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  • Death of sole custody parent

    The father of my 2 daughters was given sole custody in a final order. I brought a motion to change and it's been ongoing for 2 1/2 years. He has a common law spouse who my children began calling "mom" years ago.
    My daughters show every symptom of severe parental alienation syndrome but children's aid and the children's lawyer claim they don't see it. My 14 year old has been refusing access visits and my 10 year old follows her sister's lead.

    I am self represented. We are scheduled for a long Motion on October 4th and a Trial Management Conference on October 8th.

    My ex passed away suddenly on September 18th. My daughters are presumably with his girlfriend. I don't know for sure because I have not heard from his family.

    His lawyer served me with a new affidavit for the motion just a little over 24 hours after his death but did not mention his passing. The affidavit was related to the Motion they brought to ask to terminate access or for access to be supervised. They want to terminate access because my oldest doesn't want to see me and claim my youngest is afraid to be with me without her older sister. I have a 4 year old daughter, their sister, from my current relationship of over 6 years. CAS has investigated reports of abuse against her by her father and I and reports of constant yelling and name calling when my daughters are here. None of these allegations have been substantiated because they are absolutely not true! There is no reason for supervised access and the only reason they have been able to give is that the girls would be comfortable. My opinion is that it would be the total opposite and nobody at all would be comfortable in a small room being observed. When they would come for visits we had fun but their father and girlfriend claim that they say they sit in a room alone and color and nobody talks to them. Again, completely false. The false allegations against my current partner and I are too many to list.

    I have attempted to contact lawyers in my area for advice and have not had my calls returned.

    I emailed his lawyer asking who currently has custody of our children and she has not responded either.

    My ex's girlfriend has been telling people that his wishes were for our daughters to be raised in their home and says she's not going anywhere.
    I know he did not have a will because I was told by the person he was with when he passed and who also informed his girlfriend of what happened that the very first thing his girlfriend said was "He didn't have a will, I'm going to lose everything". (My first words were "where are my daughters? I need to get to them"

    So my question is WHAT DO I DO? I obviously want my daughters but I also don't want to hurt them any more than they have been. I don't want them with his girlfriend as all signs point to her being the mastermind behind the alienation. She has also made statements in the oast that if they ever split up she's taking the girls with her. This woman terrifies me because I believe she'd hurt my girls if she's backed into a corner and thinks she's about to lose them. I've expressed this to many involved in our case in the past but it has always been brushed off.

    Help! I want my babies...I want to hold them and comfort them...they lost their daddy and they need their mommy!

  • #2
    Short term: adjournment
    Long term: you’ll need a lawyer, this is an extremely complex situation.

    Comment


    • #3
      I’m sorry this is a difficult situation. A sole custody parent can, in their will, assign the custody of their children for up to 90 days after their death. Your partner did not have a will and therefore did not assign custody. I would NOT adjourn, I would file an emergency motion to have temporary custody (since you still have access it should not be too much of a stretch for a judge to see it, however they could rule the other way based on the least disruption to the girls).

      Since you have had CAS involvement in the past I would reach out to them, explain the custodial parent passed away and you have not been able to contact your children to offer assistance while they grieve and you want to take custody as the only living parent. It is positive that you have been in the court system for two years to get custody. Do you have space for the girls (both with their own rooms?), are you living near their school? Anything that shows you will maintain the stability they need would be good.

      I agree you need a lawyer. This is not something to self-rep.

      Comment


      • #4
        You will also need an estate lawyer. If he died without a will and you are not divorced, technically you inherit everything. His gf will fight for it if she is going to seek sole custody of the kids.

        Are his parents still alive? A sister or brother who would take custody?

        Tilt is right, you need to file an emergency motion to have custody ordered. You may also want to have therapy ordered immediately too. The two girls will need grief counseling.

        Comment


        • #5
          Given the level of estrangement/alienation on this file a motion for custody is risky, and there is backstory we aren’t getting here. I’m concerned a judge will not want to give custody to a parent who the children refuse to see, especially in the context of the death of their father. It might solidify the stepmother as being the primary custodial parent.

          Talk with a lawyer who can review your entire case, including the narrative put forth by the otherside. Get their opinion on the value of an emergency motion for custody. Do not bring it without legal advice.

          Comment


          • #6
            Originally posted by Kinso View Post
            this is an extremely complex situation.
            Agreed. I have never seen this on the forum or read about it in Canlii. Obviously custodial parents can die, it is just unusual. I'm going to look on Canlii later today, I'm curious.

