts are stated to be based on information and belief, in which case I verily believe the same to be true.
2. I have carefully studied the affidavit of lawyer (the lawyer) who represents the mother in the Russian court.
3. There are some serious legal issues with the lawyer’s affidavit, including the lack of proper notarization. Irina is not authorized to sign affidavits as she is not a notary or a Commissioner for taking affidavits.
4. Further, the English translation of Affidavit was done by Vera who is not admitted to practice in Russia as a certified translator. She has no authority to sign official translations. Moreover, there was no Affidavit in Russian provided so I have no way to compare the English and Russian versions so as to confirm or deny correctness of the translation. There is also no copy of the diploma, which could help to establish the level of qualification of translator.
5. In response to paragraph 4 of the lawyer’s affidavit, this is incorrect. We attached the DNA test results to our action so the Judge has this in her possession. The DNA results will not be an issue until the Moscow court makes its final decision about jurisdiction.
6. There were no ‘misleading facts’ provided to the Russian court. There is no dispute that the child was born in Russia and has Russian citizenship. Under Russian family law, Russia has jurisdiction over paternity cases involving Russian-born children, no matter what. Only the Russian court can order the ZAGS to change the child’s birth certificate to add the father as his birth father.
7. The lawyer is wrong when she says that the Russian court will not order changes to the birth certificate because of the Canadian proceeding. The mother did not dispute that the father is the child’s father as indicated by the DNA test results. The fact is that the Moscow judge has ordered the child’s birth certificate to be delivered so she can review it and order the change to add the father as the father.
8. As for the remaining content of lawyer’s affidavit, she basically repeats the arguments that she made to the court and set forth in the claimant’s "petition" to the Russian court. My response for her “petition” included the following arguments:
a. The court is supposed to make a decision about accepting or not accepting the case within 5 days from the day of filing any legal action (Art. 133-135 of Civil Procedural Code of Russian Federation). The legal action cannot be returned to Plaintiff in the middle of trial.
b. The Russian judge has powers to leave legal action without consideration if a foreign court has same case in its possession (Art 406 of the Civil Procedural Code of Russian Federation). It is possible in case when two countries signed International agreement. The Russian Federation and Canada do not have any agreement like this. The Russian Vital Records Offices has no powers to make changes in the records based on a Canadian court order. Therefore, only the Russian court can obligate Vital Records office to put father's name to the birth certificate of child.
c. The request for suspension of the proceedings is also insupportable, since we have no grounds for suspension as prescribed in Articles 215 and 216 of Civil Procedural Code of Russian Federation.
d. According to the Art. 47 Part 1 of Russian Constitution, no one may be deprived of the right to have fair consideration of the case by the competent court according to the prescribing jurisdiction.
e. According to the Art 162 of the Family Code of Russian Federation, the Russian court has sole jurisdiction over the question of the paternity of child who has Russian citizenship by birth.
f. In accordance with Art. 402 of Russian Civil Procedural Code, the jurisdiction on civil cases where foreigners are parties, is defined under the rules of chapter 3 (in particular, Articles 28, 29) of the Russian Civil Procedural Code. Russian courts take jurisdiction if the respondent, a Russian citizen, resides or resided in Russia. According to Art. 29 Part 1 of the Russian Civil Procedural Code, for determination of jurisdiction the court may use the last known place of residence of Respondent within the Russian territories.
g. Consequently, if the Court finds that the Respondent resides or resided outside the judicial district of the Moscow Region, in accordance with Art. 33 Part 2 Subpart 3 of Russian Civil Procedural Code, the Court will transfer the case to another competent court within the Russian Federation.
h. The child, has sole Russian citizenship by birth (as per Art. 12 part 1 subpart A of Russian Citizenship Rules).
i. Thus, the establishment of paternity for Russian citizen belongs to the Russian jurisdiction only. Consequently, the jurisdiction was determined correctly.
9. At the hearing in Moscow, the lawyer presented to the court certain documents showing that the mother and child have permanent residence status in Belarus. They show that the mother was first registered on 2008 but she did not have child officially registered until 2018 (the fact that he was issued a permanent residence document on 2018 before the official registration date is okay). It is clear to me that she has been trying to do everything she can to avoid Russian jurisdiction but Russia has jurisdiction over the paternity of a Russian citizen (like her child who was born in Russia) no matter where his residence is.
10. To summarize, the present action in the Moscow court is only to deal with the issue of paternity and the registration of father on child’s birth certificate as the child’s father (and confirm the Moscow court’s jurisdiction to make that order).
11. The Judge will likely make the order to change the birth certificate. The Judge will also receive the evidence ordered from the police about the mother’s address. Once he is registered as the child’s father, he will be permitted to start a new action to deal with the other issues like visitation or custody. Only the mother has the right to start an action for child support.
12. In last minute I received the mother’s affidavit. I would like to make clarification to her arguments.
13. The mother was fully informed by court about upcoming hearing in Russia. We are provided to the court her contact information (phone numbers) and clerk informed her by phone. The proof is her participation to the last hearing through her lawyer.
14. The mother also confirmed that she lives apart from her son. According to the Russian law, this is big issue which may entail serious consequences. According to art 63 part 1 of the Russian Family Code, the parents only has privilege before any third parties to grow up their children. It means if child lives with anyone else except of mother or father, the custodial parent may lose custody, and second parent may get custody over the child. The mother violates child rights by letting him live with someone else except of her.