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  • When the Divorce Act doesn’t apply



    Hello All,

    I’m looking for peoples’ experience with family law (access, custody, etc.) when the Divorce Act does not apply. In particular, when the Mother and Father were never in a relationship. Since a trial is approaching in several months, what I’m hoping for from this forum is to hear some people’s opinions, advice, and experiences if they are similar to my situation, as follows:

    - Mother and Father were never in a relationship.
    - Mother and Father never lived together (except when the Mother sublet to the Father for 3 months before conception).
    - Father didn’t visit Child until Child was 9 months old. Between 9mos and 2.5 yrs. of age, Father visited ~8 times (each supervised, ~two hours in length).
    - Mother and (now) Stepfather were in a relationship living together since Child was 1 year old (Child now 3). The Child has known the Stepfather as a ‘father-figure’ all of its life.
    - At Child age 2.5, the Father files for custody/guardianship/50-50 access, etc. The Father currently sees the child every second weekend (~32 hours/month) as he lives 4 hours away from the Child.
    - The Father’s parenting capability appears to me to be at a poor level: on some instances he has endangered the Child (took Child to the train-yard, exposed Child to gasoline and its fumes), the child doesn’t eat or isn’t fed much or anything over 7hrs, child doesn’t/isn’t allowed to nap, and the Child verbally protests when being handed over to him for visits. Visit weekends are emotionally and physically hard on the Child. After many visits, child uncharacteristically gets sick. Child regularly displays obvious and problematic behavioural symptoms of stress and anxiety for some period after visits.
    - The Father is impossible to ‘problem solve’ with on all of my endless attempts, rather, it is clear that he wants to control me and even admits his desire to “wring [me] through the courts”.

    Does anyone else have a similar situation to share, and what were your outcomes? Any trial related advice?

    How is it in the ‘best interest of the child’ to be placed in a split-family lifestyle (if it were to be 50-50 access) and taken away from the secure Mother-Stepfather family the Child has known all its life? I do not have an issue if the Father wants to be present part of the time, say, as it currently is at 20-80. Is there an actual “maximum contact” law which would put all of the child’s needs below their “need” to be in the “possession” of the biological father (in this case, a stranger) for the most time possible?

    Thank you for your help. I realize this is a ‘Divorce’ forum, but I have been unable to find other cases similar to mine. I know there are many Mothers and children out there who have had everything Forced upon them, as is my case, and they may appreciate the knowledge presented here.


  • #2
    That was my situation, my ex and I were never married. However, I was involved from my child's birth as much as I could be.

    But given the way this post was put and given that it appears to be a parent who wants to cut the other parent out of the child's life, I really have no time or ambition to give advice outside of it is unlikely the dad will get 50/50 given the distance in residences. But, thankfully for the child, he will be given regular parenting time with the kid.

    Given the BS about gas fumes and stuff, I really just wanted to shut down. I mean, god forbid we end up at a gas station with the windows of the car down. The "not a good parent" crap is all a matter of perspective. And we don't have the other sides story.

    And no, the new partner will never be dad unless the child's father is a dumbass and chooses not to be dad. And if he does, than I have no sympathy for him.

    The Custodial Parent in this situation will just have to accept that the Dad will be in the child's life, and that it is in the child's best interests that the dad is in their life and facilitate the child's relationship with the Dad. Because anything less than that is not in the child's best interests.

    And the divorce act still has relevance and will cover some stuff. The family law act will cover the rest.

    Comment


    • #3
      Well, the most difficult thing sometimes is how to be objective and only, I mean really only, look at what is best for the child.

      I always try to think of what it might be like for my child when they are older. Do you really, really want your son to turn to a friend of his at 16 and say "Yeah, my real Dad was never around when I was growing up. He just gave up on me."

      Is that what you want for your child? Or to have him say "I'll give my parents credit. They did the best they could."

      The bio Dad needs time with his son. I can't imagine any court giving 50/50 access in a situation where the child is travelling 4 hours away. Why would Dad even ask for that, especially in another year that same child will be starting JK?

      But, Dad could move to your neighbourhood and that would be an entirely different situation.

