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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 09-21-2019, 10:27 AM
Mummaa222 Mummaa222 is offline
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Unhappy Death of sole custody parent

The father of my 2 daughters was given sole custody in a final order. I brought a motion to change and it's been ongoing for 2 1/2 years. He has a common law spouse who my children began calling "mom" years ago.
My daughters show every symptom of severe parental alienation syndrome but children's aid and the children's lawyer claim they don't see it. My 14 year old has been refusing access visits and my 10 year old follows her sister's lead.

I am self represented. We are scheduled for a long Motion on October 4th and a Trial Management Conference on October 8th.

My ex passed away suddenly on September 18th. My daughters are presumably with his girlfriend. I don't know for sure because I have not heard from his family.

His lawyer served me with a new affidavit for the motion just a little over 24 hours after his death but did not mention his passing. The affidavit was related to the Motion they brought to ask to terminate access or for access to be supervised. They want to terminate access because my oldest doesn't want to see me and claim my youngest is afraid to be with me without her older sister. I have a 4 year old daughter, their sister, from my current relationship of over 6 years. CAS has investigated reports of abuse against her by her father and I and reports of constant yelling and name calling when my daughters are here. None of these allegations have been substantiated because they are absolutely not true! There is no reason for supervised access and the only reason they have been able to give is that the girls would be comfortable. My opinion is that it would be the total opposite and nobody at all would be comfortable in a small room being observed. When they would come for visits we had fun but their father and girlfriend claim that they say they sit in a room alone and color and nobody talks to them. Again, completely false. The false allegations against my current partner and I are too many to list.

I have attempted to contact lawyers in my area for advice and have not had my calls returned.

I emailed his lawyer asking who currently has custody of our children and she has not responded either.

My ex's girlfriend has been telling people that his wishes were for our daughters to be raised in their home and says she's not going anywhere.
I know he did not have a will because I was told by the person he was with when he passed and who also informed his girlfriend of what happened that the very first thing his girlfriend said was "He didn't have a will, I'm going to lose everything". (My first words were "where are my daughters? I need to get to them"

So my question is WHAT DO I DO? I obviously want my daughters but I also don't want to hurt them any more than they have been. I don't want them with his girlfriend as all signs point to her being the mastermind behind the alienation. She has also made statements in the oast that if they ever split up she's taking the girls with her. This woman terrifies me because I believe she'd hurt my girls if she's backed into a corner and thinks she's about to lose them. I've expressed this to many involved in our case in the past but it has always been brushed off.

Help! I want my babies...I want to hold them and comfort them...they lost their daddy and they need their mommy!
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  #2  
Old 09-21-2019, 11:17 AM
Kinso Kinso is offline
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Short term: adjournment
Long term: you’ll need a lawyer, this is an extremely complex situation.
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Old 09-21-2019, 11:38 AM
tilt tilt is offline
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I’m sorry this is a difficult situation. A sole custody parent can, in their will, assign the custody of their children for up to 90 days after their death. Your partner did not have a will and therefore did not assign custody. I would NOT adjourn, I would file an emergency motion to have temporary custody (since you still have access it should not be too much of a stretch for a judge to see it, however they could rule the other way based on the least disruption to the girls).

Since you have had CAS involvement in the past I would reach out to them, explain the custodial parent passed away and you have not been able to contact your children to offer assistance while they grieve and you want to take custody as the only living parent. It is positive that you have been in the court system for two years to get custody. Do you have space for the girls (both with their own rooms?), are you living near their school? Anything that shows you will maintain the stability they need would be good.

I agree you need a lawyer. This is not something to self-rep.
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Old 09-21-2019, 01:18 PM
rockscan rockscan is offline
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You will also need an estate lawyer. If he died without a will and you are not divorced, technically you inherit everything. His gf will fight for it if she is going to seek sole custody of the kids.

Are his parents still alive? A sister or brother who would take custody?

Tilt is right, you need to file an emergency motion to have custody ordered. You may also want to have therapy ordered immediately too. The two girls will need grief counseling.
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Old 09-21-2019, 02:02 PM
Kinso Kinso is offline
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Given the level of estrangement/alienation on this file a motion for custody is risky, and there is backstory we aren’t getting here. I’m concerned a judge will not want to give custody to a parent who the children refuse to see, especially in the context of the death of their father. It might solidify the stepmother as being the primary custodial parent.

Talk with a lawyer who can review your entire case, including the narrative put forth by the otherside. Get their opinion on the value of an emergency motion for custody. Do not bring it without legal advice.
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Old 09-22-2019, 12:52 PM
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Janus Janus is offline
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Quote:
Originally Posted by Kinso View Post
this is an extremely complex situation.
Agreed. I have never seen this on the forum or read about it in Canlii. Obviously custodial parents can die, it is just unusual. I'm going to look on Canlii later today, I'm curious.

The fact that mom lost custody originally leads me to believe that she might have some issues that were recognized by the courts. Mothers don't easily lose custody. It is not impossible that kids might be better off with stepmom.

Ungh, what a horrible situation all around. I feel so bad for the kids.
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Old 09-22-2019, 12:59 PM
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Well, here is one.. or two

http://canlii.ca/t/hqmj8

http://canlii.ca/t/1r923

Last edited by Janus; 09-22-2019 at 01:04 PM.
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  #8  
Old 09-22-2019, 01:10 PM
standing on the sidelines standing on the sidelines is offline
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Quote:
Originally Posted by Janus View Post
Agreed. I have never seen this on the forum or read about it in Canlii. Obviously custodial parents can die, it is just unusual. I'm going to look on Canlii later today, I'm curious.

The fact that mom lost custody originally leads me to believe that she might have some issues that were recognized by the courts. Mothers don't easily lose custody. It is not impossible that kids might be better off with stepmom.

Ungh, what a horrible situation all around. I feel so bad for the kids.
if there are issues between the mom and kids I do not think its a good idea to swoop in and get custody. The kids are going through something right now and the stepmom has been a stable person in their lives. They need stability right now dealing with the death.

In no way am I saying the stepmom should get custody in the future but for right now it may be a good idea. If mom tries to force the kids to come with her then it may really backfire and the kids may end up resenting her.
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Old 09-22-2019, 01:59 PM
tilt tilt is offline
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Custody does not necessarily mean she cuts the step-mom out of their life though. There is a legal presumption that in the case of the death of one parent the other parent becomes the custodial parent; she can ask for sole custody and that residence remains with the step-mom during a transition period while the custodial parent’s access increases.

And losing sole custody to the other parent does not necessarily mean it was justified - even in Janus’ case up above the father lost custody AND access due the the mom hacking into his email to send threantening emails that he was criminally charged for, PLUS she drugged the dad without his knowledge so he would go to the hospital with symptoms of serious mental health issues so she could claim he was “crazy”. He was lucky he had money for a good lawyer and perseverance.

Last edited by tilt; 09-22-2019 at 02:42 PM.
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  #10  
Old 09-22-2019, 03:09 PM
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Quote:
Originally Posted by tilt View Post
There is a legal presumption that in the case of the death of one parent the other parent becomes the custodial parent;
Parents have custody unless they don't. In this case the mother explicitly does not have custody, since the father had sole custody. The father probably gets to direct custody through his will.

Is there some legislative authority whereby the mother gains custody over any person designated in the will by the sole custody father?
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alienated, death, p.a.s., sole custody, step-mother


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