Dad in Canada wants legal custody

By Margarette Macaulay

Monday, January 23, 2012

Dear Mrs Macaulay,

My husband is from Jamaica but is living with me in Ontario, Canada. He has two girls ages three and seven living in Jamaica with his parents. The mother comes to visit the girls once every three months or so and provides no financial support. We are working hard in Canada to fully support the girls while they live with his parents. We want to bring them to Canada to live with us, but the mother will probably object to this as she is still bitter.

What legal rights does he have? Can he file for full custody from Canada or should his parents file? What rights does she have considering the girls have been in his parents' care for over two years and she provides no financial support for them? They do not have any court ordered custody papers and were never married. They had a written agreement between himself, the mother and his parents stating that the girls would live with his parents and they would care for them, in his (my husband's) absence, but she has already said that she will pretend she didn't sign it and has no recollection of it so that it won't hold up in court. Any advice would be greatly appreciated. His parents are getting into their 60s and caring for two young kids will soon be too much for them.

The contents of your letter indicate your supportive and caring stance which denotes the fact that you must have a really healthy marriage with a true partnership.

Let me go straight away to your questions about your husband's legal rights. He has all the legal rights and responsibilities which the natural mother has -- either of them can apply for legal custody and also for the care and control of the children. Both are legally responsible to provide financially for the maintenance of the children and also obliged to always act in their best interests.

Can he apply for legal custody and care and control of the children while living in Canada? Yes, he can, and there is no reason in law why he cannot obtain an order granting him sole legal custody. His residence in Canada cannot detract from his ability to do what a parent with legal custody has the right to do -- that is, in short, make all the important decisions about the upbringing and welfare of the children and ensuring that their best interest are met and protected at all times. He can also apply for 'care and control' of the children, which has to do with whom the children actually live with. His parents presently are the children's guardians and they have care and control of them: that is the girls live with them and they take care of their daily needs -- physical and emotional.

So your husband can apply for sole legal custody and for the care and control of the children. He can do so and ask for the direction that they continue to reside with their parental grandparents until, for example, he completes arrangements for them to go and reside with him in Ontario, or until they are older. The mother needs to have access though. He can also apply for them to go and reside with him immediately after the order is made, but again with access to the mother.

With the care and control part of the application, there is also no reason why he cannot obtain such an order, as long as he proves that it will be in his daughters' best interests. You will have to do an affidavit in support of his application, clearly highlighting your full commitment and support of the plan and your readiness to help in the care of the children, by using and relying on the existing arrangements and stating the mother's involvement as you have explained above. His affidavit in support of the application must be as comprehensive as it can possibly be and he must also ensure that he is present in court here on the date of the hearing. If you can also be present, this will be all to the good.

As to the mother's access, it will be worked out to ensure that the children continue to have a relationship with her.

Regarding the existing agreement, your husband must refer to it and attach it as an exhibit it in his affidavit. If the mother's credibility comes into question regarding her signature, this can help your husband's case. His parents should also do supporting affidavits about their care of the children and their encounters with their mother.

Good luck.

Margarette May Macaulay is an attorney-at-law and a women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give advice via e-mail.

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Dad in Canada wants legal custody