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  • Spouse denying access... what to do?

    Starting on my X's first week of vacation in July she kept the children without my consent on my weekend when she should have returned them Friday (she returned them Sunday evening until Monday AM.

    I had planned a 2 week vacation including 2 of her weekends (this would equal out her winter vacation where she did the same and took 2 of my weekends to travel). This had been discussed but not specifically agreed to and shortly before my 2 week vacation was to begin she flat our refused to allow me the second weekend and forced me by threatening an emergency court order, to return the children (we did agree to 'split' the final weekend though).

    Today(Friday) I learn that she intends to keep them this weekend (my weekend) as punishment for 'messing up her vacation with the split weekend' compromise.

    As far as I am concerned she is denying access and from what I understand this is serious yet I am discovering that it seems there's little I can do to enforce our agreement and my weekends!

    Tried the court house but an emergency order seems to require some sort of imminent danger to the children to be considered 'emergency' and missing a weekend does not seem to me that it would fit that bill.

    Phoned CAS, they tell me they have nothing to do with this kind of thing.

    I'd like to know what I need to do, what process I need to initiate with the court to make it easier to enforce my rights.

    Also, what do I do to enforce a court order should I be granted one?

    I will be self representing as I can't afford to blow $ on a lawyer, this should not be a difficult process to enforce an already binding agreement?

    Thanks.

  • #2
    Police Enforcement Order

    Read my post on the Police Enforcement Order.. If you have an existing order, and she routinely does not follow it, then at least the police can help you.

    Comment


    • #3
      A signed S/A that has not been converted to an oder by the court wouldn't qualify then? DO I need to ask the court to order her to comply before I can ask for police help?

      Comment


      • #4
        Police Enforcement Clause

        You need to make sure a "Police Assist" clause is included in your court order. It needs to specificaly state, "The (name of local police force), the name of provinicial police), the Royal Canadian Mounted Police and any police and/or law enforcement agencies as may have jurisdiction, are hereby authorized and directed to assist both parties in enforcing the custody and access provisions set out in this order."

        Once you have this in your court order, then you can request for Police assistance in cases where access is denied. Without the Police Enforcement clause, police officers are reluctant to get involved.

        In respect to past efforts to deny access, you can have her charged with contempt. But be aware that this is a quasi criminal charge and judges are reluctant to hold any party in contempt unless there are clear grounds or a pattern of repeated behavior.

        Nadia

        Comment


        • #5
          If you can get the police to help..

          IF you go to the police for help, as a man, without a court order containing a Police Enforcment Clause, I would be very impressed if they did anything to help you...

          You need to go to court and get an order... and at the same time based on your experience, I would get the court to add the police enforcment clause..

          If she takes the kids for days she is not supposed to have them.. You can either get help from the courts or from the police..(Assuming the PEO)

          Dont expect any help from CAS, in my experience they seem to be geared towards the "Children" meaning mommy and the kids and not just the kids.

          Comment


          • #6
            Thanks for the tip.
            This has just started this summer over vacations where she has just 'kept' the kids on her vacation week and run it into my weekend when they should have clearly been returned Friday.
            As a result there are only now 2 instances of denial of access, I can't imagine this would constitute 'repeated behavior' would it?

            In your opinion, would showing that she has been in contempt twice and knowingly denied access unilaterally by providing email documentation and affidavits from other witnessing the missed time be a strong enough case to convince a judge an order with police assist is necessary?

            If only this was taken as seriously as support enforcement!

            Comment


            • #7
              Originally posted by epinecone View Post
              IF you go to the police for help, as a man, without a court order containing a Police Enforcment Clause, I would be very impressed if they did anything to help you...

              You need to go to court and get an order... and at the same time based on your experience, I would get the court to add the police enforcment clause..

              If she takes the kids for days she is not supposed to have them.. You can either get help from the courts or from the police..(Assuming the PEO)

              Dont expect any help from CAS, in my experience they seem to be geared towards the "Children" meaning mommy and the kids and not just the kids.
              I would agree in your statement about going to police.

              I know I can have my S/A or any part of it changed to an order upon request.
              Could I ask a judge to convert our access arrangements to an order AND add the PEO clause to it based on 2 occurrences?

              I should note that our S/A stated that I am to get an additional 'day' as of this year and as such I will have the children 7 nights out of 14. I understand number of nights spent with each parent is how they typically calculate percentage parenting time? She has stated that 'she will discuss it with her lawyer' when I mentioned that clause came into effect this year.
              I somewhat expect that she may not comply with the S/A on that front either and if so, I will need to have that clause sent to the judge for an order at which time I'd like to add the PEO.

