Canadian about to marry an American with dependant

[jordo]

Hello everyone
I'm new but I've been lurking on the boards here for a bit and decided to reach out for some advice. I'm a Canadian citizen and am engaged to an American with a dependant minor child. We plan to make our life together in Canada. We've been pondering different options, looking at the differing processing times, and considered the realities of co-parenting with the child's father. Here's what I've come up with. I'd appreciate anyone who wants to chime in and correct my assumptions.

Some details:
I previously sponsored an American spouse back in 2006ish. We'll call her K. She landed in Canada on a student visa in 2003, then applied for and received a post-graduate visa after university in 2005 and had that while i sponsored her for Inland PR which she got in 2007. K then went on to become a Canadian citizen in 2010 or 2011. She was able to visit her family in the US as often as she wanted without any type of harassment from border officers I'm assuming because of her legal status during her PR application (student/work visas).

OK, fast forward to 2012. We separated and divorced and she moved back home to the States. I doubt she ever will return to live in Canada. I then meet and fall in love with another American. We'll call her J. We've been dating since April 2013 and got engaged Jan 2014. Since we've both done the big wedding ceremony thing, we've decided to sort of elope with just her son in attendance. We plan on marrying later this year. That said, we're flexible enough to get married at a different time if it would help a PR application process.

J has a parenting plan with her ex that specifies when her son goes to be with his father - basically every summer (2+months between school years) and every 2nd christmas (2 weeks). This would require the child to cross the border a lot if we decided to do Inland. For that reason, and the fear of the child not allowed back in (can they do that??) I'm leaning towards an Outland PR app.

However, I also think that if J and her son were here on a student visa that would give legal status and allow the child to be able to travel with an Inland PR app processing with at least a better chance of being able to be readmitted into canada after being with his father in the states. What are the opinions on that?

Then there's the different processing times. The CIC site makes it look like Outland takes way longer than Inland but there are people saying here that US Outland apps are taking around 9 months while Inland is taking 12-18 months.

The million dollar question is whether the child can cross the border as per the parenting plan (J herself has no need to cross back into the states).
Personally based on my assumptions, outland is shortest (based on that data project), doesn't necessitate a temporary visa and is less risky (child crossing the border).

Thoughts? Opinions?
Thanks,
Jordo

 

[truesmile]

I'll leave it to the experts but I think you are going to have a problem with that "parenting plan". Her son crossing into Canada takes him outside the jurisdiction of the US Courts (which is going to be a problem). I believe she needs to have 'sole custody', but again I'll leave the details to someone who can speak from experience.

 

[rhcohen2014]

in my opinion, i think you and your fiance wants to tread very carefully when it comes to applying inland sponsorship. i am not sure how the rules have changed since your last undertaking, but from reading these threads it seems pretty clear that if someone travels for an extended period of time while an in-land application is in process, then they can be denied reentry and the application will be considered abandoned. I would guess this holds true for any dependants, especially if their parent/sponsor is not accompanying them.

What I would be more concerned about is any legal implications on the co-parenting agreement currently in place. Does your fiance have the right to take the child to a foreign country to live for an extended period of time? If the co-parent feels this is against the original agreement, then the co-parent can legally have their child's passport revoked so they can stay in their country of birth. My mother did this in the 80s when my parents were divorcing and my father threatened to take us to England. I can only imaging the laws are A LOT tougher these days. This will undoubtably cause a lot more trouble on your end, even risking the entire sponsorship.

From the information provided on these threads, for US citizens, it's recommended to apply outland because it takes half the time, and we are free to travel back and forth. Also, extensions can be granted on visitor visas, so we can *essentially* stay while the application is in process without the risk to the application.

Your fiance may want to consult her attorney in regards to the co-parenting agreement before moving forward with an inland app.

 

[jordo]

Re: the parenting plan
Everything hinges on the father a) allowing the child a passport, b) moving out of his current school district, and c) approved by the Family Court that has jurisdiction to change the parenting plan (this is what they call it in Washington State). I do need to check the international implications of the child. What I do know is that Canada is a signatory to the International Treaty that deals with parental kidnapping so Canada will defer to any US court in a custody issue. What I'm assuming based on that is that the US court doesn't lose jurisdiction. This I will definitely get expert legal advice about. Of note: the father moved away to Nebraska from Washington State. The intended move to Saskatchewan would actually bring the child closer to his father. Of course, if the father says no and the Court agrees, then there won't be a sponsorship anytime soon.

edit: found this interesting piece of reading. www international-divorce.com/international_relocation_of_children.htm
In it, it shows in the case law that WA is one of 3 states that puts the onus on the non-custodial parent to prove that a move would be not in the best interest of the child. Some states puts the onus on the custodial parent to prove that a move is in the best interests of the child which would make a move more difficult. That said, We'll certainly be seeking legal advice on the matter.

Re: the child going back and forth though the mother stays in Canada while an Inland app processes
If the primary applicant stays inside Canada, the question is whether a dependant can be turned around at the border and if that happens, the app is cancelled despite the mother not leaving the country.

This said, I am leaning toward an outland app. It just seems so less risky and less complicated. Just wondering what all the opinions are out there.

 

[zardoz]

The father will have to sign this declaration before CIC will proceed, as I understand it. http://www.cic.gc.ca/english/pdf/kits/forms/IMM5604E.pdf

 

[notsopatient]

I am in the process of sponsoring and American husband and his two kids. Their mother had to give us a notarized letter stating that they had permission to travel to Canada as they share custody and a separate letter stating that she was allowing them to move to Canada which we included with our application. The "travel to Canada" letter is what we currently use for them to travel back and forth.With outland we haven't had any trouble at all getting the kids back and forth across the border I'm not sure if you are planning to sponsor the child as well from your post.

As for the student visa, you might have some luck with that although we were turned down for a student visa even though PR application was in progress because Dad wasn't legally supposed to be living in Canada during outland process and wouldn't be able to work if we did an inland application and they wanted proof of how they would be supported by their parents ( My financial situation didn't count)

Inland might be different but from what I am hearing it is taking way longer than outland and your spouse won't be able to work or leave the country without risking her application being terminated if she can't get back in, even in an emergency. As a mother with a child in another country that might scare the heck out of her.

My best advice, apply outland, get a notarized letter from Dad allowing Mom to bring the child over as per the custody agreement. Canada will recognize a US custody agreement --- Good Luck!