Question:

Background Information:  I am originally from [a foreign country] - now I'm a Canadian citizen.  I came to Canada in 200_ to  City XXX, in Province YYY . I married a Canadian women with whom I had a child  who is now 5 years old. We divorced three years ago with a lot of problems. I have 50% custody - shared custody - but my ex has never signed a custody agreement. I went to a judge and asked for it, and she mandated a provisional 50 - 50 custody, and an evaluation to be done by [the provincial] Justice [Department] - [It's] going to be finalized in few weeks.

My ex has several health problems related to depression, so she changes views pretty often, which causes a lot of problems. As an example, she sees our son as a child with a lot of problems.  She even told people he was autistic, which is false (studies have shown this).

I am now re married to a woman from my country of origin. We are living in City XXX. She is applying to get her permanent residency. She does not speak the language and cannot work yet - [but she has professional qualifications in our country of origin]. Together we have a new born baby girl.

This is my dilemma: I work as a consultant for a company that wants to hire me, and relocate me to [my country of origin] - a big jump in my career, and financially a very attractive opportunity.

My ex will not allow me to take my son out of the country  - Canada - for visits without her company. [It goes without saying that this would complicate visitations. But, even if we were to reach an agreement] I worry that she would change her mind. 

Now, this move would be very beneficial for most of the members of my family - my current wife could work and would feel happy in her country, my daughter would be close to our extended family, but [I would only be able to see] my son, would who I love very much, only few times a year.  

My question is, What can I do? I feel trapped. My wife wants to move, and I feel if we don't do that, I may loose her - and the baby. If that happens, they may want to move [back to our country of origin]... and then, I am in the middle of another fight...

Please comment.

Answer:

Disclaimer: Two of our staff members discussed your question. They stressed that their comments and suggestions should not be construed as legal advice; and must be understood as based only upon the limited information you provided.

First, neither of our consultants is fully aware of the legislation that applies in your province. However, increasingly, courts in this country and others are requiring separated/divorced biological parents of a child to remain in the same vicinity so both parents are able to have liberal involvement with the child. For example, we know of a case in this province (Alberta) where the biological parents were ordered to remain living near enough to each other so that both could remain involved with the child.

Second, many separation agreements specify that neither parent is allowed to take the child out of the country (even temporarily) without the other parent’s explicit approval. Sometimes, if there are several kids, the children’s passports are divided up between the parents to make it less likely for one or the other to flee.

So, there is a good possibility that your question (Can I take my son out of the country when his mother opposes it?) is a legal one that will be bound by legislation or a court order. We would suggest that the likely answer is “No”. Moreover, we suspect that doing so without the support of the biological mother might be risking very serious legal charges.

The same would apply to your current spouse and infant daughter. She probably could be restricted from taking your daughter out of the country without your approval. However, if she were of a mind to, she could leave the infant with you, and return to [your country of origin] by herself.

Regarding annual or quarterly visits with your child. The research is clear. Unless a parent has a substantial involvement with their child (e.g., at least 30% custody), their relationship with that child is almost certain to wither and die. If you decide to return to [your country of origin] and leave your son here with your ex wife, you are virtually ending your relationship with him. Moreover, you are not likely to recover a meaningful relationship with him when he’s older and able to choose to move to be with you. He will likely feel that you abandoned him, and he will likely hold you to account for that in one way or another.

Furthermore, if you move to [your country of origin] and your “Ex” stays in Canada with your son, but then falls seriously ill with her assumed mental health problems, your son would essentially be parentless. Unless you could somehow come to his aid, and/or there were other family supports on the scene, it is conceivable that he would become a ward of the courts—not the life most parents want to see their children lead.

Regarding the career opportunity: Jobs and job opportunities come and go. Children, on the other hand, should not. Deciding to have a child is, in essence, making a 30-year commitment to be available to parent that child.

Our suggestions are:

1. Get a formal legal opinion or ruling to be certain of your rights, obligations and limitations.
2. Decline the offer of the job in Argentina.
3. Encourage and support your current partner in establishing a network of meaningful connections with other women. Taking an ESL course and/or volunteering might help her to learn English. The Immigrant Aid Society (or its equivalent) would likely be an excellent resource for her.
4. Strive to find ways to co-parent your son with your prior spouse without conflict. Lingering conflict between the separated/divorced biological parents (as is noted to be occurring between you and your prior spouse) can literally harm the children caught in the middle of it.

Finally, we appreciate that our comments are likely difficult to hear and consider, but from your correspondence it is our belief that you are a good father who wants to do what’s best for his family, rather than have others support him in making bad decisions.

Regards,

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Stepfamily Foundation of Alberta