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fireweb13 05-02-2017 09:54 PM

Child missing
 
I am not going to go into the nitty gritty of my case but I desperatly need help.
Daughter is 10 years old. I live near Barrie and my ex lives near Burlington. We have been seperated for 9.5 years now and she has had primary residency. EOW sort of deal.

March 27th my ex was evicted for the 4th time. This time though they were homeless. I retained a lawyer and was successful on an emergency motion to have our daughter live with me temporarily.
April 13 we went back to court to hear the motion. The judge said that both of our court documents were filled with to much hearsay and that she wanted us to come back in a week with reports from School, CAS, and have our daughter have an interview with an OCL lawyer which I paid for.
During this hearing my ex brought forth a very sketchy lease for an apartment.
The judge said that our daughter should go back to her moms April 17th (Monday) but that she should be returned to Simcoe County for the hearing Apr 20th.
During this week I got evidence that our daughter is struggling in school, got documents about my ex's husband being arrested in the past, and a few other things that are inconsequential to the main part of this.
April 20th hearing, my lawyer (because I am the applicant we spoke first) plead our case, my ex was late to court so she had not had a chance to speak to duty council. So after pleading our case she spoke to duty council. During this time my lawyer got a fax from CAS with more sever concerns (previous landlord had police attend the house after the eviction, they found a needle in the freezer and razor blades, plus feces throughout the house, paint on walls and holes in walls). Suffice to say, my ex could not win this case. The judge ruled that our daughter was to now reside with me and that my ex was to have every weekend access until our case conference May 9th. The order stated that they must be in the apartment that they provided a lease for, and that I was to have a walk through and see where our daughter would sleep, and that CAS would have to deem it safe, though access can start before any of this happens....and no police enforcement clause...

First weekend, ex is a no show.
Second weekend (last Friday) they picked up our daughter. On Sunday, I was supposed to pick up our daughter and have a walk through of the apartment. When I arrived they were not there, no answer at the door. Finally after 15 minutes we got a text saying that they have reported me to CAS for smacking our daughter (totally untrue) and that I would not be allowed to have her. I phoned the local CAS and asked if any report had been brought against me and they said they have not heard a thing. I went to the police station and they agreed to do a welfare check on them. Both CAS and police stated that they are not living at the residence that they are supposed to be living as per the court order. Police did see them at their residence and spoke with my daughter, and she said she wanted to stay with mom so they would not do anything.
Neither CAS or Police will provide me with their address, and my ex will not respond to anything from me.
I went Monday and applied for an emergency motion, but as my lawyer put it "we got the judge who does not read material and rarely presides over family court motions" so we were unsuccessful at having my daughter returned.

I spoke with CAS today and they stated that they have tried numerous times to reach out to my ex through phone calls and through attending the residence but have been unable to reach her, but that they would tell me once my daughter has been interviewed.
Everyone is saying that it will be resolved at the case conference on May 9th... but I am the primary resident parent legally and yet I have no clue where my daughter is. My ex could be on the run and yet there is nothing I can do. I feel so lost right now.

Does anyone have any suggestions?
CAS agrees that things had to be very bad for custody to be changed after so long... but nobody is doing anything. My lawyer is at a loss right now and we are trying to figure out what to do here. So any suggestions would be helpful.

Thank you

paris 05-03-2017 12:15 PM

I'm confused. They are not living at the place she showed the lease for, but police saw them at their residence. How did police find the residence?

You have a current court order that states you have custody. You've basically had custody since March 27. I don't understand why police didn't return her to you based on your custody order.

Did your daughter continued to go to school near Burlington while she was with you?

Things may be resolved at the May 9th court date. (I hope she brings her with her). That's a week away, and that's a long time to not know where your daughter is. Is there an arrangement with CAS to bring the child to you if they find reason to remove her from Mom's home?

I can tell you I would have been waiting outside her school to steal her back. I'm not suggesting that's right, it's just what I would do.

trinton 05-03-2017 12:37 PM

police won't help you without police assistance clause however you can just tell them you are the primary parent and you want to press abduction charges against the other parent and have child returned home.

but best speak to your lawyer and file a contempt motion. or try another emergency motion. i would keep contacting the police in mean time and try getting the other parent charged with abduction and have cas bring child back to you. shes taken the child without consent.

why don't you get child from school and tell school to not release child to other parent and give them your court order? they would be all over this if you were mom and she was dad.. all over it.