      You may very well get blasted or ignored on this thread. I agree with some of what HammerDad said. I bet a train yard was two and a half year old boy heaven! Be grateful the Dad wants to see your son and spend time doing cool boy things. If you are worried that your son won't eat, pack snacks that you know the boy loves. Be helpful. Your son needs his real Dad too even though your new partner is filling some of that role.

      Honestly, the boy's heart has room for everyone. Ask yourself every day and in every situation, "how can I make this best experience for him?"

      Comment


      • #4
        Originally posted by oh2be_free View Post
        I’m looking for peoples’ experience with family law (access, custody, etc.) when the Divorce Act does not apply.
        This all falls into the jurisdiction of the Children's Law Reform Act of Ontario (if you are in Ontario). Which is a part of the set of laws governing family law. The Family Law Rules would govern the proceedings and the CLRA is the law for which encapsolates the "best interests" test/rules for any custody and access determination for any child. In the matter of a protection issue the Child and Family Services Act of Ontario is used.

        Originally posted by oh2be_free View Post
        In particular, when the Mother and Father were never in a relationship.
        Well, technically they were. Long enough to conceive a child and take on the responsibilities of being parents together. How a child is conceived is really of little concern most often and only considered in extreme situations. Generally the justices know how babies are made and can figure that stuff out without any evidence required from either party.

        Originally posted by oh2be_free View Post
        Since a trial is approaching in several months, what I’m hoping for from this forum is to hear some people’s opinions, advice, and experiences if they are similar to my situation, as follows:

        - Mother and Father were never in a relationship.
        Again, I wouldn't recommend you argue it from this position. You are now in a relationship and the past history no matter how sort is of little relevance other than you have no parental relationship. You are going to have to work extra hard to demonstrate to the court that you can form one. Even if you are seeking "sole custody" and "majority access". In fact, you are going to have to demonstrate to the court that you will tell the other parent everything, every detail and keep them informed and generally be a "super parent".

        Joint custody and equal access if you look at it properly is often easier for single parents. Half the time the other parent is responsible for the children.

        Originally posted by oh2be_free View Post
        - Mother and Father never lived together (except when the Mother sublet to the Father for 3 months before conception).
        This makes equal access hard. If the other parent moved away then, they have to deal with the mess they created and realize that they threw away the opportunity to have joint residency. They should really move back close to the habitual jurisdiction of the child.

        Originally posted by oh2be_free View Post
        - Father didn’t visit Child until Child was 9 months old. Between 9mos and 2.5 yrs. of age, Father visited ~8 times (each supervised, ~two hours in length).
        Supervision ordered by the court? Or ordered by the court of unilateral decisions - your insistence?

        Makes a HUGE difference by the way. If you were interfearing when there were no protection concerns you will easily play out as an over anxious parent and pose a possible danger to the children.

        Originally posted by Justice Pazaratz
        Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.
        Originally posted by oh2be_free View Post
        - Mother and (now) Stepfather were in a relationship living together since Child was 1 year old (Child now 3). The Child has known the Stepfather as a ‘father-figure’ all of its life.
        Again, unless the "step parent" is filing joint on the application in a claim for custody and access it really doesn't matter much in your argument. If the relationship is stable it is a small element for a justice to consider under the best interests test but, the other parent's rights will come well before anything for the "step parent". (Unless they are making a claim for custody and access.)

        Originally posted by oh2be_free View Post
        - At Child age 2.5, the Father files for custody/guardianship/50-50 access, etc. The Father currently sees the child every second weekend (~32 hours/month) as he lives 4 hours away from the Child.
        Wow, that is a dedicated parent to drive 4 hours each way every other weekend to spend time, love, nurture and be with the child. Most parents in a situation like this, whom have had possibly induced unilateral "supervised access" often give up and try to disappear. They don't drive 8 hours every other weekend to exercise access. A judge will notice this fact by the way. Possibly see it from a similar light too.

