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  • How to handle this situation?

    Hi, I am asking on behalf of a friend. She is very confused what to do and what will create the least negative impact.

    She lived common law with the guy for about 5 years. They have a 3.5 y.o. She hasn’t worked for the duration of the relationship because when she moved in, he said that he will work and she has to stay home. Now she wants to leave because she can’t take anymore the controlling and verbally abusive nature of her partner.

    She told him she wants to leave, but he said “where can she possibly go so useless and untalented, nothing to look at” and that if she did go, that she has to leave his daughter. She has been moving out slowly, only things that he will not notice and plans last move this Saturday.

    She plans on taking their daughter with her, and will notify him of where his D is so that it doesn’t count as abduction. She is more than ok with shared/joint custody, but it looks like she is the only one. She thinks that by taking him to Court without giving him the chance to settle out of court, will make him hate her even more.

    So this Sat. she will remove her last possessions and bring the child to the new residence. Then right away she will give him the separation agreement where 50/50 custody and support will be discussed. Hopefully he agrees and everything will be ok. However, if he doesn’t agree, she will notify him that she has no choice but to go through courts and then file an application while keeping their D and let the courts resolve this issue.

    My question is there any better way to handle this situation? If you have more questions that can help to clarify, please ask.

    As a side note, she has done his paperwork for tax purposes, and knows what he makes, but on the income tax papers he only makes 25K, so his support for a child is going to be low. Should she also discuss SS in separation agreement?

  • #2
    Clarification to the side note- he has 2 houses ( in one they moved together about 6 months ago). So wouldn't it be kind of obvious in court that he makes more than 25k in order to pay mortgage on both houses? She is not out to get him, she just wants for the child to be taken care of.
    Thanks in advance!

    Comment


    • #3
      Does he actually make more than 25k? Do the houses have equity? Were they gifts? Is one property a rental property?

      If he makes more than 25k but his income appears lower because he is paid under the table then she will want to have an income imputed to him. This will raise his child support and spousal support obligations to what they would be if he claimed all of his income.

      Depending on the circumstances she may have a claim for unjust enrichment with regard to the house they are staying in. This will depend upon their situation and the role she has taken on during their relationship.

      Comment


      • #4
        Originally posted by JB514 View Post
        Hi, I am asking on behalf of a friend. She is very confused what to do and what will create the least negative impact.
        Abducting children in contravention of the Criminal Code Section 283.(1) is probably the worst way to start a separation...

        She lived common law with the guy for about 5 years. They have a 3.5 y.o. She hasn’t worked for the duration of the relationship because when she moved in, he said that he will work and she has to stay home.[/quote]

        This is a whole different matter (employment) but, the best recommendation is for her to seek employment in her previous field of employment. Spousal support awards for marriages less than 10 years are not "forever" so the court will have an expectation that she will return to employment. Some support will be awarded but, it won't be forever.

        Originally posted by JB514 View Post
        Now she wants to leave because she can’t take anymore the controlling and verbally abusive nature of her partner.
        Warning: "Emotional Abuse" is subjective. What reason do you have to the truth of the hearsay being presented by your "friend". Will you bear witness (testify by affidavit or by voice to this fact?)

        There are things the person in question should be doing right now to determine if they are a true victim of "intimate partner abuse". For starters the person in question should go for "intimate partner abuse" screening. (Often improperly refered to as "domestic violence" screening.) There are many professionals who can do this assessment across hundreds of known and testable scales.

        I recommend this prior to removing the children for the following reasons:

        1. False allegations of intimate partner abuse are in fact clinically classified as abuse.

        2. The person in question may be listening with an "anxious ear". What you are quoting may in fact not what is being said. In stressful times people often "interpret" what is being said to them based on their own personal fears and/or anxieties and/or worries.

        3. The removal (abduction) of children in contravention of a custody order is covered and enforced by the Criminal Code of Canada section 283.(1). Without reasonable grounds your friend could be facing abduction charges.

        Originally posted by JB514 View Post
        She told him she wants to leave, but he said “where can she possibly go so useless and untalented, nothing to look at” and that if she did go, that she has to leave his daughter.
        Did you hear this directly from the person in question (the quote). Or was it presented as hearsay to you? Have you ever heard the person in question conduct themselves this way or treat your friend in this manner? Are you prepared to testify that you have actually seen/heard this kind of conduct first hand. (Not that someone told you that the person in question did this/does this but, actually saw it with your own two eyes.)

