new here and looking for some answers

[flustered_unenlightened]

My ex-hisband and i have been seperated for 9mnths now, both have comitted adultery and looking to get this divorce finalized. We have both moved on with our own separate lives. I am currently not living in canada but I am a canadian and this divorce i believe falls under the canadian family law. There is a question that i am interested in getting some feedback on.

We have three children under the age of 7 that are currently residing with my ex-husband, but when i left there was a written and signed agreement by both parties and a witness that i was to get visitation of the children here in the US at certain times of the year.

My question is: that since he has not stuck to that agreement if that agreement has any say in the divorce; or if i have any rights to exercise in getting him to comply with the written agreement?

Thank you for your help.
flustered_unenlightened

[logicalvelocity]

flustered_unenlightened,

Welcome to the forum

I suspect your agreement is valid, and even it if is not, incident's of custody and access are to be determined with respect to the best interest test.

Is your ex refusing the children's access to you?

Incident's of Custody and Access will come under the respective provincial statute where the children reside. Moreover, you could also bring forth an application under the Divorce Act.

ie: If the children are residing in Ontario with their father, the Children's Law Reform Act would be applicable along with the Divorce Act(Canada). With that backdrop I turn your attention to the respective statutes starting with the Children's Law Reform Act R.S.O. 1990 c. C.12

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK24

Custody and Access

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).

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).

Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

Entitlement subject to agreement or order

(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).

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.

Now in regards to the Divorce Act(CANADA) which is valid in every jurisdiction in Canadian territory.

http://laws.justice.gc.ca/en/D-3.4/235064.html

The principal of maximum contact section 16(10)

Maximum contact

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

If your ex is not honoring the agreement you will have to take the matter before a court in the jurisdiction where the children reside.

lv

[flustered_unenlightened]

It isn't that he is not allowing my access to the children, but it is only under his guildlines that i am allowed to see them. There was a two page written agreement signed by both of us and a witness when we separated, stating such things as, the car and its' loan, the division of household items and then goes into detail about the custody and visitation of the children. Which we both agreed where alright with us, but within about a month of the actually separation my ex-husband went back on his word and now says that inorder for me to see the children i would need to go back to Ontario. He states that he doesn't believe that it would be in the best interest of the children to see their mother's new life, but if i wanted to go there and see the children I get full access to them. The whole thing is a giant mess.
I don't agree with him when it comes to the best interest of the children not see me, why cause when i have mentioned it to the children that they could come and stay with me they get excited. Just three days ago when i spoke to the children I mentioned that i was moving to a bigger house and that they could come and stay with me if they liked the two older children were happy.
As a mother it hurts not to see her children, and it is also confusing not knowing what my rights are, I am so flustered with the whole situation and numb by it. I don't know what i am allowed to speak to my children about anymore or what i am not to say to them. My conversations with them consist of me asking what they are doing and asking if there is anything new going on that they can think of to tell me. It lasts about 5mins cause i don't want to go into detail with them about the whole situation cause i am not sure if my ex is listening or if i will say something that i am not to. All i want out of this is to have visitation of my children atleast once a yr here where i reside so they can see my world, and where i can be free to be a mother again. But that seems like it is too much to ask.

flustered_enlightened

[logicalvelocity]

flustered_unenlightened,

It is the children's right to visit and be visited. You mentioned your children are under age 7. There is a geographical distance, But I believe your children should be able to visit you at your home. ie summer holidays, Christmas, march breaks etc. If you ex is not allowing the children to leave, You will have to take the matter to court where the children reside.

How far geographically are you located? Young children fly all the time unaccompanied by the parent. For a small fee, Air Canada has a special service for this purpose alone. I believe it costs an extra $ 60. Even if the children flew air Canada to a direct local destination you could pick up the children from the airport.

