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Old 01-26-2017, 02:23 PM
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Default Get Consent Before you Move!

A stark warning to all parents who wish to move with children when their agreement / order requires the consent of both parents!

Schikolenko v McLellan, 2017 ONSC 111 (CanLII)
Date: 2017-01-05
Docket: FS-16-201-00
Citation: Schikolenko v McLellan, 2017 ONSC 111 (CanLII), http://canlii.ca/t/gwzb5

Why do high conflict parents think they own children? Children are not the property. Just because you think you are the "primary parent" or have been identified as the "primary parent" doesn't give you the right to crap on the other parent and disregard court orders and agreements.

Often discussed is the aspect of "mobility". The mother in this matter simply and in contravention of a court order (at the level of contempt) moved children from the agreed upon habitual residential location and boasted to the father that he will never see the children again.

Word of warning to moving parents... The story does not go well for the moving mother in this matter... Not well at all...

Quote:
[1] Rosina McLellan and Andre Schikolenko entered into a mediated agreement on October 20, 2015. The agreement provided, on a final basis, that the parties would have joint custody of their three young daughters, and that the “[m]other shall not move the children’s residency further than 50 kilometres from the City of Hamilton without the written permission of the Respondent Father”. The parties consented to an Order of Justice Brown, of the same date, which incorporated the terms of the Agreement.

[2] Less than a year later, Ms. McLellan re-married on May 4, 2016, and, on July 26, 2016, informed Mr. Schikolenko that, “as of right now you will never be seeing the girls again; I am taking away your visitations”. In September 2016, he learned that she had relocated the children to Sarnia with her new husband.
This mother is a nightmare... As the judge points out! Entitled isn't even strong enough to say what her view and dominance over "her children" are.

Quote:
[3] Since the children’s move to Sarnia, Ms. McLellan has caused them to call their father “Andre” and to call her new husband “Dad”. The children have sent text messages from their mother’s telephone, stating that their mother had told them that Mr. Schikolenko would not pay for their day care, and telling him to leave them alone, that they have a dad and that he was no longer their dad, and that “[Mom] will lose her job it’s your fault and I will be mad at you.”
In my humble opinion this kind of conduct by any parent and in particular this mother constitutes Violence and Abuse in accordance with Rule 24.(4) of the CLRA.

Just to warn all the "moving parents" the mother agreed to the following and I quote:

Quote:
7. The Applicant Mother shall not move the children’s residency further than 50 kilometres from the City of Hamilton without the written permission of the Respondent Father.
Pretty clear you would think eh? Well, this mother will do anything under the sun to try and get what she wants. Even trying to rely upon a clerical error in the original ORDER that states this!

The reality of the situation and the mother's opinion of the children's best interests are summed up here:

Quote:
[20] On July 23, 2016, Mr. Schikolenko took the children to his cousin’s cottage to enjoy a family weekend with their paternal cousins. On July 26, 2016, he returned the children to Ms. McLellan’s residence in accordance with the parties’ agreement. After he dropped the children off and while driving back to his home, Mr. Schikolenko received a text message from Ms. McLellan that stated, “as of right now you will never be seeing the girls again. I am taking away your visitations.”
Under what authority you would think? Rational humans do not do this kind of thing. Angry, spiteful and abusive parents do this.

Not the best way to find out that your children have been moved from the jurisdiction...

Quote:
[24] On September 6, 2016, as Mr. Schikolenko had not seen the children for six weeks, he attended at their school in Mississauga. The principal advised him that, while the children had been registered and enrolled there for the forthcoming school year, they had never attended for classes. Mr. Schikolenko contacted Ms. McLellan, who advised him that she had moved to Sarnia with the children.
Rule 24.(4) violence and abuse? I think this qualifies!

Quote:
[29] Since Ms. McLellan’s move with the children, Mr. Schikolenko has received numerous text messages from the children, sent from Ms. McLellan’s telephone, stating, in part:

• Mom told me you won’t pay for me to go to plasp
• Just leave us alone
• We have a dad you are not our dad
• Just leave Mommy and us alone
• You don’t pay for daycare dad
• Mom tells me the truth you don’t
• [Mom] will lose her job its your fault and I will be mad at you.
The judge applies simple facts, and not the "alternative facts" from the mother in this one and observes the reality:

Quote:
[42] Justice Brown’s order clearly and unequivocally states what should be done and not done. It states, in part:

7. …Mother shall not move the children’s residency further than 50 kilometres from the City of Hamilton without the written permission of the Respondent Father.

