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Access and Custody - pending domestic assault trial

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  • Access and Custody - pending domestic assault trial

    HI All,

    I am a self represented father in my family matter looking to get undiluted opinion from the likes of @Tayken and others on this forum. STB-ex is on legal aid while I have to pay for legal representation. To be honest divorce is expensive and my debt level has gone up since this started. I want to avoid trial as much as possible (the family matter). Such money should be spent on our child, not on lawyers but I don't want this to cost me our son. I believe it is necessary to provide a bit more detail and I have done so below. While I was hoping my divorce would be easy, this has resulted to more complications than I could imagine. After reading lot of stories on this forum I will like to seek people's opinion to get through this.

    Talk of Divorce has been going on since April 2019 due to irreconcilable differences. These discussions become regular when she moved her personal belonging to the second room and started sleeping on the couch in July 2020, saying it more comfortable sleeping on the couch. She didn’t return into the room until November and I started sleeping on the couch. I started the divorce conversion but spouse doesn’t want divorce due to her religion. We were expecting out baby as she was pregnant. She started making threats that I won’t be a part of our baby’s life is I proceed with the divorce. All these happened before baby was born in December.

    She started sending me emails on January 23, 2020 stating different allegations of domestic violence. These were serious accusation considering the languages (stating I have assaulted her sexually, financially, verbally, physically and emotionally). I responded to every email debunking all allegations as this never happened. We had 2 cases of verbal argument in the past (October 2019 and early January 2020) but there was no form of insult, name calling nor physical contact as described in her emails.

    Domestic assault charges
    On February 13 2020 I got arrested and charged with 3 counts of domestic assault on the applicant. This happened after a verbal argument claiming I attacked her and she sprung her wrist while she fell. The arrest took place at the walk-in clinic during our baby’s medical appointment. The argument was at home before the appointment but she waited until we got to the clinic. During the appointment she started crying at the doctor’s office claiming her hand hurts and she called the police. Based on the disclosure, no physical evidence, just the doctor’s report that it is possible she sprung her wrist. She immediately started using a wrist brace. The other 2 charges are all related to her testimony with no Evidence. These are the verbal arguments that happened in the past modified to include physical attack without any injuries and referred to the emails she sent in January as proof (excluding my responses).

    The 2 main conditions of my bail hearing (1) I am not allowed to be 100 meters around her (2) I am allowed to have access to our child either through an agreed upon third party or through the family court. The criminal case is still an ongoing matter that has been delayed due to the pandemic. Case will be proceeding to trial. The trial date is yet to be determined as at today. I have a lawyer representing me in this matter.

    Family Matter
    I received the Court application on March 31 2020 that was filed on January 30 2020 by the applicant seeking child support, spousal support, sole custody and access allowing access to our child only at her discretion, including, ability to request for child’s passport and other documents without consent other issues. I sent my response on the April 28. Her reason for the delay in serving the application is because she believes I am trying to evade service.

    Due to the pandemic case conference was postponed to October 2020. I was able to get an urgent case conference on the issue of access on July 13 after several discussions with the applicant’s lawyer on the issue of access.

    Child access and custody
    I was arrested and charged in February for domestic assault. Between March 1 to March 20, I reached out to individuals known to the applicant in effort to make arrangement on having access to our child without any response from the applicant. Applicant’s Lawyer reached out to me via email on March 31 2020 for the first time, confirmed my efforts regarding access request to our child and stated that the applicant is willing to allow access once every two months after the Covid-19 pandemic is over. No health concern was provided. She also stated they will be filing for Cost if I delay my responses and don't provide financial disclosure on time. There were several back and forth with the applicant’s lawyer about the issue of access with the same response of “No access during the Pandemic”. I filed Form 14B for urgent case conference which was heard on July 13.
    In her case conference brief, the following was stated:
    • She is scared I might organize for our baby to be kidnapped and sent to Africa.
    • That I have threatened to hurt our baby saying I don’t want to have anything with him.
    • That our baby has experienced domestic violence excessively and shouldn’t be left alone with me.
    • That I have never been involved in taking care of him.
    • She is only opened to biweekly supervised access for 30mins at her place of worship by a member.
    • She is not interested in relaxing the “no communication” condition so that I can pick up and drop off our baby at her drive way for baby’s convenience. She’s scared.
    • She is also not interested in using parenting apps because she believes I won’t be reasonable.

    Knowing all these are lies, I was in so much shock reading everything she wrote about me. She has also modified the narration of events provided in the criminal case (now included in her affidavit for the family case conference) to include our baby in argument in January and February with claims of attacking our baby.

    During the case conference, we finally agreed on supervised access for 1hour 30mins at her place of worship (1pm to 2:30pm) every Sunday from July 26 to September 6. Per her lawyer this is to see how our baby reacts since no access has happened for over 5months and they do not think I can handle caring for a baby. I agreed because the Judge advised to get some access before the motion hearing will happen in Early October (the earliest available date). Another case conference to be held on September 9 to see if any progress would be made on discussions (more access time, unsupervised, spousal support etc.). The Judge also expressed her displeasure on denying access for that long with no reason provided to me.

