Children and separation
 

My husband and I moved to Ontario in August 2008 on Work Permits, I found out that he had been having affairs and after counselling and mediation we decided to end the marriage. We has a legal separation agreement drawn up and I left in September 2011 and returned to the UK.

He has three children who all decided they wanted to remain in Canada, I had Step Parental Responsibility awarded by the Courts in the UK and our Canadian Separation Agreement recognises this. I am close to the children and they consider me to be their Mum, I had no issues with them remaining in Canada as they were happy there, it was more about choosing which country not which parent. We had many discussions about this, and I left happy knowing they were happy, the children knew I was not happy in Canada and were happy that I would be happy in the UK.

Over the last two years there have been many issues regarding the children, they did not like their Dads new girlfriend, now he has a different one but she has children of a similar age and there are a lot of blended family issues.

One child is thinking about returning to the UK, she is fifteen. Having had many distraught phone calls off her, I am trying to help. I am well aware that part of her decision is based on the fact that she is arguing with her Dad, and that this is swaying her decision.

Obviously I would love to have her with me, but I am conscious of the impact this would have on her, leaving Dad, siblings, friends and school. I am incredibly biased as I hate her Dad with a passion, he destroyed the family, but this is not about me.

How can I empower my daughter? I have sent her a PDF of an Ontario guide to Separation, this has a kids help line number that I have advised her to call.

Does anyone know the legal steps we would have to take if she really wanted to return?

Clematis

Re: Children and separation
 

I have no answers for you but just wanted to send love and hugs. I know how much love there is between you and your children and hope it works out. Your very reasonable and sensible approach should prevail if there is any justice.

Re: Children and separation
 

No answers here but to echo what Bats said
All too often children get caught in the middle , it was incredibly selfless of you to realize that the children should remain in Canada and not to put them in a position where they felt they had to pick a parent

However things work out hold your head up high that you are doing the best thing for the children

I wish the greatest of happiness however your future pans out.

Re: Children and separation
 

No answers here but to echo what Bats said
All too often children get caught in the middle , it was incredibly selfless of you to realize that the children should remain in Canada and not to put them in a position where they felt they had to pick a parent

However things work out hold your head up high that you are doing the best thing for the children

I wish the greatest of happiness however your future pans out.

Re: Children and separation
 

Thank you bats :thumbsup:

Thank you Zoe :thumbsup:

Re: Children and separation
 

Late to the party but, yes, bats is spot on. If I were to start hugging people in the internet, I'd start here.

Re: Children and separation
 

+1. That time C. had us all over to her place it was obvious that her step children loved her to bits.

Good luck Clematis. Trust your judgement.

Re: Children and separation
 

I had a lot of advice (most of it pretty much unnecessary) thrown at me when I went through divorce and child custody stuff here.

From that advice, if I recall correctly, I believe there is a lower age in the UK (compared to Canada), regarding when a child becomes "free" from custodial agreements and parental control. Also, at some age threshold, a minor can also elect [in court] to be with the other parent.

AC will hopefully be along soon to clarify.

Re: Children and separation
 

im not sure this helps? My situation is that i separated from my wife in 2012 and our 3 kids went back to the UK with her..fast forward a year and my oldest son has come back to Canada to live with me..all i needed was a letter from my wife agreeing to sole custody..not sure how it works going the other way though?

Re: Children and separation
 

If the parties agree upon what is to happen it should be fairly simple to paper that. The remainder of this response assumes the parties, for whatever reason, are unable to agree.

The OP will need to make an Application in Canada for an Order to determine the residence of the child. As per usual, whether the Court will decide to permit the child to relocate to the UK will depend upon "what is in the best interests of the child."

It should be fairly easy for you to retain counsel in Ontario to represent you. You could represent yourself (attending by telephone) but only you can determine whether you would feel comfortable doing so.

I assume that divorce proceedings were not commenced. If they were, an Order for custody and access would already be in place (on the assumption that the divorce was finalized).

As I see it, your main difficulty will be in persuading the Court that the UK will be a better place for the child to live when compared with Ontario. An Ontario judge will decide this. You will also have to explain how often dad will have access to the child and which of the parties should have to pay the costs of such access (expect to have to pay them yourself).

You will need to take great care to stay away from it appearing that the child is going through adolescence and simply doesn't like the fact that dad is not permitting her to do the things she wants to do. If you left Canada in 2011, how often have you seen the child since the time you left? If you haven't, why haven't you? etc.

