H&C for Family Reunification.

[Twinkletwin]

The argument can easily be made that it is a parents responsibility to make arrangements so they don’t leave their children. Your ex left the UK and based on your previous posts seems to have made minimal effort to support them. Uprooting children from the only home they have known is also an argument for remaining in the UK. If your ex isn’t interested in more visitation then the custody agreement is for phone calls your argument for remaining in Canada is weakened. If the father has taken steps to be a very active co-parent/get partial custody and is not able to live or work in the UK then the argument for H&C increases. Not all parents are able to live in the same places. It is just a fact of life and children adjust. Agree that you should be consulting a lawyer. Difficulty visiting Canada in the future could have a major impact on your children as well.

“The federal high court is often disdainful of suggestions that the ability of children to communicate with their father electronically or see them once a year is a sufficient mitigating factor on the physical separation of parents from children. In Yang v Canada 2019FC 1236, for example, the court noted:

second, the ISD relied on rationale and conclusions this court has previously considered to be unreasonable concerning future ability of children to communicate with Mr.Yang, given that his wife and two children (all three being Canadian citizens) stated they would remain in Canada rather than face the prospects of living in China. The ISD’s conclusion that the two children could communicate with their father electronically or see him once a year while on vacation did not adequately address the concerns that were raised in the evidence including a detailed psychological assessment from Dr. Weir, which spoke at length about the impact on these two children, and others in analogous situations(by referring to studies of the long term impacts of separation from a parent at a young age). Indeed the court has recognised that infants may simply be too young to establish a relationship with a parent via videoconference (see, for instance Oladele v Canada 2017.

In Yu v. Canada 2021, Madam Justice Sadrehashemi further held that:
The applicant did not frame the potential harm as severing the bond between parent and child; rather the harm to the child was described as the impact of not being together as a family unit for a five year period. This sort of harm for an infant child is not mitigated by being able to use Facebook or write letters. Moreover, in any case, it is not clear how an infant could even engage in the methods of communication being suggested of them.”

source: Steven Meurrens (Canadian Immigration Lawyers)

 

[Twinkletwin]

@scylla, can I please get your thoughts on these articles of the UNCRC as part of my arguments?


Would really appreciate your thoughts.

Thank you.

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 10
1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

 

[scylla]

@scylla, can I please get your thoughts on these articles of the UNCRC as part of my arguments?


Would really appreciate your thoughts.

Thank you.

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 10
1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

I don't know. This is really a question for an immigration lawyer.

 

[canuck78]

“The federal high court is often disdainful of suggestions that the ability of children to communicate with their father electronically or see them once a year is a sufficient mitigating factor on the physical separation of parents from children. In Yang v Canada 2019FC 1236, for example, the court noted:

second, the ISD relied on rationale and conclusions this court has previously considered to be unreasonable concerning future ability of children to communicate with Mr.Yang, given that his wife and two children (all three being Canadian citizens) stated they would remain in Canada rather than face the prospects of living in China. The ISD’s conclusion that the two children could communicate with their father electronically or see him once a year while on vacation did not adequately address the concerns that were raised in the evidence including a detailed psychological assessment from Dr. Weir, which spoke at length about the impact on these two children, and others in analogous situations(by referring to studies of the long term impacts of separation from a parent at a young age). Indeed the court has recognised that infants may simply be too young to establish a relationship with a parent via videoconference (see, for instance Oladele v Canada 2017.

In Yu v. Canada 2021, Madam Justice Sadrehashemi further held that:
The applicant did not frame the potential harm as severing the bond between parent and child; rather the harm to the child was described as the impact of not being together as a family unit for a five year period. This sort of harm for an infant child is not mitigated by being able to use Facebook or write letters. Moreover, in any case, it is not clear how an infant could even engage in the methods of communication being suggested of them.”

source: Steven Meurrens (Canadian Immigration Lawyers)

In these cases children had a longterm history of living in Canada. If there is any way for your children’s father to live and work in the UK that will be considered because uprootingchildren from the only home they’ve known will also be considered as having negative consequences on children.