Ex wife trying to get the kids back

[J_Kitchener2010]

Hello All, It has been a few years since I posted on this forum as things have been fairly uneventful with my ex. However, things are coming to a head again and I would be grateful for some advice.

Short version of my situation:

Single father of four boys. My two older boys, 11 and 9, are from my previous marriage that ended 2005. Their mother has had issues with substance abuse, assault, dUI's etc, and I got primary residential custody in 2007. The boys have lived with me since and have had every other weekend (and some week nights) with their mother.

My two youngest boys, 5 and 2, are from a recent relationship which just ended in July. My recent ex and I have parted ways very amicably and have agreed to 50/50 shared custody with my two youngest boys. We live 5 mins from eachother in Kitchener and have agreed all four boys should attend the same school. She is very attached to my older boys as she has been in the picture since 2005 and she will continue to see them at least once a week for sleepovers and before and after school.

My issue is this: My ex wife (mother of my older boys) is trying to capitalize on this situation and has filed a motion to change in order to try and get custody back of my older boys. Her argument is that I'm never home and am always working and now that my recent ex is out of the picture, the boys will be neglected. There is no merit to this statement. In fact I have very flexible hours at work and am a nine-to-five executive. I even work from home some days.

Question 1. What is the liklihood she will succeed in court? Doesnt she have to prove that I am unfit for the courts to consider changing the order? I mean status quo has been set for over 5 years now. Secondly, she recently had the police at her house and there were charges of assault against her boyfriend and the boys were present. Child Services has a file open on her currently.

Question 2. She had her boyfriend (who the police put a restraining order against him preventing him seeing the kids), come and serve me with the motion on Friday last week. How long do I have to respond to her motion to change? There is no court date that I can see.

Question 3. Any other advice or pointers on what I need to do here?

My gut tells me she does not have a chance but you never know. I am still concerned.

Any advise that you can offer would be greatly appreciated.

Kitchener Dad.

[HammerDad]

IMO, there hasn't been a material change in circumstances, so her motion has not merit.

I would first ask for it to be quashed on the basis there hasn't been a material change in circumstances. Your relationship wasn't a factor in why you got the boys to begin with.

Second, if I couldn't manage to get the motion tossed, I would argue that it is in the children's best interests to remain with you. Show they are thriving at school and socially. They have lived with you for 5-6 years so you have status quo and that you do what you can to facilitate your ex's relationship with the children, notwithstanding her regular police involvement.

It is normal to feel concerned, but your case is really strong. I'd recommend getting a lawyer to help with this, but ultimately, I don't think she has a chance.

[J_Kitchener2010]

Thank you Hammerdad. I appreciate your insight and agree with you regarding a material change in circumstances.

A general question to all: Her boyfriend served me with a Motion to Change Form 15 and two signed affidavit forms 14A. Do you know what I need to do to respond (cannot afford a lawyer), and how long I have?

[Tayken]

IMO, there hasn't been a material change in circumstances, so her motion has not merit.

I would first ask for it to be quashed on the basis there hasn't been a material change in circumstances. Your relationship wasn't a factor in why you got the boys to begin with.

Second, if I couldn't manage to get the motion tossed, I would argue that it is in the children's best interests to remain with you. Show they are thriving at school and socially. They have lived with you for 5-6 years so you have status quo and that you do what you can to facilitate your ex's relationship with the children, notwithstanding her regular police involvement.

It is normal to feel concerned, but your case is really strong. I'd recommend getting a lawyer to help with this, but ultimately, I don't think she has a chance.

I agree 100% with HammerDad on this one. Look into the rules regarding a "material change in circumstance".

In fact, the counter argument to the whole ordeal is that the two older children have formed a bond and relationship with their younger siblings and you have worked out arrangements to insure their "best interests" and continuance in their relationship with their brothers/sisters is maintained.

It would be in my opinion, against the "best interests" of all the children involved in this family to disrupt their relationship with their siblings. So sole custody and limited access for you would not be in the children's best interests as they have bonds and relationships with their other siblings.

Now, the argument for a 50-50 agreement where access is shared equally may be an option if the schedule can be arranged where the children all reside with you at the same time. This would take a lot of cooperation to make work and not the court system unfortunately.

Good Luck!
Tayken

[singledad99]

A general question to all: Her boyfriend served me with a Motion to Change Form 15 and two signed affidavit forms 14A. Do you know what I need to do to respond (cannot afford a lawyer), and how long I have?

You have 30 days to respond to the material. The documents that were served on you should have the first appearance date mentioned on them.

[Tayken]

You have 30 days to respond to the material. The documents that were served on you should have the first appearance date mentioned on them.

And they should have a court stamp. You are best to call the court and verify that the matter has been scheduled to be heard in accordance with the paperwork you were served.

I would call (or go into) the court house to verify the materials have actually been served on the court and the dates are correct.

