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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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Old 04-21-2006, 11:26 PM
TEC TEC is offline
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Default Taping conversations etc

I have seen a few threads on here about taping conversations etc for ammunition in court. What is anyones view on gathering e-mails for ammunition? In my situation my wife wants to move back down to the states to be with her new found wonder man and take my 2 daughters with her. I have read that the courts frown on uprooting children just because one spouse wants to move to be with a new partner. She will state it is for work or a business move but in reality its to be with her new lover. I already have some copies of emails that state she has to return to see if this new man is "the one". There is software out there that forwards a copy of every email sent and received, chat conversations, instant messages etc from the computer its installed on.
I know its sneaky and I don't feel right doing it but I want to keep my girls in Canada but would this information be useable in court to deter her from getting custody of the kids and move them to the states?
TEC
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Old 04-21-2006, 11:46 PM
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Email evidence is used all the time. However, as a father in the process, you should consider some strategies that are the opposite of what the courts see everyday - email me for more details.
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Old 04-22-2006, 09:22 AM
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TEC, I'd be very careful about this. Credibility is everything in family court. I think this would make you look like the bitter ex and not to mention sneaky & underhanded.
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Old 04-22-2006, 09:23 PM
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TEC,

Regardless of what her reason is to move to the USA, you first have to demonstrate and establish a material change of circumstances for the child before any legal action can take place. I think this would be relatively easy to accomplish due to no doubt that your current relationship with your child will be effected somewhat. Your child will be uprooted from their familiar surroundings and extended family. Your child's current friendships would possible no longer survive if the move was allowed. Your case will turn on the facts and since it involves your child, the best interest test will come up as the paramount consideration.


See the leading SCC case on mobility rights.

Gordon v. goertz

http://www.canlii.org/ca/cas/scc/1996/1996scc47.html

A move to the USA would be considered a material change.

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.:

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects the child, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. An application to vary custody cannot serve as an indirect route of appeal from the initial custody order. The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.

If the threshold is met, the judge on the application must embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. The focus of the inquiry is not the interests and rights of the parents. Each case turns on its own unique circumstances and the only issue is the best interest of the child in the particular circumstances of the case. Section 17(5) of the Divorce Act directs that the judge must consider the child's best interests "by reference" to the material change in circumstances.

However, the inquiry cannot be confined to that change alone, isolated from the other factors bearing on the child's best interests. The inquiry, which is based on the findings of fact of the judge who made the initial or previous order as well as the evidence of the new circumstances, does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. Once the applicant has discharged the burden of showing a material change in circumstances, both parents should bear the evidentiary burden of demonstrating where the best interests of the child lie. In assessing the best interests of the child, the judge should more particularly consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; and (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. The "maximum contact" principle mentioned in ss. 16(10) and 17(9) of the Divorce Act is mandatory but not absolute and the judge is only obliged to respect it to the extent that such contact is consistent with the child's best interests. As set out in s. 16(9) of the Act, parental conduct does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child. In the end, the importance of the child's remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?


Since everything is pretty much going to focus around the child, I would be very cautious about portraying your own demeanor and conduct in a devious style. Using keylogger's on your family computer can be justified to some extent such as keeping tabs on your child's internet usuage, but not sure how well that will go over in regards to keeping tabs on your spouse. It shows that there isn't no trust in the existing relationship. Instead of waisting effort trying to prove that your spouse is having some sort of an affair with another individual, FOCUS on the best interest of the child!

Last edited by logicalvelocity; 04-23-2006 at 01:54 PM.
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Old 04-14-2007, 12:45 PM
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Typical!
I'll bet if it was the father who wanted to move with his kids away from the mother, the mother would have a much greater chance of preventing the move.
Although some progress has been made, I think the legal system still favours mothers, and statistically, women are far more often the ones having affairs!
I would love to see a poll on here about this. Of all the relationships disolved due to affairs, who adultered more, man or woman?It should never even be considered to be in the child's "best interest" to be far from their father! (Unless of course he is found to be a bad father, for whatever reason).
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Old 04-15-2007, 08:14 AM
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tombiosis,

An interesting read is the Terris case as attached in pdf format to this thread:

http://www.ottawadivorce.com/forum/s...ghlight=terris

Basically, the one parent took the children to Australia without the consent of the other parent. The result was the court applied the highly cited SCC gordon v. goertz principle and the children were returned and the Australian parent found themselves to be an access parent in the interim. Clear example that stability is a paramount concern for children in the interim.


Another good read on mobility issues is the previous thread found here:

http://www.ottawadivorce.com/forum/s...ghlight=terris


lv
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