Ask a Canada Law Question, Get an Answer ASAP!
Hello, thank you for the question. Unfortunately, it's complicated.
Can you give me some more details? When did you separate from the father? What contact with the child has he had since? Is he paying any support? Where do you want to move to?
Him and i broke up when i was still pregnant, never married.His name is XXXXX XXXXX my sons birth certificate, as he was working out of town at the time. After my son was born, his father spent the occasional day with him. After a while, it became more and more infrequent.
We agreed on 100./month for support, which he has never regularly paid. He hasn't seen him in over 13 months. I hear from him on occasion, but I don't reply.
I am wanting to move to British Columbia, as I have met someone and that's where he lives.
When did father last pay any support money, and when did he last see the child?
June 2012 was the last visit, and it was very brief. That was the last time I received any sort of payment. Like I mentioned, its never been steady support, only when he sees him.
I need for you to take a step back and look at your situation very objectively.
This isn't a question of whether a mom can take the child away, it's a question of whether you taking the child away from the father is in the child's best interests.
Let's say that you move, and as soon as father finds out he goes to court for an order that the child be returned. I'm not saying he'd get that order. But what would he say about you to court? Are there any mental health or addiction issues? Criminal charges or criminal record? Child welfare authorities? Immigration? What could he say to convince the court that the child should be returned to his care?
Don't worry for the moment about him, but think about what he could say about you.
The only thing he might be able to say, is that I haven't made any attempt to bring them together. In the beginning, I would contact him all the time and ask him to come over. Most times it was a No. Whenever he has asked to see my son, I've always said yes...until this past couple months. My son doesn't know him. He shows up for an hour, brings a toy and then leaves and then I dont hear from him for months.Last time he saw my son,(june 2012) I told his father, that if he wanted to be a part of his life, he had to make regular visits and pay support. I didn't hear from him until two days before Christmas. Since then, i've received a couple of text messages, wondering if he could stop by. I haven't replied.
That's a good start.
Does he have any extended family who see the child?
No. No one from his side ever sees my son.
Nor do they contact me to see him.
Does he, or any of his family, have contact with your friends or family? If they started asking around could they find you quickly?
Not to my knowledge does he have any contact with anyone, but if he really wanted to find out, he probably could.
It's hard to stay "off the radar" in this day and age, I just want to know if he's good friends with your brother or something like that. Is he?
No, definitely not.
Would it change anything if I was married?
to someone else?
It might, if that spouse wanted to adopt the child. But that's not what you're asking about. Or is it?
Not originally no, but my boyfriend has asked me to marry him and wants to adopt my son. I wasn't sure if that changed anything.
My boyfriend lives in BC
That's why I want to move.
Let's explore that. I'm not questioning your boyfriend's intentions, but men are often all talk. You know what I mean. How serious is the boyfriend about marrying and adopting? Would he come to Ontario and marry you here and go to court to adopt the child?
How long have you known the guy?
He would come to ontario and marry and adopt here if that's what was needed. We were planning on getting married in BC though. Its been over a year since we've met.
OK, you have to make some decisons here.
In the absence of a court order, there's a presumption of joint custody between the parents. Joint custody means that the parents have to agree to any new or different changes to the child's upbringing and routine.
I've helped plenty of fathers get court orders that the child be returned when the mother decides to leave without saying anything.
Now, I'm sure that doesn't seem fair to you and I'd agree. But this isn't about what's fair. It's about whether you have the right to leave, and without a court order or agreement between the parents you don't have the right to leave.
Having said that, if you leave and he does nothing for six months or more, then you've relocated with the child and the child's primary residence is now in BC.
So if you think that the father would be fine with you simply leaving, you can take the chance of leaving. He might do nothing and you'd be fine, you can go to court there after six months or so.
Or when he knows you've left the province, he decides to use that to try to get custody of the child. I'm not saying he'd get it, but if he tries you'll have given him a chance of getting it.
What do you mean by going to court after 6 months in BC? What do you mean by doing nothing....any sort of contact?
If you move to BC and he does nothing about it, you can go to court there and seek an order for custody. By then the child will be "normally resident" in BC and you're most likely to get your order.
If however, you leave and finds out and decides to go to court in Ontario to claim that you've absconded with the child, he could get an order that the child be returned. That's not likely but certainly possible.
And what if I was married ?
and my boyfriend adopted him? would he have to do that in ontario?
If you were married and then left without telling the father, that wouldn't make much difference.
But if you were married and your husband brought an application to court to adopt the child, that's a different story.
I know this is complicated.
Brought an application after 6 months in BC? or in Ontario?
After six months in BC you could bring it in BC because the child would by then be normally resident in BC.
Do you think that your boyfriend would want to marry you and adopt straight away? If so, would he be willing to do that in Ontario? That would be the safest thing.
The father doesn't seem all that interested in this child. He might be fine with your boyfriend/husband adopting, which would relieve him of any parental responsibilities and obligations. Including child support.
But you can't ask the father without tipping him off that this is what you want to do, of course.
I understand. So, basically the best idea here, is for my boyfriend to come to Ontario, marry me, adopt my son, and then we move back to BC? How long of a process is that?
It's long and it might not be necessary to go through all that. But that's the safest way to do it.
If you take father to court for sole custody and the court's permission to relocate to BC, you'll likely get it but there's no guarantee.
To go about this the safest way, does my boyfriend/husband need to be in Ontario for an extended amount of time?
Technically, no. But if he lives with you for a period with the child then you can say to the court that the child already knows him as a father more than the biological father, right?
Yes, that makes sense. He has a daughter from a previous marriage that he has visitations with, hence why he can't be gone for that long.
Then that's not an option. So you can do one of the following:
1. Move and hope that the father doesn't go to court, maybe he'd be fine with the hope that you'd be gone and he wouldn't have to pay any child support (until you take this to court in BC, anyway)
2. You tell him that you want to go and see if he agrees.
3. Take him to court for sole custody and permission of the court to leave, which you'd likely get, but it would take a while unless father agrees and there's no guarantee that you'd be successful if father objects.
I can't tell you which to pick. You know him and yourself better than I, right?
Does it matter, if his fathers name is XXXXX XXXXX the birth certificate?
No, that doesn't matter at all. He's the father and you both know it, right?
So you've got some thinking to do. I don't know if there's much more I can tell you. Do you have any more questions or issues about this to discuss?
If I just go, the only way I would have to come back, is if he takes this to court within the first 6 months?
What if I go, and he contacts me, and I dont tell him where I am.
Then he could tell the court that you've "kidnapped" his child, and seek an order that the child be returned to Ontario to his custody.
That doesn't seem likely from what you've said, but it's possible.
I really do have a lot to consider with this.
Thank you for your knowledge. I'm not thrilled about it...but it is what it is.
I understand that the father has rights....but it really is unfair that even though he pays no support, doesn't make an actual effort to be a part of my sons life...that he still holds this much control over me and my son.
It's not about fair. Until you're given the right by the court to move as you please, you don't have the right.
As I said, I've represented fathers plenty of times in this situation. Sometimes they just take off with no notice or warning or negotiations with the father. That's not fair either.
Even though the father makes no effort to see the child?
or very little effort?
This is about what's best for the child. If the father isn't involved and you have good reason to leave and the child's life will be better there, you're likely to succeed in court.
But the safe route for you means going to court before you leave.
It's easy to put the cart before the horse, as they say. All you've said is good reason why you should get the court order you want.
But you don't have that order yet, which is what you really need to move safely and securely.
So if you're clear on the issues, I'll ask you now to rate positively so that I get credit for assisting you today.
I will, thank you very much.
You're very welcome. Good luck.