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  • A Plea For Justice

    Some of you know a bit about the situation I am facing regarding my daughter. I have progessed a lot since I last posted here, but there is a whole new set of problems that have arisen. Some advice would be greatly appreciated.

    The story so far, in brief:

    - Ex-wife left Ontario with my daughter in September 05 with new boyfriend without my approval. I was not knowledgeable enough of my rights at the time to prevent them.
    - in late October, ex and BF got into physical altercation, resulting in my daughter being removed from home to foster care.
    - ex told me she wanted me to have custody, she couldn't handle it.
    - I proceeded to set things in motion on my own without counsul.
    - ex revoked her wish for me to have custody. broke off contact with ex.
    - i contunued to proceed since I still had issues about her abilities to care for daughter.
    - 45-day foster care order issued by BC court for daughter, Nov. 10.
    - i appeared in ontario court with urgent motion without notice to transfer custody to me. was told to serve docs on ex before proceeding.
    - hired process server to locate her, was unable to serve after 4 attempts.
    - hired lawyer to proceed on my behalf; returned to court Dec. 9 to resubmit urgent motion. court ordered docs served on ex's mother, mailed to ex's address, and faxed to foster care agency in BC. six days following i would have legal custody.
    - foster care agency informed me they were seeking further three months of care for drew, due to continuing issues with ex.
    - foster care agency refused to release daughter to me; cited ontario order had no impact on the BC system, and were uncertain as to my abilities to care for her. wanted personal references, and were provided and contacted by them.
    - my lawyer contacted foster care agency's lawyer, agreed to release daughter to me provided i present original copy of Dec. 9 order and meet with them in person.
    - I travelled to west coast to meet with them on Dec 20. interview and visitation with my daughter went well, was informed they were satisfied on all issues.
    - while attending meeting, foster care agency contacted by their lawyers informing them that ontario court overturned my Dec. 9 order based on daughter's residency being long enough to transfer jurisdiction to BC court. Also cited my failure to prevent them from leaving beforehand as tacit approval of move.
    - my lawyer advised me it was now a BC matter and he was powerless to represent me, suggested i contact legal aid BC
    - legal aid BC took my application on Dec. 20, but later informed me I had to apply in ontario since I was resident there, and then have it transfered. was already turned down by them once.

    After that, I had to return home. My situation now is back to square one. So i have a couple of questions:

    - Does anyone know or can tell me how to find out exactly how long she has to be in BC to be considered habitually resident?
    - it was suggested to me by a D.A.D.S. canada representative that i have nothing to lose by trying to overturn the overturning back in an ontario court with a motion without notice. to me this seems like an endless back and forth...
    - is there precedent in BC law to be represented in a court setting via telephone? it is problematic for me to spend indefinite amounts of time there to sort this out...
    - anyone got any hot links for father advocasy groups either in BC or nationwide?

    It's apparent to me that she simply got this order because she is within a demographic: vis a vis, she is a woman and she is on welfare. I'm sorry to say that because I am not intolerant of such things, but nowhere in the documents i just received were any of my issues or evidence persuant to her ability to care addressed, and she was able to do this in very short order, destroying months of work on my part. To say I am extremely distressed by all of this is not a strong enough sentiment.

  • #2
    My gosh, what a sad situation!

    You obviously had to leave out a lot of details as your situation is quite complex, but it's not clear to me why the agency did not allow your daughter to live with you. Also, I'm not clear exactly what the December 9 order said.

    It does seem to me that BC is the proper jurisdiction in which to proceed. Certainly it's the safest jurisdiction in which to proceed.

    As you've been divorced, the Divorce Act is the guiding statute.

    You asked about "habitual residence." For a child's habitual residence, the Divorce Act states:

    “Habitual” residence is the place where the child resided: (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time; whichever last occurred. The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing proceedings.

    You'd fall under case (b). Given that you waited 2 months to do anything, a lot of judges would rule that you acquiesced to the move.

    Litigating from across the country obviously makes things harder, but not impossible. Given that the legal test for who gets custody is what is in the child's best interests, and your wife has had your daughter taken away from her due to poor parenting, it should be arguable that your daughter would be better off living with you.

    I think that all courts today have provisions for allowing you to appear in court "via telephone." Obviously it's hard to be as effective an advocate by doing it this way rather than in person, but that should not stop you.

