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Old 05-15-2015, 11:13 AM
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Default When will enough be enough...Part 2

Good morning all,

I'm posting again looking for some guidance, support and I know some of you might have been through family court processes.

As the title indicates, this is a second part to a situation that I have been faced with and the story and problematic situation just simply go on.

To put you in context, here is a summary of events.

Last Friday, I sent a text message to S5's father about receiving a call from the school principal, in regards to our S5 having struck another child with a mini hockey stick and about me and my family's plans for Mother's Day. (S5 was with father for that week)

Ex replied that the school had not contacted him, our S5 had not talked about the situation at school and that I would not be seeing S5 until 4pm on Mother's day since he had already made plans to attend a convention with S5. I replied to him explaining that as per our court order, I am to have access to S5 from noon to 7pm and that he could always go to the convention on Friday evening or Saturday. Ex stated that the convention times were too late on Friday and he had a baseball game in the city, that he had to work on Saturday and so I would only have S5 at 4pm. He also texted me that should I not reply to his text, saying that I want S5 at 4pm, he would consequently keep S5. (I have a habit of disengaging when ex becomes an asshole and simply do not reply to his angry texts.)
At this point, I sent him a picture of our court order stating my right to access on Mother's Day and replied that I would gladly take S5 at 4pm and that in the event that he changed his mind, I would be at his place at noon to pick S5 up before I went to our family Mother's day brunch at a golf course.

Because of this exchange, I contacted my lawyer and she decided to try and call him to help resolve the matter. (Ex expressed in January 2015, when we changed the custody order, that he could not afford his lawyer any longer and was backed up in payments.) When my lawyer introduced herself after repeated attempts and calls were made, Ex hung up the phone and had no discussions in regards to this matter.

Sunday, Mother's day came, and at noon my spouse and I went to Ex's apartment. I went up the flight of stairs and knocked on the door. I could hear his pitbulls barking up a storm in the home and while standing on the staircase landing, I saw many garbage bags coupled with smoked pot roaches and cigarette butts. No one answered the door. My spouse and I left the parking lot and went to brunch.

At 3:50, we waited for S5's father to do the scheduled exchange and I received a text from Ex stating the he would be 10 minutes late. We waited an extra 35 minutes until finally Ex showed up.

Now, If you've read my previous post (with the same title), you will know that back in February, there was a same type of issue where Ex's dogs were in his home and there was a distinct smell of burnt pot in his apartment when I picked up S5 for the weekly exchange. (exchange is usually don by school bus but that Monday was a holiday). Our Court order clearly states that Ex is not to be under the influence of any drugs while S5 is under his care, and also that both his dogs, deemed aggressive, are not to be at any point in time, around S5.

Bringing you back to today, I have hired a high conflict family lawyer to help me navigate and help me acquire a custody change. Our last Court order was changed in January 2015 and therefore I need to wait 6 months prior to bringing a motion.

My concerns for the safety and well-being of S5 are now highlighted seeing as Ex's behaviors and lack of following our custody order have not subsided. I have now decided to stop all access to Ex. I'm leaving out of town for the weekend and will be dropping "the bomb" on Saturday in text to Ex. (we are to exchange S5 on Monday at 4pm, because of the upcoming holiday.) I have made a report with local law enforcements, and child services, and waiting to have an appointment with S5's school principal. Following previous concerns, I face the challenge that because ex is hostile at times and as threatened my spouse and I in the past, it is now a question of when S5 is in school, father could simply pick him up and skip town. To which at this point, police enforcements would be alerted.

My lawyer is very aware of my intentions, so are police and child services. My lawyer clearly cannot advise me to not follow my court order yet she states that this is a matter of keeping a child safe, making decisions in the child's best interests and that all parents have a duty to protect a child from potential harm. She is also connecting me with a parenting coach who will help guide me through this and give me strength. I want to make it clear to you, the reader, that I have never stopped any access and that since being separated, I have dealt with countless similar situations.

Has anyone ever gone through this? I know it's a lot of information to register in, I'm sorry. I'm simply looking for support and personal experiences. I also do not feel that I need to have writers loose their minds over my decisions, yes stopping access is a crappy thing to do, I agree but I also think that if I don't, I also agree to let S5 live in a potentially harmful situation, so I ask that any members refrain from negative commenting.

Thank you kindly.
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Old 05-15-2015, 11:25 AM
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First posting, should you want to familiarize yourself with previous posting.

http://www.ottawadivorce.com/forum/f...-enough-18660/
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Old 05-15-2015, 11:50 AM
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I am not sure if denying access is appropriate. "Potential" harm is a subjective term. If child is in imminent danger why doesn't CAS intervene? I think that by denying access you will be giving your ex an edge in your next court go-round.

Also not sure if I agree with your lawyer contacting your ex directly UNLESS your lawyer is 100% certain that there is no lawyer on record. Hope your lawyer did due diligence before making direct phone call to your ex.
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Old 05-15-2015, 11:59 AM
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Two wrongs dont make a right. You have to remember that your actions will be scrutinized very closely by the judge and if you want to stand up and holler about him not following the court order, YOU YOURSELF CANNOT DISOBEY THE ORDER AS WELL.

