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  #1  
Old 07-26-2018, 02:20 PM
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Default Case law/ material change in circumstances

Hello community, I'm looking for recent or not too old case law where prove in material change was considered regarding change in custody/access and obviously change of the existing status quo, and any case law where OCL recommendations where uphold by the Court, any help with this is really appreciated, thanks.

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  #2  
Old 07-31-2018, 09:50 PM
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No one? Realy?

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  #3  
Old 08-01-2018, 09:52 PM
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Quote:
Originally Posted by youngdad91 View Post
I think you need to be more specific. I've had to deal with the burden of material change over the last 3 years for a motion to change a final order 8 months after it was made on consent. I've been successful 4 lawyers and 2 judges later (2 lawyers me and 2 lawyers my ex)

Material change greatly varies case by case and judge to judge.

What is current order say about custody and access?
Mother sole custody, me access every other weekend, Fiday to Monday morning.

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Originally Posted by youngdad91 View Post
When was it made?
May 2015

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What are you looking to change, and why?
Access regimen for the youngest child to 50% of his time because other older child has been alienated to the point that now is refusing access.

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Originally Posted by youngdad91 View Post
What do you feel is different now, then from when the order was made? (in other words, what has changed? Was this change forseable at the time the order was made?)
At the time when the original order was made back in 2015 no one foreseen that mother's conduct would have such a negative impact in children's relationship with me to the point that the older child is refusing access since a year now.

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How old were the children when the order was made, and how old are they now? How are they doing in school?
3 and 9, now they are 6 and 12. They do well in school.

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Is the OCL involved? Are you looking to get them involved?
Yes, OCL is involved 2nd time, they found that children's mother alienated the kids and they recommended half the time of the younger child with me. The older child to remain the same, every other weekend if child wants to go on access.

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I have researched the peanuts out of material change cases and am aware of many of them. After you have answered the questions above, I will share some that may be relevant to your case.
See above my answers. I had researched extensively too, I was wondering if I can get good cases here when motions to change on custody and access were successful.
I'm pretty confident that I will be successful because I have OCL report who support it.



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Last edited by paco; 08-01-2018 at 10:08 PM.
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Old 08-02-2018, 11:36 AM
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Access regimen for the youngest child to 50% of his time because other older child has been alienated to the point that now is refusing access.
That older child is 12. You think that the court will order access against the will of a 12 year old? They might, but you better have some fairly convincing evidence of alienation. Presumably you might want to look for an order for reunification therapy as well.


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3 and 9, now they are 6 and 12. They do well in school.
While this is good for your kids, it is bad for your case. If the children are thriving, then there is little reason to risk a change.

You are looking to change sole custody to shared custody with children who are doing well. Honestly, I'm not sure if I've ever seen any case law where that happened.

Does the OCL report actually use the word "alienation"? Do they add any weasel words? (eg. "possible alienation", "claimed alienation")
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Old 08-02-2018, 11:44 AM
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Janus, he is seeking to have more access with the younger one due to alienation with the older one. This is simular to my case the difference being that my kids are not doing well in school.
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Old 08-02-2018, 11:47 AM
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You are correct, I missed that. Of course, that then involves separating siblings which some judges also have issues with. Agreed though, that makes it much more plausible.

I still think with kids doing well in school it is going to be tricky. I have rarely seen a judge upend a "good" situation.
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Old 08-02-2018, 12:45 PM
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Janus, the variation of the original order is only based on OCL recommendations which are half the time with my younger child only (among other small things). Their reasoning is if a drastic change in access will not occur I will lose my son too. Access to my older child stay the same per OCL recommendations, so same judge will hear our long motion soon, when last time same judge clearly stated in an order that "he do not expect that the older child will accept whether or not the older child can go or not with father", and he continued "mother will do all reasonable efforts to ensure the older child can attend access with father". The older child still continue not to attend access since a year now and my younger one already missed 5 times because he's resisting to come with me too. So Janus, how do you interpret judge's order, plus he addressed directly to her counsel "you don't want your client to be found in contempt".

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Old 08-03-2018, 12:17 AM
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Originally Posted by youngdad91 View Post
what is your proof of alienation?

What do you mean by the children are doing well in school? Straight A students with all excellent ? Passing everything with C ?

For the 12 year old, you should be requesting reunification counselling - and bringing a motion for it.

For the younger child, you should most indeed be seeking equal access to protect your relationship , specially if the OCL feels the mother will poison the younger child the same way she poisoned the older one.
that's exactly what OCL recommended for the younger child. As for the 12 year old child we'll see what the judge will decide at the upcoming long motion.

Older child is A and B in school, that's not excellent, younger child is not in grade 1 yet.

The only proof of alienation is the OCL findings, children's mother is transferring her anxiety and fears into the children, and my younger child appears to be impacted by the negativity toward me being conveyed in both the actions and inactions of child's mother. And further: "if these continue, serious consideration should also be given to her ability to maintain custody. Mother does not appear to understand the role she has had in negatively impacting the children. Mother needs to encourage and foster a positive and healthy relationship between the children and their father despite her feelings about him. Mother should consider counselling support to help her achieve this. If this cannot be achieved, consideration should be given to a change in custody." These are the OCL conclusions.
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Old 08-04-2018, 11:21 AM
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Originally Posted by youngdad91 View Post
Sounds exactly like my ex. She's not the first to sound the same though.


So basically, mother screwed up, but we'll give her a chance through
counselling, and if she doesn't play nice, then we'll take away custody.

Your OCL lady did exactly what my OCL lady did, they know the mother is alienating the child but they don't label it as alienation because they are a little biased towards mom and feel bad for her and are giving her 2nd chances to fix her up.

Why are you doing long motion as opposed to going straight to trial? What are you seeking on long motion? Is mom opposing anything in OCL report? You do realize you cannot dispute the OCL findings on a long motion right ? You have to go to a trial and cross examine the OCL.
So, I didn't request the long motion, it was the judge who scheduled the long motion and cross examining the OCL. Mother disputed the OCL report, not me, and OCL rejected her dispute already. So we're heading to the long motion in a context when both children are refusing access now, not just one. Same judge was very clear to mom about a month ago, he said in his order "mom shall take all reasonable efforts to ensure that the older child attend access with father" and also "I do not accept that the older child can either go or not with father for access".
So what mother is doing, nothing, she plays the card of bringing the children at transfer exchange point but the kids don't want to go with me. She will have a tough day at the long motion very very soon.
The least I expect is to walk out with my younger child 50% of his time with me, if not sole custody, just for him. For my older child probably reunification therapy is what we need.

I believe there will not be a trial if the judge makes a final order as to custody and access at the long motion, we'll see what happens, I'm optimistic.

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Last edited by paco; 08-04-2018 at 11:24 AM.
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Old 08-05-2018, 09:10 PM
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Quote:
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So what mother is doing, nothing, she plays the card of bringing the children at transfer exchange point but the kids don't want to go with me.
Paco is there anyway the exchanges can be done at school, daycare or even an access centre? Our exchanges use to be epic, with me and the ex arguing and the kids acting out. My ex now picks up the kids Friday from the bus and daycare, no drama, no kids not wanting to go. And if there is some resistance from the kids Dad has to deal with it and it's quickly resolved.

Last edited by kate331; 08-05-2018 at 09:13 PM. Reason: sp
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