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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 11-18-2008, 11:40 PM
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Question Denied Access to my children

Hi all - I'm looking for some advice. My ex-CL partner and I have 3 girls together (8, 6 and 9 months) and we have recently separated. Currently I am staying with my parents across the street from them but have found my own place and have made all the proper arrangements to ensure my home is up to the standards that are needed for my kids to stay with me. My ex-CL partner is granting me minimal access to our children (2 hours on Mon, 2 hours on Tues and Friday night from 5 pm to Sat 10 am). She has not yet legally served me with separation papers (hasn't provided Financial Statement) and there is no formal written agreement in place. Does anyone know if I can get a temporary court order to grant me more access to my girls?

Thank you.
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Old 11-19-2008, 09:02 AM
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Well, we'll need a few more details before we can answer that with any level of certainty.
How long were you together, how long separated?

If the separation is relatively a short period, then there has been little implied status quo with respect to the children. And because no applications have be initiated with the courts then it may be possible to vary the amount that she is offering you because you are so very close to the children’s primary residence.
But remember having the children during the week, plus the week end every week is a lot more then a lot of the non-custodial parents get. Most get alternating week ends with potentially a day or two during the opposite week.
Have you started paying CS? IF not, I advise that you start ASAP based on your annual income and the Table amounts at this link,
Federal Child Support Tables (PDF) 2006

I would ask for what has recently been brought up, but not uncommon, is the first right to refusal, where by you would have to be contacted if the ex requires the children to be cared for during her scheduled time, either because of work, medical, or other reasons. This gives you the option of caring for the children during any time she cannot rather then her sending them to outside care or to other family members when you are able to care for them.

As is customary addressing the issue of child support should also be put into your order to at least get that finished. Then outline your request for joint custody and shared parenting order, including an access schedule, etc.
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Old 11-19-2008, 09:56 AM
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Thank you for the reply FL.

We were together for 10 years and hve been separated for the last month and a half. She has agreed to shared custody in our mediation appointment but will not give any more time than what I mentioned - Not even every other weekend. I had proposed Mon and Tues, 2.5 hours each night and every other weekend Fri after school to Sun at nite. She was not in agreement. I simply want to spend more time with my children. You mentioned that the time she is offering me can be varied - How can I innitiate this???

As far as CS - I have not being directly paying her. For Oct I have paid her rent and the house bills (over $1000) and for Nov we agreed to my paying half the rent and half the bills. I am also paying CS for another daughter I have - $450 a month.

Our mediator advised if I do have the kids more than 40% of the time, I would pay her the difference of what I would pay her and what she would pay me.
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Old 11-19-2008, 11:25 AM
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Quote:
Originally Posted by Distraught Father View Post
I had proposed Mon and Tues, 2.5 hours each night and every other weekend Fri after school to Sun at nite. She was not in agreement. I simply want to spend more time with my children.
This is not unreasonable in a shared custody arrangement, and in fact I am really confused as to why she agreed to shared custody during mediation, and refuses to physically give you the same???
This is completely contrary to agreements made in mediation.
Because she has not yet filed I and to avoid causing her to get further upset/bitter, I would push the issue of getting the agreement into an order or at the minimum sworn , signed and into the court records.
Continue to ask for increased access particularly to be all week end not just over night Friday. And document all requests in the form of a daily diary of access with the kids and access requested, granted or refused, and any reasons she may give you. This diary will be allowed in court. If this were to proceed to court (in the form of a motion for increased access), which could be your next step seeing as she is not honouring agreements made during mediation, I feel that the courts would not see your requests as unreasonable, and would grant the same in an order.
It doesn't make sense that she would say one thing and do another, well…. yes it does, but she shouldn't as it will only be held against her in the eyes of the courts.

If she continues to refuse you, you may have no choice but to force her hand and take it to court for them to set access etc.

Quote:
Originally Posted by Distraught Father View Post
As far as CS - I have not being directly paying her. For Oct I have paid her rent and the house bills (over $1000) and for Nov we agreed to my paying half the rent and half the bills. I am also paying CS for another daughter I have - $450 a month.
Personally I would make sure to keep full documentation that this is what you did in lieu of CS, as it is possible that she can ask for CS to be retroactive.
Whether or not she is granted it, is a whole different story.

Quote:
Originally Posted by Distraught Father View Post
Our mediator advised if I do have the kids more than 40% of the time, I would pay her the difference of what I would pay her and what she would pay me.
This is customary and written in the Family law.
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Old 11-19-2008, 09:09 PM
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Default GET to a LAWYER!!!!

