Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
LinkBack Thread Tools
  #1 (permalink)  
Old 02-28-2014, 03:30 PM
Junior Member
 
Join Date: Feb 2014
Location: Ottawa
Posts: 16
Little Leprechaun is on a distinguished road
Default Settlement hearing looming, probable trial and OCL involvement

I'm concerned about my case as it's a little unusual so I would really appreciate some feedback! Here's my background:

I am Irish with Canadian Permanent Residency as is my 11 year old child. I am married to a Canadian Citizen and have a further 2 children with him. The father of my 11 year old is British and resides overseas. We were never married and separated before the birth of my child. He did not have any parental rights or responsibilities towards my child and never applied to the courts for these. The reason for our separation was due to his aggression when drinking and his inability to contribute financially. We never lived together. He does not pay child support (he did pay for 2 years out of 11) and he has 2 previous convictions for minor offences. At the time of living in Ireland there was a verbal agreement for access. Although my child did see her father, he would regularly state he could not see her as a result of his busy social life. This eventually led to my child growing apart from him. He has told my child on numerous occasions that he didn't want anything to do with her.

My child informed me of certain things that were going on whilst in her fathers care such as him hitting her and displaying aggression in front of her. It was at this point I spoke with him and he admitted these things but shrugged them off. As a result, I moved to Canada. I sought legal advice and was given a legal document stating I had rights to immigrate. I informed my ex of my plans to relocate and spoke with him briefly after we moved. I have not currently spoken with him in 3 years.

He has since filed papers with the court citing he wants the child returned to Ireland, that he wants full custody and that I abducted her. The OCL have been involved (clinical investigator and lawyer), we have had a disclosure and there is now a settlement conference scheduled. I have heard through the grapevine that he is only pushing things as he is in receipt of legal aid. (He earns over $35k so no idea how he wangled legal aid!) We are being crippled financially. The OCL disclosure was somewhat sketchy... (He attended via telephone) They stated that the relationship between father and child was severed long before we moved to Canada and they didn't think it was necessary for him to spend $'s visiting a child that didn't want to see him. They noted that the child refused to go with him during the observation visits and stated that the child was mature for her years. The OCL lawyer however was sticking up for him and recommending joint custody to him which threw me. There was no actual recommendation though. There are quite a few concerns over their overall conduct of this matter but I won't go into them as my lawyer states that overall the disclosure couldn't have gone any better.

I now have another meeting scheduled with the OCL and I'm not quite sure what this is for. Any ideas?

We have had numerous letters from my ex's lawyer asking for things and we have agreed on some (such as telephone contact) but they have then came back and said they now don't want it. All this does is cost us money for nothing in responding.

Anyway, I guess what I am asking is what exactly do you think will happen at the settlement hearing? Does anyone have any idea how much a full trial will cost and whether he will get joint custody? I have read that judges are keen to give out joint custody but given our history and the fact he doesn't even live in the country would this be appropriate? There is no actual solid evidence that would benefit a trial other than his family saying a few years ago he has access. He wasn't involved in extra curricular activities, schooling, medical or dental appointments. He also refused to pay child support at the case conference and the judge told him it was a bad move. He owns a rental property, lives with his partner and they both have a full time wage and no other dependants. Yet he is on legal aid? I have no clue why. I am aware that he has painted a bad picture of me, which is what worries me. However, I have never been in trouble with the police, have always supported my child financially and have no crazy medical problems.

Any advice would be welcomed
Reply With Quote
  #2 (permalink)  
Old 02-28-2014, 03:47 PM
Senior Member
 
Join Date: Sep 2012
Posts: 1,702
DowntroddenDad will become famous soon enough
Default

My first advice would be to go back in time and when an allegation of child abuse is made, call the police and/or the equivalent of the Children's aid society. It is true that not every case of hitting a child is considered abuse (spanking is often not , but I don't know about Irish law), and yelling can be abusive. The point is that these things need to be investigated, not left alone, especially since you already know his propensity. Secondly you would not want to rely on a verbal notification or a verbal agreement about allowing you to move. You would have seen a lawyer and had an agreement drawn up and had both parties sign.

He now is in a position to say that you abducted the child without cause. And you have allowed that to happen.

I don't know how a settlement conference would end up other than refusal to agree and ending up in court.

You are in for a big legal battle, and potentially criminal charges. My advice would be to find a lawyer that specializes in these kinds of cases who may be willing to moderate their fees in consideration of your economic issues.


This is a tough place to be. I'm sure others with more knowledge will jump in, but I don't see this in very positive light.
Reply With Quote
  #3 (permalink)  
Old 02-28-2014, 04:06 PM
Junior Member
 
Join Date: Feb 2014
Location: Ottawa
Posts: 16
Little Leprechaun is on a distinguished road
Default

DowntroddenDad Thanks for your reply.

I'm not facing any criminal charges at all. I did nothing illegal. I have a legal document stating so and had it been illegal I would have been arrested and my child returned under The Hague Convention 3 years ago. Like I said, he never had any rights under Irish law and never did anything to try and obtain rights. It was not just a matter of spanking... It was more than that. Hitting her with objects etc. yes, I should have initially informed police but I didn't for a variety of reasons.

Both the OCL and the numerous lawyers I have consulted have said that my child's wishes will be taken into consideration and she will not be returned to the UK. I consider the lawyer that has been dealing with this to be rather good although somewhat costly!

