Foreign divorces are very complicated. Can you divorce your partner from afar and how does that affect custody of your children? A Saudi couple who came to Ontario to study faced that challenge when they became embroiled in a contentious divorce and custody dispute.
Five years into their arranged marriage and three years after becoming permanent residents (PR) of Canada, the couple separated in 2013. The husband became a Canadian citizen, while his wife renewed her PR status. Their Canadian-born son, three at the time, was a citizen of both Saudi Arabia and Canada. And that’s when the dispute became international.
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Disputing a custody request
Bridging two cultures, the father started his career as an Ottawa surgeon while his wife studied for her PhD. Divorce proceedings got underway in Ontario in 2016. The mother asked for sole custody of their son, who would live with her, with the father having court-specified access. She also requested child and spousal support and permission to travel abroad with their son and relocate him permanently to Saudi Arabia.
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The father agreed with the divorce and paying child support. But he asked the court for sole or joint custody of the boy and equal parenting time. He disagreed with their son travelling or leaving Canada without his permission.
Allegations over child safety
The strife started almost immediately. Saying she needed to return to Saudi Arabia for a month to do research for her PhD, the mother asked the court for permission to take her son with her. When her husband consented to her request, she dropped the motion.
But in April 2016, when he asked for joint or sole custody and equal parenting time and got parenting time (access) with the boy, she fought back. The Children’s Aid Society received an anonymous tip of drug and alcohol abuse in May, but found nothing suspicious. The father took voluntary drug tests. They came back negative. The society again investigated in June after the mother alleged sexual abuse. Again, there were no concerns. A custody and access assessment was prepared for the court. That led to joint custody in March 2017, with the boy living one week with his mother and the next with his father.
Foreign Divorces- Removing a child from Canada
By July 2017, the embattled mother sought an emergency motion to travel abroad with her son. The court denied it. She left anyway. Taking their son, she travelled to Saudi Arabia in August 2017. The father found out when a letter from her lawyer arrived.
Back in court, he succeeded with a motion that their son be ordered immediately returned to Canada. Again, the mother refused. The court found her in contempt, but gave her a chance to purge the court order by returning the child to Canada herself or by delivering him to her brother-in-law.
In May 2018, the Ontario court was ready to go to trial. Despite being aware of the trial date, the mother failed to show. The price was high. By not obeying the court’s orders, she gave the court the authority and discretion to decide on a just resolution, including striking her divorce, custody and access claims.
Judges sympathetic to a point
Family court judges understand the turmoil divorce and custody issues create. They are sympathetic to your plight, to a point. Unfortunately, as this judge noted,
“The mother took matters into her own hands and left with the child within days of the court denying her request for leave…to travel. By her actions, she signals disregard for the authority of the court, the rights of the child and the rights of the father. The issues of where and with whom the child will live go to the very heart of this case.”
The court dismissed her 2016 divorce application. As the judge stated, “Her disregard for court orders and refusal to obey them requires nothing less.”
Foreign Divorces- The divorce goes international
Now living in Saudi Arabia, the mother obtained a divorce in that country. Since Canada recognizes foreign divorces, the Ontario court upheld the Saudi divorce order.
Custody of their son was another matter. The boy had lived in Ontario for seven years when his mother fled with him in 2017. His father had denied granting permission for him to travel or live abroad. Bringing forward a May 2, 2017 signed document from the Saudi Arabian Embassy, his mother argued she did have her former husband’s permission.
The document informed the embassy the father had “no objection” to his wife and son travelling abroad and living in Saudi Arabia. He stated it was always his intention that the family return to their home country. His wife said it was signed willingly. He begged to differ. Embassy officials, he said, had repeatedly summoned him to their offices between May and July 2017 and pressured him to sign to show his loyalty to Saudi Arabia. Even as that was going on, he continued to appear in court to oppose his wife’s requests for travel permission.
Child’s usual home matters in custody disputes
The court agreed that the father had not consented to his son leaving Ontario. Further, moving the boy to Saudi Arabia did not change the boy’s “habitual residence” (where he usually lived). The judge found the boy had been raised, parented, made friends and attended school in Ontario and spoke limited Arabic. That connection could not be severed by his mother “acting unilaterally to further her own goals of living with the child in Saudi Arabia.”
