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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 04-10-2007, 12:58 PM
smadax smadax is offline
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Default Visitation & Access Nightmare

This was the first visit since we'd had custody (two years) after ex-gf finally completed alcohol & drug rehab program. We decided to allow Spring Break visitation, a short trial. She lives 1508 km away so alot of time was spent on the bus. She arrived to p/u the children and left stating she would take them to a Hotel because the bus back to her residence didn't leave until the next morning.

Everything seemed to be going okay, but it all came to light a few days later that all was not well...

1) ex-gf admittedly took the children to stay with her brother instead of a Hotel, not only did she lie to us. This compromised the safety of the children as her brother is a known illicit drug user and alcoholic, this is a breech of our custody agreement. After questioning the children I also discovered that she was repeatedly giving her brother money, she gave him over $30 to purchase her cigarettes and other items from the store and he returned broke and empty handed (Gee, wonder were that money went??)

2) ex-gf stated her CL bf was gonna be outta town working throughout visitation cause she knows we don't approve of him as he too is a known illicit drug user. When I called to check on the children to make sure they arrived okay, they informed me that the CL bf was present.

3) We requested the children to be returned in a timely fashion, so they don't miss school. We made sure return tickets were purchased before they were allowed to leave. However ex-gf purchased opened bus tickets and had no knowledge of the bus schedule, consequently the children arrived late and missed 3 days of school. They would have missed the whole week if we had not called and demanded she take them on the very next bus back home.

4) ex-gf stated she'd taken the week off work to spend time with the children. Upon their return the children said she had worked the whole time and their Maternal Grandmother looked after them during the day. She'd promised them she'd take them swimming and did not find time to do so while they were in her care.

We gave her happy & well adjusted children, but they returned with a different demeanor specifically the oldest child. It was like all the hard work we've put into them for the past 2 years trying to improve their self esteem, health and education... was all thwarted by this lunatic who filled their heads with empty promises and misconceptions.

A) She told them that she'd quit her job to be at home with them.
(If this was true, why didn't she even take one week off work for visitation?)

B) She promised to leave her CL bf and move closer to us.
(Her Mother and MCFD has tried everything to force her to leave CL for years)

C) She reported to the children that she fought very hard and lost the custody battle and they were forced to live with their Father.
(She requested closed court and gave us consentual custody)

When the children came home it was two weeks before they rekindled telephone contact with their Mother. The oldest child eventually handed the phone to DH and ex-gf requested to have the oldest child sent back to her as it was her opinion that he was not happy residing with us!

Now his 12 year old son has been brooding around the house since they came home and picking silly fights with his siblings. If this is what happens after one week of visitation... what is gonna happen after one month in summer??
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Old 04-10-2007, 03:58 PM
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smadax,

That is a difficult situation. If the individual is not living up to the terms or court orders of the children's access; Then the children's access could be with held especially if they are in the possibility of harm.

I do suspect the court would err with caution when it comes down to the children associating by way of the mother with a convicted criminal if that is what they are. The court will not condone an individual having a complete disregard for their orders.

For legal custody to change for the eldest child; the mother would have to prove on the balance of probabilities that a material change has occurred in regards to the current regime of same child and secondly would have demonstrate that it would be in the child's best interest for such drastic change.

Document the recent events of the children's access thoroughly so that you can refer to if any future litigation occurs.


lv
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Old 04-10-2007, 04:41 PM
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Default Tentative Action

Our Agreement from July 2005 states:

"(Defendant) shall refrain from using illicit drugs and alcohol during all access visits and shall not permit persons who are under the influence of or are consuming alcohol or illicit drugs to be in the presence of the children."

Our Agreement from June 2006 added:

"The parties are to attend family court mediation with respect to telephone access."

We immediately met with the Family Justice Counsellor, who sent a letter to the ex-gf with a deadline for August 2006. The ex-gf has never attempted to contact their office to begin mediation, therefore she's been in breech of this clause for nearly one year!

Do we just wait for her to file a motion, or should we file a request to have the Order varied to supervised or local with days only visitation and telephone access minimized until completion of mediation?
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Old 04-10-2007, 05:43 PM
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smadex,

It really is a judgment call by you.

Both parties can take action.

If you withhold the children due to reasons stated, most likely that would trigger a contempt motion from them in regards to the child's access.

Contempt of court orders are quasi criminal and the onus is them to prove beyond a reasonable doubt that you willfully denied the children's access rather than on the balance of probabilities that you denied the children access.

Because the courts are already involved in the matter; If it was me and If I had sufficient evidence, I would jump the gun and definitely seek the assistance of the court on the matter to restrain the party from having the children in the presence of the BF and abide by the terms of the order rather than face a pending contempt motion.

lv
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Old 04-11-2007, 07:22 AM
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Default smadax

I'm going to play "evil's advocate" if I may.

