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-   -   Have I given up my rights as a parent? (http://www.ottawadivorce.com/forum/f11/have-i-given-up-my-rights-parent-1465/)

brokendad 09-02-2006 07:23 AM

Have I given up my rights as a parent?
 
Hello Again
Sorry about the length of this but I'm past being able to sleep tonight.
My questions concern section 20(4) of the childrens law reform act , as well I am confused by the term "ex parte" if someone has a lay persons explanation of this?

Her is the situation: My wife left with the children accussing me of abuseing my son in Feb.'05. neither the police or FACS found her story creditable.In fact I received apologies from FACs. None the less I am apart from my wife and children. To gain access to my son and daughter , a court order was nessecary.It required me to jump through hoops at the time but this was a small price to pay to see my little ones.Child and spousal support are being paid and not in arrears.
Our court /consent order does not designate custody--- the closest it comes to that is the following: Pending a final resolution of this matter, the children of the marriage ,namely (son) and (daughter), shall be in the residence of the Applicant (my ex-wife)except when not in the residence of the respondant during the following times....
As well their are terms as to telephone access, emergency phone numbers, keeping each other fully informed and variation of my access based on my work schedule.All of which she is either in contempt of or follows only minimally.
Unfortunately I can not get answers from my ex about any issue or topic as it relates to the children. She absoluetly refuses to convey information at the time of access , and the communication book information she provides is notably vague.In short she is mute. These questions I ask are often not difficult ie Do you have a computer that will run this vocational cd for our son? ...No answer , You said in the book our son may be Lactose intolerant do not give him milk.... Has he been tested for milk allergies? Is he on a special diet? Speciffically what can he eat and not eat?....all no answers.
It does not matter the question , the topic or the circumstances she will not communicate.School information I receive well after the fact.When I questioned this her answer was "St Patricks school is all you need to know"
Frankly she acts as if I have given up all input to these children (save the support money) and that she has complete controll to act unilaterally without consent or input from me, Babysitters, school, activities, medical treatment, you name it she is sure to exclude me.
Under the section 20(4) of the act does she have exclusive authority to do this (I only have about 15% access time) That is to say can she selectively exclude me from co-parenting of my children?Does the following meen that my rights as a parent have been suspended? ..."Where the parents of a child live seperate and apart and the child lives with on 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 seperation agreement or order otherwise provides." I guess the simple question is "What is the entitlement of custody and what are the incidents of custody"?
As well the OCL would not support her claim for custody sighting her refusal to communicate, a position of joint custody was also denide as she had our son sleeping with a 42 year old female friend , according to my ex out of nescessity and at that time (Nov'05)would only support the father having sole custody. This was reviewd over the past summer as per their previous conclusions and we have a followup disclosure meeting soon (Sept 12)
I honestly donnot expect the OCL to step away easily from their initial position that I should have custody.
My ex has dug her heels in and we have already toasted enough money that would have sent one of these children to university.
Offers to settle in any kind of a co-opertaive mode have been rejected by her , as well as mediation, etc,.
What is your opinion of a motion for custody , or temporary custody, based on the two ocl reports (assuming they are essentially the same) or is the only solution a trial.( or both)
My case is so bizzare that co-workers wonder how I manage to survive and I'm beginning to wonder too.I am litterally at the point of being broke financilly and don;t know how to proceed or where to get the resources to proceed. I hate to think of the consequenses for my children if I have to bail simply because of that?
To further complicate things the children are IVF babies from donnor sperm so in a technical sense I truly am not the father, that is they donnot carry my DNA, but this doesn't meen I love them any less or do not consider them my children.
This nightmare we are living was never conceived.Whether it was Post Partum depression on her part or something else it has been carried to the extreme. I'm sure we are all hurting including my ex. I just don't know how to stop it and make things better for all of us.
Your response , help and suggestions are appreciated.
Thanks everyone for listening.

Brokendad

logicalvelocity 09-03-2006 12:10 PM

brokendad,

that is quite a predicament your in, BUT DON'T GIVE UP and don't lose hope! When your at the bottom down and out, there is no other place to go but up!

I suspect your estranged spouse's strategy is to NOT co-operate and then wave the flag that there is no historical co-operation or communication between the parties for a Joint custody regime to work. It is apparent that she is doing everything to frustrate the children's relationship with you. Document EVERYTHING and all requests for information pertaining to the health and welfare of the children. Make it in writing, cc'd to her solicitor!

Courts are aware of this tactic. If you are running out of funding for your litigation, educate yourself on the law; Children's Law Reform Act, Divorce Act, and the Family Law Act. Moreover, it a good idea to read the Family Law Rules to obtain a better understanding of how the system works. You can represent yourself! I also recommend that you read case law to receive a greater understanding of how the courts would rule in similar situations as yours.

