All Woman

Dad refuses to return my son to Canada

By Margarette Macaulay

Monday, May 05, 2014    

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Dear Mrs Macaulay,

I have a son, 22 months old. I gave his father permission to take him to Jamaica on January 30, 2014. I was born in Jamaica but I am a Canadian citizen. My child is also Canadian and his father has permanent residence in Canada. I wrote him a letter stating that he was allowed to travel with the child to Jamaica but did not specify the dates. Now his dad his threatening me that he's not returning to Canada with my son and I will never see him again. Can you please tell me what are my rights and what can I do to get my son back home.

Oh dear what a mess. I understand from your letter that you're not married to the father of your son, as you have not referred to him as your husband. I also understand that neither of you has legal custody, care and control of your child pursuant to an order of a court in Canada. Consequently, he needed your letter to enable him to travel with the child.

You did not say why the father wanted to and did travel to Jamaica with him. You have also not stated why he is now threatening to stay in Jamaica with the child. Were you having trouble in your relationship before he left Canada? If so, why did you permit him to travel with your son?

You ask what your rights are and what you can do to get your son back home. I will deal with your rights as a mother first. Under the law in Jamaica, that is to say the Children (Guardianship and Custody) Act, you and the father have equal rights to apply to the court for legal custody, care and control of your child and for access to him. You both also have the right to appoint any person as the guardian of your child. The parent who has de facto custody, care and control of the child may also apply for maintenance for the child to be provided by the other parent.

The Maintenance Act places the obligation to provide maintenance for the child on the shoulders of both parents. However, when a court is considering an application for maintenance of a child, it must on evidence provided by both parents, assess the extent of their financial capability to provide for the child. Consequently, it may not order an equal division as regards the specific areas necessary for the proper maintenance of a child. In other words, it may not be a 50/50 split. The parent who earns or has access to more income will be ordered to provide a greater proportion than the other who has less income. In fact, in circumstances in which the mother had always been pursuant to the father's insistence, or to a joint agreement, or to job availability, always been a stay-at-home mother and so has no independent income, the father would, in such a case, be ordered to pay all that is needed to maintain the child as he had always done. The Act provides that the period for maintenance provision is up to the end of the child's undergraduate studies or for life if the child suffers from a disability which makes it impossible for that child to ever be self sufficient. For a stay-at-home mother who has no income of her own, on the break-up of the relationship, she could apply for maintenance for herself for either a specific or otherwise, depending on her age, or whether her evidence discloses the fact that she is undergoing training in order to qualify her to join the job market.

You must now act as quickly as you can to effect not only the return of the child but to put you status as his mother on a legal standing. I am therefore suggesting certain actions for you to take:-

(1) If you have not gone to children's services where you live, you must do so immediately and seek their advice and assistance;

(2) You should also quickly go to the family court where you live in Canada and apply for a sole custody, care and control order of your child and you can also seek their advice specifically about getting your son back, since you gave the father an open-ended letter to travel to Jamaica with him. The family court will provide you with whatever advice you need free of charge. You can also obtain advice on-line with real attorneys answering your questions very quickly as I recall. You can try this immediately but if this is not satisfactory, go to the court's office and speak to them face to face. You must stress the urgency of your need for assistance.

(3) You should also go to the Jamaican High Commission and report what has happened to them and request whatever assistance they can give you to get your son back.

(4) If you cannot get quick and definitive action through the family court in Canada and from the Jamaican High Commission, you should apply for sole custody, care and control of your child here in Jamaica which serves the parish in which the father is staying with your child

I suggest all of the above so that you use every avenue open to you.

I must, however, advise you to give these institutions/agencies all the relevant facts about you and the father and why you permitted him to travel with the child and why he is threatening to keep him in Jamaica and that since he has stayed for such an inordinately long time, that you can only conclude that he is making good his threat and you want your child back. Do not be afraid to give full and detailed information to these institutions/agencies.

You can, in your application for sole custody, care and control, use his threat and action to bar him from any possibility of sharing custody with you and of him having unsupervised access to his son in the future. He has proved himself to be unreliable and untrustworthy as he has in effect 'abducted' the child in a very surreptitious way.

I trust that you have his proper address here in Jamaica and that of his closest family members or of any of his relatives.

If you are going to apply for sole custody care and control here in Jamaica, you should retain the services of an attorney who practices family law in large measure, to assist you with such an application. You will need a certified copy of your child's birth certificate for the application and I would advise you to produce a copy of your letter granting the father permission to travel, if you have one. I do hope that you kept a copy of it.

All letters and documents of any importance that you give to anyone or any institution ought to always be copied and the copy kept by you, with a notation on it of the date, time and place of delivery. Better still, get the person to sign and state the date and time they received it on your copy. You see, if any question or dispute arises about whether you did or not give it to them or about the contents, and you have your copy, you need only produce it to prove that you did and what you stated.

Do act quickly. The father may decide to apply here for custody, care and control of his son and keep quiet about the fact of your permission to him to travel with him for a visit here, and also the fact that you are in Canada where he ought to serve you with any such application. Though he must prove service upon you, orders have been obtained on false information in the substantive application and about service on the other party many times in courts of law by persons who are prepared to lie, abuse the process of the court and circumvent the true course of justice.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and 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.


The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.





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