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Old 11-28-2012, 03:14 PM
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Default Daycare issue and Access

Some of you remember me from before... I am a single dad of two girls with two different mothers... sorry if I came across as contentious before and if it appeared as though I wasn't taking some of the advice. I do very much appreciate the feedback even though I may not agree with everyone all the time. There are a lot of wise and experienced posters on this board and I am very grateful for that.

My access to my 22 month old is Wednesdays and Thursdays in Burnaby, an 800Km round trip from Kelowna where I live. I tried to have this varied on May 2, 2012 and was partially successful (I had FaceTime access added and "no derogatory comments" provision added), partially unsuccessful (in person access schedule to stay the same, "adjourned generally" until I could demonstrate material changes in circumstances).

I went back to court on September 12 due to more changes in circumstances and I believe I would have got the variance that time, but there was a serious technical problem. I am supposed to draft and enter previous orders into the registry and neither I nor my previous lawyer had done so (the May 2 order and a Christmas 2011 Consent Order for holiday access that was drafted by my lawyer).

On September 12 my ex's lawyer was arguing that my May 2 application was "dismissed" and that was one reason why, she argued, no variation of our Consent Order should be allowed. Because I had not put the previous orders in the Application Binder, The Master on September 12 asked for the clerk to go downstairs and retrieve the Court Reporter's notes from May 2. She that it looked like I indeed had been granted a partial variance, however she was going to need to see the actual order entered before we could proceed. My application was Adjourned Generally Without Prejudice, until those orders get entered. Opposing Counsel and I cannot agree on the form of the May 2 Order, even though I got advice from Duty Counsel on drafting it. So we are before the Registrar on January 14, 2013 to settle the terms of the May 2, 2012 Order.

In the meantime I decided I would stop feeling like a victim and see if there was any way at all I can alter my work schedule and make the Wednesday and Thursday access happen consistently. After a lot of false starts, I was finally able to do this and for the past three weeks now I had been able to have regular Wednesday-Thursday visits with my daughter, which is awesome. However, right before the first visit three weeks ago, my ex let it slip that she had just started to work and had placed my daughter in daycare. She did not inform me of this, and does not think it is important to consult me about these things.

I said I would like her to consult me but at a minimum I should be kept informed. I told her, "Please let me have the contact information of this daycare, and please give me an assurance that I am on the emergency contact list for this care provider and that they are aware of our access arrangements". She flat out refused.

Because I called and texted several times over the course of several days, the ex has alleged I am "harrassing" and "threatening". Here is an example of a text exchange between us:

Me: "When will you provide me the particulars of D2's daycare? I would like to know about it and be assured I am on the emergency contact list and can pick D2 up there according to the access order".

She: "You need to understand I cannot just reply to things from you via text message. Everything needs to be documented and go through my lawyer, because you twist my words and I don't trust you. Of course you will be notified about D2's daycare, in due course".

A few days later I sent another polite email inquiry to her lawyer. The lawyer had initiated "without prejudice" discussions to see if I would NOW agree to switching access to the weekends. Apparently the ex has to have one of my daughter's grandparents take a day off work, as it has been either grandma or grandpa handing my child over to me each week so far. And them missing work is apparently preferable to me going to the daycare. At the end of her proposal to me, and with respect to the daycare, the lawyer said:

"It is my client's intention to provide you with the information regarding D2's daycare in due course. Your conduct last week is of concern to my client. My client will continue to work on finding a solution to her concerns on this issue."

I said I could consider a switch to the weekends but I would also like to discuss some regular Kelowna visits. D2 has made 6 visits here so far since our separation and I paid for half of them. I said I would be willing to pay for these to occur once a month, but would like to set a regular schedule. Flights are slightly cheaper than driving, allow for more time, and are much safer on the winter roads. Then we could have Burnaby visits once a month as well, in other words, access would be every other weekend instead of every single Wednesday and Thursday as it is now. She declined this. I also said I would like an agreement that I will be kept informed about major decisions in my child's life. To this she either ignores, or says "you will be informed in due course". And then this veiled threat from her lawyer:

"It does not appear we are able to reach an agreement even on an interim basis, once again. We will have to leave things the way they are for now.

For clarity, please advise which points in your application you still wish to argue even if the visits are switched to every other weekend.

Please be advised that my client also intends to make an application in this matter for necessary relief. Perhaps, your applications can be heard together, or maybe my client's can go ahead of yours. We will have to see."

When I asked my ex via text message what this "relief" she was seeking was all about, she replied simply "restraining order". WTF.

