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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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  #1 (permalink)  
Old 01-17-2007, 06:58 PM
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Default Interjurisdictional Nightmare

My sister is in a access predicament and I'm at a loss for what to do... it's a long story, I apologize....

She lives in BC and has always been the primary caregiver for the child since birth. Before they officially seperated, the father had moved to SK for work and promised to send for the family when he got settled. A year later after many lies, he finally admits that he's shacked up with another woman and she's pregnant with his child.

My sister had defacto custody since the father was absent. Because she's on disability, The Ministry filed and acquired a Child Support Order.

Another year passes and my sister decided that she wants to move closer to her family (still in BC) The father requested to have the child sent for a visit in SK and refused to give him back.

The Father and my sister sign a plain piece of paper stating he will return the child when she's found her own place to live and gets a job, they also have a witness sign the paper. She meets all the terms and he still refuses to return the child. (No real surprise)

Court papers are filed in SK, since that is were the child is located. August 2006 Judge orders primary care to the Father. My sister is granted
"reasonable access to the child upon reasonable notice to the respondant which access shall incude access if the respondant travels to BC with the child. The petitioner shall also have regular telephone access with the child."

The father works 12 hour shifts with the Oil Rigs, the child is left in the care of his step-mother. My sister was told that she is only allowed to call once a week and if she is 30 minutes later her call is denied, she was told if she tries to call the child more than once a week, on the set time than all her calls would be denied on that week.

My sister does not have a phone line of her own, she uses our Mothers phone as she lives on the same street and they visit daily. The father has put a call block on our Mothers phone number. My sister can only call them by using a calling card.

Last week the Father contacted my sister to tell her that they would like to change the child's last name, because it currently has both their last names hyphenated they would like her last name completely removed. If my sister agrees to sign the consent form, they will give her telephone access twice a week, apposed to once a week. Can you beleive that??

This has been going on for a very long time and her Lawyer is not acting on the matter, they continue to brush her off and in the meantime she is becoming alienated from her son.

What can she do??
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Old 01-17-2007, 09:58 PM
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smadax,

that is another classic situation where the court would not interrupt the status quo living arrangement of the child. Its not about which is the better parent. Generally if one parent takes the child without permission, the courts will order the child back. However, in your sister's situation they had her acquired consent. ie: until she found a new place to live.

As you mentioned,

Quote:
primary care to the Father. My sister is granted
Did the court not order custody? It also appears that the orders may be interim.

One thing to note is that guardianship is a big thing in western provinces. Even if one party has sole custody, generally parents will have coextensive guardianship of their child unless the court orders otherwise.

I believe your sister should of filed an exparte motion in the BC courts on the failure of the child returning as per the agreement and I believe they would of entertained same due to the fact the child was ordinarily a resident before the access occurred. It is too late now as the Sask courts have issued orders. Perhaps your sister could appeal the orders.

Here is another idea, what if your sister was to relocate to SASK near the child, this would construe to be a material change and therefore would result in review of the current arrangements of the child.


Quote:
If my sister agrees to sign the consent form, they will give her telephone access twice a week, apposed to once a week. Can you beleive that??
Hopefully, your sister has such an offer in writing. What I mean is this. Access is the right of the child and a parent centered on the child's needs does everything they can to foster a meaningful relationship between child and other parent. They appear to be using the child as some sort of bargaining chip. If I was your sister, I wouldn't consent to the name change and when the matter does go before the court, bring this up. Also since the child was normally a resident of BC, i would think that the parent has an obligation to provide and participate in the child's access transportation.


lv
  #3 (permalink)  
Old 01-18-2007, 02:59 PM
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Default Harder then it has to be

[QUOTE=logicalvelocity] Did the court not order custody? It also appears that the orders may be interim. [QUOTE]

That's correct, the order states:
"(The child) shall remain in the care of his father the respondant. The fathers home shall be the childs principal residence on an interim bases."

[QUOTE]One thing to note is that guardianship is a big thing in western provinces. Even if one party has sole custody, generally parents will have coextensive guardianship of their child unless the court orders otherwise. [QUOTE]

There is no mention of Gaurdianship in the order.

[QUOTE] I believe your sister should of filed an exparte motion in the BC courts on the failure of the child returning as per the agreement and I believe they would of entertained same due to the fact the child was ordinarily a resident before the access occurred. It is too late now as the Sask courts have issued orders. Perhaps your sister could appeal the orders. [QUOTE]

That was my STRONG suggestion, but when she spoke to the BC Court Registry they said she'd have to file were the child resides, which was SK at the time (regardless of the fact she had defacto custody). Then my sister filed for Legal Aid in BC and they assigned her a SK Lawyer. I personally would have raised a stink about how things were unfolding and insisted that I be allowed to file in BC, but my sister decided to go with the flow.

[QUOTE]Here is another idea, what if your sister was to relocate to SASK near the child, this would construe to be a material change and therefore would result in review of the current arrangements of the child. [QUOTE]

This would not be healthy, b/c my sister was in a mentally abusive relationship with her ex and living close to him without family support would not be good for her. They would only continue to use the child against her.

