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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 04-16-2007, 05:19 PM
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Default Full Custody to Joint Custody

First time poster - the info here has been fabulous, I am so glad I found this site!

My wife and I have separated after about 8 years of marriage and thus far (knock on wood) everything has been fairly amicable. The only sticky issue we have is on custody of our son. I am not his biological father, but have been on the scene since he was about 8 months old. We married when he was 2. He is unaware that I am not his biological father and for the time being, we are hoping to keep it that way.

My wife was given full custody of my son before we were married, as the biological father wanted nothing to do with them. Throughout many years of wanting to adopt him as my own, my wife continually stalled the process until finally we separated - the adoption signed off on by the biological father but still left incomplete. We both agree that we would like joint custody of both my son and our daughter (who is biologically mine) with my wife as the custodial parent.

She claims that she has been advised that if we sign a separation agreement or divorce settlement granting me joint custody, this will negate her previous full custody order and open a legal window for the biological father to re-enter the picture and stake a custody claim. Normally this would not be an issue, as he has never had much interest, but since the separation my wife has gone after the bio father for back support (he's never paid a cent), and she fears that he may make a custody move for leverage in the battle over money.

All I want is a separation agreement which protects my rights as my son's father, and I am not willing to accept anything less than joint custody. Are my wife's fears valid? Would granting me joint custody offer any advantage to the biological father or is she simply stalling me on signing a separation agreement? Any and all advice is welcome - I am very much out of my element with this stuff.
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Old 04-16-2007, 05:39 PM
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About_Time,

welcome to the forum,

Notwithstanding, your not the child's biological parent, Keep in mind the latin term - "loco parentis"


The term "loco parentis" means literally, “stand in the place of a parent”.

For a person to stand in "loco parentis;" they must intentionally and voluntarily take on the parental relationship in spite of having no legal obligation to do so.

Therefore, under the Children's Law Reform Act, you do have sufficient grounds to bring forth a a claim of custody for said child.

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK23

Section 21 of the act as listed:

Application for custody or access

21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.

lv
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Old 04-17-2007, 09:53 AM
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Thanks for the quick response LV!

I understand that I have legal standing with regards to custody, but my question was more to do with the biological father. If he has already had his rights essentially removed by my wife's full custody order, would his standing change any if we agreed to joint custody of our son? In order to get joint custody from the courts would we need to involve the biological father or, conversely, could he involve himself in that process?
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Old 04-17-2007, 10:25 AM
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About_Time,

The problem with the situation is that currently there is a material change for said child, as the parent's whom they have come to know are severing their relationship.

Any court court order can be varied including final orders if a material change is present for the child. In consideration of the circumstance, the biological father could bring forth a variance of the final custody order and also a request for access.

However, Although highly unlikely, as demonstrated; they have not made any effort to be involved with the child to date. Provisions in the law exist for them to do so.

In all aspects you are the father to this child. I can't see a court changing the child's custody to the biological father in light of the circumstances as this child simply has no bond or does not know the individual. Separation and Divorce is difficult enough for children but to lose everyone they have come to know would be devastating for the child.

Per say the biological father did bring a claim of custody, a biological tie is not sufficient grounds to change a status quo custody or faciliate access. See the case where the paternal grandparents pursued access to their grandchild in the face of the father having no desire to be a part of the child's life. The court speaks of the biological tie:

Stead v. Puritch, 2006 ONCJ 410 (CanLII)

http://www.canlii.org/en/on/oncj/doc...006oncj410.pdf


lv
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Old 04-17-2007, 11:58 AM
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About_Time,


Since your dealing with an existing final custody order to a child,

Section 29 of the Children's Law Reform Act R.S.O 1990 c. C.12 is relevant to your situation:

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK34

As listed in the Act:

Order varying an order

29. (1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

As I mentioned previously, you do have a material change of circumstance for the said child as the parent's whom they have come to know are severing their relationship and the court would embark a fresh inquiry into the best interest of the said child by applying Section 24(2) of the Act as enumerated.

lv
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Old 04-17-2007, 12:21 PM
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About_Time,


Section 24(2) of the Children's Law Reform Act as enumerated;

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).

I don't buy the argument of your spouse that it may trigger the biological father into bringing forth a claim as they could of brought a claim all along under section 29. As demonstrated, it appears they have vanished from the life of the child. The merits of any potential claim would be significantly weak as they just haven't been there for the said child.

I hope this helps


lv
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Old 04-17-2007, 12:26 PM
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That was of immeasurable help, thank you. I think my wife is simply using this as a way in which to stall the creation of a separation agreement. I will try once more to get this done amicably, but if she is still unwilling I'll be forced to get a lawyer involved. I have been walking on eggshells for months without an agreement, and I'd like to have both of our rights spelled out formally so I can get on with my life without living in fear.

Again, thank you so much for your insight!
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Old 04-17-2007, 01:16 PM
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About_Time,

Section 20


Children's Law Reform Act R.S.O. 1990 c. C. 12

Father and mother entitled to custody

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 Waugh v. Waugh (1998), 42 R.F.L. (4th) 415, [1998] O.J. No. 4041 (Ont. Gen. Div. Oct 01, 1998). The Ontario Court of Justice, General Division held that there was no separation agreement or order from the court in place determining custody of the 17 month old child. As such, Paragraph 8 of the judgment, deP. Wright J.concludes:
"With respect to the issue of the so called "joint custody" of the child, the fact is that at law at the present time the two parents are equally entitled to share the responsibilities and the benefits of custody. In other words, at law they in fact each have coextensive custody of the child at the present time."
However, in your situation In all aspects you are the acting father and said child sees you as their father, Time is of the essence for you to bring forth a claim in regard to this child under section 21 of the Act.

Another interesting judicial view in regards to custody, In Ontario - it is now possible to have more than one mother or on a assumption more than one father.

Read this recent court of appeal decision:

A.A. v. B.B., 2007 ONCA 2

http://www.ontariocourts.on.ca/decis...07ONCA0002.htm


lv
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