Issues concerning child custody and access are difficult to navigate in normal circumstances, but when additional factors such as COVID-19 and immigration status are added to the mix, the stakes can be high. This was the case in a recent decision issued by the Ontario Superior Court of Justice in which a mother wanted to move from Ontario to St. John’s, Newfoundland in order to secure employment which would allow her and her children to earn permanent residency in Canada.
Separation after moving to Canada
The mother and father were married in Nigeria in September 2014. The court stated their relationship was characterized by conflict. The mother, five months pregnant in the fall of 2017, fled their home alleging violence on the part of the father. She left Nigeria for the United States along with her parents following the birth of their oldest child later that year. Despite having filed an application for divorce in Nigeria, the couple reunited in the United States.
The couple moved to Canada in July 2018 as refugee claimants. Things began to deteriorate again and the mother informed the father that she would be ending the relationship in March and May 2020. After a disagreement that the mother said led to physical violence coming from that announcement she took her children to a friend’s home and has had primary care of the children since, with the father having limited contact with the children.
At the father’s request, his refugee claim was severed from the mother’s after he alleged his bisexuality led to their troubles and that he would not feel comfortable testifying before a refugee board in her presence.
The mother finds a job in Newfoundland
Following their separation, the mother learned of a provincial nominee program in Newfoundland that was available to skilled workers, including refugee claimants, which could lead to permanent residency. She told the court Newfoundland’s program was the only provincial program accepting refugee applicants at this time.
Since their separation, the father indicated he “did not care” if she took the children. However, once he learned of the mother’s plans to move, he requested weekly access to the children.
The mother has since secured a job in St. John’s. She visited the father in September to tell him of her plans to move, but he did not respond. Having neither permission from the court nor the father, the mother and children moved to St. John’s. She brought a motion to the court requesting a temporary order that the children remain there with her. While the father did not wish to challenge the mother’s request to have care of the children, he did argue that her decision to pursue permanent residency in Newfoundland would not be more viable than doing so in Ontario.
What is in the children’s best interests?
The court noted that the only consideration important to emphasize is what is in the children’s best interests. The father’s affidavit highlighted flaws in the mother’s plans but offered nothing for the court to consider in terms of which path to permanent residency is most likely to succeed.
The court stated that while the mother left before the matter could be determined, she had filed a motion prior to the move. The court found that it was in the best interests of the children to remain in Newfoundland on a temporary basis.
If you have questions related to child access, contact Howie Johnson Barristers & Solicitors at 519.973.1500 or contact us online. Our team has been a fixture of the family law community of Windsor and Essex County for over 25 years and have helped our clients through family law issues of all types.