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  #11 (permalink)  
Old 04-28-2007, 09:27 AM
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Thanks.
You offer sound advice not based in emotional response that was what I was looking for when I posted.

We always send registered mail, NB: we do not deal with FRO as ex realized it took too long to change the CS amount each year if our income changed, we adjust at year end with tax season and she never has to bat an eye.
ex. One month I send child support cheque with a card and hand written letter from dad. I ask if the daughter got the letter, she sent an email advising it did not arrive, I didn't imply in the email this was odd because the letter was in the her CS envelope. Then the next week I get email notification from Canada post letter was signed for. A week after cheque is cashed, so I asked again, she said there was no letter. You see, I also photo copy all I send, right down to the envelope with the postage before sending. I live in a rural area and know the post master, she always conferms the contents for me and has said she would sign any documentation confirming contents, I had this type of documentation for the SC but when the judge refused to even review them we were screwed, another case of the court doing what they want not what is right!

But I still thank you very much for your support in this.
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Old 04-28-2007, 10:32 AM
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FL,

It is unfortunate but it appears the other parent is using the distance involved to undermine the relationship between Dad and daughter.

Continue documenting all the discrepancies and definitely move the matter to trial. Involve the OCL to represent the child if possible and call any experts involved as witness's that can push the child's views.

Additionally, work on a effective parenting plan to facilitate a graduated regime. To start Perhaps Dad and yourself could spend a week in a hotel with the daughter and yes have Mom pay half of cost. Its just an idea considering the distance. Once this threshold is met, push for more blocks of time holidays, summer months, March break and most importantly never give up and never walk away.

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Old 04-29-2007, 07:43 AM
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The mom offered a few hours this July (as her idea of summer visitation), in a letter from her lawyer, at beginning of the month. We responded immediately via reg. mail to the same. Accepted the offer even if it were an hour, dad more than willing to make the drive. Mom does not want me anywhere near the child, will not allow visitation if I am even in the same city. IE should I decide to acompany dad so he doesn't have to drive alone, and she some how finds out I made the trip she indicated the visitation would be canceled, as “I am not to accompany father on the trip, nor be in the vacinity of said visitation” and aluded that future visitation would be off if she found out after the fact. We agreed to all her terms prior to this few hours taking place, ie counciling to have taken place prior to said visit etc.

I feel, from what the judge said at last SC, she agrees with the views of EX and would also rule I not be present during visits. NB we offered in the beginning of this particular struggle, the first three visits to take place in city without me present, then next three visits with whole family present still in the city, then to resume to court order there after, I.E. every third weekend, extended to long weekend if holidays fall on dad's weekend. Alternate Christmas's, half march break and two 2-week blocks in summer to be extended to full summer at daughter's willingness. Is this unreasonable given the circumstances? She seems to think it is, does not want daughter around me “period” although we have spent lilterally thousands on experts to prove I and whole family are not a threat in any form, (most recently $20,000 on psycologists court ordered assessment). Do you think judge will order half accomidation cost should he stay in the city? And should she not at least read the court ordered assessment?
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Old 04-29-2007, 08:58 AM
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FL,

take what ever access is offered even if it is petty and yes make the trip if your health permits. If mom denies the child's access because of this, really demonstrates how vindictive she is and further questions her ability to parent the child effectively.

Example: Mom has no problem having her partner involved with the child so whats the difference. Evidence like that will go a long way.

I would also seek reimbursement of all the access travel by way of motion if a significant distance is traveled and a last minute denial occurred.

The problem during a SC is that any information submitted is not sworn. At an SC, the Judge would consider where the child is presiding presently. Remember the golden rule of stability.

Access is the right of the child. That being so if the child's access was occurring in a supervised access centre; mom would be expected to contribute to costs along with participating in the child's access travel to the centre. Therefore, I conclude that access costs and travel is both parent's parental responsibility and is the child centered approach.

If you proceed by trial, submit the parenting assessment and further call the professional as a witness.

I think you could also proceed by way of motion to to get some access occurring in the interim. November is a long way off.

I think Mom has significant explanation to give why all the unnecessary restricted access.

It is the child's right to have a meaningful relationship with the father for who they are and in their own environment. The late Sopinka J. spoke of this principle in the SCC case of Young v. Young and is often referenced to is other cases. For instance paragraph 26 of:

D.D. v. A.S.S., 2004 BCPC 56 (CanLII), (18 month old)
http://www.canlii.org/en/bc/bcpc/doc...2004bcpc56.pdf


In the above, the issues were set down for trial, However, the above case is an interim motion (paragraph 3) to have some interim access in place before trial.


