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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 03-11-2007, 12:28 AM
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Default Telephone Access

My sister was granted reasonable telephone access to her 4 year old son in a court order created Aug 2006. She's had to file for a case conference to have the order ammended for scheduled access and visitation because the situation has only managed to get worse.

My sister has attempted to make telephone contact with her son twice a week consistantly. The custodians have only allowed her telephone access once a week, because the stepmother wants control. They've even applied a call block to her number preventing her from dialing direct, forcing her to purchase long distance calling cards to get telephone access to her son.

After my sister had served them the legal documents for scheduled access and visitation, the custodians changed their contact number without notice and purchased a cellphone for the 4 year old child, telling my sister that she is now responsible for purchasing minutes in order to stay in contact with her son because they no longer want to deal with her!

Is my sister obligated to follow through with these unreasonable demands in an attempt to speak with her son? It seems like they want her to spend money uneccessarily in order to earn the right to access her son!

Her efforts to communicate with her son are getting more difficult as time passes because they have alienated her from the child and the stepmother fills his head full of hateful lies about my sister.

In her current Motion she's asking for scheduled telephone access, scheduled visitation, half travel expenses, legal expenses... is there anything else she can do to prevent her child from being alienated from her further, especially now before a case conference?
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Old 03-11-2007, 09:12 AM
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smadax,

The only phrase I can think to describe that situation is Parental Alienation. It is horrible that those practices are occurring.

To me; A parent or custodian who deliberately alienates a child from their other parent and have a disregard for court order contact is not worthy of custody of said child.

In Tremblay v. Tremblay, [1.], Trussler J. of the Alberta Court of Queen's Bench held that the refusal of the child's access rights by custodial parent raises serious questions about same person's fitness as a parent. In paragraph 9 of the judgment:
9. I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse.

In your sisters situation, the custodians haven't completely blocked telephone contact. However, it appears they are making it more difficult and expensive for her to contact her child and have a meaningful relationship with same. "Pay as you go" Plans are somewhat expensive. I believe if your sister had the same "pay as you go plan;" it may be a free incoming call to another "pay as you go" member. This is worthwhile to investigate. I believe Rogers "Pay as you go" plans accommodate such.


http://www.shoprogers.com/store/wire...41Q6VPQFBEDSL3
All that aside, I believe it is the child's right to have their real telephone number and address of where they are located at all times made available to the other parent. When information is not released without just cause, somewhat suggests what the custodians motives really are. Secrecy festers overtime.

Additionally, your sister should also be pursuing information pertaining to the health, welfare and education of said child. If this information is impeded or blocked demonstrates and questions the custodians ability to parent the child effectively.

Your sister is at a significant disadvantage with considerable geographically between the parties. If you sister did move to the direct vicinity to where the child was located, to me this would construe to be a material change of circumstance and therefore be able to vary interim or final order of the child's access or custody. If such were to occur, I believe the court would order traditional alternate weekend access for the child as a minimum.

Because Case Conference are more to do with procedural issues and associated briefs are not sworn evidence; No significant orders will be made at the conference on access to the child unless it was on consent.

Case conferences give the parties the opportunity to get together and perhaps come to a reasonable settlement of the issues. The Judge may give a recommendation or view of how the court would rule at a pending motion.

If the case conference is unsuccessful, Your sister will have to move with a subsequent interim motion in an effort to obtain relief of the issue.


lv


__________________________________________________ ______________

[1.] Tremblay v. Tremblay, 54 Alta. L.R. (2d) 283, 10 R.F.L. (3d) 166, [1987] 6 W.W.R. 742, 82 A.R. 24

Last edited by logicalvelocity; 03-11-2007 at 09:27 AM.
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Old 03-11-2007, 04:26 PM
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Default Procedure

The August 2006 Order gave the primary residence to the father on an interim bases, is it too early for my sister to go for custody?

Is it best if she gains scheduled access first and attempt to gain custody in approximately a year if they continue to breech the order?? I fear this method would allow even further alienation of the child from her and make it even more difficult because a precidence would have been set at the residence of his Father for two years by that time!
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Old 03-11-2007, 10:30 PM
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smadax,

Quote:
The August 2006 Order gave the primary residence to the father on an interim bases, is it too early for my sister to go for custody?
Basically, I perceive such order was made by the court to perhaps maintain the status quo or encourage stability for the said child. It is not a final order nor is it an order for sole custody.

The interim order such as you mentioned also suggests that there may have been contradictory evidence introduced by the parties for said hearing. An interim order as such keeps the issue of custody open pending trial and both parties on the same playing field. Basically the court has not endorsed trust to either party at this point in time by issuing an interim order for custody.


What should be scrutinized and focused on is how did the parent with the current primary residence manage the ongoing responsibilities of the child. Do they include the other parent into the life of the child? Do they facilitate the child to have reasonable access to the other parent? Do they keep the other parent informed of the results of all medical appointments and education?