So you don't think this father looks bad? No proof of involvement, complete refusal to pay child support (citing he can't afford it) potentially fraudulently receiving legal aid (this is being investigated) etc etc. If he can't afford to pay child support, how can he be expect to support my child if he had custody.
Reply With Quote
  #4 (permalink)  
Old 02-28-2014, 04:07 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,968
arabian will become famous soon enough
Default

If your ex feels you were abducting your child did he apply for return of your child citing the Hague Convention? Did he know at all time where your daughter was living? Did your daughter ever travel to visit him or did he ever come to Canada to visit her? Has he ever paid CS while you and your daughter lived in Canada? Is this the first time that custody has been raised by him? Do you have documentation of informing him of your intent to move to Canada?
Reply With Quote
  #5 (permalink)  
Old 02-28-2014, 04:20 PM
Junior Member
 
Join Date: Feb 2014
Location: Ottawa
Posts: 16
Little Leprechaun is on a distinguished road
Default

Arabian, The Hague Convention threw his case out because he had no rights to the child legally.

He knew where we were living however states he did not.

There has been no contact between my daughter and him other than some emails and the OCL observation visit.

He has only paid CS for 2 years out of 11 and that ceased 4 years ago.

Under Irish laws he has no rights or responsibilities as we were unmarried and my child was born in 2002. He often made threats of obtaining joint custody however never bothered as it was too much hassle for him. He was not a responsible father and often missed access times.

I informed him that I was going to relocate to Canada and if he wanted to prevent me he would have to start legal proceedings. He refused. His written permission was not needed under UK law. The legal document I have cites this. Canadian Immigration even looked into this before granting us residency.
Reply With Quote
  #6 (permalink)  
Old 02-28-2014, 04:32 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,968
arabian will become famous soon enough
Default

If that is the case then you have little to worry about it would seem. You are probably aware of the link for case law for the UK. If you do a search in family law there are many cases where Hague Convention was considered.

British and Irish Legal Information Institute
Reply With Quote
  #7 (permalink)  
Old 02-28-2014, 04:33 PM
Senior Member
 
Join Date: Sep 2012
Posts: 1,702
DowntroddenDad will become famous soon enough
Default

Quote:
Originally Posted by Little Leprechaun View Post
DowntroddenDad Thanks for your reply.

I'm not facing any criminal charges at all. I did nothing illegal. I have a legal document stating so and had it been illegal I would have been arrested and my child returned under The Hague Convention 3 years ago. Like I said, he never had any rights under Irish law and never did anything to try and obtain rights. It was not just a matter of spanking... It was more than that. Hitting her with objects etc. yes, I should have initially informed police but I didn't for a variety of reasons.

Both the OCL and the numerous lawyers I have consulted have said that my child's wishes will be taken into consideration and she will not be returned to the UK. I consider the lawyer that has been dealing with this to be rather good although somewhat costly!

So you don't think this father looks bad? No proof of involvement, complete refusal to pay child support (citing he can't afford it) potentially fraudulently receiving legal aid (this is being investigated) etc etc. If he can't afford to pay child support, how can he be expect to support my child if he had custody.
Of course I think the father looks bad, I think he sounds despicable but I am not the judge, and the judge will want hard evidence to show otherwise. False charges of abuse in divorce cases are common as mud. And non payment of support could be twisted.

Your legal document about immigration, does it reference the father at all? I don't think the father's rights to his child can be waived without his signature.

The recommendation for joint custody isn't necessarily what you think. Custody is about decision making, not access. He can have the right to make major life decisions when needed, and not have physical access.

What I would recommend is looking for a compromise proposal. Offer him visitation rights in Canada (supervised if necessary). You need to demonstrate that you are willing to be a co-operative parent(within reasonable limits). Compromise may not be possible, but showing that you are reasonable will help.
Reply With Quote
  #8 (permalink)  
Old 02-28-2014, 04:34 PM
FB_ FB_ is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,407
FB_ will become famous soon enough
Default

It's not what people state it's what you can prove.

Can you prove with evidence that he was aware of your location and when.

An email, letter, document...anything?
Reply With Quote
  #9 (permalink)  
Old 02-28-2014, 04:48 PM
Junior Member
 
Join Date: Feb 2014
Location: Ottawa
Posts: 16
Little Leprechaun is on a distinguished road
Default

The issue is that the father didn't have rights in the first place so I didn't need his written permission. That is what my lawyer stated in the affidavit I have. UK law differs to Canadian law in that fathers of children born to before December 2003 have no rights whatsoever unless married to the mother.

We have offered telephone communication, Skype, email and supervised access as OCL say there is no relationship there and child doesn't want to see him. I also have a psych report in our favour.

They have refused our offer and he has been very vocal about wanting a "free" trial.

I am aware of what custody means, however with him being in another country I thought the whole decision making would be pretty difficult (eg/ say she needed immediate dental treatment). He has never been immediately available in the past and always failed to answer calls so I stopped bothering.

I see many people on here talking about their cases and I don't see a lot that mentions sole custody, hence my reason for asking
Reply With Quote
  #10 (permalink)  
Old 02-28-2014, 04:51 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,968
arabian will become famous soon enough
Default

The OP is correct in her assertion that as they were never married she does, by default, have custody:

Children - Law Society of Ireland
Reply With Quote
Reply

Tags
custody, ocl, overseas, settlement, trial


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On



All times are GMT -4. The time now is 05:09 AM.