[43] Sarnia is approximately 250 kilometres from the City of Hamilton. There is no dispute that Sarnia is farther than the 50 kilometres specified in Justice Brown’s Order. There is also no dispute that Ms. McLellan moved the children’s residence to Sarnia without the written permission of Ms. Schikolenko.
... continued ...
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Old 01-26-2017, 02:24 PM
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... continued ...


This is what happens when you retain a negative advocate lawyer:

Quote:
[52] On December 14, 2016, Ms. McLellan’s lawyer, Devin Maguire, wrote the following to Mr. Schikolenko’s lawyer, Mr. Teitel:

I recognize your client’s position that access has been going well and without incident. However, Helena returned last weekend with visible scratches on her face and neck. I should inform you that Ms. McLellan has notified CAS of the same who, I’m told, has recommended that no further access occur prior to their interview with Mr. Schikolenko. [Emphasis added.]

[53] Contrary to the statements made by Ms. McLellan’s lawyer, on December 15, 2016, Leah Meidinger, a Child Protection Worker with the Sarnia-Lambton Children’s Aid Society, and Leena Singh, an Intake Supervisor with the Society, wrote to Mr. Teitel: “I am writing to you in response to your letter dated December 15, 2016, and am advising I have not provided any direction to the parents pertaining to their access.”
Time and time again I call bullshit on parents coming to this site stating CAS told them to do something. If CAS thinks something should happen to protect the children they are to act under the Family and Services Act. They don't sit around and provide legal advice. They act on actual abuse. ALL LAWYERS should know this simple fact. Shame on Devin Maguire even sending such nonsense and even putting an unverified "alternative fact" from his client in a letter so easily picked apart by a justice! This is common sense stuff!!!

All respectable lawyers would have simply observed as the judge did in the following paragraph that it was nothing more than a transparent attempt by the mother.

Quote:
[54] The most likely explanation for Ms. McLellan’s allegation of assault is her desire to curtail access and thereby prevent the children from disclosing to their father their impending move to Sarnia, which she had reason to believe Mr. Schikolenko would oppose and attempt to stop.
And rightfully so the justice finds:

Quote:
[62] In the present case, I find beyond a reasonable doubt that Ms. McLellan wilfully relocated the children’s residence to Sarnia, beyond the limit prescribed by the parties’ mediated agreement and Justice Brown’s Order, and that she unreasonably curtailed Mr. Schikolenko’s access to the children until October 18, 2016, when the court ordered her to restore it as a term of the adjournment of the motion Mr. Schikolenko had requested.

[63] I do not find any support for Ms. McLellan’s assertion that Mr. Schikolenko assaulted Helena Schikolenko. Mr. Schikolenko exercised access to the children without incident from October 2015 until July 2016, after Ms. McLellan re-married and wished to move to her new spouse’s residence in Sarnia. I find that her allegation of assault was a transparent effort to justify her removal of the children to Sarnia in breach of the parties’ agreement and the Order of Justice Brown.
No need to really comment on para 63. I think it speaks for itself!

And the judge does the right thing!

Quote:
[90] For all of the above reasons, I find that it is in the children’s best interests that, for the time being, the children have their principal residence with Mr. Schikolenko where he can have access to them without imposing five hours of automobile travel on the children. The children have not been resident in Sarnia for a lengthy period of time, and Ms. McLellan’s unilateral removal of them there should not be prolonged, in the face of the parties’ agreement and the Order of Justice Brown that they consented to in October 2015, by which the children were to reside in the Hamilton area.
Good grief... Why doesn't common sense win with parents? Oh ya... We are dealing with a spiteful, hateful and vindictive parent that is why.

Good Luck!
Tayken
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Old 01-27-2017, 01:51 AM
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I think she could have gotten away with it if she didn't do all of that other crap. Isn't a desire to move by one parent automatically a material change in circumstance?
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Old 01-27-2017, 12:37 PM
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Quote:
Originally Posted by trinton View Post
I think she could have gotten away with it if she didn't do all of that other crap. Isn't a desire to move by one parent automatically a material change in circumstance?
No it's not a material change in circumstance. The material change has to be with regards to the child and not the parent.

Primary parent gets a job in a new city, is not a material change with respect to the children. Also judges really frown on parents creating situations which thwarts the relationship between the children and the other parent. As they should.
That said if an access parent has every other weekend because there is 3 hours commute each way, and changes their job location so that they are 15 minutes away. That is a material change in circumstance. One which could be used to increase access.