        Now, on to the planned abduction in contravention of the Criminal Code of Canada Section 283.(1).

        Section 283

        (1) [ Abduction ]

        Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that
        person, is guilty of

        (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
        (b) an offence punishable on summary conviction.

        (2) [ Consent required ]

        No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.
        Despite the tone of the message the other parent is actually technically (legally correct):

        1. Your friend is able to stay at the residence (provided ownership and title) and/or to leave.
        2. Your friend should not (without proper assistance or a signed agreement) remove the child from their habitual residence.
        3. The child should remain at their habitual residence and if the other parent is properly advised will request on an "emergency" motion upon the removal of the child from their habitual residence in contravention of CCC 283.(1) and the CLRA to have the child returned.
        4. The child is NOT your friend's property and as clearly identified in Section 283.(1) of the CCC (above) has no right under law to remove the child without the consent of the other parent and harbour the child anywhere.
        5. If your friend executes on this intent without proper cause (fear of serious personal injury to her AND the child) your friend should expect to pay the other parent's entire legal bill for any motion brought before the court to restore the other parent's rightful custody as outlined in the CLRA and CCC.


        Originally posted by JB514 View Post
        She has been moving out slowly, only things that he will not notice and plans last move this Saturday.

        She plans on taking their daughter with her, and will notify him of where his D is so that it doesn’t count as abduction.
        This isn't the "automatic" clearing of the above charge. What custody and access arrangement is your friend going to make? 50-50 access with full joint custody as it is outlined in the CLRA and CCC? What happens if the other parent exersizes their legal right and comes and picks up their child. Does your friend really want to escalate things? Your first point was to do this with as little conflict as possible.

        Child abduction is not the way to do it.

        Originally posted by JB514 View Post
        She is more than ok with shared/joint custody, but it looks like she is the only one. She thinks that by taking him to Court without giving him the chance to settle out of court, will make him hate her even more.
        Your friend should make an Offer to Settle on just that full joint custody and 50-50 access (2-2-5-5 access schedule) prior to leaving with the child. This offer should be made in accordance with the Family Law Rules. If your friend leaves with no stated intent she can expect an emergency ex-parte motion to be brought forward against her or at minimum an "emergency" motion.

        The key element to abduction under section 283.(1) is PARENTAL CONSENT. Not telling the other person where the child is. The other parent objects you walked right into a really ugly mess.

        Originally posted by JB514 View Post
        So this Sat. she will remove her last possessions and bring the child to the new residence. Then right away she will give him the separation agreement where 50/50 custody and support will be discussed. Hopefully he agrees and everything will be ok. However, if he doesn’t agree, she will notify him that she has no choice but to go through courts and then file an application while keeping their D and let the courts resolve this issue.
        But, she doesn't have the "right" to remove the child from their habitual residence in contravention of the CCC and the CLRA.

        Originally posted by JB514 View Post
        My question is there any better way to handle this situation? If you have more questions that can help to clarify, please ask.
        Serve the seperation agreement, make sure it has a deadline and notify that an application for joint custody will be made by date X. Until such time the access and custody of the child shall respect the CCC and CLRA until such time a court of competent jurisdiction makes an order.

        Originally posted by JB514 View Post
        As a side note, she has done his paperwork for tax purposes, and knows what he makes, but on the income tax papers he only makes 25K, so his support for a child is going to be low. Should she also discuss SS in separation agreement?
        The first order of business is the custody and access of the child in question (arrangements for) and then child support. Spousal Support can be requested on Application at any time.

        Good Luck!
        Tayken

        Comment


        • #5
          To answer a few questions.
          1) In one house there is definitely equity, but she has never lived there. it used to be a rental property, but no longer.
          2)Yes, he makes more than 25k, but writes off a lot. But again she doesn't want to have a war of imputing income.
          3) Yes, he treats her same way in front of guests, so I have heard (not that specific comment) similar put downs like get your ass up and give people drinks, sitting on your ass all day and don't do anything (even though the house is well taken care of and clean), tells her to f... off etc...but things get worse when people are not around and I believe her, considering how he treats her in front of others. But again, she doesn't want to accuse him of abuse or anything. But wants out since all the fights happen in front of their daughter.