Let me begin by stating that I agree with LV and you should jump the gun and vary the access to protect the children, but I wouldn't deny access nor revoke telephone contact.

The only reason I say that, is because of how things would be perceived by the children. Too many times parents forget that the children are watching, and even when you don't say anything in their presence, they are very perceptive little people.

On one hand you know the ex and her choice of people, and want to protect the children from that, and rightfully so. On the other hand you don't want to "look" like the bad guy to the kids and give the Ex more ammunition to spew inaccurate webs of lies about the situation either.

I would ask for a variance of the order, making darn sure I have documented the events of the recent access week. And start by making future access supervised, and to NOT include the bf unless it can be unequivocally proven he has sought treatment for his addictions and provide a doctor’s clean bill of health which would include a simple urine test result. A urine test can distinctively show whether the individual has any liver malfunction due to recent or prolonged alcohol abuse/use. If the individual was using alcohol or even over the counter drugs in the weeks leading up to the test, it will show. The test can be requested through a walk in clinic doctor and performed and completed within a week. I would also have the order include how telephone access will be assigned, to include frequency and time frames so that the children can expect them, look forward to them, and still allow regular contact for the ex.

I just want to say, no parent wants to be denied access, regardless of how bad they are, and you don’t want to fuel the fire of animosity or anger she harbours against you. But you need to protect the children and I think a detailed access order that restricts access can do that and still offer piece of mind that the children will be protected from any individuals under the influence when they are with the ex. Hopefully the ex will wake up, clean up her act and kick the baggage to the curb. If she doesn’t the children will not be victims of her bad choices, yet they will still have a door open to them to visit with their parent.

I hope I made sense here; this is all about the kids and they have to be the primary focus, not just in what you do for them today and tomorrow or next week, but well into the future. Your fears are warranted, and there is nothing wrong with jumping the gun in getting a supervised/restricted access order. But don’t deny the children their parent, let them make that choice, and believe me they will. It’s in their nature.
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Old 04-11-2007, 02:38 PM
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Default Follow Up

Quote:
The only reason I say that, is because of how things would be perceived by the children. Too many times parents forget that the children are watching, and even when you don't say anything in their presence, they are very perceptive little people.
Their 12 year old son has always been the favored child and has blinders on. She's especially pressured him to relocate because she knows the Judge would take his opinion into consideration because of his age. I also know he favors the idea of living with her because her lifestyle seems like freedom with no rules, no responsibilities, no structure, no discipline, no supervision, etc... a gauranteed recipe for a juvenile delinquent!

The children returned almost three weeks ago and we're only now recovering from the aftermath. I can't in good conscience send them back for a whole month, knowing that we'd be terribly worried about them and wondering if she'll send them back, even if she does how long will it take for them to recover after prolonged exposure?

Quote:
Start by making future access supervised, and to NOT include the BF unless it can be unequivocally proven he has sought treatment for his addictions and provide a doctor’s clean bill of health...I would also have the order include how telephone access will be assigned, to include frequency and time frames so that the children can expect them, look forward to them, and still allow regular contact for the ex.
I really like that idea and the wording, thank you for that.
Telephone access is already scheduled, twice a week for one hour and we call her. My concern is that she's not complied with mediation.

This is the woman who sent a Valentines Day card last year which only stated that she's going to a Supportive Recovery Program, nice gift to your kids. This was a 45 day residential program that she was eventually kicked out of for repeatedly showing up by curfew intoxicated.

This is the woman who called her DS on his 12th birthday and said her gift to him was that she'd stop drinking and smoking cigarettes. Of course this precious gift never happened.

This is the woman who's favorite phrase to manipulate her children is "If you love me...." The same woman that repeatedly promises them particular gifts which never materialize.

This is the woman who refused to listen to her daughter who kept telling her Mother that she does not like pink and purple, but sent her a pink jumpsuit for xmas and DD broke down into tears!

Quote:
Hopefully the ex will wake up, clean up her act and kick the baggage to the curb. If she doesn’t the children will not be victims of her bad choices, yet they will still have a door open to them to visit with their parent.
The difficulty is that it's a contradiction in saying the children will not be a vicitim and yet still throwing them into her twisted World by allowing her the generous access & visitation. I know as a Mother how important it is to have the contact we keep trying to make things work, but there should be consequences or boundaries for her actions otherwise she's not learning and nothing changes.
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Old 04-12-2007, 07:49 AM
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Sweet Heart, this is a very delicate situation, one for which I would personally have a very heart wrenching time with as there are innocent children involved.

For the 12 year old, I would meticulously document the mother's activities and lack of ability to get herself clean, include all the programs she had been participating in and how they turned out. So that any request he made for his transfer to her home would NOT be seen as in his best interests despite his desires.

