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Canadian mom and child, american access dad

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  • Canadian mom and child, american access dad

    My ex is American and has never lived in Canada, Denied our child for almost 2 years of his life, when forced to pay child support he then slandered me and called CAS saying I was living an unsavory lifestyle and binge drinking etc etc. CAS closed the file same week and informed me I could use it in court. Fast fwd to year 5 of our child's life and had come to an agreement on access for the father. I have full custody he has access, I have moved back to my home town in B.C. once before (approx 3 years ago) with no issues. Stated I was moving and no objections from the father. I had recently moved back to BC in September 2013 and the father objects! Get's me in court for contempt because I could facilitate USA thanks giving access (with a trade given for make up time) He wins his contempt motion with his fancy lawyer (money he could use to see our child) and we are forced for the interm to remain in Ontario. Court date is set for end of April for my motion to change access and mobility. My question here is, isn't this a civil rights issue as well? How can an American citizen dictate where a Canadian lives? There are major factors to our move, my entire family and support system lies in BC as I was born and raised there. The job market for my field is much more attainable, the pay is ridiculously higher, the cost of living compared to Ontario is significantly lower and I received daycare subsidy immediately on return to BC with no waiting list, when I work it's $108 per month compared to $800-$1000 per month in Ontario. Daycare subsidy in Ontario for my childs age is YEARS! Not only all of this but he takes NO active role in our child's life, his mother, the child's grandmother is the only person who calls every Sunday and picks up and drops off for access visits, the father has made one access visit in 2013 when the order states he shall have access visits every 6 weeks. He claims that it's impossible to continue his access (that he doesn't exercise) His family, as he has stated is of higher financial means, so why would visits be an issue? No one is trying to with hold access, he's just not making the effort, and shouldn't that be considered contempt of court as well?? All the lawyers I've spoken to agree that none of this makes sense and that I should be granted my move, until then, we are in limbo sleeping at a friends waiting for a court date for an entire month while my child is missing that entire month of school. This does not seem fair! Maybe I should go to the Press??

  • #2
    It sounds like during the short life of your child you have moved quite often. Stability might be a primary concern of the court. The court will decide which is in the best interest of the child.

    Unless you have a bonafide job offer then I would prepare yourself for a potentially long dragged-out legal battle. You can say that things are better in BC but if you have no means of supporting your child there then this might be difficult for you. Both BC and Ontario can be expensive provinces in which to reside. Why did you leave BC to move to Ontario if that were the case? I believe child care expenses are shared expenses are they not?

    There are jurisdictional issues to be considered (which court the matter will be heard in). That in itself could take many, many months to resolve.

    As you have little to do with your time while waiting for court I would recommend that you start reading. If you go online to CanLii you can read about other cases which are similar to yours. Go to the British Columbia Superior Court of Justice and also read the Ontario Superior Court of Justice. You will read many cases about jurisdiction.

    How many lawyers have you spoken to? How can you afford that?

    Comment


    • #3
      Originally posted by Tiredofthis77 View Post
      My question here is, isn't this a civil rights issue as well? How can an American citizen dictate where a Canadian lives?
      No. The issue isn't where you live, it's where the child lives. You can live at the North Pole, as long as the father is able to have access to the child as specified in your agreement. It sounds like his family is involved with the child - you mention his mother picking up and dropping off the child - so even though you don't see the ex himself, his connection to the child is still being maintained. If you can come to an agreement with your ex about how access can be maintained if you move to BC (maybe flying the child back to Ontario a few times a year?), that's great, but if you can't arrive at such an agreement, you're still responsible for adhering to the existing one, unless a court says otherwise.


      His family, as he has stated is of higher financial means, so why would visits be an issue? No one is trying to with hold access, he's just not making the effort, and shouldn't that be considered contempt of court as well?? All the lawyers I've spoken to agree that none of this makes sense and that I should be granted my move, until then, we are in limbo sleeping at a friends waiting for a court date for an entire month while my child is missing that entire month of school. This does not seem fair! Maybe I should go to the Press??
      No, it's not contempt of court. He wasn't ordered to carry out access visits with his child. He has the opportunity to do so, but a court can't force him to make use of that opportunity.

