My wife came to Canada from the USA two years ago and because I had no alternative child care available I allowed her to take my US citizen son with her. She is not a US citizen. I have been in Canada helping care for him for the last year but now, because I am unable to work here and things between wife and I are not good, want to bring him back to the USA with me. I have an interview with CIC tomorrow and plan to bring this subject up. Should I? What can they do for me, if anything? What other recourse do I have?
Can I get my son back from Canada where refugee wife took him?
- Thread starter johnnyonspot
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Talk to a lawyer. Since you are currently living with your wife and taking care of your son, you both have a chance of getting custody. If you were already moved out, leaving her with the kid, it would improve her chances. Is she a Canadian citizen? If yes, then your son is dual and then it does not really mean anything that he's a US citizen too. If not, then it might help you.
However, you allowed her to take him to Canada and there it stays. If you would have fought it 2 years ago, you would have had a better chance.
However, you allowed her to take him to Canada and there it stays. If you would have fought it 2 years ago, you would have had a better chance.
I do plan to talk to a lawyer. Indeed, I am a lawyer, from the USA, and am familiar with custody proceedings having handled several custody cases in the states. So am I to understand that this boils down to a straight up best interests inquiry like any other custody case? My wife is a refugee claimant, and thus not a Canadian citizen. I guess what I really am getting at is whether there is some provision in the law re refugees that would allow me to take him back to the USA, his country of citizenship, perhaps by virtue of him not really being a refugee and having a perfectly capable and willing parent to take him back to his country of birth and raise him there. In other words, is there some regulation/law that says only those refugee claimants who are actually true meritorious refugee claimants, and not their sons/daughters who are citizens of a nation from which there can be no refugees, e.g., the USA, and who have a parent willing and able to take them, will not be allowed refugee status along with their parent. If I can short circuit the traditional divorce/child custody determination process by relying on the law re refugees, then I will do so, as it will save much time and attorney fees this way.
Ok, I kind of missed the subject line where it says that she's a refugee claimant. Because of the safe 3rd country agreement, she shouldn't have a hope in hell of getting refugee status in Canada, that is because if she was in the US she should have asked for it there. I am surprised they haven't kicked her out already. Still, I am not sure how connected the agencies of government are. CIC could say yes, take your kid and go. Some other agency, family court, what do I know might say she is the mother and the child is living with her so you can't just take him away without her consent. Have you asked the police what they would do? Say you take him and she calls the police, would they back you up or her?
She had worn out her welcome in the USA I guess, and so she came here.
Have not talked to police, but am confident that as the father, and there being no court order giving her custody over me, I would be well within my legal rights to take him back across the border. A parent with equal custody rights technically cannot "kidnap" their child. All I need to get him across is a birth certificate.
The way I look at it, why would Canada accept my son as a "refugee" when he is a US citizen (unlike his mother) and has no reason to be in Canada, other than his mother being there, when he has a US citizen father who is willing and able to take him back to the USA to live? Why would Canada voluntarily further burden its system with my son when it can send him back with me?
As far as custody goes, I have been caring for him full time during the week and on weekends while she works, and so am a primary caretaker to him. I have one or two serious flaws in my case too, but she has many more than that, plus the fact that she actively tries to alienate him against my side of the family. This is something I have documented through audio and video recordings. So at worst I think the custody determination using best interest factors would be a toss up.
Have not talked to police, but am confident that as the father, and there being no court order giving her custody over me, I would be well within my legal rights to take him back across the border. A parent with equal custody rights technically cannot "kidnap" their child. All I need to get him across is a birth certificate.
The way I look at it, why would Canada accept my son as a "refugee" when he is a US citizen (unlike his mother) and has no reason to be in Canada, other than his mother being there, when he has a US citizen father who is willing and able to take him back to the USA to live? Why would Canada voluntarily further burden its system with my son when it can send him back with me?
As far as custody goes, I have been caring for him full time during the week and on weekends while she works, and so am a primary caretaker to him. I have one or two serious flaws in my case too, but she has many more than that, plus the fact that she actively tries to alienate him against my side of the family. This is something I have documented through audio and video recordings. So at worst I think the custody determination using best interest factors would be a toss up.
I do not know. I am not a lawyer so you probably know more than I do. If she took the kid to her home country without your permission, would that not be parental kidnapping? How is it different if you do it?
I know of a case where a mother took kids from the US to her home country "for a visit" but had conspired with her lawyer to file for divorce when she'd get there so she would get custody. The US husband could not know their plan because if he would have filed for divorce and custody in the US, he could have messed up their plan, something like that.
Anyway, I think you should talk to somebody in Canada who knows about family law. Talking to CIC is a good idea too. If they can give you something in writing, that would be even better.
I know of a case where a mother took kids from the US to her home country "for a visit" but had conspired with her lawyer to file for divorce when she'd get there so she would get custody. The US husband could not know their plan because if he would have filed for divorce and custody in the US, he could have messed up their plan, something like that.
Anyway, I think you should talk to somebody in Canada who knows about family law. Talking to CIC is a good idea too. If they can give you something in writing, that would be even better.
What citizenship does your wife hold? If she has relatives in Canada, then the safe third party agreement might not apply. That is a terrible agreement for Canada to enter into BTW, basically seeding soverignity to the U.S.
Why would you say it is not possible to be a refugee from the U.S. ? I can think of a few good reasons why someone might have a refugee claim from the U.S.
Why would you say it is not possible to be a refugee from the U.S. ? I can think of a few good reasons why someone might have a refugee claim from the U.S.
If you were seeking refugee status from the US itself, then I don't suppose it would apply. I am sure Canada just entered it to cut down on the number of refugees and I am sure it also works the other way too. Maybe it's a thing between two neighbours to make sure refugees are not trying them both on for size. The EU has a similar agreement, I think it's called the Dublin agreement.links18 said:What citizenship does your wife hold? If she has relatives in Canada, then the safe third party agreement might not apply. That is a terrible agreement for Canada to enter into BTW, basically seeding soverignity to the U.S.
Why would you say it is not possible to be a refugee from the U.S. ? I can think of a few good reasons why someone might have a refugee claim from the U.S.
Sorry it took so long for this response. Anyway, she is a Zimbabwean citizen and declared refugee status upon crossing into Canada from US based on membership in the MDC of Zimbabwe, the organization led by Morgan Tsvangirai that is now power sharing with Mugabe. As of this past July she has attained "landed immigrant" status. In light of this, I have another question: Can she sponsor me to come there? We are still married, but perhaps more separated than anything, though not barring a reconciliation on my part. When she first crossed over I believe she filled out the paperwork and called herself "single," but then on the advice of her lawyer she amended it to say she is married. I have not had any physical, if that matters. I was in Canada on and off from Feb 2008 to Oct. 2008 and then full time from Oct. 2008 to end of July 2009 when my Visa extension expired (end of Aug) and I left one month early.links18 said:What citizenship does your wife hold? If she has relatives in Canada, then the safe third party agreement might not apply. That is a terrible agreement for Canada to enter into BTW, basically seeding soverignity to the U.S.
Why would you say it is not possible to be a refugee from the U.S. ? I can think of a few good reasons why someone might have a refugee claim from the U.S.
Well, its all academic at this point I guess as she refuses to consider sponsoring me. And that after I sponsored her in the USA. Ingrate does not begin to describe her I guess.