inlimbo,
welcome to the forum,
as you mentioned
You have to bring forth a motion - see the Family Law Rules - Courts of Justice Act O. Reg. 114/99
link to the same
http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm
Rule 15(14) is applicable with this type of situation
CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE
(14) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made on a motion without notice; or
(e) was made on a motion with notice, if through accident or inadequate notice an affected party did not appear on the motion. O. Reg. 114/99, r. 15 (14).
Regardless of what custodial regime is in place for the child or children, sole or joint etc., the law provides by default that BOTH parent's are equally entitled to make inquires and to be given information in regards to the health, education and welfare of the child.
see the relevant law providing same; section 20(5) of the Children's Law Reform Act R.S.O. 1990 c.C.12
http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK42
Access
(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).
There is a presumption in family law that the starting point for custody adjudications of children is a joint custody regime. The courts apply the best interest test. See section 24(1) and two of the act.
The onus is on the party who desires a sole custody regime of the child or children to prove on the balance of probabilities that a sole custody regime would be superior than a Joint custodial regime by applying the best interest test. Communication and co-operation between the parties are significant factors. However, Courts are aware that one parent may deliberately choose not to co-operate or communicate to support their claim for sole custody. Often courts do order Joint custody or Parallel Parenting regimes of children where no-historical cooperation or communication exists.
see this case
Z.(A.) v. W.(J.), 2004 ONCJ 157 (CanLII)
http://www.canlii.org/on/cas/oncj/2004/2004oncj157.html
In Ontario, until a separation agreement is in place OR an order from the court providing otherwise, BOTH parent's have coextensive custody of the child. In your situation you have an order from the court providing joint custody.
See section 20(1) of the CLR
Father and mother entitled to custody
20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).
See section 20(7) of the act
Entitlement subject to agreement or order
(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).
continued next post
welcome to the forum,
as you mentioned
In the meantime, how can I strike out the fraudulent Court Order obtained?
link to the same
http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm
Rule 15(14) is applicable with this type of situation
CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE
(14) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made on a motion without notice; or
(e) was made on a motion with notice, if through accident or inadequate notice an affected party did not appear on the motion. O. Reg. 114/99, r. 15 (14).
Ex has been using the suspicious Order to gain access to school, teachers & general info.
see the relevant law providing same; section 20(5) of the Children's Law Reform Act R.S.O. 1990 c.C.12
http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK42
Access
(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).
I want sole custody on paper
The onus is on the party who desires a sole custody regime of the child or children to prove on the balance of probabilities that a sole custody regime would be superior than a Joint custodial regime by applying the best interest test. Communication and co-operation between the parties are significant factors. However, Courts are aware that one parent may deliberately choose not to co-operate or communicate to support their claim for sole custody. Often courts do order Joint custody or Parallel Parenting regimes of children where no-historical cooperation or communication exists.
see this case
Z.(A.) v. W.(J.), 2004 ONCJ 157 (CanLII)
http://www.canlii.org/on/cas/oncj/2004/2004oncj157.html
I have had Defacto for 5 yrs but I want it on paper as final since the fraudulent order is effective (or I pressume so?)
See section 20(1) of the CLR
Father and mother entitled to custody
20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).
See section 20(7) of the act
Entitlement subject to agreement or order
(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).
In Case conference we were given permission to bring motion and ex consented to disclosing income (ex has so far refused...saying has not filed since 03, is self-employed - law clerk).
Lawyer seems to think 'trying to reach an agreement' (i.e offers to settle) is best approach.
I am not so sure.
Lawyer seems to think 'trying to reach an agreement' (i.e offers to settle) is best approach.
I am not so sure.
Comment