This week I agreed to change the access to the weekend. I asked the ex to confirm this in writing and yesterday she sent me an email, "this week only we are switching to the weekend", and the visits will be 7 hours a day instead of the usual 4 hours. Her lawyer then sent me a quick email in all capitals "THIS IS WITHOUT PREJUDICE TO MY CLIENT'S POSITION ON YOUR APPLICATION". I replied, when may I have the information about the daycare? To which she has so far not acknowledged, again.

To me this is HAP on the part of the ex. I just want to be involved in my child's life. I am not trying to disrupt her work, nor do I necessarily object to any of these decisions she is making. But I feel like I am being bullied and marginalised.

I think I should not agree to switch to weekends on a permanent basis without being given this other information. As for my work schedule, weekdays are FINALLY just as convenient for me as weekends - I make parcel deliveries now to and from Vancouver, which covers my cost of transport and earns me a little bit of money... and I have found a great family to let me stay overnight.. they are the parents of very good friends of mine who just moved to Vancouver. As of now, there is no direct difference to me what day of the week I head down there. The sisters can only see each other on weekends, however the eldest has a lot of holidays coming up and weekdays are just as good for her as weekends when she is not in school.

I don't know if it's worth going to court over this daycare issue, or if she has any reasonable chance of a restraining order against me. I am definitely non-threatening, maybe overzealous, but I cannot see how she can freely offer me a 7 hour unsupervised visit in exchange for me being kept in the dark about the daycare. If I need a restraining order against someone, I am not voluntarily offering them expanded access with a girl who is less than two years old. Something isn't adding up here. What do you all think?

Last edited by singledadoftwogirls; 11-28-2012 at 03:29 PM.
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Old 11-28-2012, 03:51 PM
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Just my initial thoughts....

Quote:
Because I called and texted several times over the course of several days, the ex has alleged I am "harrassing" and "threatening"
That to me would be over bearing. The fact that you admit you have called and text several times is harassing. I do not think she is in the right for denying this information, however asking over and over and over again, she would have reason to restrict the way you communicate with her.

Quote:
She: "You need to understand I cannot just reply to things from you via text message. Everything needs to be documented and go through my lawyer, because you twist my words and I don't trust you. Of course you will be notified about D2's daycare, in due course".
She is being smart... you are not... text messages are sometimes hard to use as evidence, you are more apt to get a response using email, or if she is willing to pay a lawyer, email the lawyer... it really is not that hard of request. The bold part above, is why she is refusing to answer your text messages and she has every right to refuse to answer text messages and/or phone calls... she is protecting herself (even if you don't feel she needs to)

Quote:
"It is my client's intention to provide you with the information regarding D2's daycare in due course. Your conduct last week is of concern to my client. My client will continue to work on finding a solution to her concerns on this issue."
In my honest opinion, the reason she is NOT providing the contact information is because she does not want you to drag the babysitter into any drama. It is clear things are still not civil between you and her and if she has just hired this babysitter, she may not be willing to lose the babysitter because you will feel the need to contact the babysitter and potentially cause issues.

Quote:
When I asked my ex via text message what this "relief" she was seeking was all about, she replied simply "restraining order". WTF.
Why would you contact her about this? If you receive a letter from the lawyer, respond to the lawyer, you are creating conflict by continuing to contact your ex via text message when she would rather you not.

Quote:
I don't know if it's worth going to court over this daycare issue, or if she has any reasonable chance of a restraining order against me. I am definitely non-threatening, maybe overzealous, but I cannot see how she can freely offer me a 7 hour unsupervised visit in exchange for me being kept in the dark about the daycare. If I need a restraining order against someone, I am not voluntarily offering them expanded access with a girl who is less than two years old. Something isn't adding up here. What do you all think?
No there is no reason to go to court over this, unless you want to spend more money and increase conflict, just calm down and only make contact through her lawyer.

It has been said many times that just because a restraining order is on one parent, does not mean that parent is a bad parent, it simply means the two adults have issues. She doesn't want you harassing her my text and phone calls and her only way to get that "relief" is by a restraining order, or by you backing off and respecting her means of communication.
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Old 11-28-2012, 04:07 PM
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Thanks Berner,

To be fair to myself, obviously I would never send a follow up email if I was given a proper response to the first one. I mean, the logic seems to go like this:

Judge: why won't you tell him about the daycare?

She: Because he asked me more than once

Judge: But why didn't you answer him in the first place, or disclose it in the first place?

She: Because I knew he would keep asking me if I didn't respond


I can totally understand that she would not want to jeopardize the relationship with the new caregiver. But being on an emergency contact list and speaking to this person about my child would not be causing trouble. I think it's my right as the parent. I don't have any of these issues with my other daughter's mother and never have. When it's serious, we discuss it. When it's minor (you can pick her up from the babysitter instead of my home on x date), we keep each other informed. I don't want to disrupt the arrangements with the caregiver ... are you suggesting I do nothing?

