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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 05-04-2012, 11:28 AM
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Default My Case

Greetings

I've read a lot of threads on here, I've been trying to learn more so I can better understand what I should do with my case.

I was hoping to get some advice or just to see what people think of my case, as I have not much experience and knowledge in Divorce and such.

I was served papers earlier in April. My ex who I married Last April, is filing for divorce, custody(of my 9 month old daughter), other claims of Costs, travel, life insurance, prejudgment interest, etc.

My Ex, is an American, My babygirl was born here in Canada, and has been here all of her life, my Ex left us in December, and came back for 2 days in January to "reconcile" but she was trying to get evidence against me to use in court which didn't work well. Children's Aid has been involved and said that the baby is safe and good in my care.

Prior to December I was a student, I would spend 20 hours a week in school and the rest of the time with her and my daughter. My ex did not like Canada but my family and I provide the best we could a good home, and whatever she needed and whatever the baby needed.

I have been the primary caregiver of my daughter since she left, I work part time to cover the milk costs and food for myself. I currently live with the baby and my parent's in a Condo we bought so that the baby would have a good environment to grow up in.

She is trying to get an order that she may move with the child to the united states, child support, support for her, and passport and travel without my consent.

She also claims in her facts that following the birth of the child the respondent was physically and mentally abusive to the applicant which is not true, we would have arguments and things would get a little heated but I have never hit her.

Her home in the United States is not a good home, a small environment, where she lives with her parents who smoke and gamble.

In her affidavit it states she is a "Stay at home mom" and not working, which makes no sense cause she has not been taking care of the baby.

She has a motion to try and get Interim custody of the child, before the case first case conference, and also to move with the baby to the US.

From your knowledge and your experience do you think that they would allow her interim custody? What would happen in a international custody case like this that involves a parent from a different country? Please let me know what you think of my case, and anything that I should do, I'm very very concerned about my daughter's future.

from what I have researched Status quo is quite important in custody cases, and the baby has been entirely in my care for the past 5 months, and has been here since she was born. Would this be considered Status quo?

(I have got legal Aid and have found a lawyer who is reviewing everything and planning what we should do.)

Please let me know what you think if you have had any similar experience.

thanks,

A FightingFather
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Old 05-04-2012, 02:40 PM
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i think you have got a strong case, status quo is indeed important, but also try to gather more "evidence" that you were at least an equal parent before the separation. specially because women are indeed given the upper hand when a child is involved. (and many disagree because of the technical terms in law but .. yah whats in practice is different than what is in the books)

simple example, when collecting the CCTB or UCCB the cheque always without fail is written in mother's name, unless she writes a letter stating that the father is the primary care taker. this attitude coherently applied across the board in all matters where a woman, man and a child are involved.

as for the motion, no motions are allowed before a CC unless its of urgent nature, access to child is never considered urgent in the justice system (even though i was dying to see my child when i didnt have access to him, it still wasnt urgent), instead of opposing the the matters in the motion, fight for the motion to be not allowed to proceed because its not urgent.

if you have filed a response i hope you have asked for CS, if you have not, ask for it right away, regardless if you need it or not, if she dosnt pay, the playing field will become more even for you since this bias against a man will be some what neutralized with the bias against a parent who is not paying CS.

also look for SS if she is working
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Old 05-04-2012, 03:12 PM
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sahibjee,

Thanks for the feedback, I really appreciate it.

I have told my lawyer Claim for Child support in my response. Hopefully I can get it, I have kept a lot of receipts for milk, baby food, baby items, books etc.

As for the Child tax care benefit it was so hard for me to get it I had to do so much to prove that the child was in my care, I'd imagine I have to do the same in court, but they have now processed my application and with some evidence (from my daughters pediatrician, CAS) I am now going to recieve The CCTB as the primary care taker. Not sure if getting the CCTB will help my case but hopefully it will.

What would hold up as "evidence" to show that I was equally there as a parent before the separation? I can't think of much aside from pictures.