Does your agreement specifically state where your children's access is to be exercised? If it doesn't then I believe you would be free to have them travel to wherever and appears that you have a breach of the agreement because access is not occurring.

lv

[flustered_unenlightened]

Thank you very much for your information. I happy to know that i do actually have rights. I was going on the word of my ex for the past 9mnths and that is were all the fustration has come from. I am hoping that the papers will be filed sometime this week or next.. atleast that is what he is saying, and i know that when i get them if i have any questions i will look here for some answers. Thanks again.

flustered_unenlightened

[logicalvelocity]

flustered_unenlightened,

A lot of people believe that it is their right to the children, when in fact it is the child's right to have a meaningful maximized relationship of each parent.

The principle of maximum contact is clear in the Divorce Act(Canada)

Subsection 16(10) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [as amended], gives statutory recognition to this principle:

16. (10) Maximum contact. - In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Additionally, Custody and access claims are governed by Part III of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended

Section 20(5)

20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

You do have an agreement in place. It says something to the effect that access is to occur. Is there any clause that says that access must be restricted, that access must occur in the children's location? The children cannot leave the province?

If not then the children are free to travel to your location. USA is a member of the Hague convention. It appears your ex is being vindictive. If at all possible, try to get your ex's reasons in writing, either letter or email for denying the children's access to your destination and location or the reason why the children can't travel to your location. It is the child's right to know who you are in your own environment.

From the words of the late honorable Sopinka J in the highly cited SCC authority Young v. Young:

“The long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child.”"

I don't believe your children will suffer any harm by traveling an hour or two in a plane or driving in a vehicle. - of course you have natural perils but this is irrelevant and cannot be avoided - these perils exist wherever the children are located and wherever access occurs.

Here is the Air Canada link for young travelers. They have their whole policy on line. Moreover, I am not sure where you are in the US, but Aircanada does fly to a number of destinations in the USA and perhaps you could drive to the nearest city to you.

http://www.aircanada.com/en/travelin...rs/minors.html

If you have requested, and your request has been ignored, you have no other alternative than to take the matter to court where the children currently reside and be sure to retain a lawyer in the same jurisdiction as the children. If your children are in Ottawa, I highly recommend Jeff to represent you. His firm is one of the few firms out there that host pro bono initiatives such as this forum.



lv

[logicalvelocity]

An authority on a child's access travel

Whitehorse, Yukon to Victoria BC and vice versa

http://www.canlii.org/bc/cas/bcsc/2002/2002bcsc419.html

IN THE SUPREME COURT OF BRITISH COLUMBIA

Hassett v. Bradford, 2002 BCSC 419

No age is mentioned in regards to the child, However, I suspect the age is less than 5 years of age due to this statement made in paragraph 8

[8] The father's position seeking an increase in access is based on two propositions: the first, the child is a year older than previously; and second, that after September 2003, in the event the child is in a school program, further constraints will be placed on his ability to exercise access.

It sort of suggests the child is around the age of 3 or 4 at time of motion


Paragraph 9:

[9] At present, in the winter months the plaintiff flies to Whitehorse and returns to Victoria with the child and then reverses the process at the end of the access period. In the summer months, when road travel is suitable, he drives to Whitehorse and picks up the child and returns to Victoria for the access and then returns the child by car. There have been some concerns expressed by the mother with reference to the plaintiff's travel during inappropriate times due to weather. In this respect, during the course of submissions, counsel for the plaintiff agreed that the travel between mid-October to mid-April in any given winter period shall be by air. This should eliminate concerns concerning travel in inclement conditions. Counsel for the plaintiff also agreed during the course of submissions that if weather conditions have deteriorated in what might be considered the more moderate climatic periods of the year, that the plaintiff will not travel outside of Whitehorse by vehicle without the mother's consent.

The court held: Paragraphs 15,16,17

[15] Although there is an increase of approximately 27 days of access in 2002 if the plaintiff's proposal is accepted, in my opinion it is a sensible proposal for the following reasons.

[16] First, the child has been able to handle, without apparent difficulty, the exercise of access 7 days a month with all the travel that is entailed. Second, the child is now a year older and access will be exercised in the location which is familiar to her. Third, the plaintiff's schedule is not unreasonable, bearing in mind his commitments and the apparent flexibility on the part of the defendant. Fourth, although one cannot anticipate what will happen in 2003, this may be the last opportunity for extensive access that the plaintiff has with the child if the parties remain in their respective cities.

