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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 11-18-2016, 10:17 PM
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Exclamation New to this. Need help.

I don't know where else to turn and I need advice.

Keeping it simple for identifying reasons. Will answer pm's and additional questions though if necessary.

Been married 5 years.
Been a stay at home dad for the past almost 2 years.
3 kids.
Caught wife cheating. Then got thrown out of my own house.
After being gone a few days, I requested to see children. Denied.
That very same day I served her with custody papers.
2 days later she had me arrested for assault. No contact order.
Court date isn't until December for first custody hearing and January for the charges.
I've applied for legal aide, but I'm on a waiting list.
So I'm doing this on my own so far.

What steps can I take from here? Do I have to wait until December for the chance to see my kids? I can't contact anyone in case of a breach.

-In Alberta and missing my kids.
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Old 11-18-2016, 11:23 PM
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How are you planning to support yourself? Is your wife giving you spousal support?
Do you have a history of domestic violence? Does your wife?
How did you "serve her with custody papers"?
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Old 11-18-2016, 11:36 PM
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I've recently gone back to work since this happened. Got a house large enough for my kids and I even though I am still on the deed for the old one. No support. Its nearing on a month since this started.

No history of violence from neither me, nor her.

I filled out a Parenting Order Kit a the court house and delivered it to her myself. I filmed the encounter as evidence.
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Old 11-19-2016, 12:06 AM
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Get a lawyer.

Quit your job.

You should ou file an emergency motion for access and you ask for full custody as you were the primary parent.

You should also ask for exclusive possession of the home, custody, child support and spousal support. You ask all of this as "emergency measures/interim relief".

Then what you do is drag shit out as long as possible till she is destitute and then settle for her to end spousal support once your youngest child finishes university (assuming yuo get sole custody)

IF you think I am joking, I am not. This happens everyday.

The truth is, you won't do any of this because men are programmed not but a woman would have already been all over this. So sad....

Last edited by Links17; 11-19-2016 at 12:11 AM.
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Old 11-19-2016, 03:10 AM
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What were the details of the assault? Were you charged? Can she prove it?

You were right to file the papers right away but to see your kids immediately it would take an emergency motion to get parenting time from the gatekeeper at this point. These can be tricky as your child must be deemed to be in danger or risk of being harmed in some way (and you have to prove it). She'll use the assault charge, texts, e-mails and whatever else she can get her hands on to stop you

Your situation is unique as you were a stay at home dad which means it sounds like you were the primary caregiver. She better have a damn good reason to be denying the child access to you other than getting caught with her pants down.

Keep asking for access and DOCUMENT the denials. Never stop asking. You want a binder full of denials for the motion in Dec.
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Old 11-19-2016, 10:59 AM
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I agree Links. That's what scares me is starting to fight against a system that is skewed that way...

And Loving Father, the police haven't released any details to me aside from the date. A date that I wasn't in contact with her. She messaged me that morning and said she was scared of me, after all week asking me to come get my things (obviously not scared before that morning). Then wham arrested that afternoon.

No she can't prove it because nothing happened. But because of the no contact order, I can no longer communicate with her. I have documents and logs of all the denials up until last week -- but without being able to communicate I can't even ask for access anymore...
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Old 11-19-2016, 11:12 AM
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Her family (mother in law) supervised two visits for me for 2 hours total, thats all ive been "allowed". But she also cut off contact with me when they asked if they could leave my belongings in the back of a truck at her new boyfriends work and I denied their offer. Now all contact from anyone around my children is cut off.
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Old 11-19-2016, 11:37 AM
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was there EVER any violence in front of your kids (doesn't matter who is to blame).

IF there wasn't then I agree with Links - get a lawyer and get back in the home and get Interim Spousal Support. This will set a precedent for years down the road.

When did this happen (how long have you been out of the home?)
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Old 11-19-2016, 12:00 PM
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This is making me sick to my stomach.

I want to let you know that she "won't"get away with this. This is starting to remind me of my situation. My ex did a lot of the same things. Packed up and left while I was at work, making a pit stop at the police station to file a report of abuse (that didn't happen). It's a very common strategy for parents who want to manipulate the system to get what they want.

The good news is that December is right around the corner. You're not consenting or acquiescing to this bullshit and you need to spend every waking second building your case.