            The fact that mom lost custody originally leads me to believe that she might have some issues that were recognized by the courts. Mothers don't easily lose custody. It is not impossible that kids might be better off with stepmom.

            Ungh, what a horrible situation all around. I feel so bad for the kids.

            Comment


            • #7
              Well, here is one.. or two

              http://canlii.ca/t/hqmj8

              http://canlii.ca/t/1r923
              Last edited by Janus; 09-22-2019, 01:04 PM.

              Comment


              • #8
                Originally posted by Janus View Post
                Agreed. I have never seen this on the forum or read about it in Canlii. Obviously custodial parents can die, it is just unusual. I'm going to look on Canlii later today, I'm curious.

                The fact that mom lost custody originally leads me to believe that she might have some issues that were recognized by the courts. Mothers don't easily lose custody. It is not impossible that kids might be better off with stepmom.

                Ungh, what a horrible situation all around. I feel so bad for the kids.
                if there are issues between the mom and kids I do not think its a good idea to swoop in and get custody. The kids are going through something right now and the stepmom has been a stable person in their lives. They need stability right now dealing with the death.

                In no way am I saying the stepmom should get custody in the future but for right now it may be a good idea. If mom tries to force the kids to come with her then it may really backfire and the kids may end up resenting her.

                Comment


                • #9
                  Custody does not necessarily mean she cuts the step-mom out of their life though. There is a legal presumption that in the case of the death of one parent the other parent becomes the custodial parent; she can ask for sole custody and that residence remains with the step-mom during a transition period while the custodial parent’s access increases.

                  And losing sole custody to the other parent does not necessarily mean it was justified - even in Janus’ case up above the father lost custody AND access due the the mom hacking into his email to send threantening emails that he was criminally charged for, PLUS she drugged the dad without his knowledge so he would go to the hospital with symptoms of serious mental health issues so she could claim he was “crazy”. He was lucky he had money for a good lawyer and perseverance.
                  Last edited by tilt; 09-22-2019, 02:42 PM.

                  Comment


                  • #10
                    Originally posted by tilt View Post
                    There is a legal presumption that in the case of the death of one parent the other parent becomes the custodial parent;
                    Parents have custody unless they don't. In this case the mother explicitly does not have custody, since the father had sole custody. The father probably gets to direct custody through his will.

                    Is there some legislative authority whereby the mother gains custody over any person designated in the will by the sole custody father?

                    Comment


                    • #11
                      The father’s will can only direct interim custody for 90 days, and it can be challenged in court under CLRA. He apparently didn’t have a will, so that point is moot.

                      Under the Children’s Law Reform Act, Section 20 states that both parents are equally entitled to custody of the child. The father, being dead, can no longer have sole custody; Estates cannot have custody. Section 21 deals with non-biological parents applying for custody, which is a much more rigorous process involving police checks etc that the biological parent does not have to do.

                      “A review of the cases by Justice Errico in K.(K.) v. L. (G.) include the general principle that custody should be awarded to a third party over a natural parent if it falls into particular categories, such abandonment, neglect, consenting to adoption, a parent suffering emotional or psychological distress which would render them unfit or unsuitable for custody.“ It is a pretty high bar to cross to get custody over the biological parent - have a look at all the grandparents that have failed to win custody from parents struggling with mental health/addiction issues.

                      Comment


                      • #12
                        We are divorced. He does not have a will. Without him, his girlfriend has no means to pay for a lawyer as she only has a part time job. If she suddenly has money to pay for a lawyer you can bet I'll be looking into it.

                        I lost custody because at the time I had severe social anxiety which led to agoraphobia and notice of the trial was sent by mail and because I didn't go to the post office to check my mail I didn't get the notice and wasn't at the trial.

                        The social anxiety, agoraphobia, depression, and ptsd weren't diagnosed until over a year after losing custody. All of those issues came from years of mental and emotional abuse by him. After losing my girls I panicked and moved 2 hours away but traveled back here whenever he would allow me to see them, which was never once more than 24 hours and supervised by my mother right from the beginning. I did what he said because all I wanted was to see my girls.

                        He lied about absolutely everything during the trial and because I wasn't present I couldn't defend myself against his allegations.
                        He was to give me reasonable access and to decide an access schedule, both of which he did not do.
                        Costs of $7000 were ordered against me and the way it was worded seemed that I could not bring it back to court until I had paid him. He always used that $7000 cost ordered against me saying "pay me first and then you can take me to court" and he used it many many times.