Quote:
Hopefully, your sister has such an offer in writing. What I mean is this. Access is the right of the child and a parent centered on the child's needs does everything they can to foster a meaningful relationship between child and other parent. They appear to be using the child as some sort of bargaining chip. If I was your sister, I wouldn't consent to the name change and when the matter does go before the court, bring this up. Also since the child was normally a resident of BC, i would think that the parent has an obligation to provide and participate in the child's access transportation.
Nothing has been documented, except for the existing Custody Order created in August. She's been trying to get her Legal Aid lawyer to file documents to acquire scheduled access/visitation with her son. She wants phone calls twice a week and the child to visit with her in BC. Instead they told her 'obsession' is making her look crazy?! My sister fighting for access rights to her son is not obsessive or crazy in my opinion!

She couldn't get through to call her son for a month because it kept saying her phone calls are blocked. So I routed a phone call through my phone (3-way) and she got through, they denied her access to the child because he was doing crafts and it wasn't her designated date/time to be calling. So we called back again on her designated date/time and during the conversation they started blasting the music in the background so they could barely hear each other on the phone.

It's been about 4 months of limited access since the order has been created. Yet her Legal Aid lawyer hasn't made a move to assist and when she keeps asking them when they'll sent the legal documents which they've promised, they never give her a real answer.
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Old 01-18-2007, 05:24 PM
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smadax,

as you mentioned,

"(The child) shall remain in the care of his father the respondant. The fathers home shall be the childs principal residence on an interim bases."

Courts will make such an order as listed in climates of contradictory evidence and they just want to stabilize a situation for the child in the interim. (Status quo prevails). It appears since their are no orders for custody is a clear signal that the court does not trust the one parent at this point in time. Since custody or guardianship has not been dealt with in the interim, I believe both parent's would have coextensive custody and co-guardianship of the child.

I also believe the child is entitled to reasonable access to their parent and more than a few telephone calls a week. Your sister should start corresponding in writing for requests of the child's access and of course sent by registered mail. This is evidence of such. If the requests go rejected, or denied the court will question the fathers ability to parent the child effectively and may even see him as putting his own interests ahead of the childs.

You sister is in the fight of her life on this one and is at a significant disadvantage due to all the court hearings now will be in SASK as the child lives there. If at all possible your sister should move closer to the direct vicinity to the child. I do suspect that she may gain some sort of legal custody if she did. The courts would have to consider the material change. De facto Custody really means nothing when it is broken; What is more significant is the status quo regime of the child.

Your sister should also be requesting information pertaining to the health, education and welfare to the child. If the formal requests go rejected or denied, again the court will question this conduct and perhaps may question the ability of the father to parent effectively.

lv
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Old 01-20-2007, 05:55 PM
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Default Good Start

Quote:
Originally Posted by logicalvelocity
Your sister should start corresponding in writing for requests of the child's access and of course sent by registered mail. This is evidence of such. If the requests go rejected, or denied the court will question the fathers ability to parent the child effectively and may even see him as putting his own interests ahead of the childs.

Your sister should also be requesting information pertaining to the health, education and welfare to the child. If the formal requests go rejected or denied, again the court will question this conduct and perhaps may question the ability of the father to parent effectively.
Your right. Thanks for the great advise logicalvelocity, we'll start here by writing a registered letter making her intentions clear in gaining reasonable telephone access to her son.
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Old 01-20-2007, 11:26 PM
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smadax,

Your sister is going to have to generate a paper trail for requests for the child's access. The one advantage to your sister's case is that court has yet to order custody. It should be pointed out that it appears at law they still have coextensive custody and coextensive guardianship of the child currently.

I am not clear as to the age of the child. This day and age internet communication with web cam is often used with programs such as yahoo or ms messenger. Perhaps, your sister could also request this reasonable form of communication and maybe even supply a webcam to the child in a formal letter as most households are online. If the request goes rejected, again this will support your sisters stance of being marginalized out of the life of the child and questions the willingness of the other parent to promote a meaningful relationship between the child and the mother.

Easter and March break is approaching, would it not be reasonable for the child to visit their mother for either or both of these holidays?

Access is the right of the child and incident's of the child's access is based on their best interest. With that said, It is logical to conclude that both parent's have an ongoing parental obligation to the child to participate either physically or monetary in the child access travel and or make a viable contribution to such. It is no different than taking the child to a physician or to a sports event etc. Therefore, your sister should also request that the other parent assist with the child's travel costs to facilitate say perhaps easter and or the march break access. It doesn't hurt to ask formally and if same goes denied or rejected, it creates more evidence in a custody adjudication and further demonstrates the lack of willingness and effort of the other parent to promote and foster the relationship. You mentioned that the individual is working oil rigs, therefore this is suggestive in itself that they are making big bucks and can afford to contribute.

as an example, Cost of a one way flight on March 9, 2007 from Saskatoon to Vancouver via Air Canada is $112. Air Canada has a special program for children flying without an adult for a small fee.
http://book.aircanada.com/pl/AConlin...verrideServlet

These are some brainstorming suggestions to preserve the parent child relationship and to assist your sister to build her case by way of evidence.

lv
  #7 (permalink)  
Old 01-21-2007, 09:01 PM
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Default FRA vs Children's Law

The child in question is only 4 years old. Therefore my sister would make sure he was escorted to and from SK. She did a visit in SK in September, but it was stressful. She would prefer to have access without the constant demands and negativity from the ex and his new common-law gf. She has been requesting alternativing xmas and the full 2 months of summer.