          So how I understand it is that she has to stay with the child in their residence, present him with separation agreement, and let the roof of the house go up while the child listens? If he was to sign the agreement right this saturday, than he can exercise his parenting rights that same day if he wants. But at least if he doesn't return the child, then he violates SA.

          Now if she leaves and the child stays in his residence, would she be abandoning the child and he has grounds to sole custody?

          Side note- his first wife ran away with his kid to shelter. Makes one think...

          Comment


          • #6
            If they are common law, then she likely has no claim to other house. There are different laws for common law, and there is no real equalization of assets. You generally get what you came in with to an extent.

            For her to have any claim to the matrimonial house, it would be under constructive trust. She will argue her living in the house and efforts she put into increased the value. He will argue that he is the sole owner and that her payments should be treated as rent, as if she didn't live there, she would have to live somewhere else. And hopefully they can find an equitable solution.

            But because this is a common law, the equalization process is not the same. There is spousal support, but she would have to prove entitlement. Her quiting her job would be one factor. But she will need to find a job to support herself.

            Removing the kid is the easiest way to start a custody war that likely neither parent can afford. Neither parent gets to dictate where the child lives or when the other parent gets to exercise their parenting time. Any efforts to do so look bad on the offending parent.

            It sounds like the relationship is obviously done. She should move her belongings into a separate room and spend as little time with the STBX as possible. All conversations should be about the kid and any other concerns should be directed to email. Do not get drawn into any drama. Email the ex a request to mediate the issues in order to come to find a mutually agreeable conclusion in an economical manner. If they refuse, well...you can't help stupid.

            But what is being proposed here is essentially a midnight move with judges LOVE to HATE. They love digging into parents that feel they can make unilateral decisions relating to the child in such manner. If I were her ex and came home to that, I'd have a phone call into my lawyer so fast to have a motion ready for court monday morning to have the child returned to their familiar residence.

            Comment


            • #7
              Originally posted by JB514 View Post
              To answer a few questions.
              3) Yes, he treats her same way in front of guests, so I have heard (not that specific comment) similar put downs like get your ass up and give people drinks, sitting on your ass all day and don't do anything (even though the house is well taken care of and clean), tells her to f... off etc...but things get worse when people are not around and I believe her, considering how he treats her in front of others. But again, she doesn't want to accuse him of abuse or anything. But wants out since all the fights happen in front of their daughter.
              Well, the "intimate partner abuse" screening will be required possibly for her to leave the house with the child. The police may allow it to happen but, an incident report will be filed and it won't look good on the abducting parent.

              The only reason that the child should be removed is if the child is subjected to abuse and/or neglect and/or maltreatment. From what you are describing is not a great situation for anyone to be in but, the question remains if the child is in danger.

              Originally posted by JB514 View Post
              So how I understand it is that she has to stay with the child in their residence, present him with separation agreement, and let the roof of the house go up while the child listens?
              You are theorizing that this would happen and that the child as a result would be exposed to a danger for which they should be removed from the lawful custody of the other parent?

              Might be best to have some neutral third parties present who won't take sides in the matter present to insure that the "fear" of that kind of conduct doesn't become a reality.

              Originally posted by JB514 View Post
              If he was to sign the agreement right this saturday, than he can exercise his parenting rights that same day if he wants. But at least if he doesn't return the child, then he violates SA.
              He is not obligated to sign the Settlement Agreement presented to him. In fact, if he does it can easily be thrown in the garbage can because leverage gained through a threat to remove a child in contravention of the law *is* signing under duress.

              Originally posted by JB514 View Post
              Now if she leaves and the child stays in his residence, would she be abandoning the child and he has grounds to sole custody
              Nope, it would take a minimum of 6 months to establish "status quo" to get "sole custody". But, your friend can thank WorkingDad and others for really gnawing away at the "truism" of "status quo" and putting forward case law on that concept.

              The better thing to do is to file an Application for full joint custody on a 50-50 access schedule on a 2-2-5-5 rotation. If your friend serves a very well written Offer to Settle and serves it in accordance with the Rules then she can demonstrate before the court that she was trying to settle matters rather than litigate them easily.