The Court can order a child psychologist to prepare (what is known in Alberta as a Bilateral Assessment) report to aid the Court to determine what is best for the child. These are very expensive and will be even more so in light of the international element. Ordinarily, the expert will visit the school, meet with the child(ren), meet with the parents (and look at their accommodation) and would meet with the parents' new partners. The expert will then provide recommendations to the Court and, invariably, the recommendations are almost universally adopted by the Court.

Alternatively, the child can bring an Application to attempt to achieve the same result. Legal Aid is usually available to enable them to obtain a lawyer (a lawyer made be Ordered to represent the child even if you make an Application).

Best of luck.

Re: Children and separation
 

Hi


I would think that in a custody case, the OP being a step parent is going to have a bearing on the case.

Re: Children and separation
 

Thank you kind sir!

Seems like a lifetime ago, thank you Novo :D

Thank you and yes no doubt.

If it is by mutual agreement, then I guess it would be much easier.


Should not be as previously stated I have Step Parental Responsibility for them which is recognised by the Separation Agreement. I have been with them since the youngest was two and the eldest was five. However I do not wish to go to Court and fight over them. This was far more about empowering my middle child to reach her own decision with out bias or guilt from either parent.

Re: Children and separation
 

Possibly, but that would depend upon the strength of the Order the OP has from England that she has referred to. If it provides her with de facto guardianship/custody, she is in the same position as her ex.

Her biggest issue, as I see it, will be persuading a Court that the child will be "better off" in England versus Canada and explaining how the OP will not face the same issues with the child in England that her ex is facing in Ontario. It will also depend upon how much access the OP has had with the child since returning to the UK. Calling the child, Skyping, texting and emailing the child are very different from looking after the child.

The OP suggested that the parties had agreed that Canada was the best place for the child at the time that the OP went back to England. One assumes they did so after considering all the facts. What has changed?

Re: Children and separation
 

Thank you, access and custody was all dealt with in the Separation Agreement, other than the divorce there is nothing to sort, house, finances, access etc, were all dealt with. As I could have claimed spousal support and he could have claimed child support we mutually agreed to both waive this and I just pay Section 7 expenses.

Part of the Agreement was that the children would return to the UK every Summer, that did not happen this year. I went out to see them last year, and have regular contact with them. We also had a court agreement from the UK, giving us the Right to Remove the children, but again part of the agreement was that the children would return to the UK each Summer to see their birth mother.

I have no desire to wrangle in Court with my very soon to be ex husband about who the children should live with. We both made that decision with the children something all of us thought long and hard about, in the end the children were happy with their lives in Canada and did not want to leave, it was not about which parent.

It is only now that things are changing and to be honest I think part of it is teenage angst, but I am trying to guide my child to make her own decision. I doubt that she fully understands the impact this decision could have.

Clematis

Re: Children and separation
 

Yes it does prove that, I totally agree with what you are saying, as I said the only thing that has changed is potentially what the child wants.

Re: Children and separation
 

It sounds like (from what you state below) that a Divorce Judgment and Corollary Relief Order will soon be presented to the Court. If so, you may have difficulties with this provision as the Court has parens patriae jurisdiction over the children. Child support must be paid. Spousal support may be payable. There is a difference and, as the Court will likely have a copy of the Separation Agreement at the time it considers the Corollary Relief Order, it may decide that your ex has inappropriately bargained away his children's entitlement to child support and it may have something to say about that. It will very much depend upon how the lawyer presents the position.

It sounds like you have your head in the right place and I trust that the parties will reach an agreement upon what should happen.

Re: Children and separation
 

As far as I see it, it is not for the parties to decide, but for the child. I would prefer her to stay there and finish her education BUT but I am not totally sure that emotionally she can do this.

What ever happens I would like it to be her decision.

Re: Children and separation
 

The problem is that a Court will be very reluctant to place such a decision upon her young shoulders. The best decision will be one that the three of you are able to reach on a consensual basis. If not, others may have to become involved.

On the spousal support/child support issue, such a clause is frequently seen in separation agreements. Separation Agreements are little more than glorified contracts between the parties. The parties, for example, can agree to any amount of child support they believe is appropriate. Ditto with spousal support.