Quote:
Originally Posted by logicalvelocity
It should be pointed out that it appears at law they still have coextensive custody and coextensive guardianship of the child currently.
I've seen contradictions, maybe you could clarify...

Children's Law Section 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of a child are joint legal custodians of the child with equal rights, powers and duties.

Then Family Relations Act Section 34(1) Subject to subsection (2), the persons who may exercise custody over a child are as follows:
(a) if the father and mother live together, the father and mother jointly;
(b) if the father and mother live separate and apart, the parent with whom the child usually resides;
(c) if custody rights exist under a court order, the person who has those rights;
(d) if custody rights exist under a written agreement, the person to whom those rights are given.

(2) If persons have conflicting claims to custody under subsection (1), the following persons may exercise custody to the exclusion of the other persons unless a court otherwise orders:
(a) the person who has custody rights under a court order;
(b) if paragraph (a) does not apply, the person granted custody by an agreement;
(c) if paragraphs (a) and (b) do not apply, the person claiming custody with whom the child usually resides;
(d) if paragraph (c) applies and 2 persons are equally entitled under it, the person who usually has day to day personal care of the child


One law states they both have default joint custody and guardianship, since a Judge did not make an order to that effect in the interim order.

However the FRA states that the Father being the primary caregiver would have default custody?
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Old 01-25-2007, 11:09 PM
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smadax,

I see where you coming from on the contradictions.

I have a tendency to feel the the children's law prevails

The Children’s Law Act, 1997, S.S. 1997, c. C-8.2:


2(1) In this Act:

...

“custody” means personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child’s age and maturity;
...

“guardian of the property of a child” means the person constituted or appointed as a guardian pursuant to section 30;

...

“legal custodian” means a person having lawful custody of a child;
...

(2) Unless a contrary intention appears in any Act, regulation, instrument or law, a reference to the guardian of a child is deemed to be a reference to the legal custodian of the child.

With that said, it appears both parents still have coextensive custody of their child as this statement of law appears to overide any other act. If your sister was married to the individual the Divorce Act could apply and unless there is an order from the court or an agreement the provides otherwise, both parents have coextensive custody of the child.

3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of a child are joint legal custodians of the child with equal rights, powers and duties.

(2) Where the parents of a child have never cohabited after the birth of the child, the parent with whom the child resides is sole legal custodian of the child.

...

6(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the opinion of the court, a sufficient interest, the court may, by order:

(a) grant custody of or access to a child to one or more persons;

(b) determine any aspect of the incidents of the right to custody or access; and

(c) make any additional order that the court considers necessary and proper in the circumstances.

...

(5) When making an order pursuant to subsection (1), the court shall;

(a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact ....

This is what you sister has to build her case on the lack of willingness of the other parent to foster the relationship

(7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for:

(a) the division and sharing of parental responsibilities; and

(b) the granting of access.

...

8 In making, varying or rescinding an order for custody of a child, the court shall:

(a) have regard only for the best interests of the child and for that purpose shall take into account:

(i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child;

(ii) the personality, character and emotional needs of the child;

(iii) the physical, psychological, social and economic needs of the child;

(iv) the capacity of the person who is seeking custody to act as legal custodian of the child;

If the other parent refuses the child's access, their "capacity" to parent the child is in question.

(v) the home environment proposed to be provided for the child;

(vi) the plans that the person who is seeking custody has for the future of the child; and

(vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child;

(b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child; and

(c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother.

9(1) In making, varying or rescinding an order for access to a child, the court shall:

(a) have regard only for the best interests of the child and for that purpose shall take into account:

(i) the quality of the relationship that the child has with the person who is seeking access;

(ii) the personality, character and emotional needs of the child;

(iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and

(iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and

(b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care.

(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child.

By default of the law, your sister has the same right to make inquiries and to be given information concerning the health, education and welfare of the child.

(3) The right of a parent who is granted access described in subsection (2) is not, unless the court orders otherwise, a right to be consulted about or to participate in the making of decisions by the custodial parent.

...

30(1) Unless otherwise ordered by the court and subject to the provisions of this Act, the parents of a child are joint guardians of the property of the child with equal rights, powers and duties.

lv

Last edited by logicalvelocity; 01-25-2007 at 11:33 PM.
  #9 (permalink)  
Old 01-29-2007, 04:15 PM
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Smile gratitude

That's great. I really enjoy seeing how much time and effort you obviously put into finding answers for all of us that are clueless.

Thank you, it's greatly appreciated
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