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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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  #1  
Old 08-04-2022, 05:24 PM
Hide on Bush Hide on Bush is offline
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Default Can a SC Judge Give This Order w/o Consent?

- Have had sole custody since 2016

- Ex wants zero parenting-time, zero decision-making

- Ex is now solely trying to prevent me from moving anywhere in the province (when I was allowed from 2012-2019. In 2019 I consented to a boundary because Ex was supposed to be more active in child’s life. Never happened), and the ex is trying to add in that there needs to be written consent by him for a name change (a term that has never been there and that I have had legal authority to do since 2012 and haven’t)

Son (10.5) has been going through counselling due to the abuse from his father. For 8 months now he has been wanting to take my husbands last name as his sister, and myself both have it. Counsellor has been gradually bringing this up to see how serious is it and he believes it’s something he really wants.

We have a settlement conference on Monday where all that is being argued is mobility and name change. If I flat out refuse to consent to a prevention of a name change can the settlement judge order it without consent? Further, am I going to get reprimanded if I change my sons last name after the conference (assuming no order was placed)?
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  #2  
Old 08-04-2022, 05:58 PM
rockscan rockscan is offline
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Why the hell are you even entertaining this? This is not the hill to die on. You tell your son no and you move on. This is one of the dumbest things I have ever heard.
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  #3  
Old 08-04-2022, 07:30 PM
StillPaying StillPaying is offline
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The sc judge, most likely your case management judge, can definitely make orders without your consent. And what matters is not 2012 but 2019 where you agreed not to move.
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  #4  
Old 08-04-2022, 09:58 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by Hide on Bush View Post
- Have had sole custody since 2016

(A) - Ex wants zero parenting-time, zero decision-making

(B) - Ex is now solely trying to prevent me from moving anywhere in the province (when I was allowed from 2012-2019. In 2019 I consented to a boundary because Ex was supposed to be more active in child’s life. Never happened), and the ex is trying to add in that there needs to be written consent by him for a name change (a term that has never been there and that I have had legal authority to do since 2012 and haven’t)
(A) does not match (B). I always find your posts rather interesting because they lack consistency. I suspect (B) may be the truthful item and (A) may be the lie. No one who wants (A) would even bother with (B) and especially would not bring it to court if they are requesting/wanting (A).

With regards to name change you do not have the ability to do it without the other parent's consent unless you have an explicit court order that states you can change it.

If (A) is true why hasn't the other parent just simply allow your husband to adopt the child? Drop child support and everything. Other parent goes away, you get the freedom you are seeking with your new partner... child names changes... etc... etc... etc...

Quote:
Originally Posted by Hide on Bush View Post
Son (10.5) has been going through counselling due to the abuse from his father. For 8 months now he has been wanting to take my husbands last name as his sister, and myself both have it. Counsellor has been gradually bringing this up to see how serious is it and he believes it’s something he really wants.
What an inappropriate thing for a "counsellor" to be doing.

Quote:
Originally Posted by Hide on Bush View Post
We have a settlement conference on Monday where all that is being argued is mobility and name change. If I flat out refuse to consent to a prevention of a name change can the settlement judge order it without consent? Further, am I going to get reprimanded if I change my sons last name after the conference (assuming no order was placed)?
Nope. The judge cannot order it without consent. Name changes are rarely granted by a judge. You would get better results by settling. But, as has been said.. you will have to compromise.

How to get the stuff you want.

1. Agree to child support in an agreement.
2. Agree to remove FRO or any collection agency.
3. Agree for mobility to be up to you, sole custody, passport, name change, everything to be in your control.
4. Agree for access to be determined by you and arranged by you.

Never seek child support off the agreement and ask that the other parent never execute access. Keep the agreement on hand so you can move around, register for school, etc... for the next 8 years until the child is 18... Never seek child support... let the other parent merge into the void...

Of course this is if (A) is actually true.

Parents who have no CS chaising them usually don't seek access, custody or anything. You have another partner in your life. Remove the child support and other financial obligations and the other parent will disappear if (A) is at all truthful.
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  #5  
Old 08-04-2022, 10:00 PM
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Tayken Tayken is offline
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Originally Posted by StillPaying View Post
The sc judge, most likely your case management judge, can definitely make orders without your consent. And what matters is not 2012 but 2019 where you agreed not to move.
Only orders for disclosure at a conference. Name stuff would have to be determined on evaluation of evidence... Judge won't even let a motion go forward on it and will want to roll everything into the trial anyways.

The long shot way to do it is for this OP to ask her lawyer to see:

A long motion, where evidence is given viva voce by both parties (examine both on the stand) and that the motion be made preemptive on both parties. :O
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Old 08-05-2022, 06:19 AM
Hide on Bush Hide on Bush is offline
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So this is right from my Ex’s Minutes of Settlement (with names redacted).

Decision-Making
9. The Applicant shall have sole decision-making responsibility and shall make important decisions about the child’s welfare, including decisions about the child’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities.