What do you mean by SS(sorry not sure what it stands for.)
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Old 05-04-2012, 04:12 PM
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See my recent thread:

http://www.ottawadivorce.com/forum/f...shoping-12010/

For some perspective on some of the challenges you face. You daughter is "habitually resident" in Ontario and should continue to "habitually reside" in Ontario.

Your daughter is a Canadian citizen. It would be rare that any court in Ontario would allow the mother to take a citizen out of the country. It would require a large trial do determine this and not solved on motion alone generally.

Last edited by Tayken; 05-04-2012 at 04:15 PM.
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Old 05-04-2012, 04:30 PM
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Tayken,

The mother did in fact take the baby to the united states AGAINST my consent, she brought her back after two weeks because I was going to call the police to tell them she had abducted my daughter, after that she left the baby here and we have been separated since then.
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Old 05-04-2012, 05:03 PM
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You do not quite have status quo, this is usually 6 months to a year. By the time you get to court you will likely be at the 6 months point. At the 6 months the baby has barely any awareness of where "home" is, has no "friends" in the neighbourhood or activities. The main thing here is that baby has bonded with you as primary caregiver. You want to point this out, but don't just count on this to overpower any other arguments.

Accusations of abuse etc. are thin. Don't ignore them but don't worry too much either. Never ignore a claim in a legal suit, always have an answer for it. She did not file charges? The CAS has no issues with you? There is no factual proof? Then it didn't happen. You swear in an affidavit that it is false, but also point out that she filed no charges at the time of the alleged incident and only made the accusation when she was trying to get custody.

You have full family support from your parents and you point this out.

The ex has tried to abduct the baby, you point this out, you assert that the ex may have supervised visits only. You make a strong point that you want the mother to have access, the only stipulation is that she is a flight risk.

The environment at the mother's home in the USA should not be your main point. Many people smoke and gamble, this does not lead the authorities to apprehend their children. The major point here is the distance, the child lives in this jurisdiction and should remain here, the mother has tried to abduct the child to the USA in the past and should not be permitted to travel with her. Again, the mother should have only supervised access.

Her affidabit that she is a "stay at home mom", you answer this as you have suggested; she doesn't have a child living with her, she is not a stay at home mom, she is a single person on welfare.

You file for sole interim custody on the basis of the flight risk, that the mother have regular supervised access, no overnights, due to the flight risk, that the child have primary residence with you due to you being the primary caregiver and your parents providing full time live in support for you and the child.
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Old 05-04-2012, 07:56 PM
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I don't think her motion to take the child will be succesfull. It might end up that way as a result of a trial - but thats a very big change for a judge to agree with before trial and therefore without the full weight of all the facts and arguements being presented.

For now at least, I would say the motion will fail.

Being the recipient of CCTB is a positive development for you. Things are looking good.
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Old 05-04-2012, 10:18 PM
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Mess, Wretched,

Thanks for the information, it is a lot but all useful info that I need.

any one ever had this situation before? it is really weird that she was able to get legal aid in Canada, and she is not a Canadian.
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Old 05-04-2012, 10:31 PM
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Quote:
Originally Posted by FightingFather View Post
Mess, Wretched,

Thanks for the information, it is a lot but all useful info that I need.

any one ever had this situation before? it is really weird that she was able to get legal aid in Canada, and she is not a Canadian.
Happens all the time... If she is a resident she can get it. Remember, under Rule 89 of the Legal Aid Ontario Act anyone can make an anonymous complaint to Legal Aid Complaints. The same rules apply to LOA Applicants under Rule 89 as any person having contact with any service provided by LOA.

If the LOA Applicant has a Certificate they shouldn't have... They have a to investigate the matter.

Good Luck!
Tayken
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Old 05-04-2012, 10:35 PM
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Tayken,

She was NEVER a resident here, I withdrew her immigration papers once she left. Do I just call legal aid to make a complaint? or is there another process?
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