Good Luck!
Tayken

[J_Kitchener2010]

Thank you all for your help! I do not see court stamps anywhere on this paperwork and no indication of a court date, even though my ex sent me a text saying Sept 14th is the date. I only got served on Aug 31st so I will definitely have to call the courthouse. If I'm not mistaken we should also be going to a case conference first?

[WorkingDAD]

I would start here
MOTION TO CHANGE A FINAL FAMILY COURT ORDER OR A SUPPORT AGREEMENT - A Self-Help Guide

C) If you are not proceeding on consent
If you and the other person cannot reach an agreement at the beginning of the case, you must:
• take your completed Form 15: Motion to Change and Form 15A: Change Information Form, including any required attachments or documents, to the family court office.

FLR-A SG 15-1EN (rev. 04/09) CSD 7 The clerk will place the court seal on the first page of Form 15 and sign and date the second page. By doing so the clerk has “issued” the motion to change. The clerk will also complete either the box that starts: “THE FIRST COURT DATE IS” or “NO COURT DATE HAS BEEN SET FOR THIS CASE”. The documents are now ready to be served.

If your case is being heard at either the Family Court branch of the Superior Court of Justice or the Ontario Court of Justice the clerk will probably assign a first court date.

If your motion is started at the Superior Court of Justice (not the Family Court branch), you will not be given a first court date. You, the responding party or the assignee, if any, must ask for a case conference if you want the motion to go forward. A case conference is a meeting where you, the other party and the judge discuss the issues in your motion. You should ask for a case conference if the responding party files Form 15B: Response to Motion to Change and you are not able to reach an agreement.

[OrleansLawyer]

Question 3. Any other advice or pointers on what I need to do here?

Hire a lawyer. A strongly worded letter can often dissuade people from pursuing frivolous claims. If not, they can set up your pleadings so that you can continue on the right path if you cannot afford to retain them further.

[J_Kitchener2010]

Thank you WorkingDAD - very helpful indeed! I will tackle the reading material tonight.

The case is being heard in Superior Court of Justice so I will definitely push for a case conference. I think an opportunity to get in front of a judge and try to explain how ludicrous this all is is a positive thing.

I spoke with Childrens Aid who still have a file open on her due a domestic violence issue that the kids witnessed (her boyfriend went at her and her son from a previous marriage beat him up). CAS has told me that they have verified:

* Exposure to partner violence with risk of emotional harm to the children.
* The caregiver has a problem with drug and alcohol abuse based on the balance of probability.

CAS metioned to me the courts will most likely request the file along with the police report.

[WorkingDAD]

Thank you WorkingDAD - very helpful indeed! I will tackle the reading material tonight.

The case is being heard in Superior Court of Justice so I will definitely push for a case conference. I think an opportunity to get in front of a judge and try to explain how ludicrous this all is is a positive thing.

I spoke with Childrens Aid who still have a file open on her due a domestic violence issue that the kids witnessed (her boyfriend went at her and her son from a previous marriage beat him up). CAS has told me that they have verified:

* Exposure to partner violence with risk of emotional harm to the children.
* The caregiver has a problem with drug and alcohol abuse based on the balance of probability.

CAS metioned to me the courts will most likely request the file along with the police report.

I was under impression that court can not request anything on it's own. Court can order it when one of the party asks for that or on consent. That one of the questions you have to address on case conference.

WD

[J_Kitchener2010]

Thank you to everyone for your help and responses. I have decided to take your advice, Orleans Lawyer, and retain a lawyer to at least get me started. This is too important for me not to I think.

Thanks again.

[elizabethpublicover]

Ex trying to get kids back

I spoke with a child psychologist who does a lot of custody work for Family Law ..the upshot is this ..once a custody arrangement is in place and is in place for some time, there had better be some massive need for change. It must be that the children are hugely disadvanted are under some kind of threat or their safety is at risk. Courts hate changing the status quo and unless there's a really compelling case, then they leave well alone. What's a good idea is showing their established pattern of friendships, doing well at school, thriving emotionally .. and if you have that then the Courts will not interfere

[WorkingDAD]

I spoke with a child psychologist who does a lot of custody work for Family Law ..the upshot is this ..once a custody arrangement is in place and is in place for some time, there had better be some massive need for change. It must be that the children are hugely disadvanted are under some kind of threat or their safety is at risk. Courts hate changing the status quo and unless there's a really compelling case, then they leave well alone. What's a good idea is showing their established pattern of friendships, doing well at school, thriving emotionally .. and if you have that then the Courts will not interfere

unless that Status Quo created through falsehood and misrepresentation

418. 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.

419. If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.

WD

[elizabethpublicover]

She doesn't stand a chance. Courts hate changing status quo . You can reply to that effect and then she gets a motion date ..that's if she goes ahead with it