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  • #16
    P.s.

    I cannot begin to thank you enough for your help and offered case laws.

    My husband is very, very numb to this whole FL process, and once actually thought assessments and counselling would actually help, but now feels they are just another way for the ex to limit access or stall the access process. He stopped caring the dad the daughter called and told him “Daddy I don’t want to visit with you any more”. We taped the call of course and the phone was immediately taken from the child and she sounded like she had a gun to her head. Dad even told this to the judge at one point during our last attempt at getting a contempt of court order against the ex for denied March Break Access. But they, (the judges) just don’t seem to listen!!??

    Had we known about asking for costs for denied access, we would have included it in the contempt of court order motions.

    Anyway, just wanted to say thinks, you are a great addition to this forum and I often think you are a lawyer in disguise even though you maintain you are just a self educated dad.
    I would pay anything to have you represent me if you were a lawyer as you care so much and seem to have a firm understanding of the FL system. Keep up the great work!!

    Comment


    • #17
      FL,

      nope not a lawyer, paralegal or anything to do with Family law. I'm just a caring parent and father and a memeber like you of this forum

      another case that comes to mind with similar circumstances is

      Tremblay v. Tremblay, 54 Alta. L.R. (2d) 283, 10 R.F.L. (3d) 166, [1987] 6 W.W.R. 742, 82 A.R. 24

      Trussler J. at paragraph 9


      9 I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse.

      10 Having heard the viva voce evidence of both the parties and having considered the various affidavits that were filed, I came to the conclusion that Mr. Tremblay was being wrongfully denied the right to establish a relationship with his children and his children were being denied the benefits of a loving father. I also concluded as a result of the 14th January hearing that the children were essentially being brainwashed by their mother with respect to their father and she was attempting to instill in them an unwanted fear of the father.

      11 Cases of this type, where the custodial parent is, without justification and in the face of a court order, denying access to the non-custodial parent, are problematical. If maintenance is being paid, the court can order that maintenance no longer need to be paid as was done recently by the Honourable Mr. Justice Sulatycky. The court can also find a custodial parent in contempt of court and fine the custodial parent or send the custodial parent to jail. However, neither of these alternatives does anything to further the development of a relationship between the non-custodial parent and the child. The child can still be convinced by the custodial parent that the non-custodial parent is an unfit parent and make the development of a relationship extremely difficult. Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children. In many cases, the variation of the maintenance or the sending of the custodial parent to jail is not in the best interests of the children. Often the intransigent parent who has defied or at least not lived up to the court order ends up essentially being rewarded by being victorious in not allowing the non-custodial parent access.

      12 In cases such as this one I would shy away from sending the mother to jail. It is my belief the children could easily blame the father for the mother having to go to jail.

      13 Section 16 of the Divorce Act reads as follows:

      16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.


      (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

      (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

      14 Section 17 of the Divorce Act reads as follows:

      17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively ...

      (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

      (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

      15 The court should not automatically change custody if the custodial parent refuses access or otherwise interferes with the development of a normal parent and child relationship between the non-custodial parent and the child of the marriage. However, where the parent refuses access, serious questions are raised about the fitness of that person as a parent. The refusal to grant access after it is ordered is a change in circumstances sufficient to satisfy s. 17(5) of the Act.

      16 In deciding questions of custody one needs to take into account the best interests of the child. It is in the children's best interests to live with the parent who is prepared to be co-operative with respect to access in cases where both parents can equally well look after the children or, even if there is a divergence in parenting skills, as long as the co-operative parent is fit to look after the children. In this case, I did not have the benefit of a home study, but from the evidence given at the 14th January hearing I was not unduly impressed by the parenting skills or care given to the children by Mrs. Tremblay. At the hearing, Mr. Tremblay admitted that he had problems with alcohol abuse in the past and that he had taken steps, including treatment, to correct those problems. There was also evidence that he has a stable common law relationship and it was certainly clear that he has a genuine interest in the children. There was no evidence that Mr. Tremblay was not able to look after the two boys as well as Mrs. Tremblay.

      17 In this particular case, Mrs. Tremblay has been given ample opportunity to comply with the various court orders. Short of sending her to jail, everything has been tried to convince her that Mr. Tremblay is entitled to access to the children. On two occasions, I directed specific comments to her in the courtroom making it very clear to her that she was to let Mr. Tremblay have access.

      18 On the evidence before me I am satisfied that Mr. Tremblay will properly care for the children. I am also satisfied that he will give Mrs. Tremblay generous access. It is therefore in the best interests of the children and the administration of justice that custody change to Mr. Tremblay and the children live with him.

      19 On 21st August, when I was asked by counsel for Mrs. Tremblay to reconsider my decision, I indicated to him that I felt I had no further jurisdiction in the matter. He was not able to show me a change of circumstances since July to justify an application for variation under the Divorce Act. I also refused his request for a stay of my order until the matter could be heard by the Court of Appeal. The children have been living with their father since 24th July and there is no indication that he is not providing proper care. It is in the best interests of the children for them to remain with their father pending the appeal. The children are being given an opportunity to build a relationship with their father which has been denied by their mother.

      Application granted.



      lv
      Attached Files

      Comment


      • #18
        Thanks, I have read the Trampley file some time ago but forgot about it, thanks for the reminder.

        Dad wants to call it quits, even prepared a letter to ex's lawyer.
        Part of it is........
        -----------------
        I have exhausted all energies and efforts in an attempt to be a productive, supportive yet functional part of my daughter’s life. I wish to put a stop to the torture that has be felled MX and my family including my wife of 11 years, and two other children.
        It is neither fair to MX, PX, JX nor myself and my wife to continue in this manner.