        Originally posted by oh2be_free View Post
        - The Father’s parenting capability appears to me to be at a poor level: on some instances he has endangered the Child (took Child to the train-yard, exposed Child to gasoline and its fumes), the child doesn’t eat or isn’t fed much or anything over 7hrs, child doesn’t/isn’t allowed to nap, and the Child verbally protests when being handed over to him for visits. Visit weekends are emotionally and physically hard on the Child. After many visits, child uncharacteristically gets sick. Child regularly displays obvious and problematic behavioural symptoms of stress and anxiety for some period after visits.
        I see your true colours shining through. You are expressing incredible nonsense that is often related to over anxious parents. I would recommend you really evaluate your statements and the comments from HammerDad.

        You will be eaten alive in a court room with this argument if the other parent has any intelligence and especially if they have a lawyer representing them with even minimal experience in Family Law.

        Originally posted by oh2be_free View Post
        - The Father is impossible to ‘problem solve’ with on all of my endless attempts, rather, it is clear that he wants to control me and even admits his desire to “wring [me] through the courts”.
        I would read this case law in full to understand what could happen should you put forward deceptive arguments on the other parent's treatment of the child, "controlling" behaviour.

        CanLII - 2011 ONSC 6451 (CanLII)

        See paragraphs 71 through 86 and then read paragraph 566. This situation is similar to yours in that the now sole custodial parent is the father... The mother attempted every "truism" against the father and the court didn't accept any of them. You are forewarned.


        Originally posted by oh2be_free View Post
        Does anyone else have a similar situation to share, and what were your outcomes? Any trial related advice?
        This one: CanLII - 2011 ONSC 6451 (CanLII)

        It is a similar situation you are describing with all the same allegations made by a parent... Interestingly the person whom made the false allegations is not the custodial parent... anymore...

        Oh, did I mention this one: http://canlii.ca/t/fnr57

        Highly recommended you read this one too if I haven't mentioned it already: CanLII - 2011 ONSC 6451 (CanLII)

        Good Luck!
        Tayken

        Comment


        • #5
          HammerDad,
          Thank you for your response. It is good to hear other peoples perspectives.
          Originally posted by HammerDad View Post
          Given the BS about gas fumes and stuff, I really just wanted to shut down.
          I know this point may be insignificant, but I just have to clarify that the situation with the gasoline was not as trivial as being exposed to some fumes. It involved Father refuelling his car from a leaky jerry can with the Child standing next to him, gasoline splashing near the Child's feet while holding the car gas tank cap.

          Originally posted by HammerDad View Post
          The Custodial Parent in this situation will just have to accept that the Dad will be in the child's life, [...] Because anything less than that is not in the child's best interests.
          Here you have brought up my most burning question: When the child has had a nuclear family for the first 3 years of its life (Mum, Stepdad), why is it in the Child's best interests to be put into a split-family/50-50 access situation? Especially when the Child and Bio Father can develop a terrific relationship with say ~20-80 access? I was required to attend a 'Parenting after separation' course, where I learned that it was evident that children in split-families are at a 'disadvantage' and do poorer in many aspects of life (such as learning development, or relationships) in comparison to kids with a 'whole' family. It seems obvious to me that it is best for the child have a relationship with the Father that does not impede having the nuclear family.


          SadAndTired,
          Thank you too for your response with refreshing insight.

          Originally posted by SadAndTired View Post
          Ask yourself every day and in every situation, "how can I make this best experience for him?"
          I do do this. And I hope most parents do this as well.

          Comment


          • #6
            Originally posted by oh2be_free View Post
            I know this point may be insignificant, but I just have to clarify that the situation with the gasoline was not as trivial as being exposed to some fumes. It involved Father refuelling his car from a leaky jerry can with the Child standing next to him, gasoline splashing near the Child's feet while holding the car gas tank cap.
            Call CAS and report it. See what they do and recommend to you as a parent. I can tell you they will dismiss your claim, raise a concern that you are making such allegations and guess what - a justice will more than likely slam this story right back at you and say exactly what CAS would tell you - but with prejudice a raised voice and a warning to you to seek assistance for your fears and/or anxieties and/or worries and order costs against you probably.

            Also, how do you know all this supposed information? Were you there to witness the event?