I agree with you, email is better and text messages are difficult to document. But she said she would reply in an email and is refusing to do so. I honestly don't know what "in due course" is supposed to mean... either I am entitled to the information or I am not.

I agree I should not have asked the ex what she meant by "relief". We had a lot of friendly text messages going back and forth with discussions about the logistics for this coming weekend. My mistake.

EDIT: And to be clear, this isn't a "babysitter" but a licensed and busy daycare. That's what she's told me so far.

Last edited by singledadoftwogirls; 11-28-2012 at 04:10 PM.
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Old 11-28-2012, 04:15 PM
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I think you are entitled to the information yes and she is being unreasonable by not providing, but you are also being unreasonable by asking over and over.

As for the emergency contact... I don't think there is a reason you have to be. I could understand you being the emergency contact if you lived in the same area, but seeing as you are hours away, how fast can you actually get there in an emergency? The point of an emergency contact is for the school, day care, whom ever to contact when they cannot reach the first contact (in your situation the mother). Would it not make more sense to have say her mother/father (that are clearly involved) as an emergency contact? What are you going to be able to do from over 400km away?

My bf was upset when he found out his ex made her sister an emergency contact for the children's school, I explained it to him the same way... we live over 2 hours away, plus with his work he travels to different towns/cities weekly... what good would we be in an emergency? Makes more sense to me to have someone who will be available in an emergency than someone who live further away.
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Old 11-28-2012, 04:21 PM
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I have read that restraining orders can hinder border crossings (even if Civil and not criminal) and can really tip the balance in favour of one litigant against the other. It could damage my prospects for future employment and therefore my ability to support my daughters.

Here is an quote from one Family Law attorney in Vancouver about restraining orders, where she quotes case law (I'm not sure if this would be different for those of you in Ontario):

Restraining Orders: “Danger, Danger!” « VANCOUVER FAMILY LAW

Quote:
The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 says it all in its decision as follows (this quote is a good explanation of the legal grounds and test):

[33] A restraining order under s. 37 of the FRA is a discretionary order, but there must be compelling reasons to invoke the court’s discretion. The most obvious compelling reasons exist in circumstances involving conduct that gives rise to a realistic risk of physical harm to a spouse or a child, but compelling reasons also exist when other forms of harassment, molesting or annoying conduct unreasonably impinge on the emotional or mental well being of a spouse or child, or simply represent an unacceptable interference with the normal daily life of the applicant in the opinion of the court, applying societal standards of decency. There is naturally a stigma associated with a court having deemed it necessary to restrain a person’s behaviour towards another by an order, so the court must, at the lower end of the spectrum, guard against overuse of the discretion, while at the same time enforce the appropriate standards of decency.

[34] The court is of course concerned with subjectively-held fears and apprehensions on the part of an applicant, and the particular emotional vulnerability of individual parties is a material and relevant factor. However, the court is not bound to accept and agree with the subjective perceptions of an applicant, any more than it is bound to accept those of a respondent. Where threats have been subjectively exaggerated, the court may find an absence of compelling reasons to grant a unilateral restraining order. (See: L.T. v. M.T. 2006 BCSC 965, for a recent example of that approach.)

[35] Where the court is unable to tell where the truth lies, it will decline to exercise its discretion to grant a restraining order. (See: B(J.R.) v. B(D.J.) 2005 BCSC 10 for a recent example of that approach.)
I am vowing to only contact the ex through "proper procedures" from now on, because I do take this very seriously. My frustration, which I hope can be addressed by some of the kind members here, stems from the fact that sending an email to her lawyer about the information I am seeking also results in a non-response.
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Old 11-28-2012, 04:25 PM
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Quote:
Originally Posted by Berner_Faith View Post
I think you are entitled to the information yes and she is being unreasonable by not providing, but you are also being unreasonable by asking over and over.

As for the emergency contact... I don't think there is a reason you have to be. I could understand you being the emergency contact if you lived in the same area, but seeing as you are hours away, how fast can you actually get there in an emergency? The point of an emergency contact is for the school, day care, whom ever to contact when they cannot reach the first contact (in your situation the mother). Would it not make more sense to have say her mother/father (that are clearly involved) as an emergency contact? What are you going to be able to do from over 400km away?

My bf was upset when he found out his ex made her sister an emergency contact for the children's school, I explained it to him the same way... we live over 2 hours away, plus with his work he travels to different towns/cities weekly... what good would we be in an emergency? Makes more sense to me to have someone who will be available in an emergency than someone who live further away.
If your child is in an accident, it's not so much that you can "do" anything, is it? If your child goes to the hospital or gets hurt, you want to know about it. If it was serious I would get on the next plane or jump in my car right away.

