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Acces denied, ex wants court

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  • #1
    Originally posted by iceberg View Post
    After an argument with my ex, her father picked up the phone, said do not call any more, you will not get the child any longer, go to court. I said I will come pick up the kid and he said he would hurt me if I go there.

    I went to police to have as witness that they denied access and that they dont make up something but police wait was 3-4 hours.

    Ex doesn't return msgs nor does she answer the phone, her father answered several times and hangs up.

    What is my next step to have them in court to try to get my child back?
    I would go for the scheduled access time, with the digital recorder going on your person, and a friend nearby running a video recorder. Inviting police would be a very good idea if they'll come, as the father did threaten to assault you. Behave impeccably and tell the ex and her father that you are there to pick up the child as per the court order. Let them deny or refuse or whatever, or maybe give in, and then you have ammunition for court. And honestly, if the father does assault you, you have gold for your court case that may well be worth the injury.

    That said, what are you doing arguing with the ex anyways? Email communication only, calm responses only.


    • #2
      first you make an application located here.

      Family Law Rules Forms — Ontario Court Services

      its form 8 general you are looking for. you also have to attach an Affidavit in Support of Claim for Custody or Access which is form 35.1 and put all the relevant information. you need to get someone else to serve the application as you cannot personally do this. once done you fill out the affidavit of service form 6B.

      if you have physical evidence that the father assaulted you and you have pictures fantastic, you file a motion also at the link above. the form number is 14 notice of motion, you add an affidavit general 14A attesting to what happened. Since assuming what you said is true, you can justify not serving the opposing party the notice of motion as you fear for your life and that it is of dire emergency. they normally hear motions on fridays but i heard under EXTREME urgency they will hear it the same day or the next.

      motion the court to remove the child from the premise immediately and to have sole custody as temporary.


      • #3
        if its just uttering a death threat it would have to be with a witness or maybe on audio, but some courts might dismiss that.

        i was under the presumption he assaulted you but if its just uttering....theres not a whole lot you can do for the moment until he carries it out.


        • #4
          if its joijnt custody she doesnt have the right to deny access unless there is some order or agreement in place. you can motion it to order that access to take place. ofcourse i dont know all the variables you have but thats a common approach.


          • #5
            ok to be more specific if your in alberta....

            i BELIEVE you must file a claim first.


            follow the instructions then you might need to attach ...


            ofcourse this is preliminary and you may want to confirm with the court clerk.


            • #6
              dont mean to triple post, but the statements are like requests and therefor you must have a claim first in order to put a statement. incase your not familiar with any court procedures and if anyone can correct me please do, but you need to fill out those 2 applications/forms print copies for you and your spouse or whatever and the originals for the court. you must also file an affidavit of service, if ontario and alberta work the same way you may not be able to personally serve your spouse and must get someone else for the initial application/claim.

              hope this helps?


              • #7
                well.....first of all if there is no order prior to this issue then by default its joint and she CANNOT deprive you of this right without due process and therefor she is breaking whatever law by doing so.

                motion hearings CAN be made on an emergency basis if you can provide grounds that its an emergency, but if its just access it could be a few weeks depending on the courts schedule. Once the hearing is convened then its just a matter of drafting up the order and it will be made into "law". so pretty much the order will be in effect immediately upon the ruling of the judge and you can restore access to your child the same day if the orders say so.


                • #8
                  There should be someone else in the same law firm as your lawyer that you can contact. My experience has been that lawyers can get to court any day of the week for emergency protection orders etc. The forms are at the back of the Queens Printer/Rules of Court Alberta if you are going to do this on your own. If you go to the courthouse tomorrow AM you can talk to duty counsel who will assist you. Judges deal with emergency orders at 10:00 AM sharp.

                  I really think there should be someone else in the law firm who could assist you. PM me if you need name of a lawyer if you don't have any luck.


                  • #9
                    I really think you need some legal advice. If your daughter isn't in immediate danger then this is an access issue. You might want to get a peace bond against the person who threatened you. You can do that by going to the courthouse and they will assist you in the forms you have to fill out. I'm not at my home right now (until Sunday) and all of my files are there. I could email my lawyer if you need something done right away. His rates are reasonable and they have 2 junior lawyers there who would be even less expensive. Located a few blocks south of whyte avenue. If you want the name PM me.

                    I think a peace bond would be appropriate and would probably help you to get your ex (and her family) to take your access issues seriously. With a peace bond in place you and the person who made the threat against you would not be able to be near each other, phone or contact each other (even indirectly).

                    A lawyer might advise otherwise though and I'd hate to see you do something that comes back and bites you in the ass. When does your lawyer get back?