When the Court is involved, it will wish to ensure that vulnerable parties are protected. In this instance, the children.

What many lawyers will advise their clients to do in such a situation is to put in the appropriate amount of child support and the appropriate amount of spousal support on the basis that neither party will actually pay any of the amounts. Clearly, this is risky for obvious reasons.

It is very difficult (in Alberta at least, but divorce is governed by federal legislation) to obtain a Corollary Relief Judgment that provides for a child support payment of zero. Offsetting the child support against spousal support doesn't really work as the amount of child support payable will decrease once the children are no longer children of the marriage. I accept that it may be different in Ontario.

I suspect that, as the children are not "children of the marriage", it will be this fact that will be used to do away with the need for child support to be paid (accepting that it will then seem strange if a term is included to permit the children to have time with you each year). Hopefully, the separation agreement was appropriately drafted to reflect this too.

Re: Children and separation
 

There's a general guide here that might be of some use:

http://divorce-canada.ca/child-custody-in-canada

"When determining child custody in Canada a judge will consider items such as:

• First and foremost the best interest of the children.
• The parent-child relationship and bonding.
• Parenting abilities of each individual.
• Each parent’s mental, physical and emotional health.
• The typical schedule of both parents and children.
• Available support systems of each parent (for example, help and involvement of grandparents or other close relatives).
• Sibling issues. Generally, brothers and sisters will be kept together, but under some circumstances it may be necessary to consider separating them.
• Care arrangements before the separation. Who was the primary care giver?
• The child’s wishes. The Office of the Children’s Lawyer is often appointed by the court to help in determining the child’s wishes. Once a child turns 12 years of age, his or her wishes to live with one parent or another are usually respected by the courts

"

Re: Children and separation
 

That very much depends upon the individual child. Some 12 year olds are intelligent and articulate; some 17 year olds should not be left in charge of a kettle.

To be honest, the child will have to put forward a much more coherent reason than simply not getting along with the father's new girlfriend to justify such a massive upheaval. Relocating to the UK just before GCSEs is not likely to be in the child's best interests. As I said above, all interested parties should try to reach a consensus as this is likely to be the best solution.

Re: Children and separation
 

Is sending her to boarding school an option?

Re: Children and separation
 

Are there any boarding schools in Ontario?

Re: Children and separation
 

At a guess, I'd say there are thirteen of them.

(However, I feel like you're just about to pull the lever to drop me into a pit of despair :ohmy:)

Re: Children and separation
 

:) No. I'm just too lazy to google it. I don't think I know of any of the thirteen.

Re: Children and separation
 

Fee paying ones , yes

Re: Children and separation
 

OK. I did google and there are four in Ontario either co-ed or for girls only, one of which is an International School, so three.

I know the OP and I know of her ex. These are not an option for them from a simple financial POV.

Re: Children and separation
 

Our divorce does not involve lawyers, he is filing himself... :eek:

My soon to be ex, myself and children agreed everything that we did, I would hope that any future decisions would be made the same way. I do not wish to go to court and fight.

I would hope that any decision she independently made would be discussed and agreed, they are many reasons to stay in Canada, mainly her education. On the other had if she chose to return here, she has a half brother, birth mother, me, and all the other family members that she misses.

The one thing I do not want to happen is her ping ponging.

All of this is slightly more than her not getting on with the current girlfriend, but I don't wish to air it here.

As far a boarding school goes that would never be an option even if we could afford it.

Re: Children and separation
 

As I said earlier, trust your judgement. I do.

Re: Children and separation
 

In terms of emotional support, have you tried talking to her guidance counsellor at school. They may (should?) be able to point her and you in the right direction for some emotional support.

Maybe some counselling would help her understand what is happening and come to a decision as to what she does actually want to do.

It ma be that talking to a neutral party would help. Many schools ave access to a social worker who would be able to put you in touch with the appropriate support agencies.

I may be able to speak to our social worker just to get you some agencies details but I'm not back in the office until next week.

Re: Children and separation
 

Thank you :)

I have suggested to her that she talk to the school guidance counsellor, I am going to ring her school today. Thank you Zoe :)

Re: Children and separation
 

Is this an option? A friend back in England took in a schoolfriend of her daughter for a couple of years until she finished school. The girl's parents moved away and she wanted to stay at the same school. Just a thought.

Re: Children and separation
 

No, that would not be an option, but thanks for the suggestion.