Is this considered "abandonment"? What rights do I have?

[happydad]

I have been separated from my common-law spouse for 5 years, have been diligently paying child support and have always had a regular schedule of visitation with my daughter; 2-3 evenings a week and every other weekend. Our 18 year old son also lives with me and has for 2 years. Recently my ex decided she and her new husband no longer wanted to stay in Ontario and have now moved back to PEI. She left my daughter (9) with me to finish her school year, but expects me to bring her to the island this summer when I visit PEI for vacation. My daughter does not want to go and live with her mom. All of her friends are here and she is happy living with my girlfriend and I. What are my rights in regards to this situation? Is my ex out of luck because she left without our daughter or can she force me to leave her in PEI upon my return to Ontario? I've searched the internet for information in regards to this situation, but have come up empty. Please help!

[#1StepMom]

I unfortunately don't foresee this being settle out of Court, unless your ex is willing for you to keep your daughter. What you have in your favour is the status quo that for the past little while (how long exactly?) your daughter was willingly left in your care by your ex. You also have your son living with you. If I were you, I would file for a court order to have custody of both children. If your daughter has lived and attended school in the same place for the past several years, it will not be favourable to uproot her. In your requested court order, it would also help you if you would specify exactly what type of access you are willing to provide your ex in order for her to see her daughter. Half of the summer and Christmas break, and every-other-March Break seems reasonable. You will also need to consider who will be responsible for providing transportation for your daughter during these access and vacation times.

I have a slight feeling that your ex knows it is best to not uproot your daughter, but she doesn't want to be the one having to pay child support. Maybe if you suggest a lowered amount if she is the one responsible for transportation she'll be more willing to accept you having custody.

[happydad]

Thanks #1StepMom. I will wait for more replies, but I am going to make an appointment with my lawyer and try to have the court order in hand before I go on vacation.

[Daba]

I think you have an excellent case but I would seriously look into travel arrangements before approaching your X or your lawyer so you know what is possible for your situation. I'm guessing between Ontario and PEI your daughter would need to fly. Is she old enough to fly alone? if not then someone has to accompany her each way (this gets expensive) who will be responsible for those costs? Will one parent accompany her both ways or will you take turns?
Also, another point to consider is the flight schedule and frequency. If there are regular direct flights and you live near an airport, then you might also want to consider adding the four days at Easter and the three days at Thanks Giving to time your X will have with your daughter, or long weekends, otherwise every second year when your X does not have your daughter for March break they will go roughly six months without seeing each other-a very long stretch for any parent child relationship to have to deal with. If it is not possible to do this as the travel time outweighs the time she would spend with her mom then I would offer every March break as an alternative and slightly more than half of the time at Christmas and summer.
Best of luck to you, as I said before I think your chances of getting custody are very good, but I also think you need to do your research on access and propose as much as possible.

[AtALoss]

I dont think you have a strong case for abandonment. Loosely it would be defined as one parent or spouse just up and left with no interm contact, support or intent to maintain any of the above. We have all heard stories about how one parent/spouse has just up and walked away and is not heard from.

Now this brings up the issue of Mobility Rights (which you both have). Under the Constitution of Canada no one has the right to restrict anyone,s movement within a province or the country for the purpose of gaining a livelihood and securing other nececities of life. It is written slightly different but what I was trying to portary was the essense.

Why I bring that up is that it was made an issue in my divorce. I wanted to move a short distance away for work reasons. My ex tried to use this as a means to prevent on the basis he claimed I abducted our child 2 yrs earlier. Sorry to him but I just moved 10 blocks away to my parents home under his threat of continued abuse. Sad as the situation was it is is not an abduction.
With preventing mobility you would have to have a strong Documented case that proves it is not in the best interest of the child not to move. Mine was granted on the ecomomic advantages. Is there harm to the child etc etc.

I know all that sounds so negative and not meant to discourage you but you have to be realistic in that persuit in knowing what you are up against. Alot of court money to the lawyers and heart ache to all. I am a strong proponant of compromise so as #1StepMom is leading into, try to make an agreement that works to a degree for everyone, mainly the child. See if you could increase vacation times add more days etc what ever it takes, Share the costs.... and so forth. this way the child does not have to feel they have to choose. My ex is trying to make my 10 yr old choose and she feels so horrible and unhappy. She does not want anymore conflict.

[PhoenixRising]

As far as flying from Ontario to PEI, I was unable to find with Air Canada anything other than children could fly alone at 12 years of age. I did not call to see if they had any other programs in place for a child the age of 9 travelling.

However, when I called Westjet they have a Guardianship program and what that means is children can be accompanied with their parent. A child's flight is booked and a parent books their flight. The parent is entitled to approx. 50% off their booked flight but must return to their previous destination immediately, in some cases it may be the next day. The flight must be booked together and through a Westjet agent.

As far as your daughter age of 9, one would hope that because she is able to express her own feelings adequately that her views would be considered in the outcome.

[standing on the sidelines]

did you agree to what your ex proposed about sending the child to her in PEI once she was done school? If you did then it is up to you to live up to the agreement you made.

[happydad]

Daba

My daughter is 9 (10 in December) so I believe she can fly as an unaccompanied minor. If her mom isn't paying support it is my belief SHE should be paying for travel, especially considering the expense is due to her decision to move. I neither expect nor want any support. I know if my daughter stays I would be entitled to it, but both her mom and step dad are uneducated underachievers and will spend their lives working menial jobs for minimum wage and I don't want to create undue hardship for them as they have another child to look after. She should, however, be putting money away regularly to cover travel expenses for our daughter's visits. Also, I think every march break, every other Easter and Christmas and one or two long weekends a year plus 1/2 the summer is fair for visitation.

AtALoss

My ex did move for economic reasons, but financially, and as a mater of fact, emtionally, I will be a far better provider for my childern. My ex is manipulative and controlling and is not above using our daughter as a pawn for her own objectives, she did this with our son when he was young. By Ontario Family Law you do have "mobility rights", but in a shared custody arrangement you are limited to moving within a 100km radius of the other parent unless you have their written consent. PEI is 1800km from my home in Ontario so it has been FAR exceeded AND I did not give written consent for my daughter to move there. He mom and step dad can, but not her.

PhoenixRising

For $50 extra Air Canada will fly children between the age of 5 and 11 within Canada with a flight attendant escort.

Standing on the sidelines

I reluctantly mad a verbal agreement to that effect, but if my daughter wants to stay with me I'm behind her 100%. I love her to death and believe her home environment with me will be far better than what she's had to deal with living with her mom, constant emotional abuse and since her new little brother has come along, neglect. My daughter is still my baby and will always be. I can't have any more children.