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.

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.”

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 24/7 Law Firm Hotline at 1-844-466-6529 or email info (at) clearwaylaw.com for a consultation.

Author: Linda Mueller

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