I'll start you of with a list:

1. Study the CLRA. This will be your bible and CASELAW! https://www.ontario.ca/laws/statute/90c12

I'm guessing you'll be going in for a long motion which means you'll need to draft up a factum. Include your the rules and caselaw that apply to you and help your case. Visit www.canlii.org ... or we can help you find caselaw

(I already prompted you to bring up rule 20 (5))

In the CLRA, sh will bring up Rule 24(3)(4):

Quote:
Past conduct
(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).
You counter with:

1. No past abuse, no criminal record
2. No concerns from mom throughout relationship about abuse
3. You were stay at home dad all day alone with kids. Mom trusted your parenting
4. Mom chose "you" as a partner and decided to start a family with "you".

There's so much more I'm sure, you can have a hay day countering her argument for violence and abuse.

Even if there was one isolated incident where you guys perhaps got rough with each other (which it sounds like you haven't) .. how would that affect your ability to parent?

Your disgusting ex wife met another guy and you suddenly became disposable. When relationships terminate "abuse" becomes a blanket term for all sorts of heightened subjectivity.

In explaining the above paragraph, I used this caselaw.....have a read through the thread: http://www.ottawadivorce.com/forum/f...ase-law-16809/

It has some good stuff, like this:
Quote:
[12] The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.
and

Quote:
Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour...
This caselaw goes a long way in cases such as ours.

So study the caselaw and Rules

2. Collect access denials in WRITING

You are "not" okay with this situation and if you have no documented denials you're screwed. She'll say you consented to it.

This might be tough with a no contact order. What a dirty piece of work she is.

3. Communication:

Offer to purchase and use www.ourfamilywizard.com to communicate about the child. Offer that you will keep it child centered and polite. Many families use this system and judges love it.

4. Parenting Plan:

You're going for nothing short of 50/50. Don't get beaten down in to believing you deserve less, which often happens. So you will need a detailed, iron clad parenting plan. You will get access in December as there is no history of child abuse, spousal abuse nor any records of such ...... so you'll have to show the judge your plans hour by hour of each day. There are some great examples and templates online.

You've already consented to supervised visits it sounds like but it was THE ONLY way to see your kid. Keep stating that you do not require it.

If the judge says it's a must, fire off your "graduated access schedule" with an eventual end date for supervision, adding over nights, etc until 50/50.

5. Parenting After Separation Courses:

Sign up for a "Parenting After Separation" course to show that you're serious about understanding how your child is handling this emotionally and will do anything in your power to make sure its a healthy transition and environment for them. I did this and it went a long way in the court room. Judges love it also.

6. Offer To Settle:

Be sure to prepare a offer to settle prior to the motion, including a 50/50 regime and shared custody.

7. Motion Materials:

Refer to the Best Interests Test ---> Rule 24(2)

Quote:
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) the plan proposed by each person applying for custody of or access to the child 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); 2009, c. 11, s. 10.
Go through each point and provide evidence of how it would be in the kids best interests to have both parents equally in their life. Look up the "Maximum Contact Principle" and refer to it OFTEN in court I have a thread on the topic: http://www.ottawadivorce.com/forum/f...eration-18320/

I used many pictures....the judge entered the room and said "Hi Mr LF32..I recognize you from the pictures. I never missed one major event, holiday and barely a bedtime story and the pictures proved it. Some judges are very visual.

Presumably the child is cut off from your entire side of the family also, whom I'm sure saw them often. Yet another best interest item.

I'll stop here for now .... digest the above, start your coffee maker, get your braveheart war paint on....your headed to the battle field for your child.....leave no stone unturned. Do NOT lt her get away with this. Judges see this every day and I bet they will make an example out of her for future caselaw.

Last edited by LovingFather32; 11-19-2016 at 12:11 PM.
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Old 11-19-2016, 01:26 PM
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Quote:
Originally Posted by ruskr View Post
I agree Links. That's what scares me is starting to fight against a system that is skewed that way...
The problem is you weren't planning this months ahead with your friends egging you and helping you setup your ex to screw up.

Getting a job was the dumbest thing you could do. Rule #1 about SAHP after divorce, act completely useless to get maximal spousal support. Talk about being out of the workforce, state of mind, betrayal etc... If you had a nervous breakdown because she cheated on you and were unable to get a job she would be responsible to pay you.... YES - I have read cases where that's worked.

Please get a lawyer, there is no time to explain to you how things work. Hire the lawyer JUST to get you get an emergency motion to get you child support, spousal support, back in the house and exclusive possession.
(I NEVER suggest to people to get a lawyer but at this point, time is of the essence)

If the lawyer can't/won't doesn't think it is possible then get ready to play the long game.
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