sloane,
I think you have sufficient grounds right now.
Incidents of custody and access are determined by Part III of the Children’s Law Reform Act R.S.O. 1990, CHAPTER C.12
http://www.e-laws.gov.on.ca/DBLaws/S...sh/90c12_e.htm
In this statute Section 20 says this
20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).
So in other words, at law, until a "separation agreement" or an order from the court, the mother and father have coextensive custody of the child.
“separation agreement” means an agreement that is a valid separation agreement under Part IV of the Family Law Act. See 18(1) of the Act
Rights and responsibilities
(2)
A person entitled to custody of a child
has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).
It appears that neither the mother nor the father is acting and taking on the responsibility of looking after the child.
Authority to act
(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).
Same, neither parent is acting and accepting responsibilities for the child care.
Where parents separate
(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).
Does not apply, as the child is not living with either of them. However I believe incident's of the child's access would survive, unless there was a cogent reason not to occur.
Access
(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).
Section 21 applies directly to you
Application for custody or access
21. A parent of a child
or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.
This is your legal stance to bring forth an application Section 21 is clear " OR ANY OTHER PERSON"
Section 24 the merits of custody and access
Merits of application for custody or access
24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the
basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
with all that said, Court's will definitely consider the status quo.
and other things such as the stability of the family unit. Where does the father live, is he employed. Is he able to look after the child. etc.
I believe if he was able to look after the child now, the CAS would leave the child in his care. They must have their doubts.
I would bring forth an application for custody ASAP.
lv