The father’s application for sole custody was upheld and the boy’s immediate return to Canada ordered. His child support obligations to his former wife ended. For her troubles, she was found in contempt of court and a warrant for her arrest issued.
Foreign Divorces Child Custody
It was a harsh outcome in a bitter dispute. Because the couple was originally from Saudi Arabia, the wife could prove a “real and substantial connection” with that country to obtain a foreign divorce. But since their son was born and lived in Ontario most of his life, that wasn’t the case for custody purposes.
Before you decide to remove a child from Ontario, or if you need help with foreign divorces, talk to our family law lawyers. Call ClearWay Law’s Law Firm Hotline at 1-844-466-6529 or email info (at) clearwaylaw.com for a consultation.
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Learn more about how to deal with divorce in the video below.
How is Child Custody Determined?
Are you wonder how child custody is determined? All discussions and decisions on custody and visitation should be made for the children. Further, the ultimate goal should be promoting and supporting the happiness, protection, mental health and emotional development of the children into adulthood.
When a custody issue goes to court, then are things to think about. The court always focuses on the child’s best interest to make a decision on child custody. This means it focuses on the child’s needs and not the parent’s needs.
Deciding to whom your child should actually live, allows the court to focus its attention solely on you and your spouse. And therefore the court will carefully examine your past behavior and the court will determine how you will act in the future.
It is often in the best interest of the child to keep a close and loving relationship with both parents but the practicalities of keeping such relationships can be the key challenge to resolve a child custody dispute.
Determining Factors In Child Custody
The outcome of child custody decisions is determined by a few factors. Above this, the best interests of the child are always taken into consideration first.
The judge may consider all the factors that could affect the development of the physical, mental, social, moral, and spiritual faculties of the child.
In considering the developmental needs of the child, the judge shall consider:
the relationship each parent has with the child
the parenting capability and the home environment they could provide for the child
each parent’s mental and physical wellbeing
your child’s wishes
religious and/or cultural aspects
parent’s relative financial stability
time to spend with the kids (work hours, out of town trips)
care arrangements before the separation
any conflicts between siblings
prior bad acts of either parent (for instance, abuse and neglect)
A parent’s past actions won’t be considered in a custody decision. However, if there are extenuating circumstances that directly reflect the ability of the person to act as a parent, they will be considered by the court.
Many divorcing parents never consider child custody issues in advance. As a result, the possibility of child custody problems in divorce confuses and shocks them.
Important decisions about their child
They often find themselves in a position where they have no legal right to make any important decisions about their child. This can happen on issues such as education, religion, and medical treatment.
People think that if they take the lead role in providing your child in marriage, the primary custody will be granted to them. However, this does not automatically guarantee child custody. Have you applied for a divorce and your wife has gone ahead and received a court order? Further, perhaps the order was to take your child’s custody? Then the child may be legally separated from you.
Child Custody Determined- Who Decides Child Custody?
If you’re a parent considering divorce, you probably wonder how the issues of child custody and visitation are resolved in the divorce.
Custody and visitation decisions are typically resolved in two ways:
Agreements between spouses
Going to Court
Until the courts decide otherwise, both parents have equal custody rights for their children. Therefore, make sure the courts don’t take your kid away. Get proper legal advice.
To get the court to award you, you need to educate yourself about Canadian custody battles and make sure you, and not your ex, manage to convince the courts to give your child custody to you.
Parents are able to resolve this custody and visitation between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. Therefore, use Almu to find a lawyer to help you.
Child Custody Determined- Best Interests Of The Child
Whenever parents are trying to reach an agreement about it the court will not generally interfere. If they can not reach a decision, or if unmarried parents can not agree on who gets custody. Further, the court can intervene and make a decision based on the best interests of the child.
A lawyer can help you understand your legal rights and obligations. Also, they help you create the best arrangement for you and your kids. Working with them is the best way to both express your concerns about the well being of your child and work within the constraints of the court system. Further, they will help guide you through the whole process and help ensure the best outcome possible.
A good family lawyer is central to ensuring a smooth custody process.
Once you know all the mitigating factors and kinds of child custody available to you, you need to figure out which custody arrangement is best for your kids. You’ve got one of two options: going to court or doing it outside the court.
In conclusion, speak to a family lawyer if you have a legal issue.