This is one case where "it is better to ask for permission then to ask for forgiveness." because forgiveness usually doesn't come. And one is forced to move back or risk losing the children.
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Old 01-27-2017, 12:43 PM
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That case was quite the read.

I don't get how the mom sending the text "you will never see your kids again" was not grounds to immediately lose custody.
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Old 01-27-2017, 12:52 PM
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Quote:
Originally Posted by involveddad75 View Post
No it's not a material change in circumstance. The material change has to be with regards to the child and not the parent.

Primary parent gets a job in a new city, is not a material change with respect to the children. Also judges really frown on parents creating situations which thwarts the relationship between the children and the other parent. As they should.
That said if an access parent has every other weekend because there is 3 hours commute each way, and changes their job location so that they are 15 minutes away. That is a material change in circumstance. One which could be used to increase access.

This is one case where "it is better to ask for permission then to ask for forgiveness." because forgiveness usually doesn't come. And one is forced to move back or risk losing the children.
I'm afraid you're wrong my friend. You're not familiar with mobility cases.

Quote:
Relocation of the child’s residence will often qualify as a material change in circumstances, although it may not qualify as such where the relocation is merely to a nearby town, or if the move does not have any significant impact on the child. See Gordon v. Goertz, [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L. (4th) 177, [1996] R.D.F. 209, 1996 CanLII 191 (SCC), 1996 CanLII 191, [1996] S.C.J. No. 52, 1996 Cars*well*Sask 199. Furthermore, a relocation of the child’s residence may not qualify as a material change in circumstances where the father has had little contact with the child. See Spencer v. Spencer, 2005 ABCA 262 (CanLII), 371 A.R. 78, 257, 354 W.A.C. 78, D.L.R. (4th) 115, 15 R.F.L. (6th) 237, [2005] A.J. No. 934, 2005 Cars*well*Alta 1045 (Alta. C.A.). Moreover, if the move effectively destroys a specific term of access, this will constitute a material change. See Wickham v. Wickham (1983), 35 R.F.L. (2d) 448, [1983] O.J. No. 140, 1983 Cars*well*Ont 313 (Ont. C.A.).

Last edited by trinton; 01-27-2017 at 12:56 PM.
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Old 01-27-2017, 12:56 PM
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Quote:
Originally Posted by Janus View Post
That case was quite the read.

I don't get how the mom sending the text "you will never see your kids again" was not grounds to immediately lose custody.
Quote:
While maximum contact between the parents is generally in the best interests of the child, it is but one factor to be considered. [Bjornson v. Creighton, Berry v. Berry 2011 ONCA 705 (CanLII), 2011 ONCA 705 (Ont. C.A.)] Further, while the maximum contact principle must be respected to the extent that such contact is consistent with the best interests of the child, it also directs the court to consider the willingness of the parent with primary residence to facilitate contact with the other parent. [Gordon v Goertz]

In making a variation order varying a custody order, the court gives effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.
https://www.canlii.org/en/on/onsc/do...resultIndex=21

Last edited by trinton; 01-27-2017 at 12:59 PM.
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Old 01-27-2017, 01:00 PM
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I think we are both agreeing to the same thing. Just stated it in a different way.

If your move doesn't effect the access with the child's other parent, the move is ok. If it's consented to or acquiesced then the move is ok.

But you really have to be able to justify it. And be able to justify it with respect to the child.
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Old 01-27-2017, 01:13 PM
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Quote:
Originally Posted by involveddad75 View Post
I think we are both agreeing to the same thing. Just stated it in a different way.

If your move doesn't effect the access with the child's other parent, the move is ok. If it's consented to or acquiesced then the move is ok.

But you really have to be able to justify it. And be able to justify it with respect to the child.
I was just getting at that if the move interferes the access parents access schedule then there is a material change. I personally would seek sole custody as soon as the other parent wishes to move.
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Old 01-27-2017, 02:37 PM
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Quote:
Originally Posted by trinton View Post
I was just getting at that if the move interferes the access parents access schedule then there is a material change. I personally would seek sole custody as soon as the other parent wishes to move.
I don't think that would be a good idea. Remember custody is about decision making. Someone can be informed and make decisions from anywhere in the world.
For example: People in the military who are deployed constantly have to make decisions about their children from a distance.

I would go back and seek a chance in access, but not necessarily sole custody unless their is a history of issues.
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