CanuckColleen1972

Hi All. I'm brand new to posting on this page, though I have accessed it a lot over the past few years for info.

My story is a bit complicated and probably long-winded, but hope you can help.

I'm Canadian and a perm resident of UK. I've been married to my british husband for the past 7 years. I moved here with my daughter, now 13, from a previous relationship, and we also have another daughter, now 5, born here in the UK. When I married my husband we had always talked that I would give up my career and move to the UK with him, until he retired from the army. The time is now here - I've applied for a canadian passport for my youngest daughter, and have planned on the move happening June 2012.

My husband has now decided he does not want to leave England. We are faced with a dilemma. Do I a) stay in uk, even though am unhappy here, b) move to canada with the children and leave my husband. This has always been our plan, and now I feel cheated out of my future. I have been relying on the fact that the end was in sight to get me through the past few years of living here.

My question is, if we do split up (we have had a lot of marital problems and have been on the verge several times) over me wanting to go to Canada, what are my rights to take the children with me? My eldest is not his, and is a canadian citizen with passport. My youngest will hold both passports. He has already said he won't allow me to leave the country with them without a fight. Can I be forced to stay in the uk even if I don't want to be here and am a permanent resident only?

Sorry for the long story ... thought a lot of info would be best.
Thanks.

Almost Canadian

Unless your husband has applied for, and been granted, parental responsibility for your eldest child, you do not have to obtain his permission to leave England with the child and can do so without further Order from the Court (I am assuming that the child's biological father is Canadian).

You have no rights to your youngest child, only responsibilities. You cannot remove this child from the jurisdiction of England and Wales without the permission of your husband or an Order of the Court.

The Court cannot force you to stay in England but may not agree that it is in the best interest of the child to be taken to Canada. The Court does not really care about what you want. The only question the Court will ask is: What is in the best interests of the child? Will you be able to explain to the Court why it is in the child's best interest to be removed from the country she has lived in all her life, to be taken away from her school, her friends, her extended family and her father?

Why should your daughter not be allowed to live with your husband, with you becoming the access parent? What plans do you have for working in Canada? Have you taken any steps to achieve those? What do you intend to do to facilitate contact between your husband and your daughter?

I apologize for coming across as unsympathetic but, unless you have evidence of your husband's unsuitability as primary parent, you will struggle do achieve your wish.

CanuckColleen1972

We had planned to move as a family, but now he's decided he wants to stay here.

I don't want to take the kids away from their father, but I have no intention of leaving my youngest here and moving back with my eldest. She's 5 years old and I am her primary caretaker - I bathe her, dress her, take her to school, pick her up from, do all the cooking and do everything for her. Her father is not hands-on and I cannot see how he could ever think he could be a single father because he has no idea of what it takes every day. He has a bad temper and is quick to "lose it". If I'm not there to calm him down, I would not want to know what would happen.

His parents are divorced and both are in new relationships. His mother has seen the children twice in the past year and did not actually give them a christmas gift last year. His father is a more frequent visitor (once every few months), but they are not a constant in the childrens' lives. In any case, everyone was prepared that next year the entire family was moving away, so I'm not sure what relevance that has, as if they were fine with us moving away as a family why would that now change?

I work full-time and already have been in contact with recruitment agencies and have prospects for a considerably higher paying job. My parents and my sister and her family all live in Calgary, and I lived there prior to leaving Canada, so have help for us and a place to live until I find something more permanent.

Rather than being judgmental, I would like to have some genuine advice about what steps I can/may need to take.

Thanks

scribe123

I don't think the person that responded was being judgmental.

I think those are the questions that will be asked if you were to go down this route. I'm sure there will be more challenging questions as well.

All I can say is to seek advice from a professional, perhaps a solicitor. If you can't afford that then I would at least talk with citizens advice to see if they can give you some clarity.