            Originally posted by oh2be_free View Post
            Here you have brought up my most burning question: When the child has had a nuclear family for the first 3 years of its life (Mum, Stepdad), why is it in the Child's best interests to be put into a split-family/50-50 access situation?
            The question is how this "status quo" was created in the first place. You tend to blame the other parent but, have stated that they had "supervised access". Hopefully the status quo was not obtained through falsifications and deceptions about filling up a jerry can of gas with a parent as your main "evidence" to abuse and/or neglect and/or maltreatment that lead to "supervision of access".

            Originally posted by oh2be_free View Post
            Especially when the Child and Bio Father can develop a terrific relationship with say ~20-80 access?
            Really? You actually "believe" this? If what you have described is the only evidence you can bring forward there is NO REASON that 50-50 shouldn't be in place.

            Originally posted by oh2be_free View Post
            I was required to attend a 'Parenting after separation' course, where I learned that it was evident that children in split-families are at a 'disadvantage' and do poorer in many aspects of life (such as learning development, or relationships) in comparison to kids with a 'whole' family.
            Care to share the name and location of the provider of this information?

            Originally posted by oh2be_free View Post
            It seems obvious to me that it is best for the child have a relationship with the Father that does not impede having the nuclear family.
            I truly hope you walk into court with this argument... For the sake of the other parent and that the other parent has competent representation from a lawyer at trial...

            Good Luck!
            Tayken

            Comment


            • #7
              Originally posted by oh2be_free View Post
              SadAndTired,

              Thank you too for your response with refreshing insight.
              You are very welcome.

              Originally posted by oh2be_free View Post
              Originally Posted by SadAndTired
              Ask yourself every day and in every situation, "how can I make this best experience for him?"
              I do do this. And I hope most parents do this as well.
              Then that is all you can do. I think most of the parents here are just trying to do their best too. I hope it works out for you.

              Comment


              • #8
                Aargh. I wish the people who run these courses would get up to date on the most recent research. Children of divorced parents do *not* do worse than children from "undivorced" parents across the board. Once changes in economic status are taken into account (children from divorced parents are more likely to live in households with single-income earners, compared to children with undivorced parents), most of the differences between the two groups disappear.

                Children from parents who divorce actually have better life outcomes (mental health, educational attainment, criminal activity) than children from parents who don't divorce but who rate the quality of their marriage as poor or highly conflictual. Look at the long-term research by Andrew Cherlin (US) or Lisa Strohschein (Canada) for evidence.

                Originally posted by oh2be_free View Post
                HammerDad,

                Here you have brought up my most burning question: When the child has had a nuclear family for the first 3 years of its life (Mum, Stepdad), why is it in the Child's best interests to be put into a split-family/50-50 access situation? Especially when the Child and Bio Father can develop a terrific relationship with say ~20-80 access? I was required to attend a 'Parenting after separation' course, where I learned that it was evident that children in split-families are at a 'disadvantage' and do poorer in many aspects of life (such as learning development, or relationships) in comparison to kids with a 'whole' family. It seems obvious to me that it is best for the child have a relationship with the Father that does not impede having the nuclear family.

                Comment


                • #9
                  Tayken,
                  Thanks for your long replies, they truly are helping me a lot...and I can barely keep up!

                  Originally posted by Tayken View Post
                  [Originally Posted by oh2be_free
                  - Father didn’t visit Child until Child was 9 months old. Between 9mos and 2.5 yrs. of age, Father visited ~8 times (each supervised, ~two hours in length).]

                  Supervision ordered by the court? Or ordered by the court of unilateral decisions - your insistence?
                  The Father chose to live ~10hours away. There was no court proceedings present during this time. I initiated the visits, asking the Father to visit, so that the Child could know the Father. He often could've visited longer but chose not to.

                  Originally posted by Tayken View Post
                  Again, unless the "step parent" is filing joint on the application in a claim for custody and access it really doesn't matter much in your argument. If the relationship is stable it is a small element for a justice to consider under the best interests test but, the other parent's rights will come well before anything for the "step parent". (Unless they are making a claim for custody and access.)
                  Yes, the Stepfather is applying for custody. I heard from a lawyer that, since the Stepfather already resides with the child, he should not apply for access, and this makes sense to me. Do you know if it is 'messing with the court' to have him apply for access, so that access were, say 30-30-30, even though the Mum and Stepfather live together? Or should he apply?