Tayken 05-03-2017 02:39 PM

1. Is the child attending school? (Call the school now to validate attendance.)
2. Did the police confirm that they had contact with the child in the past 5 days?

First and foremost you need to determine if the child is still within their habitual residential location. The best way to validate it is through school attendance. If there have been 5 days of back-to-back non-attendance then you have an issue and need to escalate.

If the child cannot be located and a court ordered child custody and access agreement/order is not being followed you may have grounds to escalte the matter under Section 282.(1) of the Criminal Code.

To do this you will need the consent of the Attorney General or counsel (crown) instructed by them to proceed with the criminal charge. Generally, I would recommend 5 consecutive non-school attendances within a week and 5 days of failed welfare checks by the police. Your lawyer should have the number of a criminal lawyer who can bring the matter to the Crown Attorney to get things moving.

Your lawyer should be requesting the welfare checks from the police. Many police officers will just think you are a nutty parent. But, when a lawyer calls representing a client they usually do not balk at the request.

Ultimately, you need to have a third party organization (school or police) validate that they have not had contact with the child. As well, an access order that provides that you have lawful care and child of the child that is being denied to you. (Also the child has to be <14 years of age.)

Panic will not work in your favour in this situation. The other evidence that will assist you is any physical (or electronic) evidence that the parent has an intent to move.

Surely you have mutual friends that can verify that the child has not been removed from their habitual residential location. You can always leverage that as well. The key is to locate the child.

See para 18 onwards as to what evidence is needed to present a possible child abduction in a family law matter: https://www.canlii.org/en/on/onsc/do...14onsc915.html

At a minimum, you need to present a prima facie case that the other parent has abducted the child or is planning an abduction. This not easy to do.

Good Luck!
Tayken

Tayken 05-03-2017 02:41 PM

Quote:

Originally Posted by paris (Post 220147)
I can tell you I would have been waiting outside her school to steal her back. I'm not suggesting that's right, it's just what I would do.

It indeed is not the right thing to do. But, do verify attendance at the school to ensure the child has not left the jurisdiction.

It is never a good idea to escalate a custody and access dispute through removing the child from the other parent. Don't add to the confusion and complexity the child is experiencing. The best place to resolve the issue is in court.

LovingFather32 05-03-2017 03:02 PM

Quote:

Originally Posted by paris (Post 220147)
I can tell you I would have been waiting outside her school to steal her back. I'm not suggesting that's right, it's just what I would do.

I hear you Paris. If you recall, my daughter was abducted to an undisclosed location. My ex accidentally disclosed her location in her court paper work. It took everything I had not to go get her. I had to exercise my rights..no..my daughters rights the right way though.

Tayken's right on this point. I'm glad I didn't .. but damn would have felt good to get her back.

OP .. listen to Tayken's advice very carefully.

fireweb13 05-03-2017 03:15 PM

Quote:

Originally Posted by Tayken (Post 220164)
1. Is the child attending school? (Call the school now to validate attendance.)
2. Did the police confirm that they had contact with the child in the past 5 days?

First and foremost you need to determine if the child is still within their habitual residential location. The best way to validate it is through school attendance. If there have been 5 days of back-to-back non-attendance then you have an issue and need to escalate.

If the child cannot be located and a court ordered child custody and access agreement/order is not being followed you may have grounds to escalte the matter under Section 282.(1) of the Criminal Code.

To do this you will need the consent of the Attorney General or counsel (crown) instructed by them to proceed with the criminal charge. Generally, I would recommend 5 consecutive non-school attendances within a week and 5 days of failed welfare checks by the police. Your lawyer should have the number of a criminal lawyer who can bring the matter to the Crown Attorney to get things moving.

Your lawyer should be requesting the welfare checks from the police. Many police officers will just think you are a nutty parent. But, when a lawyer calls representing a client they usually do not balk at the request.

Ultimately, you need to have a third party organization (school or police) validate that they have not had contact with the child. As well, an access order that provides that you have lawful care and child of the child that is being denied to you. (Also the child has to be <14 years of age.)

Panic will not work in your favour in this situation. The other evidence that will assist you is any physical (or electronic) evidence that the parent has an intent to move.