Cheers

Chris

HGerchikov

I don't think he was being judgemental either, although I can see why you may have thought so. I have two children too and, if I were ever to split from my husband I could not conceive that it would be possible that they would live with him and not me, I think all mothers who have been primary carers and basically done everything for their kids feel the same way. Unfortunately as logical and fair as this seems to us, sometimes the law does not agree. I have a friend in this situation. She is Canadian, was married to a Canadian and had two boys. They lived in Canada and she was the stay at home Mum. They started to have some marital problems at the same time as he was offered a job in the States, as a last ditch attempt to save the marriage she moved out there with him. It didn't work and a few years later they split. She did not have the right to work in the US so had to come home to Canada. She came back, brought a place to live, got a job enrolled the kids in school and then went back to the States to bring them home. The US courts wouldn't let her take them and it was decided it was in the kids best interests to remain in the US. So now she lives without her boys and it breaks her heart. So, as I believe the previous poster was trying to say, think very hard about what you do and the potential risks involved.
Good luck, you are in a tough situation and I hope you find a solution that works for you.

el_richo

He's a Lawyer (possibly of the family variety) so i would count that as genuine feedback and advice

Piff Poff

I agree with the others, the advice AC gave was that of a lawyer, the questions he asked were ones that a court or other lawyer would ask, to get more information.

I understand that you feel cheated, I do think your husband is being very unfair by not even giving Canada a try out, especially as that is what you have all agreed on in the past. Hope things work out for you.

Almost Canadian

Correctamundo - both sides of the Atlantic too. Still what do I know

Aviator

As AC said, and he knows best out of all of us, the courts look at the best interests of the children not the parents. The children have rights, parents responsibilities. Emotional responses are of no interest to the court. You have to be able to demonstrate to the court (if it goes that far) how the children would be better off in Canada and your plans for them and their rights to see and visit their family in the UK. Even if your family is in Canada, the way of life they have now is all they have known.

My own opinion and that is all it is, deciding to split up the family because one parent wants to live somewhere else is not going to go well in court or demonstrate a concern for the children's welfare. If there are other issues, with a documented history that may be another matter.

Having been there and gone through it, it is not easy. I was living in Canada and wanted to bring my now wife (who was divorced) and her young child to Canada. I worked for a Canadian company, had a job and was established in Canada. Even with this it took 24 months of court battles to deal with. This is not an inexpensive process (a gross understatement by the way). If it goes to court expect 5 figure bills (before the decimal point).

They only way you are going to have any idea is to consult a lawyer. Nobody can advise or tell you what is right. Only you know what is best for your children. Do not expect an easy ride, and consider whatever is hard for you is 10 times harder for the children, who have no control over what happens.

Essay

First, I'm so sorry that you're in this situation which has, at the very least, two significant questions: where do you live, and with whom?

Is there a chance your husband will agree to visit Canada, to see if he would like to give it a chance? He may be wary, since you've applied for the youngest child's Canadian passport, but visiting Canada would be an opportunity for him to make an informed decision.

Remaining in your marriage, in the UK, may be the best option for you. You're the only one who can decide that. Sometimes, one stays in a marriage until such time as the youngest child is old enough to legally decide with whom the child will live. In your case, your youngest is being raised in the UK and certainly may feel the UK is 'home'. Perhaps an alternative is finding a place in the UK that is more suited to you, and in the event of a divorce, you would at least be close enough that sharing custody would be a reasonable option?

While AC's response may appear harsh, it is what your lawyer (should you obtain one) should present to you. And not just in your case. In Canada, a divorcing couple with children where both parents remain in the same city must consider these questions as well. In some jurisdictions (afaik), counseling is mandatory before divorce/custody issues are resolved in court.

I empathize with you and hope for the best.

Cinders67

Hi ya, I'm a Canadian citizen, and I'm relocating to Canada next week. I am also a permanent resident in the UK. Like you, my ex opposed the move, and it's taken over two years in court to resolve. You must have the permission of the other person with parental responsibilities (e.g. biological parent), so in the case of your youngest child, if you remove them without written permission, it is considered child abduction. You will have to go to court and apply for Leave to Remove Permanently from the Jurisdiction. It is very costly and a long process. You will need specialist legal representation and it's hard to obtain permission (and rightly so).