              Comment


              • #8
                Paytable2,

                I think you would certainly have grounds to have the Police Assist clause included. There has already been denial of access. You want to make sure it doesn't happen again.

                However, I don't think you will be successful in having her held in contempt by the court at this point. But that doesn't mean you can't warn her that she will be in danger of being held in contempt if she continues to behave this way. Sometimes the warning itself is enough.

                Nadia
                Last edited by Nadia; 08-06-2010, 04:01 PM.

                Comment


                • #9
                  My X is claiming that she was simply on 'vacation'. Fact is she was, her weekend plus the 5 subsequent days should equal a "week" vacation however she extended it to include my weekend. This happened 2 times, both times without explicitly telling me the dates but just stating the 'week' she was taking.

                  I'm not sure how her trying to muddy the water would be on this, it's I think a little different than if it were say my normal weekend and she just refuses access, possibly a little more cut & dried.

                  Any opinions on whether this would be a problem for me in winning an access order?

                  Comment


                  • #10
                    It is more contempt than anything.

                    I would advise her that she is not entitled to your parenting time without your previous consent. And that should she do this again you will be forced to seek relief from the courts through a contempt action.

                    In the mean time, if you have a signed separation agreement, have it filed with your local court house, which causes the agreement to pretty much into a court order. That way should you ever need to go to court, you have a file number to reference.

                    You could also ask if you are entitled to the same vacation period moving forward as you want to be clear of what the vacation times for each parent actually is. If she puts up a stink about you be entitled to the same thing, ask her how she believes she should be entitled to it then.

                    Comment


                    • #11
                      Hammer,

                      Tks for the reply.
                      Our S/A was entered into the continuing record 3 years ago. At that time my lawyer told me I could ask to have it converted to a motion by the court, I did not. She may have done that recently though as either party can, no matter it is on file.

                      I have asked that we sit with a mediator and hammer out the section(s) of the agreement that seem to be causing trouble, like vacations.

                      It states "each parent shall have TWO WEEKS" both summer and winter.
                      Her arguement seems to be that she is counting days during those two weeks as if they were normal parenting time such that '2 weeks for me' only equals my weekend and weekday access while for her it equals her weekend and 4 days per week! Totally twisted logic, I can't see how any sane judge would look at 2 weeks vacation in that respect.

                      My assumption would be a judge would take '2 weeks' to mean 14 days consecutive, that would apply to BOTH of us no matter if I have only 30% access or 50%.

                      Last time she refused access she emailed me with a curt reply basically telling me I am not going to tell her what is fair and SHE believed it was fair she kept the kids on my weekend too bad, so sad.

                      IMO that attitude if read by a judge would be enough to prove she did this willfully.

                      As for the mediator and clarification she has not committed to this but has said she will 'think about it'. Mediator or not we need to sign an amendment into the S/A being more specific about parenting time and vacations for sure.

                      Comment


                      • #12
                        If this happens again, I would advise her that you are attending the regular pickup location at the prescribed time for the exchange of the children. If the children are not there, you will be calling the police to file a report and be taking her to court for denial of access/contempt of court.

                        A judge should read 2 weeks as 14 days, and she will look bad for her willful denial of access.

                        Comment


                        • #13
                          Go read my sample separation agreement, specifically the Custody/Access Exceptions section:

                          http://www.ottawadivorce.com/forum/f...greement-7058/

                          It would probably be best if you tried to get something similar to that added to your agreement. I find it best when dealing with someone who is being difficult, to have something drawn in crayon that you can haul out and use to beat their foolishness into submission.

                          Comment


                          • #14
                            Denied Access

                            Judges may be hesitant in adding the enforcement clause into an order. As was stated by a police officer to me once, the judge might find that it would be a traumatic experience for the children. Hence, same as always you must document and reinforce. I've missed this point some. Whenever your access is denied, document it, and FILE A POLICE REPORT and have them "visit" the mother. She might get very embarrassed (get the message your not going to succumb) each time a cop is on her front door over each access refusal, and you have a validated third party adding evidence. This will be a means of adding police enforcement to an order.

                            Comment


                            • #15
                              NBDad, that's a slick clause in there for the 7-day vacations. For those with alternating weekends, by indicating specifically Sun thru Sat, it avoids conflicts about whether my 7 days can include a weekend otherwise scheduled for my ex, and whether I can start it immediately after my regular weekend (resulting in 9 days). Regardless of which week I choose, it will include one day of the ex's weekend, and will also have another of my weekend days tacked on to the beginning or the end (resulting in 8 days). Kind of restrictive though...

                              Comment

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