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When separated or divorced parents live in different countries, it can be difficult to manage things such as child custody & access. In a recent decision from the Ontario Superior Court of Justice, the court warned the father, who lives overseas, that his unilateral actions, while he had custody of the children, will make it difficult for him to once again enjoy the access arrangement the parties had originally agreed to.

An international separation

The parents reached a separation agreement in 2019. The couple had separated after the father decided that after living in Canada for 24 years, he wished to return to Tunisia to live. The separation was largely amicable, and they drafted their own agreement with only some assistance from lawyers. The agreement specified when the father would have access to the children, who would primarlu reside in Canada with the mother. The agreement specified that the children would visit the father in Tunisia in December and March of each year, and that the father could have additional access when and if he returned to Canada.

Proceedings in Tunisia

The children arrived to see their father, as planned, in March 2020. It was during this visit that the mother became concerned after the father refused to respond to her inquiries about when the children would be returned home. The mother obtained orders requiring the children to be returned, but they were appealed by the father in Tunisia.

The father’s lawyers in Tunisia asked that the status quo regarding access be reinstated. Meanwhile, the mother has not responded to the 23 declarations made by the father at court in Tunisia, but indicated she would once the matter at hand had been addressed.

It appeared that the mother had initially agreed to allow the children to stay longer than the two-week period they were scheduled to visit their father for. This consent was a result of the COVID-19 outbreak.

Meanwhile, the court saw that the father had been planning to commence a motion in Tunisia well ahead of the scheduled visit. The court found “it is also clear to me that he was attempting to use Covid as a reason not to return the children to Canada.”

The children return, but now what?

The father did ultimately return the children to Canada before the trial occurred. However, the court wrote “it is difficult to unscramble the egg, to return the father to his prelitigation status quo.”

The court told the father and his lawyer, that if he wishes to see the children return to Tunisia, the proceedings he initiated there need to be permanently stayed. The court also stated it would require an acknowledgement by a Tunisian court that the children are habitually resident in Canada and that an Ontario court would be the appropriate forum to address any issues about custody and access.

Contact the family law lawyers at Gelman & Associates to learn how we can help protect your custody and access rights. We strive to provide our clients with the information and resources necessary to make informed decisions about family law issuess. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.

Conveniently located in six offices throughout Ontario, our offices are easily accessible by transit and off-highway. In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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