                        My relationship with my girls was a loving relationship without problems until I moved back after having my youngest daughter. My girls were happy and excited about having a little sister. After I moved back he made excuses and then it changed to saying he'd ask the oldest if she wanted to see me and claiming she didn't. I spoke to a lawyer to see what my options were and she explained that the costs ordered against me were only something a judge could take into consideration if I brought a motion to change. I took my chances and the motion to change was approved. Since being back in court my girls have turned against me and their little sister saying they don't love either of us and making up stories that are the complete opposite of actual events. Refusing to come to access visits has only been since the middle of August.

                        I absolutely understand that taking them out of there even if I can is going to hurt them and is not what I want to do. On the other hand though I am almost positive that the step-mother was and is the one doing the alienation so as long as they're alone with her it will continue and only get much worse.
                        I've suggested a gradual increase in access in past and I've suggested him and I sitting down with them together as parents to discuss the situation but he never budged. He refused to be at all flexible or reasonable at any time. He never followed any orders, temporary or final.
                        There have been many, many false allegations against myself and my current partner yet throughout the entire court process from the very beginning the only allegation I have made is alienation.
                        He seemed to have unlimited funds, which was also strange because his income was lower than it had been when we were together but his house was remortgaged by more than double and they were both driving brand new vehicles. His mother was the loan officer at the bank and is close friends with the people still working there even if she isn't anymore.
                        I unfortunately don't have that kind of financial help and that is the reason I'm representing myself. The only other option would have been to give up and not fight and that wasn't going to happen. I'm exhausted emotionally and mentally and there were times I wondered if I should give up if they'd be better off but I refuse to give up on my girls. Especially now that their daddy is gone.

                        At the first trial management conference in January ,which was my first time without counsel, the judge told me he was very impressed with my brief and my suggestions for gradual increase in access were a great idea. He also asked the step mother to leave the court room to make things more comfortable. The same judge is the one who gave him custody and then after my motion to change made a temporary order for access that was to increase access. He also stated that there were "some red flags with the girlfriend".
                        I'm really struggling with how to argue that my children need to be with me while taking into consideration their relationship with her, although toxic, and what it would do to them to take them away from her as well. Ugh! Help!!

                        Comment


                        • #13
                          How old are your kids?

                          For a variety of reasons, this thread is making feel emotionally nauseated.

                          Comment


                          • #14
                            Well what is best for the kids? Who lives closest to their school? If she does, suggest that she have them Mon-Fri and you have them weekends, with gradual increase to full-time with you by Christmas. It won't cost too much to have a consult with a lawyer, you want to file a motion that is child-centred, correct, and citing the law. Offer her a bone like she can keep the CCTB till xmas - I'm not saying it is her motivation, but orphaned kids do get financial compensation that can be very tempting (CPP benefit payment, any private pension payment etc). And without a will I think his children would be the main beneficiaries of his estate. Offering to put his estate into a trust that you can't touch may make the judge feel more favourable to you (or, if things go the other way and she gets custody with the same conditions it will at least protect they girls money).

                            Comment


                            • #15
                              Originally posted by Janus View Post
                              How old are your kids?

                              For a variety of reasons, this thread is making feel emotionally nauseated.
                              My girls are 14 & 10 and their little sister who lives with me is being affected by this also. I also have a 24 year old son who he told the judge he would make sure was involved in our 2 daughters lives but was cut out completely as well. My son has twin boys who have only met my girls once and my girls were never even told about them. My girls also claim to not remember any extended family on my side but were close to before.

                              I'm a bit more than emotionally nauseated myself...the whole situation terrifies me and I feel helpless because nobody is hearing my concerns or taking them seriously.
                              In his interview with the OCL he stated that our 10 year old daughter wasn't planned and that I basically tricked him yet I was taking fertility drugs and had 2 miscarriages while trying to conceive her. He watched tv as she was being born!
                              My opinion is that my girls were/are being used as weapons and were/are prized possessions to him and her...and that may seem cold but there is SO much more that would take me a at least a week to tell. He made my life a living hell and broke me down in the past. This time around I was stronger and continue to be even under the circumstances. In the past this would have knocked me back down but I'm dealing with it and won't give up. That doesn't mean that I'm not a wreck right now, because I am, but I'm able to pull myself together because I have 3 little girls who need me...2 who need me more right now than they probably ever will.

                              Comment

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