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Old 04-30-2007, 11:06 AM
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Quote:
Originally Posted by logicalvelocity
FL,

take what ever access is offered even if it is petty and yes make the trip if your health permits. If mom denies the child's access because of this, really demonstrates how vindictive she is and further questions her ability to parent the child effectively.
Quote:
Originally Posted by logicalvelocity
I would also seek reimbursement of all the access travel by way of motion if a significant distance is traveled and a last minute denial occurred.
Will send acceptance letter to Judge today via purolator for move ahead of trial date and accept also the T.M.C. in June.

Did not realize were we entitled to ask for costs for attending for access and she had changed her mind, this has happened on countless occasions and yes we kept fuel receipts etc. ALSO did not know mother responsible for half accommodations when she insisted access be in city etc.

Quote:
Originally Posted by logicalvelocity
Example: Mom has no problem having her partner involved with the child so whats the difference. Evidence like that will go a long way.
Did not think of this, thanks.



Quote:
Originally Posted by logicalvelocity
The problem during a SC is that any information submitted is not sworn. At an SC, the Judge would consider where the child is presiding presently. Remember the golden rule of stability.
Yes I knew this, but expected judge to at least review something, anything!!!


Quote:
Originally Posted by logicalvelocity
If you proceed by trial, submit the parenting assessment and further call the professional as a witness.
Absolutly!

Quote:
Originally Posted by logicalvelocity
I think you could also proceed by way of motion to to get some access occurring in the interim. November is a long way off.
Did not know this either, you are a very informative person, I guess it helps when you are outside looking in?


Thanks again.
FL
  #16 (permalink)  
Old 04-30-2007, 11:50 AM
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I cannot begin to thank you enough for your help and offered case laws.

My husband is very, very numb to this whole FL process, and once actually thought assessments and counselling would actually help, but now feels they are just another way for the ex to limit access or stall the access process. He stopped caring the dad the daughter called and told him “Daddy I don’t want to visit with you any more”. We taped the call of course and the phone was immediately taken from the child and she sounded like she had a gun to her head. Dad even told this to the judge at one point during our last attempt at getting a contempt of court order against the ex for denied March Break Access. But they, (the judges) just don’t seem to listen!!??

Had we known about asking for costs for denied access, we would have included it in the contempt of court order motions.

Anyway, just wanted to say thinks, you are a great addition to this forum and I often think you are a lawyer in disguise even though you maintain you are just a self educated dad.
I would pay anything to have you represent me if you were a lawyer as you care so much and seem to have a firm understanding of the FL system. Keep up the great work!!
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Old 04-30-2007, 08:22 PM
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FL,

nope not a lawyer, paralegal or anything to do with Family law. I'm just a caring parent and father and a memeber like you of this forum

another case that comes to mind with similar circumstances is

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

Trussler J. at paragraph 9


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.

10 Having heard the viva voce evidence of both the parties and having considered the various affidavits that were filed, I came to the conclusion that Mr. Tremblay was being wrongfully denied the right to establish a relationship with his children and his children were being denied the benefits of a loving father. I also concluded as a result of the 14th January hearing that the children were essentially being brainwashed by their mother with respect to their father and she was attempting to instill in them an unwanted fear of the father.

11 Cases of this type, where the custodial parent is, without justification and in the face of a court order, denying access to the non-custodial parent, are problematical. If maintenance is being paid, the court can order that maintenance no longer need to be paid as was done recently by the Honourable Mr. Justice Sulatycky. The court can also find a custodial parent in contempt of court and fine the custodial parent or send the custodial parent to jail. However, neither of these alternatives does anything to further the development of a relationship between the non-custodial parent and the child. The child can still be convinced by the custodial parent that the non-custodial parent is an unfit parent and make the development of a relationship extremely difficult. Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children. In many cases, the variation of the maintenance or the sending of the custodial parent to jail is not in the best interests of the children. Often the intransigent parent who has defied or at least not lived up to the court order ends up essentially being rewarded by being victorious in not allowing the non-custodial parent access.

12 In cases such as this one I would shy away from sending the mother to jail. It is my belief the children could easily blame the father for the mother having to go to jail.

13 Section 16 of the Divorce Act reads as follows:

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.


(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(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.

14 Section 17 of the Divorce Act reads as follows:

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively ...

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

15 The court should not automatically change custody if the custodial parent refuses access or otherwise interferes with the development of a normal parent and child relationship between the non-custodial parent and the child of the marriage. However, where the parent refuses access, serious questions are raised about the fitness of that person as a parent. The refusal to grant access after it is ordered is a change in circumstances sufficient to satisfy s. 17(5) of the Act.

16 In deciding questions of custody one needs to take into account the best interests of the child. It is in the children's best interests to live with the parent who is prepared to be co-operative with respect to access in cases where both parents can equally well look after the children or, even if there is a divergence in parenting skills, as long as the co-operative parent is fit to look after the children. In this case, I did not have the benefit of a home study, but from the evidence given at the 14th January hearing I was not unduly impressed by the parenting skills or care given to the children by Mrs. Tremblay. At the hearing, Mr. Tremblay admitted that he had problems with alcohol abuse in the past and that he had taken steps, including treatment, to correct those problems. There was also evidence that he has a stable common law relationship and it was certainly clear that he has a genuine interest in the children. There was no evidence that Mr. Tremblay was not able to look after the two boys as well as Mrs. Tremblay.