                  Originally posted by Tayken View Post
                  I see your true colours shining through. [...] You will be eaten alive in a court room with this argument...
                  Thanks for this point, and for all the resources you've pointed out.




                  Originally posted by Tayken View Post
                  Also, how do you know all this supposed information? Were you there to witness the event?
                  Yes, I did witness the event. I could not act quickly to prevent it as I was inside and they were outside. Anyways, we can drop this point, as you've given me plenty of information. Thanks.


                  Originally posted by Tayken View Post
                  The question is how this "status quo" was created in the first place. You tend to blame the other parent but, have stated that they had "supervised access". Hopefully the status quo was not obtained through falsifications and deceptions about filling up a jerry can of gas with a parent as your main "evidence" to abuse and/or neglect and/or maltreatment that lead to "supervision of access".
                  As I mentioned above, I had to initiate visits from the Father. He showed little interest in visiting his child much until the age of 2.5. I offered plenty of opportunities. There was no court involved.


                  Originally posted by Tayken View Post
                  [Originally Posted by oh2be_free
                  Especially when the Child and Bio Father can develop a terrific relationship with say ~20-80 access?]
                  Really? You actually "believe" this?
                  Of course. Why not? Its quality of time, not quantity. Do kids not form fantastic friendships with multiple friends in school and highschool, which is ~20% of their time?

                  Originally posted by Tayken View Post
                  Care to share the name and location of the provider of this information?
                  This is the program, but it doesn't show the content of the program:
                  Parenting After Separation | Justice Education Society of BC

                  Thanks again.

                  Comment


                  • #10
                    Although I don't doubt the validity of your research Stripes, I think what the OP is saying is that, from the child's perspective, their family has consisted of living with Mom, StepDad and child for their entire life. Bio Dad is someone the child visits.

                    She feels 50/50 at this point would cause a broken family experience for the child. Not the initial separation of Mom and Dad. I so understand what she is saying but unfortunately, bioDad should still be as much as a part of the child's life as he can given the distance.

                    Comment


                    • #11
                      I guess the big questions are:

                      1. What is the current parenting schedule?
                      2. Who moved to cause the 4 hour distance (likely less relevant now, but still may be a point to mull over)?
                      3. Why was the fathers parenting time supervised?
                      4. Why was the fathers parenting time limited to only to hours? If due to nursing, when did it become overnights?

                      It is in the child's best interests to have both parents involved in the child's live. Just because there is a new Beau, doesn't make that person a part of the child. It is best for the child to know both sides of themselves. The maximum contact rule is there to promote that. But that said, maximum contact 4 hours away from each other is unlikely going to be 50/50 split. The EOW, a few weeks in the summer, long weekends and every other march break will likely be the norm, unless the parents live substantially closer.

                      You seem to suggest the new partner will fill the role of the father. I disagree. They will add to the child's life, but the child will only ever have 1 father. And the relationship a child has with either of their parents is equally important.

                      And as for the gas dripping at the kids feet....umm, my ex is a Child Protection Worker. She's been around a lot of complaints, but I bet she wouldn't care about that. Had the child drank some or the father poured it on the child intentionally, you may have a case. But I think I spilled some gas near my kid filling the lawnmower last year......it happens.

                      Comment


                      • #12
                        Originally posted by oh2be_free View Post
                        I know this point may be insignificant, but I just have to clarify that the situation with the gasoline was not as trivial as being exposed to some fumes. It involved Father refuelling his car from a leaky jerry can with the Child standing next to him, gasoline splashing near the Child's feet while holding the car gas tank cap.
                        If you know it is insignificant, why are you bringing it up? You are speaking of a 2 minute episode in the child's life. I'm sorry, when I was a teenager I worked for years as my p/t job in high school pumping gas. Your stance on this is terrible. You are taking a small episode of minimal importance and trying to use this to take any level of access away from the father?