10. The Applicant’s sole decision-making responsibility shall be subject to the Applicant’s positive obligations to:

a. keep the Respondent continuously informed about the child’s development, with particular regard to the important decisions she makes as described in paragraph 9;

b. consider but not necessarily implement input provided by the Respondent with respect to such important decisions;

c. promptly notify the Respondent should the child require emergency medical care, hospital admission, or surgical procedure;

d. promptly notify the Respondent of any involvement with a Children’s Aid Society. The Respondent shall also report any involvement with a Children’s Aid Society to the Applicant;

e. promptly notify the Respondent if the child is in the care of a third party for a period in excess of seven days; and

f. Promptly notify the Respondent of any change in the child’s health care providers (including but not limited to physicians, dentists, psychotherapists and counsellors), school, and significant extra-curricular activities, and other third party service providers, and provide contact information for same.

11. The parties shall notify the other of any changes to their or the child’s physical address, phone number, email address or other contact information.

12. The parties shall communicate by AppClose, with such communication to be private, respectful, not shared with the child or third parties (except for counsel, family, FACSS, and mental health professionals) without the other’s consent. Both parties shall refrain from all contact except in the case of a circumstances described in this order that require such contact. The Applicant shall create a new AppClose account that is solely between herself and the Respondent. The Applicant shall only communicate with the Respondent through this single forum, and shall not send multiple copies of the same information.

13. Neither party shall make disparaging or negative remarks to the child about the other party, or to others in a manner in which the child may become aware.

14. Neither party shall discuss past or present legal proceedings with the child, or with others in a manner in which the child may become aware.

15. Should a party become aware of a third party making disparaging remarks about the other party to the child, discussing past or present legal proceedings with the child, or making such remarks to others in a manner in which the child may become aware of the remarks, the parties shall direct third parties to stop, and shall take steps to prevent the child from hearing or reading such remarks.

16. The Respondent may make inquiries and be given information by the child’s teachers, school officials, doctors, dentists, health care providers, or others involved with the child. The Applicant shall facilitate this by notifying all such service providers of the Respondent’s name, and right to receive information. If, for whatever reason, the Respondent is unable to obtain information from third party service providers independently, the Applicant shall ensure the information is provided either directly by the third party service provider, or indirectly by relaying the information requested herself.

17. The Applicant may independently apply for a passport (or passport renewal) for the child without the signature of the Respondent. The Applicant shall keep the passport in her possession and provide it to the Respondent if required.

18. The Applicant may travel internationally with the child upon providing 48 hour notice to the Respondent of the travel, without the necessity of the Respondent providing further written authorization. The Respondent shall require written authorization from the Applicant for international travel, but such authorization shall not be refused for travel to the United States of America for a day trip or single overnight to the United States of America on 48 hours notice, or upon providing 30 days notice and a detailed itinerary for other travel provided that the travel is in keeping with the child’s wishes.

19. The child’s name shall not be changed without both parties’ written consent.


Parenting Time

20. The parenting time with Jackson shall be allocated as follows:

Relocation

a. the child will reside with the Applicant;

b. the child’s parenting time with the Respondent shall be as follows:

i. The Respondent may communicate with the child by email, text, telephone or otherwise. The Applicant shall not review or respond to such communication, and shall not direct the child’s response. The Applicant shall not be penalized should the child express the content of any and/or all correspondence between the Respondent and himself. In the event this does occur, the Applicant shall be afforded the opportunity to take appropriate actions if required.

ii. In-person parenting time shall be at the discretion of the child, and as arranged between the child and the Respondent.

iii. The Respondent may send cards and gifts to the child, and the Applicant shall facilitate this by delivering all items sent.

iv. Any in-person parenting time shall be facilitated by the Applicant.

c. The Applicant is allowed to move no further than 100km away from the town of [town].


The rest is about CS and S7 which we both consented to.

My Ex’s Confirmation of Settlement and the brief says the most important topics for discussion are

a) Mobility; and
b) Name change.

I’m also confused on why I can’t change the name now. The application form says I can only change the child’s name if

the child has lived in Ontario for the last 12 months before submitting the application or if the child is less than one year old and has lived in Ontario since birth. This requirement is met.

I must be a person with lawful custody of the child. I have full decision making responsibility.

I cannot change the child’s name if there is a court order or a separation agreement that stops me from changing the child’s name. There presently isn’t. However this is what the ex is trying to add.

Last edited by Hide on Bush; 08-05-2022 at 06:43 AM.
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  #7  
Old 08-05-2022, 11:17 AM
StillPaying StillPaying is offline
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Quote:
Originally Posted by Tayken View Post
Only orders for disclosure at a conference.
Disclosure is the basic procedural order made - more at case conferences. Once you get further along, especially with your case management judge, more and more orders are made including some on the substantial side. (Access, incomes, support, travel, activities, meditation, etc). Or in OP's case, I could easily see a judge ensure no name change or move before trial.
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  #8  
Old 08-05-2022, 03:39 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by StillPaying View Post
Disclosure is the basic procedural order made - more at case conferences. Once you get further along, especially with your case management judge, more and more orders are made including some on the substantial side. (Access, incomes, support, travel, activities, meditation, etc). Or in OP's case, I could easily see a judge ensure no name change or move before trial.
Only an order on CONSENT can be made for anything substantial. Procedural orders can be ordered by a judge at a conference without CONSENT.

So if someone is stupid enough to consent to access at a conference a judge can order it. But, its right in the conference rules that a judge can't flat out order access without consent. There are posts from me with regards to the case law on this all over this forum.
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