Surely you have mutual friends that can verify that the child has not been removed from their habitual residential location. You can always leverage that as well. The key is to locate the child.

See para 18 onwards as to what evidence is needed to present a possible child abduction in a family law matter: https://www.canlii.org/en/on/onsc/do...14onsc915.html

At a minimum, you need to present a prima facie case that the other parent has abducted the child or is planning an abduction. This not easy to do.

Good Luck!
Tayken

Thank you taken. As of April 20th when the order went through that I was to have custody and primary residence of our daughter, I enrolled her in school locally here.
On March 27th my ex became homeless. In our court motion she brought a lease for an apartment but it was sketchy. The judge ruled that while in moms care on weekends, she must be in that apartment and that I was able to have a walk through of that apartment.
They do not live at this apartment though, CAS and Police confirmed that they are living somewhere else, but refuse to tell me where. All they could do is confirm that they absolutly do not live at the apartment that they provided a lease for during our motion.
Police have done a welfare check but said if the child does not wish to go with them, they will not force her. They and CAS know where they are.
On an odd turn, today CAS told me that they have confirmed that our daughter is now registered in a school in Burlington (not the same school that she was going to in March before the eviction). They said that they could tell me that since I am the custodial parent.
I contacted the school and confirmed that our daughter is attending there. I showed the school the court order as well. The principal stated that she would not allow our daughter to come with me even though I have a court order that she is to reside with me. I just do not get it anymore.
I still have no idea where my ex is living with our daughter even though I am the custodial parent and have primary residency.
We go for a case conference May 9th in front of the same judge that ordered the change in custody and think that is my only hope right now.

fireweb13 05-03-2017 03:20 PM

Quote:

Originally Posted by paris (Post 220147)
I'm confused. They are not living at the place she showed the lease for, but police saw them at their residence. How did police find the residence?

You have a current court order that states you have custody. You've basically had custody since March 27. I don't understand why police didn't return her to you based on your custody order.

Did your daughter continued to go to school near Burlington while she was with you?

Things may be resolved at the May 9th court date. (I hope she brings her with her). That's a week away, and that's a long time to not know where your daughter is. Is there an arrangement with CAS to bring the child to you if they find reason to remove her from Mom's home?

I can tell you I would have been waiting outside her school to steal her back. I'm not suggesting that's right, it's just what I would do.

Thank you Paris.
Our daughter was enrolled in school with me here, near Barrie once the order came through.
Police are regularly meeting with my Ex's husband, he is on their radar and they constantly know exactly where he is... yeah... I know..
Until today I did not know she was attending school in Burlington, it contradiction to the court order.

HammerDad 05-03-2017 04:31 PM

I would go over the principles head and go straight to the School Board. The principle seems to have no issue with being in contempt, same with your ex.

Document, document, document. I assume you are emailing your ex requesting that she return the child to you per the court order? I assume you or your lawyer has also sent such a letter to her lawyer? You need to be on her lawyer, as they may need to educate the ex about why this looks really bad on them.

Part of me says go to the school, bringing the court order and the police. But a bigger part of me says that is a bad idea, and will only upset the child. Not sure what can be done as it doesn't look like anyone is willing to do their job.

fireweb13 05-03-2017 04:51 PM

Quote:

Originally Posted by HammerDad (Post 220176)
I would go over the principles head and go straight to the School Board. The principle seems to have no issue with being in contempt, same with your ex.

Document, document, document. I assume you are emailing your ex requesting that she return the child to you per the court order? I assume you or your lawyer has also sent such a letter to her lawyer? You need to be on her lawyer, as they may need to educate the ex about why this looks really bad on them.

Part of me says go to the school, bringing the court order and the police. But a bigger part of me says that is a bad idea, and will only upset the child. Not sure what can be done as it doesn't look like anyone is willing to do their job.

Everything is documented, from the time I went to police Sunday night when we were first informed that my ex would not be returning our daughter as per the court order.

The principal at our daughters "burlington" school phoned the police about the matter, and they in turn phoned me to let me know that my daughter is safe, but they said that if I were to pick up our daughter from school that a larger police investigation would happen.
I just don't get any of this anymore.
I am just praying that when we go in front of the Judge on the 9th that they see the situation for what it is.


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