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**logicalvelocity** · 08-17-2006, 09:57 PM

Sloane,

generally before the first appearance, you will meet with the Registrar. The Registrar, will confirm that all the paperwork is in place and the case is ready to proceed for a first case conference. I suspect not too much would happen during the first case conference, other than the status quo will remain intact, unless there was a cogent reason for making an abrupt change.

Currently at law, both the natural parents have coextensive custody of the child until an order from the court or a separation agreement provides otherwise. However, since neither are acting as a parent and the child is not living with either parent, their authority to act as same is somewhat suspended, but not ended. Access to their child would and does survive. They also have the right to make inquiries into the health and welfare of the child.

I think you have already your best foot forward, as you have been looking and caring for the child and the parents have somewhat given acquired consent for the child to be in your care. I suspect the court will investigate the reason why both of these individuals have not been acting as a parent to their child.

For a infant child bond and stability is very important right now. I suspect the court may grant some sort of access to the father, however, I'm guessing that it would be short frequent durations. Overtime, the child's access will increase to the parent or parents. Ultimately, I suspect the court will not interrupt the status quo if you are willing and able to look after the child. It is most likely you and your husband is the only people this child has bonded too currently.

lv

**sloane** · 08-18-2006, 11:10 AM

Thank you very much for responding. I just worry that the father will come knocking on my door and I have nothing to say that she is supposed to stay with me. CAS has told me that they would like her to remain with me however they cannot give me anything in writing because they never placed her with me. Do you know if I have any rights with regards to not allowing the father to come and remove her from my care or am i just plain screwed if he shows up? I know that I can go to get an emergency hearing with CAS backing me but by that time they may have left Toronto.

I know that the longer she is with me the better chance I have of a judge granting me custody if the natural parents are unable to care for her. Is there a benefit to me to have the Office of the Children's Lawyer involved? Are they generally able to see through the lies that are told by the parents or will they fall for it like so many other have? What kind of criteria are they looking for when deciding where the best place for a infant should be?

Thank you in advance for your information.
Sloane

**logicalvelocity** · 08-18-2006, 10:11 PM

sloane,

It is apparent that the CAS has good faith and trust in your parenting of the child. If they had concerns, they would of removed the child from your care a long time ago.

If the parent's do show up on your doorstep unannounced to retrieve the child, I would not release the child unless they had a endorsement or a court order. Legally, they have coextensive custody of the child until an separation agreement or an order from the court provides otherwise. However, the parents are separated and they appear to have given you their acquired consent to act as a parent for the child to be in your care. They basically have abandoned this child. Their right to custody is suspended, but not ended. In a custody adjudication, the best interest test is applied. Other considering factors are bond and stability and parental conduct. So far these individuals appear to be irresponsible. You conduct could be scrutinized in the aspect of how you managed the ongoing parental responsibilities of the child.

I would think your best foot forward is that you and your husband are the only caregiver that the child has bonded too and currently knows. You are willing and able to act as a parent to the child. If the child was removed from your care now, I would think that it would be detrimental to the child's emotional well being.

You should allow the parents to see the child, but you could supervise the child's access to them or request that it occur at a supervised access center until you get the court's endorsement. A reasonable access regime would be for a few hours, a couple of times a week.

If they got an emergency order, generally the matter is returned to allow you to present your side and evidence. I suspect the court would not hear an emergency motion, as you currently have an application for custody for same before the courts. The child is not in an y harm while in your care. Generally motions are not allowed until a case conference is held that deals with the substantive issues in the case.

You could ask the court at the case conference for an order to have the Office of the Children's Lawyer involved in the case to represent the child and conduct a parental assessment of the natural parents and also yourself and your home. However, the child is young, and has difficulties communicating. The court could or may order a request for their involvement, but ultimately it is up to the office of the children's lawyer to take on the case, they may decline.

Continuing what you are doing, maintain the status quo. This is your best foot forward. So far the natural parent's have yet to prove themselves.

Something to think about and you may want to emphasize at your first case conference before the Judge

Has either of the parent's provided any type of monetary support to you for caring for the child?

Has either parent been concerned about the child's health and ensured that the child attended the doctor or received the recommended immunization?

Have they ensured that the child was being feed and or that you had an adequate supply of diapers?

Have the parent's requested access to the child?

Lots of questions but If they haven't, this in itself sort of suggests that they may be neglecting their obligations and is essential that the child remain to be in your care.

lv

**sloane** · 08-19-2006, 12:24 AM

I feel very hopeful with all you have said and the answer to those 4 questions were all "NO". The father puts on a good show for others but he can go weeks without even a phone call to check on his baby and the mother is so heavily into drugs that I am not sure that she even remembers that she has a daughter (and a son).

I have one further quick question. The baby's birth was never registered (born May 2005) and therefore the father was never listed as the father. Furthermore, knowing the mother as I do, it is very possible that she was with more than one man at the time. Is it even legally possible for him to fight me on custody when nowhere does it say that she is his daughter? Would he have to do a DNA test to prove she is his and if so, who has to pay for that?

Thank you
Sloane

**logicalvelocity** · 08-19-2006, 03:10 AM

sloane,

for establishment of paternity, refer to the applicable law

Children's Law Reform Act R.S.O. 1990 c. C.12

http://www.e-laws.gov.on.ca/DBLaws/S...0c12_e.htm#BK5

Presumption of paternity

8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:

1. The person is married to the mother of the child at the time of the birth of the child.

2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.