    I think your first course of action would be to work with the agency to see what (if any) parenting concerns they may have about you. You should read the relevant legislation at:
    http://www.qp.gov.bc.ca/statreg/stat/C/96046_01.htm
    It would also make sense to speak with a lawyer who specializes in this area (most family law lawyers, including myself, don't).

    In Ontario, if the CAS removes a child on protection concerns, that stays the family law proceedings. I haven't reviewed the BC statute in detail, but my guess is that it's similar. That's why I'm recommending working with the agency or at least getting involved in the agency's legal proceedings rather than starting your own fresh action for custody.

    Again, you should speak with a child protection lawyer in BC to determine your best course of action. These are just my thoughts based on the limited information I have and what the situation would be in Ontario.
    Ottawa Divorce

    Comment


    • #3
      Sorry to hear about your situation. That must be so difficult for you. I think too that you need to find out why child services hasn't allowed the child to come live with you during the time she has been removed from her mother's home.

      Comment


      • #4
        Originally posted by Jeff
        In Ontario, if the CAS removes a child on protection concerns, that stays the family law proceedings. I haven't reviewed the BC statute in detail, but my guess is that it's similar. That's why I'm recommending working with the agency or at least getting involved in the agency's legal proceedings rather than starting your own fresh action for custody.

        Again, you should speak with a child protection lawyer in BC to determine your best course of action. These are just my thoughts based on the limited information I have and what the situation would be in Ontario.
        It is my experience with CAS is that their ultimate goal is to have children in the custody of family members ASAP, even before court proceedings, rather than foster care whenever possible. I used my own lawyers to litigate on behalf of the children and not the CAS lawyers. CAS were cooperative with my lawyers. Once I had the custody & access orders from court, CAS closed the file. It took 3 months in total.

        Comment


        • #5
          Originally posted by Grace
          It is my experience with CAS is that their ultimate goal is to have children in the custody of family members ASAP, even before court proceedings, rather than foster care whenever possible. I used my own lawyers to litigate on behalf of the children and not the CAS lawyers. CAS were cooperative with my lawyers. Once I had the custody & access orders from court, CAS closed the file. It took 3 months in total.
          The CAS in BC (or the Ministry of Child, Family and Community Service as it's known out there) has told me plain out, that they don't just hand over children to the other parent in a case like this, even if the parent lives in the same city. I don't know why. They only were willing to work with me with an order of custody and then that was overturned, and they said well too bad for you I guess.

          The idea of a lawyer for the child is interesting tho... however, since they now say she is a resident of BC that makes it harder... however, what if one of the lawyers for the ministry were to lobby on my behalf to have my daughter returned to me? They are well aware of the issues with the mother, and know that I am more suitable... certainly they can't return a child to someone like that when I am clearly the better and safer choice?

          Comment


          • #6
            What a frustrating situation for you, especially during the holidays. I can't understand why CAS would keep a child in foster care when a biological parent is willing and capable of caring for her.

            In my situation I hired my own lawyers to represent my children. I would hope if you do use the CAS lawyers that they would advocate on behalf of your daughter to have her returned to you ASAP. Sometimes it's the squeaky wheel that gets oiled first. I'd be call them everyday.

            I wish you all the best, under these incredibly difficult circumstances.
            Grace

            Comment


            • #7
              my heart goes out to you. Dealing with legalities from one's own province is difficult enough, but when its through a different province.....that's excruciating. I really feel for you. Grace is right, the squeaky wheel gets the oil, hopefully sooner than later. I can't grasp how you- a parent- can't even get temporary custody until it's resolves, as opposed to a little child being with strangers. I seriously think that our legal system needs an overhaul in many areas.
              I wish you the best

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              • #8
                Thats true, the legal system as far as this goes really needs a good looking at it.
                I just cant see it happening though - the government really dont care.

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                • #9
                  seems to be that way. The top dogs ignore it and figure that people will still survive, manage somehow, and get by------well no wonder there's so much money spend on mental health each year!!!!!!!!!!!!!!!!!!!

                  Comment


                  • #10
                    Its like a cycle with the government - they send people crazy then they just have to spend more supporting those people.

                    When will it end?....

                    Comment

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