[17] As a result of the increase of access, which will be carried out in Victoria, the mother shall have the opportunity to communicate with the child during the periods of time that she is with the plaintiff. Based on the submissions of counsel, I have no hesitation in concluding that the parties will be able to work out a schedule if necessary for that purpose. If not, there is liberty to apply.

*** Google Maps indicate that Whitehorse, Yukon to Victoria, British Columbia indicates that it is 2639 km driving by car or 2 days 1 hour one way***

lv

[logicalvelocity]

Another case that involved extensive access travel Ontario to British Columbia. Moreover, the court held that the access travel expense of the child as a section 7 extraordinary expense. And same rules would apply for sharing of same

Cousens v. Ruddy Date: 2002 BCSC 171,


http://www.canlii.org/bc/cas/bcsc/2002/2002bcsc171.html

(e) The parents will share the cost of travel of Mr. Ruddy on a proportional basis, on the same formula as a section 7 extraordinary expense pursuant to the Child Support Guidelines. The parents will share the cost of Alex's travel in the same way. The parents will share the cost of Dr. Cousens' travel to Vancouver for those trips she makes for the sole purpose of bringing Alex to see Mr. Ruddy. Dr. Cousens will bear the cost of her travel if that travel is an adjunct to her work. As for example, and without limiting the scope of inclusion, when Dr. Cousens travels to Vancouver to conduct research, attend conferences or seminars, or to collaborate with her colleagues. Dr. Cousens will bring Alex to Vancouver between July 22 and September 1, 2002; and between June 6 and September 1, 2003. That travel will be deemed to be an adjunct of her work. In these two summertime periods, during each of Mr. Ruddy's eight-day work cycles, he may have access to Alex all day, except when he is working during the day, and for six overnights. During each work cycle, Dr. Cousens will have Alex during the daytime hours that Mr. Ruddy works together with two overnights in every eight-day cycle. The two nights that Alex spends with Dr. Cousens will be the two nights that Mr. Ruddy spends working.

It can be noted that St. Catherines, ON to Vancouver, BC is about 4,474 km one way.

lv

[logicalvelocity]

Another case with significant travel involved

Cummings v. Johnson

9 year old child

8 hours of access travel time between the parent's homes

http://www.canlii.org/sk/cas/skqb/2004/2004skqb537.html

lv

[flustered_unenlightened]

Wow, I wasn't aware of all these cases where the courts actually agreed that it was in the best interest of the child to travel a great distance to visit the opposite parent. I live in Arizona, and the children reside just outside of Toronto. I agree with you that he is just being vindictive the only reason that he gives that the children shouldn't travel to see me is that "he" doesn't feel that it is the best interest of the children. The written agreement that we have doesn't state anything about limitation of travel.

Taken from the written agreement:

"Conditions of visitation/custody of the three children.

1 ex is to retain custody of all three children.
2 Myself is to have visitation/access rights to the children during these times:
A) during years ending with an odd number the children are to be with their mother during: the summer months following the end of one school year and the begining of the next; The christmas vacation according to the school year calendar.
B) during years that end with even numbers: the summer months following the end of one school year and the begining of the next; the spring break vacation according to the school year calendar."

It then goes on to talk about how the children are to be escorted by an adult, either my ex or myself of a responsible adult ie: boyfriend, girlfriend, family members, or new spouses. There is nothing in there that states that the children can't leave their home country.

From your response to my prior posts i now see that have been not told the whole truth from my ex and that i can pursue this in the courts. I was trying to avoid the whole court system, but now that have been enlightened i know that i will have to take this matter up in court.

Now is it true that if you go to court and the courts agree upon something that you don't think is fair that you can try again to get that agreement adjusted?

ie: One parent has custody of minor children and the other wants more or better access to the minor children involved.

And these things about children access and custody can all be taken care of once divorce papers are signed?

ie: Both parties want the divorce and agree to something about child access but then months down the road decide to go to court to get the child access changed.

Thank you so much for your time and help it has been so helpful to me.

flustered_unenlightened