              Originally posted by JB514 View Post
              Side note- his first wife ran away with his kid to shelter. Makes one think...
              Warning: He probably knows the game and what to do in the situation your friend is planning on doing. He knows all the "truisms" and what was used against him in the past. He will be very well prepared possibly both emotionally and legally.

              Good Luck!
              Tayken

              Comment


              • #8
                Thank you all for your advice. Her and I did wonder how it would play out if she stayed while figuring out the separation issues.

                He told her that if she stays and they have separate lives (like move to other room etc) she has to pay rent. She is not working, and the father is against her taking the child to day care. Also, unfortunately she moved to his residence that is out of Toronto, and she has no one there to help her with care of the child or otherwise.

                She did speak to a legal aid lawyer, and they advised her to make a temp. custody application before moving out with the child. But then again, from what she knows, he will be livid if she goes through courts. It is almost like if he considers it a blow against his male ego to be taken to court by a woman violating his privacy etc.

                Comment


                • #9
                  Just saw your post Tayken.

                  Yes, he is under no obligation to sign anything, but it is a chance that she wants to give him without involving the courts. Obviously, if her and him can come to an agreement that can be adjusted in SA, then that would be a great outcome. But the real issue here is that she is reasonable in giving him 50% custody/ or joint custody and has no intention in limiting his rights. Whereas he wants her to leave the child with him, period! Not a shared not split anything (kidwise).

                  With his previous relationship, they didn't go through courts either (I think the woman new just like my friend knows his "court issues"). When he cooled down, they worked it out and he sees his kid anytime he wants with no rules as to when, for how long, etc.

                  The child is in no danger of him, except for seeing her parents fight. And apparently he yells like crazy (I have not heard) and broke a few things in anger (I've seen the results). It is just sad to put a child through that even if there is a small chance that he will not take SA well.

                  Comment


                  • #10
                    Originally posted by JB514 View Post
                    He told her that if she stays and they have separate lives (like move to other room etc) she has to pay rent. She is not working, and the father is against her taking the child to day care. Also, unfortunately she moved to his residence that is out of Toronto, and she has no one there to help her with care of the child or otherwise.
                    She will have to get a job whether or not she continues to have a relationship with the guy. Getting a job and getting a separation agreement in place prior to moving is best.

                    She did speak to a legal aid lawyer, and they advised her to make a temp. custody application before moving out with the child
                    The lawyer gave sound advice. Getting the order in place prior to moving out is best. It is likely a less painful process than doing the midnight move. It should be even easier as she seems to fine with 50/50 parenting time. If I were her, I'd make a formal offer to her ex for 50/50 parenting time and joint custody. Or if either parents feel joint may not work, and each parent has strengths in certain areas, then 50/50 parenting time with parallel parenting (meaning one parent gets final say in health and education, the other gets final say in religion = those being the 3 major decision issues).

                    Her moving outside of the city where the child resides is also bad as it will create issues with her ex exercising their parenting time. Is she going to cover the extra costs associated with him spending time with their daughter due to her unilateral decision to move? You said she doesn't have a job, so I am guessing she will likely expect him to do all the driving to spend time with his kid. But she was the one responsible for causing the extra costs, so why should he be responsible to eat them?

                    There are sooooo many factors that she must figure into the equation.

                    [quote ]But then again, from what she knows, he will be livid if she goes through courts. It is almost like if he considers it a blow against his male ego to be taken to court by a woman violating his privacy etc.[/QUOTE]

                    Or, she can make a reasonable offer to him, he can see it as such and they can go their separate ways. She is anticipating the worst......

                    Comment


                    • #11
                      While she is there, she cannot find a job since she is with her D 24/7. She is anticipating the worst because she has tried talking to him nicely and discuss things, but he just says for her to get out and leave the D behind.

                      However, I really do appreciate all of your advices and will get on the phone with her right now and discuss the possibility of presenting him with SA while they are still there, and then take it from there.
                      If she does agree, should she record it in case it blows out of proportion so that possibly she could leave with the child till the court order. Thanks

                      Comment


                      • #12
                        Question: If she currently does not work because she is taking care of the child 24/7, is she going to work if she takes the child away with her, and she would assumedly be responsible for the child's care 24/7 anyway? Also, how did she secure a new "resident" if she doesn't work and is tight for funds?

                        Like all the other posts you've received so far, I would advise against your friend simply just up and taking the child and leaving. Excellent reasons have been outlined in the previous posts why.

