Canada bound grandma wants to take grandchild

Dear Mrs Macaulay,

My sister is the caregiver for her six-month-old grandson. She is planning to go to Canada and the child’s parents are willing to let her take the child with her. Is it possible for the child to go with her?

What is the first thing that they must do? Where do they need to go to get paperwork done?

Let me try to answer your question in the order in which I think they ought to be answered. First, yes, it is possible for the child to go with the grandmother, but legal orders and the grant of a visa are necessary.

The first thing your sister must do, therefore, is to retain a lawyer to act for her, and she should make sure that she chooses one experienced in family law matters. The parents should be prepared to get their own lawyer as well. The parents should apply for a passport for the baby now. They must have in hand certified copies (I suggest four copies at least) of the baby’s birth certificate.

You see, your sister must apply to the Supreme Court (not the Family Court) to be appointed the baby’s guardian, and also for her to have sole legal custody, care and control of the baby, with an order that she is enabled to/permitted to take the child out of this jurisdiction to reside with her in Canada. Your sister has to be the claimant/applicant and the parents of the child, the respondents. When your sister’s application is filed and a date fixed for the hearing, her lawyer will receive the fixed date claim form and her affidavit in support of her claim from the registry and he/she must ensure that the parents of the child are served with them, plus a copy of an Acknowledgment of Service which must be filled by them or their own lawyer, within 14 days of the date they were served. Your sister’s lawyer may choose to file an Affidavit of Service to make proof of service unquestionable. Then the parents’ lawyer must prepare their joint Affidavit in Answer to your sister’s own.

Let me refer shortly to what your sister’s affidavit must contain apart from the usual opening paragraphs. She must state her relationship to the baby and through which of the parents she’s related. She must detail how she came to be the caregiver of the child and why she is going to Canada and in what capacity — for a long visit or to reside there permanently. She must also detail where, how, with whom the baby will reside with her, describe the residence — number of bedrooms, etc — how the child would be maintained, the state of the child’s health and her plans for the future of caring for the child. A copy of the baby’s certified birth certificate must be exhibited in her affidavit and the original filed. She must also include the facts on how and why the parents are willing to have their baby accompany her and why this would be in the child’s best interests.

The parents’ affidavit in answer must also contain the usual opening paragraphs and then detail the fact that they know the claimant /applicant and their relationship with her and that she is the grandmother, and the fact that they decided of their own free will for her to take care of their child, and why they decided this, and because of what circumstances in their lives.

They must also include the reason why they are certain that it is in the child’s best interests for the grandmother to continue taking care of the child even though she is planning to go to Canada to reside there. And that because of all their reasons as stated, they decided to forego their right to custody and to have care and control of their child to the grandmother to ensure proper care and better upbringing and development opportunities for their child, and that they also wish for her to be the child’s legal guardian believing that all this is in the child’s best interests.

You see, these orders will give your sister all the legal rights and obligations of the parents over their child. If circumstances change, and your sister cannot continue and the parents wish to assume control as parents, then they can apply to the Supreme Court to set aside the orders of custody and care and control and the appointment of guardianship so that their role as parents are reinstated.

If the time of your sister’s departure is drawing near, then her lawyer should also do an affidavit of urgency and have it filed, so that as early a date as possible for the hearing of the application can be obtained from the Supreme Court Civil Registry.

In dealing with the application, the court must be convinced that it is indeed in the child’s best interests to make these orders and, if and when these orders are made, a certified sealed copy of the order should be sent with the application and other required documents to the Canadian High Commission for the baby’s visa to accompany the grandmother.

As you must have noted, I have dealt with the circumstances of legal custody, care and control and guardianship and not about adoption, because you gave no intimation that the parents or your sister were contemplating this course of action. In any case, if they plan to do this, they can still do so either in the course of the application or after they have travelled to Canada and such an application can run its course.

I hope that I have answered your questions to your satisfaction to enable you all to move forward with your plans. But, please remember that your sister and the parents will definitely need to retain their respective attorneys to prepare the applications and the answers thereto.

All best wishes for the future of this child.

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. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

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.