                    • #10
                      Originally posted by iceberg View Post
                      I think its called motion of contempt. Does anyone know if this can be done ex parte cuz the child has cancer if not how long it usually takes to see the judge?
                      You need to hire a lawyer. You are confused, emotionally distraught and being psychologically abused possibly by the other parties involved in the matter. I do not recommend trying to do this without the assistance of a lawyer. What they are possibly trying to do is to have you do a sloppy application to court and then LEVEL you with a response.

                      I implore you to seek legal counsel immediately.


                      • #11
                        Originally posted by iceberg View Post
                        How do I motion it? Yes its shared and joint custody and what she is doing is breaking our legal agreement.

                        The thing is IDK what is my next step

                        Edit-So how long does it usually last, i don't want her to keep and brainwash my child for months.
                        so if I understand this right, today is your day to pick her up or according to the court order it is actually sunday?? If its sunday then wait till then and then you have more of a case. Technically until its the day of access according to the court order, she hasnt denied access yet. When you show up and she doesnt let the child go with you, then she has denied access.

                        Dont get into arguements with the ex. Maybe I am wrong but in your postings it almost seems like you have a chip on your shoulder. I have a feeling that when you talked to her father you argued with him also instead of just saying, calmly, that this is between you and her. Fathers protect their daughters, no matter how old they are. We are only getting your side so its not a complete story.


                        • #12
                          First and foremost WHY F*&$ ARE YOU TALKING TO YOUR EX ON THE PHONE!!! I mean, there is something called email for communicating with the ex. And if you MUST communicate with the ex via the phone, WHY THE F#*^ ARE YOU ALLOWING YOURSELF TO GET DRAGGED INTO AN ARGUMENT!!

                          Seriously've been here long enough, you've read post after post of people stating don't communicate with the ex via the phone unless absolutely necessary. What you've done by talking to her and then allowing yourself to become party to an argument, is caused yourself this headache...

                          Now, to solve this, what is the remedy? You must email the ex and state that you plan on exercising your court ordered parenting time. That you will be at the prescribed place at the prescribed time....blah, blah, blah....I'm sure I told you this before. Wear a digital voice recorder and bring a witness. If possible, only walk up to their door to knock and then walk back to your car. Don't allow yourself to get dragged into the "you're on my property" BS.

                          If her dad becomes aggressive, state you are not interested in a physical enounter, you just want your kid for your court ordered parenting time. If he touches you, call the police. Stay calm, don't raise your voice or lift your hands past your waist unless it is to put your phone to your ear.

                          Record the encounter. If her dad gets aggressive/physical/threatening you will have grounds to seek a restraining order against him. Don't recipricate. Stay focused on getting the child. If it becomes obvious they won't give you the child, don't stay any longer than you have to. If you camp out for 2 hours, it won't look good on you as it would appear you are trying to start a scene.

                          But communicate via email. If you are denied your parenting time, send the email I've wrote out here a 100 times about not agreeing with her unilateral decision to withhold the child, request make up time or you will file for contempt.

                          However, until they have actually denied your parenting time, I think your hands are tied. The courts aren't likely to act on "they may deny my parenting time" need "they denied my parenting time".

                          Otherwise relax....take this as reason No. 1 why you should never communicate via the phone and lesson learned.


                          • #13
                            Originally posted by iceberg View Post
                            I went today and picked up the child. My ex"s sister said •FROM TODAY DO NOT CONTACT YOUR EX, ANYTHING THAT YOU TWO NEED GOES THROUGH ME•

                            so she is the one who will supposedly let me know if the child is in urgent medical situation, to call her if I have something important and bunch of other shit.

                            IDK if this is ok. But I cant force ex to contact me.


                            IDK if this is a conditional death threat, got it recorded
                            so you got your kid?? I dont think what the sister said is a death threat, it just kind of sounds like she is done dealing with the BS from both you and your ex. I think at some time or another we have all said something like that. I would just contact the sister and let her be the go between, it seems like your ex is okay with that and limiting contact with your ex isnt a bad thing. The sister seems to be the one willing to stop the crap so take her up on it.


                            • #14
                              You need to keep all your communications to email. Your ex sister in law cannot dictate terms to you. Email your ex when necessary and stop engaging in any other communications with her. Phone her if there is an emergency only.

                              Ignore the family, they have NOTHING to do with this situation, but if you guys can't keep things civil in the kid's presence for exchange then for god's sake use an access centre for the exchanges.

                              You need to get control of this situation. NOW.


                              • #15
                                She doesn't have to reciprocate, as long as you have done your due diligence in informing her of anything important, you've done your job.

                                Do yourself a favour and stick to the agreed upon access schedule to avoid as much nonsense as possible, make your exchanges either at an access centre or police station, stop TALKING to your ex and her family.

                                You and your ex are getting divorced, it is between the two of you. Leave the kids and her family out of it. Communicate with her and her only - and do it in writing. Period.


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