Announcement

Collapse
No announcement yet.

Father's Day Access; Appeal; Stay of Execution

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Father's Day Access; Appeal; Stay of Execution

    Please no anti-father bias debates in this thread unless it directly relates to what I should be doing. I respectfully ask that you limit the conversation to specific points of advice or words of encouragement.

    I. Hearing on May 2, 2012. I applied to have Consent Order of September 30, 2011:

    1. That the time required for service be reduced. Admitted.

    2. Varied as to access - Wednesdays and Thursdays to switch to weekends. Dismissed. Reason - no substantial change in circumstances.

    3. New order as to statutory holiday time and Important Family Events including Father's day. Dismissed. Reason - I allegedly missed parenting time under the Consent Order, therefore "Applicant must prove he can abide by the first order".

    4. New order that Respondent not communicate anything negative about me, or I about her, in the presence of either of my two daughters. Admitted by Consent

    5. New order for FaceTime access. Admitted

    6 & 7 Voluntarily withdrawn by me

    8. Order for costs. Dismissed.


    II. Father's Day Access. According to the legal secretary, I may be able to Stay the Execution of May 2 order pending Appeal, then bring a new application for Father's Day only. I am confused about this and whether I need to file Leave to Appeal form and serve it before requesting Stay of Execution. I do not know to whom I apply for Stay of Execution - BC Supreme Family Court, or Court of Appeals?


    III. Possible grounds for appeal:

    (i) Acceptance of materials filed the morning of the hearing in violation of Supreme Court Family Rules. In practice, "exceptions" to the very specific rules about time for service are allowed. This is a good example of the "law being an ass". The intent of the legislature of making the rules for service easily understandable, fair and specific, has been made a mockery of. The message to the public is, these Rules for Service are not meant to be taken seriously. There is a presumption that a child's best interests are served by ignoring the rules for service as opposed to adhering to them. This now becomes a tactic to unfairly prejudice one side to the litigation over the other, which cannot be in the child's best interests.

    (A lot of that argument is political - I am posting it here to explain my reasoning why I want to appeal on that point, even if that point is unlikely to succeed at Court of Appeals).

    (ii) Over my repeated objections, the judge allowed inflammatory and irrelevant comments about my Plenty of Fish dating and Couchsurfing host profiles. The judge refused to allow me to provide context or explain that the Respondent was dating and leaving the baby with babysitters who smoke from the age of 9 months old, declaring that "irrelevant" and "late" (Respondent as I said filed the same day as the hearing)

    (iii) Respondent's Affidavit filed the morning of the hearing alleged I had missed parenting time. The judge ruled that no extra parenting time could be granted and gave my "missed" parenting time as a reason. The Consent Order contemplated 32 hours of monthly access. I gave evidence which was not contradicted that showed I had negotiated with the Respondent for 48 hours of make-up/additional time in January 2012, 120 hours in February, and 144 hours in March of 2012.


    iv) The judge held that no material change in circumstances had occurred. According to Section 24 (1) (c) of the Family Relations act states that the love, affection and similar ties that exist between the child and other persons should be considered on application to vary an access order. Section 24 (1) (e) states that the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights adequately.*

    The Applicant presented evidence that he is under a Final Custody and Access Order From November, 2006, which declares him a parent with joint custody, care and control of a minor, O. That order has a no-relocation-without-consent clause and a travel-authorisation-required clause. The Applicant presented evidence that the circumstances directly affecting his legal obligations towards O had changed substantially and therefore has a direct effect on his ability to parent M. Uncontested evidence was presented by both sides that the Respondent's parenting schedule can be flexible while she is not working, but that the Applicant's parenting schedules are mitigated by his legal obligations towards his other daughter and the work schedule of her mother.*

    The judge failed to apply the two-step test as prescribed under Gordon v. Goertz, [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321

    *In*Young, McLachlin J. stated at 120:
    ** ** ** ** I conclude that the ultimate criterion for determining limits on*access*to a*child*is the best interests of the*child. *The custodial parent has no "right" to limit*access. *The judge must consider all factors relevant to determining what is*in*the child's best interests; a factor which must be considered*in*all cases is Parliament's view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the*child

    (v) A further substantial change in circumstances is evidenced by the child's age at the time of the Consent Order (9 months) in contrast to her age at the time of the hearing (15 months). (Case law; contemplation that infant access should be mitigated by breastfeeding schedule; Respondent's implied consent to a graduated process)

    (vi) The judge contradicted himself in law by holding that the Consent Order of September 30 could not be varied for any reason, because a) The Applicant allegedly had not availed himself of access time provided for in the September 30 order and b) there was allegedly no substantial change in the circumstances of the child. The judge allowed a variation of the September 30 order on points 1, 4 and 5 of relief sought in the Application.*

    (vii) The Consent Order of September 30, 2011 was made on an Interim and Without Prejudice basis. By allowing certain evidence with respect to the conduct of the parties and disallowing other evidence, the judge unfairly prejudiced the Applicant's case at law going forward.*

    (viii) The judge wrongly denied the clear intention and subsequent confirming actions of the parties that the Consent Order was to be Interim and would require additional negotiation and cooperation between the parties, as it left no mechanism for stat holidays, makeup time, or a time limit for the interim nature of the order to be reviewed. The child was almost twice as old as she was at the time of the "Interim" order.*

    (ix) The Applicant provided evidence, which was not contradicted by the Respondent, that he was an equal co-parent of the child M since her birth January 29, 2011 until the parties' separation on June 5, 2011. The Applicant provided further evidence, which was not contradicted, that he has been the equal co-parent of O since her infancy and was declared so in the Final Order of November 2006 (different case, different mother).

    The Applicant provided further evidence, which was not contradicted, that the Respondent was actively engaged in the Applicant's parenting relationship with his child O from May 2010 through June 2011. The Respondent provided no evidence that the Applicant's parenting capabilities or motivations had changed towards either O or M during the time she has known the Applicant. The judge therefore erred in law and judgment by declaring the Respondent to be the "primary" parent of the child M.*

    (x) The erroneous declaration by the judge about who is and is not M's "primary" parent, was used as part of the reason to deny parenting time to the Applicant, specifically on Statutory Holidays and Children's Birthdays. This reason disagrees sharply with Section (x) Subsection (y) which states Maximum Contact with a non-custodial parent and and other persons (M's sister O) are usually in a child's best interests.
Our Divorce Forums
Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
Working...
X