      And no, you should not go to the press. And consider that lawyers have a tendency to tell people what they want to hear - no lawyer is going to say "you really don't have a good argument here, so suck it up".

      Really, I think your best bet is to try to negotiate with the ex and arrive at an agreement which will allow him (or his family members) to have access to the child in the event that you move to BC. That would be best for the child, and it would allow you to make the move (if you chose to do so) without legal troubles hanging over you.

      At the moment, your situation sounds like someone who has a history of moving frequently and impulsively (if you're currently in limbo sleeping at a friend's house); and who has no secure prospects in BC, beyond the fact that your family lives there. You don't have proof that moving to BC will turn your situation around - arguing that salaries are higher and daycare is cheaper is not the same as showing that you have a credible job offer which is better than what you have in Ontario, or that your child has a definite spot in a day care there.

      I'm not sure a judge would be entirely sympathetic to your circumstances. If you can show that you've made efforts to arrange your life so that the father is able to have access to his child (even if his mother is doing the pickups/dropoffs) your case for moving would probably be much more credible.

      Comment


      • #4
        I will reply to both who responded, and thank you for doing so.

        We are settled in BC now, we have been for 6 months, our son is enrolled in school and daycare and has been since the start of the school year September 2013. I was enrolled in college to upgrade my skills in my field and now had to quit because they asked the judge to make me return to Toronto until further order of the court when my motion to change access and mobility has been heard. Toronto has been good to me when I was single, since my child had been born I have been struggling to be here in Toronto. The reason we are sleeping on a friends couch is because we were ordered to leave our stable home until the motion could be heard at the end of April. I had no choice in that matter, and luckily I have a friends couch because the alternative would have been a shelter. Dad's party knew all of this, knew our son would miss school and didn't care about our sons best interest, only their selfish wants. I never have withheld access from him, Flights can be done unaccompanied minors (not that I agree with it) as long as the flight is direct, they claim an unheard of hotel expense in BC yet their hotel expense in Toronto is much higher, I also didn't think that access is a luxury vacation. As for job offers, I had one and was supposed to start at the end of March, which Obviously I had to turn down because of the order to return to Toronto, this whole thing has turned not only my life upside down but definitely our child's, he is unhappy and wants to go home. I have spoken to many lawyers and duty counsel and legal aid etc. Yes they do say I have a very strong case because of the circumstances and everything I have shown. I thought this was for the best interest of the child?? How is it the best interest of the child for the custodial parent to live in poverty? and have no support? and no child care expense are NOT shared! But wouldn't it be better to share $108 than $1000? He has lapsed on his very small (needs to be revised) child support payments twice for 5 months each time with not even an effort of paying a small amount towards his payments. He does not call our child he went through the entire month of September with not even an email or message or call about our child. I don't care who picks up our child whether it be him or his mom, the problem I have is that our son visits with his grandmother and not his father, he sleeps at his grandmothers every night he is there, she also has a dog who our child has asthmatic allergies to and has had countless asthma attacks while in their care. He also has a case of eczema which no matter how many times I educate them on medication, he always seems to come home with extreme rashes even holes in his skin from lack of proper care. This is frustrating! Thank you again for the comments and questions. I would like to find a case like mine but seems almost impossible to find, American father who has never lived in Canada and mother and child who live in Canada and are Canadian citizens, I still feel like this has a Human rights issue attached to it.

        Comment


        • #5
          paragraphs PLEASE!!! So much easier to read when it isn't a wall of text.

          Comment


          • #6
            Sorry!!! Will do next time...

            Also I should mention that I am engaged and my Fiance lives in BC. Not sure it matters... And my 14 year old daughter lives in BC as well.

            Comment


            • #7
              Originally posted by Tiredofthis77 View Post
              Sorry!!! Will do next time...

              Also I should mention that I am engaged and my Fiance lives in BC. Not sure it matters... And my 14 year old daughter lives in BC as well.
              thanks so much..I know that sometimes details are missed when its just a wall of text.

              Your engagement will not make a difference to the court.

              Why didn't you have your older child with you? Does the father of that child have custody? It doesn't look good that you were willing to move away from your child so using the excuse you want to move back to be near the older child is a can of worms that you shouldn't open.