17 In this particular case, Mrs. Tremblay has been given ample opportunity to comply with the various court orders. Short of sending her to jail, everything has been tried to convince her that Mr. Tremblay is entitled to access to the children. On two occasions, I directed specific comments to her in the courtroom making it very clear to her that she was to let Mr. Tremblay have access.

18 On the evidence before me I am satisfied that Mr. Tremblay will properly care for the children. I am also satisfied that he will give Mrs. Tremblay generous access. It is therefore in the best interests of the children and the administration of justice that custody change to Mr. Tremblay and the children live with him.

19 On 21st August, when I was asked by counsel for Mrs. Tremblay to reconsider my decision, I indicated to him that I felt I had no further jurisdiction in the matter. He was not able to show me a change of circumstances since July to justify an application for variation under the Divorce Act. I also refused his request for a stay of my order until the matter could be heard by the Court of Appeal. The children have been living with their father since 24th July and there is no indication that he is not providing proper care. It is in the best interests of the children for them to remain with their father pending the appeal. The children are being given an opportunity to build a relationship with their father which has been denied by their mother.

Application granted.


lv
Attached Files
File Type: pdf Tremblay PDF.pdf (28.5 KB, 1 views)
  #18 (permalink)  
Old 05-01-2007, 10:32 AM
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Thanks, I have read the Trampley file some time ago but forgot about it, thanks for the reminder.

Dad wants to call it quits, even prepared a letter to ex's lawyer.
Part of it is........
-----------------
I have exhausted all energies and efforts in an attempt to be a productive, supportive yet functional part of my daughter’s life. I wish to put a stop to the torture that has be felled MX and my family including my wife of 11 years, and two other children.
It is neither fair to MX, PX, JX nor myself and my wife to continue in this manner.

It has been my position since March 2005, when the new series of events began to unfold, that I would, under no circumstances ever force any of my children to do anything they were so adamantly against. This includes MX’s request of me to wait until she herself was “ready”.

At the Settlement Conference of February 2007, Justice XX-XX requested an access regime outlining my intended re-introduction to MX into my life, which clearly included lengthy counselling and supervised access. In and of itself, I believe such restrictions are genuinely warranted for the best interests of some children. Since 2005 and against my better judgement as a loving and caring parent did offer slow re-introduction access (following the 6 month period of denied access) in the form of initial visitation between MX and myself alone, to be gradually increased to where she would be comfortable to once again share in the joys of the rest of her family. However, I am not prepared at this time to further disrupt my family. I feel MX is rapidly approaching an age where she will have the legal capacity to make these choices for herself , separate and above either parent’s desires for her, or court intervention.

I am willing to entertain a final, out of court offer to settle. Please advise your client that I am not in a position to entertain an offer similar to her previous offer. My request is without prejudice and only intended for what it is, an honest attempt to cause as little disruption in the lives of my family and children as possible, and I feel this is best done mutually out of court.
blah, blah, blah.......more legal ease end sincerely, Mr. X X
-----------------------
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Old 05-01-2007, 10:53 AM
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FL,

Trussler J. spoke of that in Tremblay decision in Paragraph 11

Quote:
Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children.
Ultimately, it is their own choice as no law compels them to be a parent to their child. No doubt they are frustrated with the process.

I think their drafted letter will do nothing and is basically giving the other party everything they desired to accomplish including PAS by handing it to them on a silver platter. If the matter went for trial significant amount of cases are settled on the eve of trial.


lv
  #20 (permalink)  
Old 05-01-2007, 12:31 PM
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"Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children."

I understand, and that part jumped out at me.
As a dad yourself you can probably imagine the pain of hearing your child say, “Daddy I don’t want to come see you any more” “I hope you understand why I am asking this?”

Although she sounded like someone was holding a gun to her head and the phone was quickly removed from her once she said this to avoid any rebuttal from the Dad, it still did NOT change how much it hurt. I only saw the pain it caused. (I listened to the conversation after as we taped all calls from the ex) I was sitting beside him as I knew it was going to be a bad call. We have caller ID and the events leading up to this gave me the feeling a call from the ex could be nothing but bad.

My husband was a broken man that day, his whole body cried that instant, but his voice was calm when he tried to talk to her. Of course he did not get that chance. He told the ex she was “a very sad person” & her reply was, “oh really, you’re the sad one. I just wanted you to hear it from the horse’s mouth.” She went on to say, “I’ll call you later to discuss this” He said, “no, no you won’t”, then hung up.

I have printed and will offer it to dad and hopfully he will at least reconsider trial.

Thanks a ton.
FL
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