                        Here you have brought up my most burning question: When the child has had a nuclear family for the first 3 years of its life .... blah blah blah.
                        This would be obvious if you wanted to see it.

                        You apparently want your child to grow up feeling that their biological father didn't give a shit about them and abandoned them. When this is not true, the bio dad wants to have a relationship. But having a relationship isn't in your plans. You want to have a fantasy life where the bio dad doesn't exist, because that is what YOU want for YOU. Bio dad is inconvenient for you, so bio dad shall cease to exist.

                        I'm sure your child will thank you for efforts to build walls between him and his dad.


                        I do do this. And I hope most parents do this as well.
                        I don't know any parents, including those in acrimonious divorces, who do what you are doing.

                        Comment


                        • #13
                          Originally posted by oh2be_free View Post
                          The Father chose to live ~10hours away. There was no court proceedings present during this time. I initiated the visits, asking the Father to visit, so that the Child could know the Father. He often could've visited longer but chose not to.
                          You still haven't answered the question. Why is there a commute (4 or 10 hours?) between both parents?

                          You shouldn't be asking the other parent to "visit" their child too... You should be requesting they *parent* their child as well.

                          Originally posted by oh2be_free View Post
                          Yes, the Stepfather is applying for custody. I heard from a lawyer that, since the Stepfather already resides with the child, he should not apply for access, and this makes sense to me.
                          So, you and the 'stepfather' are joint applicants or joint respondents to the Application?

                          Originally posted by oh2be_free View Post
                          Do you know if it is 'messing with the court' to have him apply for access, so that access were, say 30-30-30, even though the Mum and Stepfather live together? Or should he apply?
                          First, he has to establish himself as an in loco parent. Basically what you have stated to the court, with extreme prejudice in the processes of joint application or response is that the 'stepfather' is acting in place (in loco) of the other father. I wouldn't have advised this to anyone in the situation you are describing for a child so young. Generally you only see this in absent parental cases where the other parent is missing and the matter is an adoption situation.

                          Very agressive to do a joint filing potentially. Family law is a matter of perception and honestly, you are not projecting well on this site.

                          Originally posted by oh2be_free View Post
                          Yes, I did witness the event. I could not act quickly to prevent it as I was inside and they were outside. Anyways, we can drop this point, as you've given me plenty of information. Thanks.
                          If you have a lawyer, no doubt they have told you to drop it as well. If they didn't and put it into an affidavit or a letter to the other parent as a complaint or "evidence" to parental miss conduct... I would recommend you seek out a better lawyer.

                          Originally posted by oh2be_free View Post
                          As I mentioned above, I had to initiate visits from the Father. He showed little interest in visiting his child much until the age of 2.5. I offered plenty of opportunities. There was no court involved.
                          You better have solid evidence to back up this hearsay allegation. For example, emails, registered letters, an offer to settle served in accordance with Rule 18 by your lawyer, etc...

                          Originally posted by oh2be_free View Post
                          Of course. Why not? Its quality of time, not quantity. Do kids not form fantastic friendships with multiple friends in school and highschool, which is ~20% of their time?
                          Really, you are going to compare the relationship between a child and their friend (of the same or similar age) to that of a parental relationship? The father is NOT a friend but an equal parent to you.

                          Put that argument forward. I encourage you to for the benefit of the other parent and not your own argument. I am very doubtful form this and other comments you have made that you are being honest with this community on your position at all. I suspect that access denials have been a significant issues and why the matter is now before the courts.

                          Justice Mossip in Reeves v. Reeves [2001] O.J. No. 308. Paragraph 38:
                          Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrated the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist's or doctor's. It is the responsibility of good parents to manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.
                          As Justice Quinn stated in Gerenia v. Harb[10]:
                          Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform. But ask we must and perform they must. A child who refused to go on an access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves. The job of a parent is to parent.
                          I caution you to heed the very wise words of the Honourable Madame Justice Mossip and the Honourable Mr. Justice Quinn.

                          Good Luck!
                          Tayken

                          Comment

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