              Comment


              • #8
                Yes completely understand!

                I have sole custody of my Daughter and have a good relationship with her father, we work together to raise her, we have never had legal issues like this!! Work had me travelling a lot in the past and I wanted her stable in BC. The court knows my situation with my daughter and her father as stated in my terribly long 9 page affidavit to the Judge.

                Comment


                • #9
                  Reading your posts, I think there's far too much irrelevant information clouding things here. From what I can see, the essential legal points are:

                  1. You had an agreement (a separation agreement, a court order, whatever) with your child's father giving him access.
                  2. This access was possible when the child was in Ontario.
                  3. You want to take the child to British Columbia.
                  4. The father wants the child to remain somewhere accessible to him.
                  5. You are seeking a change in your agreement concerning access so that you can accomplish #3.

                  Your fiancée, the fact that the grandmother picks up the child, eczema, the citizenship of the parents, the availability of daycare in BC - it's all irrelevant. However, it will take forever to get sorted out in court with all these extraneous issues, and you will be stuck in limbo forever. That's why I really urge you to work directly with the father to put together some sort of modified access agreement which will allow him to maintain a relationship with the child, and not drag this thing through court. That is clearly in the child's best interest. You made an agreement long ago with your ex about access to the child, and you need to either honour it or work out a compromise with him.

                  Comment


                  • #10
                    Thanks again Stripes!

                    I do want to work with him for access, again never have I denied him that, in fact encouraged it from the start, even when he denied our child for the first 2 years of life. The problem is, he is not willing to work with me, and would rather try to buy justice and bully me through the court system. I'm hoping that the access plan I have will be sufficient and that the best interests of our child will prevail. I have no choice about going to court, since they are not willing to work with me, they like to by pass any communication or cooperation and head straight to court! Would rather attack me and try to put our child's best interests aside for their convenience. Funny how the rich people say it's impossible to take a flight and get a hotel when they're doing that regardless. Thank you for your advice, I will keep everything in mind and have been doing my research on supreme court cases regarding mobility and access. I will fight to the end for this move. Would hate to end up living in the Rexdale slums or Regent park because I cannot afford to live anywhere else in Toronto!!!

                    Comment


                    • #11
                      Shoot! Sorry for the wall again!!! I must also mention his Attny stated that "he will never agree with you living in BC" Does not sound very cooperative does it?

                      Comment


                      • #12
                        I wouldn't agree with you living in BC either. It sounds like you are being just has uncooperative. Stand back and think about it for a second. Is what you offering him something you would be willing to take? Meaning, would you be okay with giving him the majority of parenting time and you only have what you are offering? If it is a good, fair offer for him then you should have no problem accepting it yourself.

                        Ontario is much more accessible than BC for him, whether he is 'rich' or not, he should not be at a disadvantage because you want to move. There are other more affordable places to live in Ontario. It sounds like you moved to BC the first time without permission, that will look very poorly on you.

                        So really think about it. Are you willing to swap parenting time so you can move to BC?

                        Comment


                        • #13
                          Sure, for someone who is an active parent, but he is not. He was a deadbeat dad and still does not show he is an active dad in our child's life. He has his life and family in the USA. If I had minimal interest and exercised minimal access and not raising our child then SURE I would agree with the custodial parent moving anywhere my minimal access can be done, it would be a bit different if we moved to Scotland or Hawaii etc. The difference between a 3hr 45 min flight and a 1.5 hour is minimal.

                          He doesn't spend any time with our child so what would I be taking away? He would not raise our child. He made one access visit in the entire year of 2013, what does that tell you? If he was a very active parent (calling every week, every second weekend access) I would agree it may be harder on him to move, I know single dads, active ones! if we lived together, if we raised our child together for X amount of years, fact is, I left him way before our child was born, on the same note, if our child can be sent unaccompanied minor to and from what is he missing out? That would actually be more cost effective.

                          Access would still be taking place at his convenience, which is rare to begin with. The first time move to BC was discussed and uncontested. The reason "he" is upset now is because his mother likes Toronto and wants to keep her little fancy hotel set up here, no other reason, it's not even him it's his mother.