                        For something like custody and access, I would strongly suggest that the time and resources be spent to engage the help of a lawyer to draft up a proper agreement, so that it can't be easily set aside or dismissed later because of reasons like both parties were signing under duress without having received proper legal advice. Whatever her next steps are, if your friend has determined for certain that the relationship is at an end, then the child's life is going to be greatly disrupted anyway. Might as well aim to provide some measure of stability in the form of a proper agreement on custody and access, while the other issues/matters are being worked out.

                        Comment


                        • #13
                          Originally posted by JB514 View Post
                          While she is there, she cannot find a job since she is with her D 24/7. She is anticipating the worst because she has tried talking to him nicely and discuss things, but he just says for her to get out and leave the D behind.

                          However, I really do appreciate all of your advices and will get on the phone with her right now and discuss the possibility of presenting him with SA while they are still there, and then take it from there.
                          If she does agree, should she record it in case it blows out of proportion so that possibly she could leave with the child till the court order. Thanks
                          If I were her, I'd stop TALKING with the STBX and start emailing him. Don't discuss anything with him other than the day to day matters relating to the child.

                          From there, journal all her involvement with the child. If she fed and got the kid ready for school, read them a story before bed etc. Put it all in the book. Only list HER involvement, don't have a book full of things the ex DIDN'T do.

                          Also carry a digital voice recorder on her at all times. This is protect herself from any false accusations. DL the recorder to a secure computer each day. If her STBX ever gets angry or aggressive, she should remove herself from the room and go to her own room stating she doesn't like the tone the discussion is taking and will revisit this later by email. If he gets hostile and she legitimately fears for her or the child's safety, she should call the cops. But be sure it is a reasonable fear. And her voice recorder should back up her statements.

                          But there are steps one can take to do things right, while protecting oneself.

                          People don't get to just up and leave with the kids without telling the other parent. If they do, they may get slammed in court by a judge.

                          If she qualifies for legal aid, start the ball rolling as it is in everyones interest anyway to move on.

                          Comment


                          • #14
                            I disagree with Tayken that the circumstances would warrent a criminal code charge of child abduction. For example:
                            Morano v. Coletta, 2008 ONCJ 228 (CanLII) In this case the mother unilaterally took the child from the matrimonial home in Vaughan to reside with her parents in Mississauga, a considerable distance and change in jurisdiction. She, again unilaterally, refused the father any access to the child. The judge's decision, ultimately in favour of the father, included: (bolding mine)
                            Ms. Morano had no intention of child abduction. She returned to a residence in Mississauga, well known by the respondent. However in a broader sense, Mr. Kilgour acknowledged that it is sound policy for courts to discourage forum shopping. The principle is that a parent should not be permitted unilaterally to change a child’s ordinary residence by removing the child. That is what the applicant did in this case. Evidently thechild, given his young age and only eight months of residence in Vaughan, falls at the low end of connectedness to an ordinary residence. Nevertheless, the principle should be preserved; paragraph 1(k) in the respondent’s motion will be granted.
                            While many parents might feel that in such circumstances a criminal code charge should result, the courts do not share this opinion.

                            JB514, to your friend, if she removes the child to a location that is within the same jurisdiction, notifies the father immediately, and immediately offers regular access, there are no grounds for abduction. She is not in fact removing the child, she is setting up a second household and the child now has separated parents.

                            If she denies the father access she will very likely be crushed in a custody hearing, but there is no likelihood of a criminal code charge of abduction.

                            Comment


                            • #15
                              [QUOTE=Exquizique;101005]Question: If she currently does not work because she is taking care of the child 24/7, is she going to work if she takes the child away with her, and she would assumedly be responsible for the child's care 24/7 anyway? Also, how did she secure a new "resident" if she doesn't work and is tight for funds?QUOTE

                              In TO she is moving to an apartment of a friend for a reduced rent. Yes finances are tight, so she draws money out of credit. Because in TO she has friends and if she lives alone, she can take the child to Day care.

                              I am also quite positive that she would not be criminally charged if she withdrew the child from the residence since he would be aware of the whereabouts and have been presented with joint custody agreement. But I agree that in court it might be used against her.

                              So i did speak to her, and she actually was considering as well to try to settle it without moving out first. So I guess we will see what comes of that. Thanks

                              Comment

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