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Old 03-20-2007, 10:36 PM
logicalvelocity logicalvelocity is offline
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mom22galz,

What I meant by this:

Quote:
Logicalvelocity said:

If the individual came out of the blue and attempted to apprehend the kids while your at work or away from the home; You could always bring forth an emergency motion with out notice to have the children returned. If such process is used, the courts generally have the parties return for same issue a few weeks down the road to allow the individual to serve and convey his views. Considering, the situation and efforts to buy time to avoid the potential claims; It really is a judgment call.


Basically at law, both parents have coextensive custody of the children until an order from the court or a legal separation agreement provides otherwise.

See section 20(1) of the Children's Law Reform Act:

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK23
Father and mother entitled to custody

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).
However, when the parents separate and the children remain with one parent with the consent, implied consent or acquiescence of the other; the authority to act is suspended for that parent but not ended. At law, Both parents still have coextensive custody of the children. The child's access remains intact which includes an equal entitlement to information bearing on the health, welfare and education of said children.

see section 20(4)

Where parents separate
(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).
Six months have elapsed to your favor which you have established a Status Quo living regime for your children. The other parents authority to act has been suspended. In that time, the individual has pretty much abandoned the children. Moreover, they have not supported the children monetary or emotionally. However, you have done your duty and fulfilled your responsibilities to the children in more ways than one.

If you bring an emergency ex parte motion, I strongly suspect and without hesitation the court would grant you interim-interim custody. The court would further order the matter to return usually about two weeks later before the same court so that the individual can present their views and evidence. A further adjournment may be granted or required for the individual considering ex parte is a one sided ambush approach and to facilitate the individual to seek legal aid or legal representation and additional time to file their Answer and other mandatory and respective claims. Restraining orders are quasi criminal which bear significant penalties of such if violated.

On the return hearing, the court will review both parties evidence and review previous interim-interim orders. They may also vary or affirm said orders made at the ex parte once all of the evidence of the parties is reviewed. The court will most likely give direction on how the case is to proceed for case management to address each parties claims and final settlement of the issues.

In other words ex parte is a good way to open up a can of worms or start a war with a litigant that has nothing to loose and would most likely qualify for legal aid representation with significant hours of free legal coverage up front. Considering what the issues and claims could be; ex parte would definitely defeat your initial goal of diminishing their claims.

I say it is a "Judgment call" by yourself and yourself alone as "time is of the essence" to lessen the other sides claims and further solidify the Status Quo regime. I could be wrong but I believe this was your main goal to protect your assets and your livelihood so that you could provide for your children in a comfortable way.

The longer a Status Quo living regime goes on with the acquiescence of the other parent suggests that such living arrangement should prevail and definitely not change for the children.

Interim-interim custody orders issued on ex parte or interim custody orders issued on interim motions are one of the weakest stances to base a final custody adjudication of the children.

Affidavit evidence is seldom cross examined on interim motions and never cross examined at ex parte.

However, Status Quo custody regimes carry significant weight as it is a clear demonstrated arrangement of BOTH parents post separation on the living and care arrangements of the children. Status Quo regimes are very difficult to change after time.

If the individual apprehended the children without your permission, as you currently have the authority to act where as their authority is suspended as a parent; You could bring forth an ex parte motion for interim-interim orders based on your sole evidence of the established status quo and evidence of the individuals conduct since separation such as:
  • their involvement with the police;
  • rejected the children since separation;
  • have not provided support to the children emotionally or monetary since separation;
  • concerns of harm;and,
  • Instability - a change in residency would disrupt their schooling, routine and Status quo living arrangement.
  • Any other relevant fact pertaining to your circumstance.


Bottom line is that you do have significant issues and you should consult with your lawyer on which way to pursue and to fully assess your situation and develop a strategy of your stance to maintain custody, preserve your wealth and assets and livelihood. However, once litigation is started it may take many years and significant costs to you to finalize the issues which no doubt to me would have significant effects on yourself, your household and your children.

I have attempted to give the best unbiased neutral advise when asked of you that I could give with consideration to all the issues. I don't believe I have steered you wrong but I do concur that I am just:

Quote:
a guy named LogicalVelocity" on the internet.
I am by no means a lawyer, paralegal or any other occupation that practices in the area of law to earn a income.

However, I am a caring parent and very reasonable father who participates and contributes to this forum with unbiased views based on facts and clear perceptions. I don't belong to any particular gender movements. I don't jump the gun to assign a label without being privy to facts. I attempt to apply the common sense approach with the attitude of "what would I do if I was in this situation." For what it is worth and with all that said, I gave this post my all.


lv

Last edited by logicalvelocity; 03-21-2007 at 12:19 AM.