One case that does come to mind that is similar to your situation, is this

Z.(A.) v. W.(J.), 2004 ONCJ 157

http://www.canlii.org/on/cas/oncj/2004/2004oncj157.html

Summary of the authority (TRIAL)

ACCESS TO CHILD — Form of order — Supervised access — Grounds — Parental impasse — Supervised access is interim measure reserved for resolving impasse over access that should evolve to more normal access regime — It has distinct disadvantages such as (1) conveying message that child’s safety cannot be otherwise entrusted to access parent (which in this case, was pernicious message because evidence did not support conclusion that father presented any sort of risk to child); (2) reducing access time because it must accommodate access centre’s availability and hours of operation; and (3) costing money — In this case, even though court ended supervision about 2 years ago, mother wanted return to supervised access but offered no evidence at trial to justify step backwards to renewed involvement of supervised access centre — Mother’s request for supervised access dismissed.

ACCESS TO CHILD — Form of order — Supervised access — Grounds — Risk of harm to child — Access to former child abuser — Father’s interim access order included term prohibiting son’s unsupervised access to paternal grandfather who, 10 years ago, pleaded guilty to charge of sexual touching of his then 11-year-old daughter and who received suspended sentence and probation — Grandfather had completed his probation and had had no criminal record since then (or even prior to that offence) — Social worker with Office of Children’s Lawyer recommended continued restriction on grandfather’s contact with boy but could identify no “risk” specific to this boy and this grandfather — Worker’s reliance on vague unaccredited dogma of “once labelled, forever labelled” was speculation and conjecture but not evidence of likely risk to child — Court could find no likelihood of risk to boy in his grandfather’s unsupervised presence and rejected request for supervised access.

CIVIL PROCEDURE — Offers to settle — General — When to file with court — During trial — In claim for joint custody where court was examining level of co-operation that parties had demonstrated during litigation, it paid particular attention to various interim agreements that formed part of trial evidence — Court refused, however, mother’s invitation also to examine offers to settle — Offers to settle cannot be examined during trial and come before court only for purpose of decision of liability and quantum of costs.

CUSTODY OF CHILD — Best interests of child — Conduct of parties — Resistance to court process — Custodial mother who firmly believed that child’s relationship with father had no value repeatedly ignored, stalled or created impediments to implementation of string of access orders — Mother effectively sabotaged order for investigation and report by Office of Children’s Lawyer by withholding child from observational visit at father’s home — When investigating social worker at Office of Children’s Lawyer sought mother’s consent to speak with persons likely to have information for proposed report, mother regarded overture as attack on her character and then set about to attack worker’s competence and professionalism.

CUSTODY OF CHILD — Best interests of child — Fostering ties to non-custodial parent — Evidence showed that mother’s enthusiasm for cultivating relationship between father and child was, at best, lukewarm and, at worst, irresponsible and mean-spirited — At start of case, mother obtained ex parte order custody order on evidence that, at trial, was shown to have no basis in truth — Despite string of court orders dealing with father’s access, mother (with support of child’s maternal grandfather who shared mother’s belief that child’s relationship with father had no value) consistently ignored, stalled or created impediments to implementation of court-ordered access — She failed to complete intake requirements at access centre in timely manner — She then “discovered” problems in transporting child to and from access centre and chose another centre that forced father to travel longer distances on public transit — Court could not trust mother as sole custodian of child and, despite difficulties in parents’ ability to co-operate, it imposed joint custody to promote child’s best interests.

THE RESULT

CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Court’s distrust of principal caregiver as sole custodian — Evidence at trial showed that mother’s enthusiasm for cultivating relationship between father and child was, at best, lukewarm and, at worst, irresponsible and mean-spirited — Appeal courts have ruled that joint custody needs to be predicated on high degree of co-operation between parents but this should not preclude joint custody in situations where one parent deliberately provokes and engineers discord in expectation of being rewarded with sole custody and escaping any examination of source of and impetus for ongoing conflict — If used carefully, joint custody within parallel parenting plan may promote child’s best interests in cases where court finds that it would not serve child’s best interests to entrust primary caregiver with sole decision-making power — In this case, child’s bond with access father was strong, despite mother’s efforts to frustrate it — Father’s plan of parenting time with child was modest and built incrementally on regime currently in place — Unlike mother, he had never sought to impair child’s relationship with mother and had always respected child’s ties of affection with her and her family — He had always been ready to work co-operatively with mother had been generous and flexible with mother in access arrangements — Removal of sole decision-making power from mother would ensure that decisions that previously caused disruption if implemented would no longer feed mother’s needs and whims but would centre on child’s needs and benefits — Joint custody ordered.

