Advice Please

[donnel8]

I have a friend that is going through a separation/divorce and he desperately needs some advice.

He and his STBX are both Canadian teachers and they have been living and teaching in Saudi for the last three years. They have two children aged 4 and 7 and they have just recently split. His ex would not move back to Canada unless he agreed to go to the Canadian Embassy in Saudi and swear a divorce under Sharia Law. They currently do not have separation agreement other then two documents signed in the Embassy. The Divorce Deed was signed by both parties in addition to a Custody Agreement. He has always been a very involved and active participant in the children’s’ lives however, he unwittingly agreed to having roughly 20% custody of the kids in exchange for everyone returning to Canada. They both have a secure teaching job in Ontario but now they need to sort out all of the details of the separation.

Can he open up the issue of custody now that they have returned? He never consulted a lawyer at the time and felt forced into signing the document in order to secure their safe return to Canada. The most important thing for him is having 50% custody/access of the kids.

Due to the fact that he signed this document can he object to his ex’s recent desire to enrol the children in the city and school of her choice?

She currently holds the children’s passports and he is concerned that she will leave the country and possibly not return. What are his options?

Is he legally divorced in Canada even though they never had a Separation Agreement? Is this Divorce Deed and Custody Agreement valid in Canada because it was signed in the Canadian Embassy?


Thanks for any help and guidance!

[blinkandimgone]

Sounds like his best bet is to call the Upper Canada Law Society and ask for a consultation (something like $6 over the phone) or take a free consultation with a lawyer to get his questions answered.

Finding out if they are indeed legally divorce would be the first step. He can also try re-opening based on a lack of independant legal advice at the time of signing.

Given that she has the passports, if he is very concerned that she may leave the country, he can call CBSA and flag the children's passports. She would still need your consent to travel with the kids technically, however this only helps if she is asked to provide documentation at the time of travel. He can and should file to have the kids' passports surrendered either to himself or to a lawyer for the time being until the matter is settled. If this is a risk, he should do so ASAP.

[Mess]

He signed under duress, and without independant legal advice, so the agreement would not be valid in Canada. However until he goes to court and has it overturned, he has nothing to show that it is not valid, for example to schools, doctors, police, etc.

This is also not to say he will be able to achieve 50/50. He needs to act promptly before the ex can argue status quo and that the children are settled in.

I also agree with Blink, this is a complex matter that you shouldn't be relying on strangers from the internet. However if your question is simply, does he have any grounds to fight? Is it worth hiring a lawyer? The answers would be yes.

As to are they legally divorced? Generally, yes, IF they are FROM Saudi and especially if they were married there. If they are from, just for example, Pakistan, and are currently Canadian citizens, then a divorce in Saudi would not carry weight if he wants to challenge it. However I would say the divorce is the least of your worries.

[donnel8]

Thanks for your replies. They are both Canadian Citizens, married in Canada and were merely on a teaching exchange in Saudi. Neither one has a Saudi passport.
Thanks again!

[Tayken]

I have a friend that is going through a separation/divorce and he desperately needs some advice.

He and his STBX are both Canadian teachers and they have been living and teaching in Saudi for the last three years. They have two children aged 4 and 7 and they have just recently split. His ex would not move back to Canada unless he agreed to go to the Canadian Embassy in Saudi and swear a divorce under Sharia Law. They currently do not have separation agreement other then two documents signed in the Embassy. The Divorce Deed was signed by both parties in addition to a Custody Agreement. He has always been a very involved and active participant in the children’s’ lives however, he unwittingly agreed to having roughly 20% custody of the kids in exchange for everyone returning to Canada. They both have a secure teaching job in Ontario but now they need to sort out all of the details of the separation.

Can he open up the issue of custody now that they have returned? He never consulted a lawyer at the time and felt forced into signing the document in order to secure their safe return to Canada. The most important thing for him is having 50% custody/access of the kids.

Due to the fact that he signed this document can he object to his ex’s recent desire to enrol the children in the city and school of her choice?

She currently holds the children’s passports and he is concerned that she will leave the country and possibly not return. What are his options?

Is he legally divorced in Canada even though they never had a Separation Agreement? Is this Divorce Deed and Custody Agreement valid in Canada because it was signed in the Canadian Embassy?


Thanks for any help and guidance!

Ok, this is an incredibly complex one. As the children were born in Canada and they are now residing in Canada the habitual residence of the children is now in Canada.

In my opinion the Rules governing custody and access for any agreement would have to be re-aligned to Canadian law. The agreement signed may in fact not be worth the paper it is written on.

You would need a very good Family Law lawyer to sort out the mess potentially. The residential change of the children constitutes a significant "material change in circumstance" for which the whole agreement may potentially thrown under the bus in a Canadian court.

This is a situation where a lawyer is really necessary.

Good Luck!
Tayken