Quote:
Is it best if she gains scheduled access first and attempt to gain custody in approximately a year if they continue to breech the order?? I fear this method would allow even further alienation of the child from her and make it even more difficult because a precidence would have been set at the residence of his Father for two years by that time!
Courts generally don’t like to interrupt the status quo if everything is working out fairly well for the child. The problem with your sister bringing forth an interim motion for interim access; The other party may bring forth an order for interim custody at same hearing and an additional order for child support for said child.

If it were me, I would be asking for custody from the start. In competing claims in climates of contradictory evidence, the court may just maintain the status quo and leave the issue for custody pending trial where they could observe the demeanor of the parties, and may ask questions. I would also cover the bases and ask for liberal access in the interim.


lv
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Old 03-11-2007, 10:36 PM
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Smadex,

I forget to upload the Tremblay decision in the above post. It is worthwhile to read to obtain a perspective why the particular Justice came to same conclusion.

lv
Attached Files
File Type: pdf Tremblay PDF VERSION.pdf (28.6 KB, 7 views)
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Old 03-12-2007, 11:53 AM
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smadax,

After thinking about this further and researching at canlaw - what is deemed reasonable within a Judicial view, I came across a few cases.

In Abolghasemi v. Abolghasemi, 2001 SKQB 313, Paragraph 6 of the authority

http://beta.canlii.org/eliisa/highli...01skqb313.html
[6] In view of the existing access - every second weekend; two evenings per week; telephone access twice per week - there appears to be no valid reason why the children should be made available every second day to converse by telephone with their father.

-and-

In Kobussen v. Fletcher, 1998 CanLII 13633 (SK Q.B.), Significant telephone access problems. As a result see Paragraph 15f of the Judgment.

http://beta.canlii.org/eliisa/highli...nlii13633.html

-and-

In Oddan v. Schneider, 1996 CanLII 6973 (SK Q.B.), Telephone Access was deemed reasonable. See order #6 of the Judgment.

http://beta.canlii.org/eliisa/highli...anlii6973.html


In all, telephone access is a reasonable request and it should be occurring not impeded or made difficult.

Many more cases are available with this subject.


lv

Last edited by logicalvelocity; 03-12-2007 at 12:02 PM.
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Old 03-13-2007, 01:45 PM
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Quote:
Originally Posted by logicalvelocity
What should be scrutinized and focused on is how did the parent with the current primary residence manage the ongoing responsibilities of the child. Do they include the other parent into the life of the child? Do they facilitate the child to have reasonable access to the other parent? Do they keep the other parent informed of the results of all medical appointments and education?
They have not facilitated her in anyway, in fact she's attempted a visitation with the child and the stepmother was very unkind and controlling. A long list of rules was left at my sisters Hotel before she arrived, she was forbidden to even step foot on their property when she came to pick up and drop of the child, she was ordered to give them an iterinary or be refused access for a day and dictated what she could and could not purchase as a gift for the child while she was visiting him!

Quote:
Courts generally don’t like to interrupt the status quo if everything is working out fairly well for the child. The problem with your sister bringing forth an interim motion for interim access; The other party may bring forth an order for interim custody at same hearing and an additional order for child support for said child.
The Father already has the child on an interim bases, therefore I doubt they'd bring it into question again unless they wanted to attempt to gain sole custody which would not surprise me. My sister does not make alot of money she's on Disability and their Lawyer has advised them to not pursue Child Support, although personally I would.

Quote:
If it were me, I would be asking for custody from the start. In competing claims in climates of contradictory evidence, the court may just maintain the status quo and leave the issue for custody pending trial where they could observe the demeanor of the parties, and may ask questions. I would also cover the bases and ask for liberal access in the interim.
The Judge questioned why my sister took a year to file for custody of the child and decidedly left the child with his Father since that was now the status quo. There were factors involved in her delay, but irrelevant at this point.

The Father still persists on causing road blocks to her access, but from what I've seen from CanLaw the Judge will not change the set status quo until after a scheduled access and visitation order has been attempted unsuccessfully, therefore the parent would be in clear breech of the order. I presume we should expect the same process to occur??

Do you feel she should purchase minutes for the cellphone although the Father has a landline that they've used successfully in the past and she did not consent to paying even more money to gain telephone access to the child??
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Old 03-14-2007, 04:31 AM
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smadax,

to ease the conversation in a flowing manner; I double quote what I mentioned and your quote response in italics and my subsequent response in blue

Quote:
Originally Posted by logicalvelocity
What should be scrutinized and focused on is how did the parent with the current primary residence manage the ongoing responsibilities of the child. Do they include the other parent into the life of the child? Do they facilitate the
child to have reasonable access to the other parent? Do they keep the other parent informed of the results of all medical appointments and education?

Originally Posted by smadax
They have not facilitated her in anyway, in fact she's attempted a visitation with the child and the stepmother was very unkind and controlling. A long list of rules was left at my sisters Hotel before she arrived, she was forbidden to even step foot on their property when she came to pick up and drop of the child, she was ordered to give them an iterinary or be refused access for a day and dictated what she could and could not purchase as a gift for the child while she was visiting him!