CUSTODY OF CHILD — General — Rights of parent — Where parents separate — Parent with de facto or de jure custody has (1) no authority to deny child access to other parent or to dictate terms of child’s access; and (2) no authority to withhold information from other parent or to obstruct other parent’s inquiries about child’s well being (such as child’s health, education and welfare) — Non-custodial parent’s rights to access and information survive separation unless court order or agreement provides otherwise.

Comment- Until an order from the court or a separation agreement providing otherwise, BOTH parents have coextensive custody of the child, however the authority to act is SUSPENDED, but not ended.

CUSTODY OF CHILD — Interim custody — General — Purpose of interim custody order — At best, interim order is temporary solution, made on partial and untested evidence, for child’s ongoing care until outcome of court case — Ex parte interim order is most temporary of interim orders, resting on evidence not even exposed to challenge of other parent — Such orders therefore are weak foundations on which to construct any argument for continuity of care (status quo).

RESTRAINING ORDER — Grounds — Harassment, molestation or annoyance — Evidence — Mother’s evidence for ex parte interim restraining order against father was exposed at trial as untruthful — Her “fear” of recurrence of alleged spousal abuse was, at best, figment of her imagination and, at worst, deliberate fabrication to hide her role in breakdown of parents’ relationship and to portray father as unfit parent — Mother failed to adduce any evidence of any abuse or threatening behaviour by father — Instead, evidence revealed that she marketed her alleged “fear” as reason for avoiding something that she did not want to do, such as complying with access orders or sharing information about child with father — Allegation of abuse is not proof of abuse and claim of fear is by itself no proof of good reason for that fear — There had never been need for restraining order against father — Court dismissed mother’s attempt to turn back clock on claim that should have been discontinued long ago.

lv

smadax 11-16-2006 04:52 PM

Other End of the Stick
 
I symapthize with your story and hope you can work it out. My DH and I have been forced to represent ourselves in court due to lack of finances, fighting a difficult legal system. It's hard because Judges do not like it when people are self-represented and we easily lost in the system.

Definitely keep a paper trail, accumulate evidence. I've been told that the only recourse was to either make a Motion for enforcement of an Order or contest Custody. I've seen cases where the Judge has changed custody because the primary caregiver was not acting in the best interest of the children, ie following the visitation/access agreements, making an effort to cooperate with the non-custodial parent....

ex parte to my knowledge is when a person files legal documents to request an order without having to serve the other person or have them attend the hearing.

Good luck! :)

susiecanoe 11-05-2009 06:57 PM

You are being treated unfairly by a system that doesn't work
 
Hello, I so sympathize with your situation. I am on the other end of the same thing except we do have joint custody. I have spent close to $ 40,000 in court and no matter how many documents I have saved, recorded, journalled and submitted, the sad reality is that the family court system does not work. Judges don't read the material and contempt motions don't work. In fact, as I write this now, my children require medical and dental care. Our order calls for their father to provide child support and 50% towards section 7 expenses for university, medical or dental care only. He has never paid! The last time I was in court this past August, he failed for the 6th time in an order to produce income verification ( He has not filed income tax since the year 2000). Guess what the judge did? NOTHING!!! I was not even awarded costs even though he was in contempt of the order again. Why? Well according to the judge, I failed to inform him that our 17 year old ( now almost 18) son was attending counselling on his own accord, at his own request and had asked that it remain confidential. According to the health act, every person has the right to confidential medical treatment so I at my son's request, I did not inform his father. Part of his issues had to do with the depression he experiences having been rejected by his father for so many years.

Anyway, what I want to know is, whether the courts will or can insist that the children be placed on his new spouses health and medical care plan. I wrote off receiving any child support ever, because I was chasing good money after bad. BUT, his new spouse has a drug and dental plan that she has placed only one of the children on ( her favourite) but refuses to provide the same consideration for my daughter and my oldest son. My daughter now needs braces, and after 6 months of requesting permission to proceed, I finally received an email stating that I could proceed but only if I pay for it myself. If she was placed on the medical and dental plan of his new spouse, at least some of the expense would be covered and I could take out a loan for the rest. My question then, is what to do? I am tired of making motions in courts that judges don't read or deal with. An order is only as good as the person who will follow it and realy the courts have no teeth to enforce them. So, do I make another motion that the children are to be placed on this plan and is it within his legal obligations to ensure they are provided access to this>

My estranged spouse refuses to communicate, mediate or respond to any of my queries. I think it is power and control thing, but this is hurting my kids!


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