I certainly agree that someone who lives closer by should be a first call as an emergency contact. I totally agree that her grandparents are the logical choice for that. What I am trying to achieve here is that I would be notified in case of something that a parent should be notified about. Because she put her in a daycare without informing me, and other things like that, I don't have confidence that the ex or the inlaws would ever even tell me about an accident, reaction to a vaccination, problem with a classmate (when she is older). They just do not want me involved but I want to be involved in my child's life. I hope that makes sense
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Old 11-28-2012, 04:31 PM
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If the party moves for a restraining order you request it be made mutual between both parties and that all communications follow a strict set of guide lines as ordered by the court.

This would include reasonable expectations to a response (24, 48 or 72 hours) depending on the question. In the event the other parent is not able to respond in the time they should be required to respond notifying when they are going to respond. You can find piles of case law on this in CanLII.

Finally, all communications are to go through Our Family Wizard and if necessary a court appointed expert (or parental coordinator) is to be granted access and be provided the ability to review ALL correspondence between the parents. Failing that you should request that any matter brought before the court require the submission by both parties ALL communications in Our Family Wizard be entered into the court record.

Restraining orders just lead to entrapment, conflict and stupidity. If there is no genuine issue of concern between the parents they often cause more issues than help solve problems. There are creative things (like ordering a parenting coordinator to review content) than a "restraining order" even if mutual.

Note: You can try for a direction to the police or any law enforcement to have to review all correspondence contained within OFW prior to enforcing anything under the restraining order. I believe (someone correct me if I am wrong) that a restraining order under the FLR/FLA is within the jurisdiction of the Family Court and this kind of directive could be ordered against the police enforcing the restraining order. Also, all evidence given to any "peace officer" or "crown attorney" by either parent for enforcement of the FLR/FLA Restraining Order be provided to both parties and the Family Court. This includes EVERYTHING. All notes taken, statements given, etc...

If someone is going to try and enforce the restraining order through "peace officers" then the family court and the other party should have full access to all statements made in claim for criminal charges to be laid. Also, the court of jurisdiction that ordered the restraining order should be (my opinion) the *court of competent jurisdiction* for hearing any enforcement matter of the restraining order.

Good Luck!
Tayken

Last edited by Tayken; 11-28-2012 at 04:35 PM.
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Old 11-28-2012, 04:39 PM
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Thank you Tayken! I was hoping you would reply to this thread

If I understand you correctly, if I receive a Notice of Application for a Restraining Order against me, my response should be:

1. that the restraining order be mutual between the two of us

2. Communications to follow strict guidelines, including an answer to questions within a reasonable time period (what sorts of questions would be included/excluded from this?)

3. My Family Wizard to be used definitely, and its contents entered into the court record if necessary

If I am understanding you correctly, this would seem like a very high-minded response. I can acknowledge that communications have been contentious and assume my part of the responsibility for that, and make her responsible for the other part. If my counter is granted, that should cause her to keep me informed about major developments with the child... am I reading you correctly?

Based on my experience with her, I assume they will not raise the issue of this "relief" they are seeking again, especially if I no longer ask the ex about the daycare. In that case, what would you recommend I do: keep making polite inquiries of the lawyer, move to compel the disclosure, or just forget about it?

Parents in high conflict cases seem to be of two minds on things like this. I can stress myself out and spend a lot of money for an uncertain outcome, or I can concede defeat about being an equal parent and not worry about it so much, but rather the best "visitor" I can be in the circumstances.
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Old 11-28-2012, 04:44 PM
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Quote:
Originally Posted by singledadoftwogirls View Post

Parents in high conflict cases seem to be of two minds on things like this.
IMO it only takes one high conflict person to create a high conflict situation.
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Old 11-28-2012, 05:21 PM
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Yes you should be a contact, but requesting you be an emergency contact is not necessary, in my opinion. In the event of an emergency, the day care, school, whatever, needs someone to contact that can be there right away. Unfortunately, being just a contact you may not get contacted right away when something happens, as I doubt the day care/school is going to start calling a list of people if something happens. They are going to call the first contact, failing that, the emergency contact. Even if you were listed as an emergency contact, if something happened and they got a hold of the first contact (mom), they are not going to call the emergency contact.

I think in this situation, the best you can hope for is that Mom will contact you. You are making assumptions that she won't, but in times of need she may. Heck, when my bf's ex was in a car accident (the children were NOT involved), the first one she called was him, before police, emergency, anyone, she called HIM to let him know she may not be able to pick the kids up from the sitters and asked that he do it. Trust me, they do not have the most civil relationship and while she does not always disclose information pertaining to the children, in times of need she will.
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