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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 10-22-2006, 07:11 AM
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lost in relation is on a distinguished road
Default bigamy?

I have an infant child with a man whom I have been off/on with for the past ten years.

Earlier today I came across copies of a marriage certificate. Apparently, my partner married someone from out-of-country during one of our separations in 2003!

How do I find out if this is a real marriage certificate, and if the marriage has since been annulled? I could ask him, but I am certain I will not hear the truth from him.

We have been co-habitating since December 2005, and our baby was born April 2006.

If he is still married, can I deny custody on the grounds of his extreme dishonesty?
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Old 10-22-2006, 10:45 AM
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lost in relation,

Bigamy is defined in the legal sense as listed

bigamy -

n. the condition of having two wives or two husbands at the same time. A marriage in which one of the parties is already legally married is bigamous, void, and ground for annulment. The one who knowingly enters into a bigamous marriage is guilty of the crime of bigamy, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another's property or some other felony. Occasionally people commit bigamy accidentally, usually in the belief that a prior marriage had been dissolved. Having several wives at the same time is called polygamy and being married to several husbands is polyandry.

With this back drop and as you mentioned,

Quote:
I came across copies of a marriage certificate. Apparently, my partner married someone from out-of-country during one of our separations in 2003!
You did not indicate whether you are married to the individual or are common law status. If you are common law, and were separated at the time of the latter marriage between your partner and the third individual, it is safe to say, your partner broke no laws and would not be treated as bigamy. A common law relationship ends the moment the parties separate.

Quote:
How do I find out if this is a real marriage certificate, and if the marriage has since been annulled? I could ask him, but I am certain I will not hear the truth from him.
You could check with the Department of Vital Statistics for the particular jurisdiction and perhaps pay a fee to have a search completed to verify same. The certificate should also have perhaps a registration number or official seal. Moreover, you could ask the individual for particulars or the marriage. You never really know their opinion unless you ask. If you do have background information from vital statistics on the legitimacy of the marriage, and subsequently hear the other persons version of events, you will know where you stand.

Quote:
We have been co-habitating since December 2005, and our baby was born April 2006.
If your in Ontario, the Family Law Act applies and since you have a child together at time of cohabitation, you are considered common-law spouses for support purposes.

see the respective act

Family Law Act, R.S.O. 1990, CHAPTER F.3

http://www.e-laws.gov.on.ca/html/sta...htm#P568_49516

1(1) In this act


“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; (“cohabiter”)

“spouse” means either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1); 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2); 2006, c. 19, Sched. C, s. 1 (1, 2, 4).

With "cohabit" and "spouse" defined in the act,

For support obligations of same

Definitions

29. In this Part,

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6).

If you are in Ontario you are considered common-law spouses.

Quote:
If he is still married, can I deny custody on the grounds of his extreme dishonesty?
If you are in Ontario, by default of the Children's Law Reform Act, R.S.O. 1990 c. C12 see section 20(1) as listed

http://www.e-laws.gov.on.ca/html/sta...htm#P285_16179


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).

In other words until an order from the court or a separation agreement is in place that provides otherwise, BOTH parents have co-extensive custody of the child.

When parent's separate, and the child remains with one parent, the authority to act is suspended but not ended for the other parent.

see section 20(4) of the act

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).

Access is the child's right and one parent has no right to dictate the terms and conditions of the child's access to the other parent.

see section 20(5) of the act

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).

The merits of a custody adjudications and access regimes are determined by applying the best interest test as listed in the act. Bond and stability are also critical factors.


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).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

Now your child is quite young (D.O.B April 2006,) and empirical infant child development research indicates that a child begins to bond with both parent's at roughly the same time. Usually around 6 - 7 months of age. Prior to this, a child will accept care from just about any individual.

Be aware that the tender years doctrine is not law and courts have a tendency to reject this position. See this case

Szczecina v. Piatek, 2003 WL 12623 (Ont. S.C.J.), [2003] O.J. No. 1249

paragraph 6

http://www.canlii.org/on/cas/onsc/20...onsc12842.html

"[6] The most significant aspect of this dispute is that the mother has a demonstrated history of denying access of the daughter to her father. Her position seems to be that because the child is “of tender years” and that she has been the primary caregiver that there should be no access by the child to her father.

To summarize the jurisprudence,

The issue centered on the custody of a nine-month-old child. In the result, The court rejected the "tender years" doctrine, awarded temporary custody to the father and access to the mother on alternate weekends from Fridays at noon to Mondays at noon.

Quote:
If he is still married, can I deny custody on the grounds of his extreme dishonesty?
His conduct isn't open, however it is neither dishonest. There may be reasons for non-disclosure such as a fear that it will end your current relationship. This conduct is irrelevant in a custody adjudication of your child. This conduct certainly isn't a valid reason to withhold or to bar a relationship between your child and the other parent.

If it was me, I would confront the individual and perhaps try to work things out and some way put it behind you. It is obvious that he must care for you, as he is with you now.

lv
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