3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.

4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.

5. The person has certified the childâ€™s birth, as the childâ€™s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. R.S.O. 1990, c. C.12, s. 8 (1).

Where marriage void - (Common Law)

(2) For the purpose of subsection (1), where a man and woman go through a form of marriage with each other, in good faith, that is void and cohabit, they shall be deemed to be married during the time they cohabit and the marriage shall be deemed to be terminated when they cease to cohabit. R.S.O. 1990, c. C.12, s. 8 (2).

Conflicting presumptions

(3) Where circumstances exist that give rise to a presumption or presumptions of paternity by more than one father under subsection (1), no presumption shall be made as to paternity and no person is recognized in law to be the father. R.S.O. 1990, c. C.12, s. 8 (3).

Admissibility in evidence of acknowledgment against interest

9. A written acknowledgment of parentage that is admitted in evidence in any civil proceeding against the interest of the person making the acknowledgment is proof, in the absence of evidence to the contrary, of the fact. R.S.O. 1990, c. C.12, s. 9.

With that said, all he and the mother would have to do is swear in an affidavit that he is the father. The court would accept this as proof of parentage.

Under the Vital Statistics Act R.S.O. 1990, c. V.4, a birth of a child is to be registered within 30 days of the child's birth. This further suggests that they as parents are irresponsible. The evidence keeps mounting against them. Does the child even have an OHIP card yet? If so, who has possession of this card.

http://www.e-laws.gov.on.ca/DBLaws/S...v04_e.htm#BK15

section 9(2) of the act

Statement by parents

(2) Within thirty days of a childâ€™s birth in Ontario, the mother and father shall make and certify a statement in the prescribed form respecting the childâ€™s birth and shall mail or deliver the statement to the division registrar of the registration division within which the child was born.

As I mentioned, you already have your best foot forward. You have been the person caring for this child and the ongoing responsibilities of same. (status quo). Common sense says that the child has bonded with you where as the bond with the natural parents may yet to be established.

lv

**sloane** · 08-19-2006, 07:34 PM

Thank you again for all the wonderful information. Yes, the baby does have an OHIP card and it is in my possession. How did she get a Health Card for her as well as collect CCTB without registering her birth? I am having difficulty registering her birth because I am unable to get the mother's signature on the forms (haven't seen or heard from her since May 17). They have also told me that I cannot register her with my signature until I get a custody order.

I'm also confused about something (not the first time!!) with regards to support payments. When I went to court last week, someone who works for the City of Toronto asked me why I had not gone after the father (who was working but I didn't know for who) for child support. I am currently collecting social assistance for the baby as she has no assets (I do not collect for myself). I explained to her that I was not aware that I could get support payments from him, nor did I ever want to appear that all that mattered to me was money. My sole concern is for the safety and security of this sweet little girl. Do I just go to court on my next court date (Oct 12) and include support payments in my application or is this something that I should do separately now? The City of Toronto obviously does not want to pay for a child when the father is able to. How are support payments determined?

Thanks
Sloane

**logicalvelocity** · 08-19-2006, 10:00 PM

sloane,

When the child is born in the hospital, a form is filled out subsequent to the birth for an OHIP card. The card most likely was mailed to the mother. Registering births currently is a long process. It takes about 5 months to receive a birth certificate once the initial registration has been completed and filed at City Hall. City hall then subsequently forwards the certified form to Vital Statistics. Sometimes if you contact your local MPP for your area you can get the process expedited as they have back door phone and fax numbers that the general public is not aware.

Registering births

The only people that can register the birth is the parents. If one parent is unknown or is incapable ie:deceased or illness, the sole parent could proceed to register the birth. If both parents are incapable then another individual could proceed to register same. If the child's birth is not registered, the Registar at Vital Statistics may go ahead and register the child's birth, However they seldom exercise this protocol. It appears that you may have to put this process on hold until you have a custody order in place.

On your comment in regards to the CTB of the child's

CCRA is aware of the backlog of birth registrations and have been taking the parent's word on their respective income tax. They allow this so long then they request that the parent's provide a copy of the child's birth certificate. If the parent's do not comply with CCRA request for same, CCRA will sever/suspend the CTB and other credits. I believe CCRA will pay up to 11 months retro payment once they receive the requested documentation.

On your comments for child support

Child support is the right of the child. Currently the child is considered a public charge. The courts would not issue a child support order until custody of the child is determined. In the interim, It looks really bad on the father and mother for not paying a volunteer amount of child support. If your asking for strategy and if it was me, I would put a hold on child support until a custody order is in place. Get the interim custody order in place then go after child support.

The court may address the issue of child support at the forthcoming case conference, However, I suspect the court will maintain the status quo living arrangement of the child. The court may give an opinion or a recommendation. The court may recommend that the parents exercise some sort of the child's access. Ultimately, I would think no major orders such as custody will occur at the first case conference. The reason why I suspect that this will occur is that the parties conference briefs are unsworn and they don't form part of the continuing record.

In regards to the parents receiving a CTB and other credits for the child when the child is not in their care, this conduct sure paints a picture about them suggesting that they are dishonest. Credibility and demeanor is everything in family law.

lv

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