GO! GO! GO! I know your are being "reasonable" and "fair" but as you can see the good will is leaving fast. Get to your lawyer file for separation and joint custody. Experience has taught me ... during this hard time in REAL life...nice guys (or gals like me) finish last!!!

Love your kids...no matter how bad it gets remember...they are NOT her.

Good luck
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Old 11-21-2008, 04:24 PM
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I agree with FL that you need to press for completion of the mediated agreement. In most cases the mediator or one of the party's lawyers will draft the agreement based on the mediator's notes. Once that's signed and filed with the court, it has the same legal effect as a court order.

If you can't come to an agreement in mediation, you can file a court application for access. That may motivate her. You should also file for joint custody and guardianship. During the court process you will have a chance to ask the court for interim shared access, joint custody, and joint guardianship. You'll have shifted things up considerably.

I also agree with FL that you need to keep a diary. Even without a court order, the custodial parent has an ongoing duty to facilitate access with the non-custodial parent. You want to demonstrate that you are trying to get more than the status quo. Courts often do not look favourably on denied access. Children have the right to spend time with both parents.

A side note: you can't "file for separation" in Canada. You can enter into a separation agreement, which is simply a contract that outlines arrangements after separation. If she refuses, the court will hear applications about just about all the issues separation agreements usually deal with. So the message to her will be: you can either deal with me across the table in mediation, or in a courtroom.
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Old 12-02-2008, 02:06 PM
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Thank you all for the advice and support. There have been so many happenings since we've separated, I don't know what is most relevant to write in here. Here are some of the more recent details: My ex served me with papers and I served her with my Answer a week ago. My lawyer just advised me that our first Case Conference is March 2nd. I'm extremely concerned that if we continue with the same crappy schedule (Monday and Tuesday 5 pm to 7:30 pm and Friday 5 pm to Saturday 10 am) the court will just let this continue. My laywer said there is not much that can be done until after the Case Conference. Is this true?
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Old 12-02-2008, 04:25 PM
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There's a few things I still don't understand. What "papers" did your ex serve you? They can't be divorce papers, since you've only been separated for a matter of months. Are they applications for custody/access/child support? And when you say you filed an "answer", I'm assuming that means a Statement of Defence?

In my experience, it's possible, but not likely, that a judge would limit access to two 2.5 hour visits plus one (short) overnight each week, especially for the two older girls. That arrangement doesn't even get you a full day with them. (That might be more appropriate for the infant right now, but that will change as she gets older.) What the judge would actually decide is tough to say, because it depends on a wide range of factors. Almost all of them relate to what's in the best interests of the child, and in most cases judges like to see a lot of contact with the non-custodial parent.

I'll provide you with a few ideas, but I'll also say that I'm only somewhat familiar with the process of court applications and so forth, so take it with a grain of salt.

Court rules require a judicial case conference (JCC) before a judge can make any order at all. However, even though you have a process underway, you might be able to file an application for an interim order for custody and access. Normally, interim orders are done at the JCC, but -- for interim orders only -- you can apply for relief from the rule requiring a JCC. If your application for relief of this rule is accepted, you jump through a bunch of hoops to get to a hearing. If the matter can be heard in, say, under two hours, it's quite likely you can get a pretty fast interim order.

As I said, I'm giving you what little knowledge I have on the subject, and what applies here in BC might not apply where you are. And, your lawyer may have considered this option and decided it's not possible or beneficial for some reason, or that getting a hearing for an interim order would likely take longer than the JCC.

In the meantime, I'd do everything you can to prepare for more expanded access to your children. It's important for a judge to see you're capable of providing for your children. I'd also keep those access requests flowing, and, if possible, make sure they're on the record.
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Old 12-09-2008, 01:41 PM
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From experience act quick on this access issue because the longer she has the kids and the less you get to see them their is the possibility that she will turn them against you and they will soon not want to see you. You must get the child support done first as this is what the court will want done first, then quickly get your access rights changed you need to act quickly I didn't and now I cannot see my children as she has turned them against me! I wish you all the best, it is not fun!

Paul
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Old 12-10-2008, 07:05 AM
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I echo "Ihave2kidsIcannotsee" as this has happened to us as well.
We kept giving her the benefit of the doubt only to have access limited, then dwindled to where mom turn child against the dad, and now dad has NO access.

Move swiftly but remain child focused and stay the course with respect to the "real" issues and avoid any issue that may appear as though you are attacking the custodial parent rather then maintaining the "best interests of the children' focus.
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