    1. Have I made a mistake by agreeing to supervised assess?
    2. Should I propose for more access time and unsupervised access or wait until the next case conference on September 9? My fear is been seen as unreasonable considering baby is only 8months. While I can take care of him, the issue is that he is still breastfeeding and the applicant lawyer keep saying breastfeeding will continue until he his 2years, and he can’t be away from his mother for more than 2hours at a stretch because of this.
    3. I have had 4 visits so far and baby slept throughout in 3 visits. I think it is because she normally feeds him before coming. There is no bed, just a play mat and a fold-able plastic chair for siting. Carrying him while he sleeps is never comfortable and I don’t think it will be comfortable sleeping on the play mat. Won’t this be considered to determine if the location of the assess is conducive for child?
    4. Due to the criminal case, I think this will make it difficult to push for joint custody. I have read on this forum that it is best to resolve the criminal case before handling the issue of custody. Will not saying/doing anything on the issue of custody hurt my chances on joint custody later?
    5. I want equal access time but I know this cannot happen right away but gradually. Can the criminal case hurt my chances?
    6. I currently have no idea on where she resides with our child. The lease of our rent expired. I reached out to her lawyer asking about her plans and I was told the question was intrusive and I don’t have to know where they reside and my correspondence should be addressed to her lawyer. Is the normal?

    Other issues on Spousal support, child support and others to be posted later.

  • #2
    one thing that jumped out at me. She says the baby should not be left with you because of the alleged domestic violence. Hmm she stayed and exposed the baby to the alleged DM. If you attacked the baby like she says, they why would she not leave or call the police then?

    As for the breastfeeding...she can pump and provide the milk for when you have the child, lots of mothers do.

    Yes handling the criminal case first is best, that way she cannot try to use it. Right now its alleged so you know she will use that as much as she can. Once it is dealt with its a non-issue. In fact if its proven she did this maliciously then that will work in your favour. Shows she is willing to lie to try and keep your child from you.

    I really hope you listen to the members on here. Another poster was given advice when faced with a similar situation, ignored it and it bit him in the ass big time.


    • #3
      Originally posted by standing on the sidelines View Post
      I really hope you listen to the members on here. Another poster was given advice when faced with a similar situation, ignored it and it bit him in the ass big time.
      Thanks for your response. Since there is a case conference coming up, what should I do next? 1hour 30mins weekly doesn't create any room for bonding.

      Summary of the case conference on July 13:
      1. Supervised access for 1hour 30mins once a week from July 26 to Sept 6 – Based on her lawyer this is to see how baby reacts since I haven’t seen baby for 5months and STB-ex is scare of kidnapping/hurting baby.
      2. Another case conference on Sept 9 to review the progress made on discussion of access. The Judge however already reserved a date for motion hearing on the issue of access if no progress is achieved before or during the case conference on Sept 9.

      I want to be reasonable as much as possible. I won’t want to make the mistake rvalentines made. Due to the criminal matter I don’t intend asking 50/50 access. I want things to cool off gradually. Hence, I think asking for a gradual increase is reasonable? For example, one 3hours weekly visit and one 6hours weekend visit – No overnight (0-12months). Then when child is a year old (4month time), one 3hours weekly visit and one 24hours weekend overnight visit for 12months. Then we review and increase if possible again… This look reasonable to me but I don't think anything is reasonable to my STB-ex. I don't want to burn myself.


      • #4
        Sorry to hear about the issues you and your family are facing. Within the last 4 years, there are many similarities that I can draw from my own case.

        I will briefly share what happened in my case and how it panned out, which may give you some ideas as to how to approach your own issues. But plz don't take it as legal advice as it is just based on my own experiences.

        Just like in your case, when I felt our marriage was falling apart and I brought up divorce, ex started making numerous threats including calling the police on me alleging assault, for which I got arrested.

        My criminal trial took 28 months to complete and verdict was not guilty. During those 28 months, no contact condition remained. Ex tried to stall/frustrate my access the best she could but I kept grinding through.

        While charges are pending:
        -Unless ex agrees to normal access through third party exchanges, ask for supervised access (it sucks but you will likely have to fully pay for it).

        -The visit notes they will create would be priceless as that is the best evidence you will need later on in family court when asking for normal/increased access.

        -Family court judge will not really care to get into the details of the criminal allegations until it is settled in the criminal court. So don't waste your time/energy in responding to specific allegations of abuse, etc unless it is in the ex's affidavit. In that case, in your own affidavit, just include a statement that says I wholly deny the allegation applicant made in para x of her affidavit sworn on xxx.

        -After around 20-30 hours under supervision (purely based on my experience), ask your ex to move to normalized access with third-party exchanges or exchanges at a police station. If ex disagrees, threaten a motion for normal access.

        -After a few weeks/months depending on how access is progressing, ask for gradual increases. If other party disagrees, threaten a motion for access.

        -document all conversations, access requests/proposals and keep them civilized and child-centric. For example:

        Dear Ex's lawyer,
        Thank you for your client's access proposal. I have had a chance to review it thoroughly and believe it does not fully meet the needs of our child. My counter proposal is as follows:
        My access proposal will be in the best interests of our child because .....

        Criminal matter resolution:
        -Unless the crown offers and you decide to plead guilty to a peace bond or something, I believe you are a fairly long time away from reaching a resolution. Unfortunately, there is not much you can do to expedite that and meanwhile, surely, the ex will use the allegations/charges to paint you as the evil person who cannot be trusted alone with the child.

        This is why it is crucial to generate current and unbiased evidence i.e. supervised access notes, which show you are not a threat to your child.

        Oh and a general tip, don't be intimidated by the other lawyer's wording, threats, warnings, etc. Speaking from experience, if you're a self-rep, the other lawyer might think you're an easy target and they can scare you into accepting a settlement. Remember, it is their job to advance their client's interests and they don't care about you.

        Lastly, this is an exhaustive and long process which will push you physically, mentally, emotionally and financially. Be prepared and take care of yourself and seek external support when feeling down.

        Sent from my ONEPLUS A5010 using Tapatalk


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