Feel free to PM me, and I can tell you more about the process and advise you on where you can get more information. However, I would strongly persuade you to get the father on board and get his consent directly, and try and negotiate an agreement if at all possible. I completely empathise with you and although I have been successful, it's been the hardest thing I've ever done!

Cinders67

Just to add from my recent experience of the Leave to Remove process, you will need to put together a very thorough, well thought out plan for accommodation, education, shelter, health care, etc. And it will also depend on current contact arrangements, (e.g.in my case, the father lives an hour and a half away and sees the children only twice a month). The courts will look very closely at existing familial relationships and support the children currently have versus what they will have in Canada. You will also need to provide a concrete plan for alternative contact. So in my case, my children are flying to England at Christmas, in Feb, in April and in June, and father is flying to Canada in the autumn. This is a very contentious issue within family law in the UK, and many are convinced the law will soon change. I had what would be considered a strong case to relocate, but it was a long, hard process. I would suggest you contact Reunite (google it) and seek legal advise from a family law solicitor. I can recommend my lawyer if you like.

Almost Canadian

Thank you.

I was a solicitor in England and now run my own law firm specializing in family law in Calgary.

Greenhill

If you decide to leave England with the children and he is able, your husband and his lawyer will argue abduction and under the Hague convention the location of habitual residence for your youngest child will likely be deemed as England (as she's always lived there).

If that occurs, under international law, she will have to be returned to England where custody and divorce proceedings will have to take place. In these circumstances a deemed abduction will be likely unless you can prove it was absolutely necessary, even so this whole situation will be costly - likely ruin you all financially and emotionally.

You and your husband might have your differences, but is he so bad? Are the differences just 50:50? As a soldier he must have been away for long periods of time, is spending a lot of time together now something relatively new? Something you're both adjusting to? His "bad temper" and your ability to calm him down - sounds like you love him and he could do with a bit of counselling? All relationships have pressures of one sort or another so if you do both love each other still and are willing to work at it then put your efforts into compromise.

Divorce/child custody is never easy, at the end of the day all you're both doing is getting a judge to make a decision on the things you're unable to compromise on. Then there's the emotional strain for everyone and the financial costs; which one or both of you might never recover from.

Unless he is a really bad father, abusive husband, and you can prove it, the only way you can get both your children into Canada legally is with his consent, which will have to be written and should be formalised by a lawyer.

If you see his qualities as a father and, I'm sure there must be some part of you that does (the part that brought you and your own first child to England to share with him) then try to focus on that as a positive rather than something that feels threatening.

I think it's at age 16 in the UK when a child can make up his/her own mind about which parent to stay with (AC can probably confirm the exact details about this) and I believe, with court approval, that means the child can consent to stay with one parent who is in a country different from the one the original custody order locked him/her into. Bear in mind, as soon as custody proceedings are begun in the UK, whatever custody order is produced, either his lawyer or the judge will add a clause forbidding removal of your youngest from Britain (so it's a criminal office if anyone does this).

If you're unable to continue in a relationship with him, do what you can to be amicable and keep the peace; this should pay off in dividends if he becomes an absent father.

Of course, this is all my opinion, not legal or professional advice so take it with a pinch of salt...


http://en.wikipedia.org/wiki/Hague_C...hild_Abduction

JAJ

Talk to a family law solicitor but what others have posted is correct - you don't have the automatic right to take your husband's child out of the country without his consent or a court order. At least until the child is 16.

If he has been neglectful, abusive or violent, and it's documented - then it will be easier to get a court order. If he abandons the child - it will be easier. If child gets to age 12 or 13 or so, then a court may listen to child's own opinion - it will become easier at that point.

And by the way - you really should get British citizenship for yourself and your 13 year old daughter. Not smart to be be planning to abandon your resident status without resolving that.