ANY visitation would have to be under strict supervision so she could not use the "If you loved me line" or any other form of manipulation. These visits would have to be at an approved facility with responsible persons over seeing. And I would beg the courts to see her for what she was and how her life would certainly NOT benefited the children and that until she could prove to the court that she had successfully complete treatment and stayed clean for a certain time access would be strictly supervised. And I suggest getting a digital recorder and an adaptor to record ALL the telephone calls she has between the children so you have her own words of manipulation etc. Family court will allow these recordings.

I personally would NOT allow any extended access at this time. If there was a court order in place I would IMMEDIATELY seek an urgent need for variance. Based on the information that you have provided here I think it alone would be enough for the court to vary access at least for the interim until the mother could provide proof otherwise.

Good Luck, my prayers are with you.
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Old 04-15-2007, 11:26 AM
smadax smadax is offline
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Default Been there, Done that

We've done all this stuff and brought it to the attention of the Judge requesting supervised access, unfortunately he was sympathetic and she got scheduled visitation and access. Hopefully all this court attendance is just part of due process!

Children's Law Act;

(3) A denial of access or failure to exercise the right of access or to return the child as the order or agreement requires is wrongful unless:
(a) it is justified by a legitimate reason; and
(b) the respondent gave the applicant reasonable notice of the failure and of the reason.


Conditions for access order
9(1) In making, varying or rescinding an order for access to a child, the court shall:
(a) have regard only for the best interests of the child and for that purpose shall take into account:
(i) the quality of the relationship that the child has with the person who is seeking access;
(ii) the personality, character and emotional needs of the child;
(iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care;
(iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child;
(b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care.
(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child.
(3) The right of a parent who is granted access described in subsection (2) is not, unless the court orders otherwise, a right to be consulted about or to participate in the making of decisions by the custodial parent.

2) Where a court, on application, is satisfied that a person entitled to access to a child pursuant to an order or agreement has wrongfully failed to exercise the right of access or to return the child as the order or agreement requires, and is of the opinion that it is in the best interests of the child, the court may by order:
(a) require supervision of the access in any manner that the court considers
appropriate;

(b) require the respondent to give security for the performance of the
obligation to:
(i) exercise the right of access; or
(ii) return the child as the order or agreement requires;
(c) appoint a mediator pursuant to section 10 to assist them in resolving the issue;
(d) require the respondent to provide the respondents address and telephone
number to the applicant;
(e) make or vary a custody order or access order; or
(f) direct all or any combination of the things mentioned in clauses (a) to (e)
to be done.
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Old 04-18-2007, 01:12 PM
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Default No end in Sight

We got called in because of a false report of physical abuse to the local Ministry of Children & Families by the ex-gf on Monday SW called yesterday and said we need to bring the children in for an interview. I have nothing to hide so I didn't say a word to the kids about were we went or who we are seeing, then the truth wasn't tainted.

SW told us that ex really grilled the children over Spring Break, then twisted the truth. SW had not found anything to be a concern, it was all manufactured lies.

We talked to the DS about his preferences he'd clearly stated that he would have to move back to his Mother, otherwise it'd break her heart. His Mother said he can decide were he wants to live because he's 12 years old and it's his responsibility to convice his younger sister to move back to the Mother as well. What kinda guilt trip and burden is that to put on a child?

SW stated she will write us two letters, one were she was involved in the ex taking the children to her brothers house and this malicious report to the MCFD. We'll have to use that as evidence to build a case for a change in visitation and access, because it's not right that she's manipulating the children is such a manner it's emotional and mental abuse.
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Old 04-18-2007, 03:26 PM
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smadax,

Quote:
We got called in because of a false report of physical abuse to the local Ministry of Children & Families by the ex-gf on Monday SW called yesterday and said we need to bring the children in for an interview. I have nothing to hide so I didn't say a word to the kids about were we went or who we are seeing, then the truth wasn't tainted.

SW told us that ex really grilled the children over Spring Break, then twisted the truth. SW had not found anything to be a concern, it was all manufactured lies.
Did the SW close the file. Be sure to get a copy of this complete file for your records including the malicious allegation made.

Quote:
We talked to the DS about his preferences he'd clearly stated that he would have to move back to his Mother, otherwise it'd break her heart. His Mother said he can decide were he wants to live because he's 12 years old and it's his responsibility to convice his younger sister to move back to the Mother as well. What kinda guilt trip and burden is that to put on a child?
Yeah its a guilt trip alright. However, the court may not give great weight to the views of a 12 year old. Document what the child mentioned in a journal for future reference including the guilt trip by the other parent.

see this previous Hague convention post with embedded case on how the court gave weight to a coerced 11 year old.

http://www.ottawadivorce.com/forum/s...ighlight=hague

Quote:
SW stated she will write us two letters, one were she was involved in the ex taking the children to her brothers house and this malicious report to the MCFD. We'll have to use that as evidence to build a case for a change in visitation and access, because it's not right that she's manipulating the children is such a manner it's emotional and mental abuse.
I agree it isn't right. As I mentioned, be sure to get a complete disclosure of the SW file.

lv
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