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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11  
Old 09-22-2019, 03:53 PM
tilt tilt is offline
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The fatherís will can only direct interim custody for 90 days, and it can be challenged in court under CLRA. He apparently didnít have a will, so that point is moot.

Under the Childrenís 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.

ďA 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.ď 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.
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  #12  
Old 09-22-2019, 06:45 PM
Mummaa222 Mummaa222 is offline
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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!!
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  #13  
Old 09-22-2019, 07:05 PM
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Janus Janus is offline
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How old are your kids?

For a variety of reasons, this thread is making feel emotionally nauseated.
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  #14  
Old 09-22-2019, 07:21 PM
tilt tilt is offline
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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).
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  #15  
Old 09-22-2019, 07:24 PM
Mummaa222 Mummaa222 is offline
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Quote:
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.
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  #16  
Old 09-22-2019, 07:35 PM
Helpmyspouse Helpmyspouse is offline
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I'm so sorry you are going through this. It's one thing when you are depleted financially from this broken system but fighting for custody or access has to be horrible. My heart breaks for you. If the kids are his beneficiaries I bet stepmom will want to keep the kids close to her. I thought my story was effed up, I couldn't sleep thinking about what you are going through. I will keep you in my prayers, I promise. Go fight for your babies and bring them home. Sending you a virtual hug from one burned out mom to another.
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  #17  
Old 09-23-2019, 09:41 AM
Berner_Faith Berner_Faith is offline
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I donít know the legal aspects of this, but given the ages, especially the 14 year old, Iíd be very careful about going in and plucking them out of the home they know... they just lost their father, which has turned their world upside down, removing them from their home, even if it is with stepmom, could be devastating for them. Given they donít have a great relationship with you, you absolutely need legal advice, you need to work on a schedule that doesnít turn their world upside down more and make them resent you further because you removed them from the only place they know as home. Court ordered counselling for one, a strict access schedule...

How far away are you from the girls now? Still two hours? That means a change in school for them as well. Your ex having a will or not should be the least of the worries... you need to focus on your relationship with your girls and helping them through this tough time... I understand wanting to just go bring them home and have them with you but donít do something that they are going to resent you for. Please seek legal advice ASAP


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  #18  
Old 09-23-2019, 10:33 AM
rockscan rockscan is offline
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I think some of you are missing the key pointóshe has been fighting for access to them for 2.5 years. No timeline was given for when the sole custody award was made but for the last two years she has been fighting to see her kids. The kids are not new to their mom wanting to see them and realistically there was some order in place for that time. Dad was in the wrong for both denying that time and alienating them.

I say this because mom isnít going to be filing a motion to get the kids. She is responding to a filing in the ongoing process they have been in for 2.5 years. There has been a major change now that dad has died. How does she respond to the ONGOING matter but also how the childrenís lives change with dad out of the picture.

Yes she shouldnít waltz in and pack them up but she should be responding to the affidavit filed ON BEHALF OF A DECEASED PERSON regarding custody of her children. This other person is dads gf and there is no will.
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  #19  
Old 09-23-2019, 11:17 AM
tilt tilt is offline
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She has had access since the sole custody Order she didnít know about, her current motion she filed 2.5 years ago is to challenge that sole custody ordered without proper notification (she should have been personally served, not mailed, and there should have been several attempts of service over many month for various appearances).

But I donít see how that Motion can even continue as dead people/estates cannot have custody of children and custody would not automatically transfer to anyone but a biological parent. I expect that the current motion will be dismissed, which is why she needs to file an emergency motion for custody (not necessarily removing the children from the step momís care right away) to get that ball rolling. We all know how slow the system is. It would also probably reflect poorly on her if she DOESNíT ask for custody, judges can be weird sometimes with the biases they bring into court.
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  #20  
Old 09-23-2019, 11:23 AM
pinkmorganite pinkmorganite is offline
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Oh my god, what a situation to be in!
I do know of someone who had his daughter every other weekend, and 2 days a week.
The Mother had Custody, got cancer (never told the father) Mother and Daughter were living with her Parents--Child's Grandparents. Grandparents in their 70's.
Mother died.
Father filed for Custody, Grandparents fought him. Grandparents Won Custody. (They Succeeded in painting the Father our Awful!!)
I think Father's Access he had remained the Same. He now has to pay Child Support to the Grandparents.
He Spent $70,000 in his own legal fees for that, and the Grandparents were going after him for their Court Fees.
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alienated, death, p.a.s., sole custody, step-mother


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