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Visitation with their father that has moved outside of Canada?

Anonymous Asked:

I have primary physical custody of 11 year old twin girls (they live exclusively with me) since September 2011 when the father moved out and we separated (common law for 12 years).
No legal agreement filed.
Finances are separate.
He pays child support as per Ontario guidelines.
Visitation documented at 3-4% of the time from 2011 - 2014.
The father moved to Europe with the woman he had an affair with in 2014. He continues to pay child support in the amount calculated before he left Canada.
He now wants to have 3 weeks visitation this summer in July-August accompanied by his new fiancee and her son.
The children do not want to go for more than a week.
What are my rights and obligations regarding granting visitation with their father that has moved outside of Canada?
I have given access to the children when he has been in the country (3 times) since he moved. This was mostly day/evening visitation and only 1 overnight.

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Andrew J. Kania, LL.B., LL.M.
9 years ago

The facts are obviously in your favor; however as you do not have a signed Separation Agreement or Court Order the technical legal answer is that you and the father have equal legal rights. If you did seek an Order from a Judge then, unless there are problems with you not disclosed in your question, you would almost certainly obtain an Order for primary residence with some form of specified access for him. Thus, this issue would not arise for you. As a result, my first comment to you is that you should seek a Court Order in due course to solidify your current status quo and favorable facts.

In terms of your question, relating to the vacation time, on a practical basis if the girls do not wish to go for more than one week then the father cannot force them. That is because he also does not have a Court Order specifying any summer access. In fact, it is unlikely that a Judge would currently allow even the one week of access, as it involves overnights and he has not had any, except for one, since 2011. If you thus object to overnights there is nothing that he can currently do about it, although if you release the children to him and he keeps them for a week or more there is, technically, nothing that you can do before obtaining a Court Order as he will not be in violation of anything.

In any event, if you wish to discuss this matter you very welcome to telephone me at 877-668-9386 for a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact Douglas Briand for a free consultation).

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