                          There is nothing in Ontario even comparable to what we have in BC. I would have to move to London ON to get something even remotely close, then it's still not what they want because it's not Toronto. Why should we be isolated and living in a lowered standard of living to bend for the access dad that doesn't even use his access? My mother has alzhiemer's and will pass soon, I want our child to have memories of her, him being rich does play a part!, he can have all the resources he requires for access.

                          All the maternal family is in BC why should his family be more important than mine? We see my family almost every day, our child see's his family 3 times a year. There are no ties in Ontario, I have struggled to stay a float here financially for 5 years.

                          He does not want to raise our child, his wife would not be willing to even entertain that and neither would I, she has two young children of her own. Swapping parenting time is not an option, I have raised our child ALONE from birth and will continue to do so. I don't see giving up custody of our Canadian Child to his American dad a solution to access, that seems a bit extreme!

                          Comment


                          • #14
                            The leading case in this field is the Supreme Court of Canada case Gordon v. Goertz, decided in 1996.

                            In Gordon v. Goertz, the parties lived in Saskatoon, and separated in 1990. In divorce proceedings, the mother was granted sole custody of the party’s only child, and the father was awarded generous access. Within two years of the custody order, the father learned that the mother was intending to take the child to live in Australia, where the mother was going to study orthodontics. His application for an order restraining the mother from taking the child out of the jurisdiction was dismissed, and the mother’s cross-application to vary the access provisions of the custody order to allow the move, was allowed. The order awarded the father generous access, but it was to be exercised only in Australia.

                            The father’s appeal to the Saskatchewan Court of Appeal was dismissed, and he appealed to the Supreme Court of Canada.

                            The father’s appeal to the Supreme Court of Canada was also dismissed and, therefore, the mother was allowed to move to Australia with the party’s child.

                            Every level of court in this proceeding was obviously aware of the fact that the child’s move to Australia would cause significant disruption to the access between father and child. However, the court found that the child had been in the mother’s sole custody for some years, and that a change in custody to the father would be highly disruptive for the child. Furthermore , the father had the means to travel to Australia, and, therefore, to some extent this would lessen the inevitable diminution of his access to the child.

                            Comment


                            • #15
                              You mentioned you had submitted a lengthy affidavit. I hope you are clearer in your affidavit about your position than what you have stated on this thread.

                              You stated you moved one other time from Ontario to BC with no issue. Did you give the father prior notice of your intent to move or rather inform him after the fact?

                              You were ordered to return to Ontario from BC due to a charge of contempt arising out of failing to adhere to the order regarding access for last Thanksgiving?

                              I believe all that matters at this point is the current Order which is in play at this time. You have not initiated a motion yourself to revisit the existing order?

                              You have a 14 yr old child who is in your full custody in BC? Who is looking after this child at this time?

                              The grandparent's financial status has little bearing your situation except that you must realize that retaining competent legal counsel will not present financial difficulty for them.

                              I sympathize with your mother suffering from Alzheimer's, however, I don't think that will be relevant. If anything, it will show the importance for your child to continue to enjoy a relationship with a grandparent who is going to be around for a while and who has been a source of stability for your child. The child has two families - one in BC and one in Ontario. It would be optimum for the child to have a life which includes both families.

                              There will likely be focus on your profession. Is there any possibility of you being employed in Ontario? If you work in a high-demand occupation, such as Nursing (as an example) then you would have little basis to say you couldn't be employed as a Nurse in Ontario.

                              You started your first post focussing on the cost of affordable daycare. You stated that affordable daycare was not readily available in Ontario. How old is your child now? While employed in your profession would you even qualify for subsidized daycare?

                              You don't seem to think there is much difference between a 3.45 hr flight and a 1.5 hr flight. I disagree, particularly if it is a restless child who has to travel alone to see a parent. I think it is more than that. If you were to move to BC then the child would have to travel nearly 5 hrs to visit the grandparent in Ontario.

                              Finally, who is going to pay for all of the access costs? You refer to the father as a deadbeat. Often Orders reduce the amount of CS to reflect the access cost do they not?

                              These are just some questions I have regarding your posts. I wonder why you moved to Ontario in the first place? I am confused by your time-lines.
                              Last edited by arabian; 04-06-2014, 12:36 PM.

                              Comment

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