It is unfortunate and horrible that this occurring. Your sister is not in a supervised access regime. See this case which refers to the SCC decision
Young v. Young:


D.D. v. A.S.S., 2004 BCPC 56

http://beta.canlii.org/en/bc/bcpc/do...2004bcpc56.pdf

http://beta.canlii.org/eliisa/highli...004bcpc56.html

In the matter of D.D. v. A.S.S., 2004 BCPC56, Justice Valmond Romilly of the Provincial Court of British Columbia held that the mother appeared to be proceeding on the assumption that she had exclusive proprietary interests in her son, definitely to the exclusion of the father, and for him to have access to that child he must qualify by meeting her standards and conditions for access. In other words she seems to feel that she is the only one entitled to make decisions regarding her son, and certainly not the father.

Romilly J. referred to the previous authority A.M. v. C.G., Vancouver Registry 94-6555, a decision of Judge White which states in paragraph 8 as follows:
Counsel for the applicant referred me to Mr. Justice McQuaid's 1993 decision of Sherry v. Sherry, D.R.S. 94-05914 where Mr. Justice McQuaid referred to a leading Supreme Court of Canada decision of Young v. Young, quoting from Mr. Justice Sopinka's judgment as follows:

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.
Romilly J, found that the mother will be well advised to heed Mr. Justice Sopinka's words of the SCC decision Young v. Young if she is really interested in the best interests of the child, not try to encumber the father's access by forcing him "to act out a part or assume a phony lifestyle" just to meet her subjective standards and conditions of access, so that "a meaningful relationship with both parents" could be achieved.

In the result, unsupervised alternate weekends access was awarded for the eighteen month old child to their father along with mid-week access, other holidays and sharing of the child's access travel between the parents.

Your sister should document all this controlling behaviour in regards to the child's access by the stepmother and father.


Quote:
Originally Posted by logicalvelocity
Courts generally don’t like to interrupt the status quo if everything is working out fairly well for the child. The problem with your sister bringing forth an interim motion for interim access; The other party may bring forth an order for interim custody at same hearing and an additional order for child support for said child.

Originally Posted by smadax
The Father already has the child on an interim bases, therefore I doubt they'd bring it into question again unless they wanted to attempt to gain sole custody which would not surprise me. My sister does not make alot of money she's on Disability and their Lawyer has advised them to not pursue Child Support, although personally I would.
Don't underestimate your opponent. To me it is best to cover the worst case scenario. Just because of your sisters place on the economic ladder is not a sufficient reason that she be denied some form of custody sole, joint etc. I suspect she is quite aware of where she falls on same. Child support is the right of the child and calculated by ones respective income whatever that amount may be.

Quote:
Originally Posted by logicalvelocity
If it were me, I would be asking for custody from the start. In competing claims in climates of contradictory evidence, the court may just maintain the status quo and leave the issue for custody pending trial where they could observe the demeanor of the parties, and may ask questions. I would also cover the bases and ask for liberal access in the interim.


Originally Posted by smadax
The Judge questioned why my sister took a year to file for custody of the child and decidedly left the child with his Father since that was now the status quo. There were factors involved in her delay, but irrelevant at this point.

The Father still persists on causing road blocks to her access, but from what I've seen from CanLaw the Judge will not change the set status quo until after a scheduled access and visitation order has been attempted unsuccessfully, therefore the parent would be in clear breech of the order. I presume we should expect the same process to occur??

Do you feel she should purchase minutes for the cellphone although the Father has a landline that they've used successfully in the past and she did not consent to paying even more money to gain telephone access to the child??
It appears by waiting a year before your sister pursued custody of the child created an acquired consent to act as a parent and additionally a status quo regime for the child. Status Quo living regimes are very difficult to change unless you could create a material change such as locating to the direct vicinity to where the child currently resides or continue bringing forth motions to reinforce previous orders of the child's access. The latter will take years of litigation, lots of stress and frustration. If it was me I would relocate to where the child resides as it would create an immediate material change of circumstance and thus a review of the current status quo. A child is only a child once.

It is difficult to comment on whether your sister should purchase cell phone minutes as it appears that she may not be able to afford same due to no fault of her own due to disability. On the other hand, cost of such may create a significant hardship for her to a degree that she may be eligible to be granted a undue hardship for paying a child support amount. Telephone contact is considered access.

I do suspect that your sister has limited means to shoulder all of the child's access travel. Common Sense has to prevail here. To me it is both parents responsibilty to the best of their ability to ensure that the child maintains a meaningful relationship with both parents. This is the child centered approach and the child's right. Both parents should be participating to the best of their ability and means in the child's access travel either monetary or physically so that the child can foster same and such relationship to flourish.


lv


Last edited by logicalvelocity; 03-14-2007 at 04:47 AM.
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Old 03-14-2007, 02:55 PM
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Your right LV, thanks again! I really appreciate the time and effort you put forth in your answers.
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