Only a judge can change custody. Do not withhold access. Your lawyer has said no and unless CAS has removed your son from his fathers care, you will be in breach of a court order.
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Old 05-15-2015, 12:06 PM
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^^^ ditto. You show that ex is not following the court order, but I don't see any evidence that Kid being neglected or abused in his care. That's the only thing that would justify withholding him from his father (which would mean that you're violating the court order too, just like your ex). A squabble about school miscommunication, pickup times and some funny smells and sounds don't add up to imminent danger to the child, it just adds up to some unpleasant parental interactions. You also mention in your earlier post that complaints have been made to CAS (by whom?), but investigations did not yield any actions against him. The only thing that's really actionable here are the dogs - a letter from a lawyer reminding him about the paragraph from the court order stating the dogs are not to be in the apartment might be worthwhile, but it's basically unenforceable, unless you station someone outside his house 24/7.

I'm sympathetic to you. It really sounds to me like Kid has a dumbass father. Many people on this forum can relate to that. However, you can't do anything about him, all you can do is provide the best counter-example you can in your own life.

Unless you have evidence, backed up by a third party (police, bylaw enforcement, animal welfare or CAS) that Dad cannot care for Kid, you shouldn't withhold him. "Worries" and "concerns" are distressing to you, but they are not the same as verifiable danger. If this ever came to a court, I suspect a judge would rip you and Dad both a new one because neither of you is following the order when it doesn't suit you to do so.
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Old 05-15-2015, 01:18 PM
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Thanks everyone!

Here was the initial response I got from my lawyer when I asked her what the repercussions of withholding access would be. I was on the fence about actually going through with this.

Lawyer:

As you recall during our first consultation, I indicated to you that I can never advise a client to not respect a Court Order. However, if a client, who is parent, makes a decision, in the best interests of a child, for safety concerns, among others, then if the other party decides to bring a Contempt Motion, or to contact police, we can provide evidence in support of the parent, to ensure the child is not exposed to danger. I trust that as S5's parent, you will exercise your parental authority to make a decision that is in S5's best interests.



I completely agree that two wrongs don't make a right. But not following a court order for four years and being non-chalent about possible harm surrounding a child and putting a child at risk such as Ex is doing with dogs and drugs cannot, for the life of me, sit well with a judge. I might be wrong in all of this and will be scrutinized in court, I totally agree, but these same problems were formulated in an Order to protect a child for valid reasons. Child service have opened a file, I will be hearing from them shortly. But as you and I both know, and as it has been in the past when child services are called into a situation, when being investigated, a. you are contacted in advance, leaving you time to clean up and spray febreeze (lol) in your household. b. interestingly enough, you have time to bring the dogs elsewhere and c. because the child is not abused in any way physically, sexually, then child services' hands are tied. The only upside is that it is documented. I made child services, police and school aware of my decision to withhold access as well.
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Old 05-15-2015, 01:32 PM
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Default When will enough be enough...Part 2

Ya thats not saying do it. Thats saying you have other options. An emergency contempt motion is the best option you have right now and Im sure your lawyer would agree. Unless there are serious concerns about danger, no one is going to step in and a judge will point that out. You will be reprimanded for going against a court order. You want to give your lawyer more years of income trying to reverse custody because of a stupid mistake?

But hey, we're just faceless people on a forum. When the judge gives you what for and possibly takes your kid away, dont be surprised when we say told you so.

You need to remember too that the judge will look at actions leading to such a drastic measure. Did you do anything other than email/text/talk? No. If you had filed motions and asked a judge to decide they may take such a serious move differently. By doing this youve taken the power of the court into your own hands and judges hate that. You have to follow a process. Not following it and then jumping in making a snap decision will only backfire.

Last edited by rockscan; 05-15-2015 at 01:39 PM.
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Old 05-15-2015, 02:28 PM
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Well, it sounds like your lawyer is telling you not to disregard the court order and withhold access unless you have evidence that the child is in danger. And you've got several experienced people on this forum telling you exactly the same thing. So it's now up to you to decide what to do with the opinions that you have sought out, which do not support the course of action you are contemplating.
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Old 05-15-2015, 02:52 PM
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This kind of reminds me of what LF32's ex did before she took off with his daughter. She told the police and people at the Women's Shelter beforehand that she was a victim of abuse (none of those allegations were ever proven).

You say you have hired a "high conflict" lawyer and you are intending on changing the current Order so that your ex will not have access, unless on your terms, to your child. I agree with other posters - why not then just get an emergency motion? I bet I know the answer - because there is no urgency and you can't get anyone to back up your claims of abuse.

You have been at this since 2011. I know what it's like to be taken to court continually by one's ex. It is understandable that your ex is not your biggest fan. You expect him to agree with everything you demand? Not going to happen. There are simply too many cases out there where mother's have alleged abuse in order to manipulate custody in their favour.

Trying to eliminate the father from the child's life is not likely to happen.

You must be wealthy to be able to have lawyers working for you since 2011. Why don't you regroup and take time to reflect on what you can do yourself to make co-parenting more effective. No one wants to see their child in danger but I think this angle you are using is becoming a bit "tired" now.
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Old 05-15-2015, 02:55 PM
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But it`s so hard to be standing on the sidelines, with evidence of drug activity and the threat of aggressive dogs around my child...

Family law is by far the worst system. It`s never black, nor white, and the grey area is full of misconceptions and holes, leaving people like me, who want the best for their kids, who will not stop fighting, basically helpless until tragedy strikes and by strike I mean kiddo becoming tangled in dad`s image of healthy responsible parenting.

My heart just goddamn aches.
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