        It has been my position since March 2005, when the new series of events began to unfold, that I would, under no circumstances ever force any of my children to do anything they were so adamantly against. This includes MX’s request of me to wait until she herself was “ready”.

        At the Settlement Conference of February 2007, Justice XX-XX requested an access regime outlining my intended re-introduction to MX into my life, which clearly included lengthy counselling and supervised access. In and of itself, I believe such restrictions are genuinely warranted for the best interests of some children. Since 2005 and against my better judgement as a loving and caring parent did offer slow re-introduction access (following the 6 month period of denied access) in the form of initial visitation between MX and myself alone, to be gradually increased to where she would be comfortable to once again share in the joys of the rest of her family. However, I am not prepared at this time to further disrupt my family. I feel MX is rapidly approaching an age where she will have the legal capacity to make these choices for herself , separate and above either parent’s desires for her, or court intervention.

        I am willing to entertain a final, out of court offer to settle. Please advise your client that I am not in a position to entertain an offer similar to her previous offer. My request is without prejudice and only intended for what it is, an honest attempt to cause as little disruption in the lives of my family and children as possible, and I feel this is best done mutually out of court.
        blah, blah, blah.......more legal ease end sincerely, Mr. X X
        -----------------------

        Comment


        • #19
          FL,

          Trussler J. spoke of that in Tremblay decision in Paragraph 11

          Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children.
          Ultimately, it is their own choice as no law compels them to be a parent to their child. No doubt they are frustrated with the process.

          I think their drafted letter will do nothing and is basically giving the other party everything they desired to accomplish including PAS by handing it to them on a silver platter. If the matter went for trial significant amount of cases are settled on the eve of trial.


          lv

          Comment


          • #20
            "Faced with such odds, I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children."

            I understand, and that part jumped out at me.
            As a dad yourself you can probably imagine the pain of hearing your child say, “Daddy I don’t want to come see you any more” “I hope you understand why I am asking this?”

            Although she sounded like someone was holding a gun to her head and the phone was quickly removed from her once she said this to avoid any rebuttal from the Dad, it still did NOT change how much it hurt. I only saw the pain it caused. (I listened to the conversation after as we taped all calls from the ex) I was sitting beside him as I knew it was going to be a bad call. We have caller ID and the events leading up to this gave me the feeling a call from the ex could be nothing but bad.

            My husband was a broken man that day, his whole body cried that instant, but his voice was calm when he tried to talk to her. Of course he did not get that chance. He told the ex she was “a very sad person” & her reply was, “oh really, you’re the sad one. I just wanted you to hear it from the horse’s mouth.” She went on to say, “I’ll call you later to discuss this” He said, “no, no you won’t”, then hung up.

            I have printed and will offer it to dad and hopfully he will at least reconsider trial.

            Thanks a ton.
            FL

            Comment


            • #21
              FL,

              No doubt such statement would hurt any parent and it is very disheartening. No doubt to me that someone's spirit died that day. However, It is obvious the child was coached into saying same by the other parent. Its further obvious that the other parent is poisoning the mind of this 12 year old child. I can't see them making such a call on their own. I think the term "hearing from the horse's mouth" was a dead give away. What kind of parent centered on the wellbeing of a child allows a child to say such words to their other parent?

              If it was me, I would definitely move with the action and not make things simple for the other parent. Very little weight would be given to a 12 year old's view by the way. If the OCL intervened, and the child said such to them, the child would require a viable reason for such views. Simply stating "I don't want to see them anymore is not sufficient"

              If it was me, on motion, before trial I would request the office of the children's lawyer involvement to put forward the child's sincere views. I would also request access to be reinstated - even if it is supervised or limited in duration. Once this occurs, I would definitely follow through with trial management and of course trial.

              I hope that "Dad" regains hope and his spirit and grabs the bull by the horns in this matter.

              lv

              Comment


              • #22
                Lv

                I have copied and printed this string of posts for "Dad" to read, if for no other purpose but to be informed as to a "second" opinion.

                He has withdrawn his idea that sending a letter and giving up is his only choice now. He has decided to take this to trial and hope that this time the courts see it for what it is. He said that given we were not able to present our evidence at the SC then the ex also did not see our evidence, so he feels we have a shot. We are hoping the ex is basing her claims on the old “he said…She said” and is hoping we have nothing but our word to back us up.

                The TMC (Trial Management Conference ) is set for the week of the 18th of June, then we go to trial in October. No firm dates as of yet.

                Question, during a TMC can we submit documentation and does such need to be sworn?

                Thanks again I will be sure to keep you up to date, as I am sure there must be someone out there either living the same or destined to live it.

                Comment


                • #23
                  FL,

                  I would also point out that if the daughter's views was given any considerable weight - A unilateral severance of the parent/ child relationship- Dad would have grounds to bring action to end all payable child support for said child. My point is that its no doubt that a 12 year old lacks capacity to make such an adult decision and I further feel that she was coached into saying what she did by the other parent. As I mentioned, what kind of parent would allow their child to make such a call. Kudos to Dad to move the matter forward

                  The trial management conference like any conference is just for procedural issues such as necessary disclosure and naming of witness's. No significant orders would be issued in regards to access. Previously, I suggested to bring forth a motion ASAP where you could attach your evidence as an exhibit before the trial management conference and trial in itself. The grounds for the motion could be the following:

                  a) trial will be many months away and its not in the best interest of the child to continue to not have access to their father much longer.

                  b) pending trial of the action; the father should be given as much opportunity as is possible to reinstate the bond with the child even if it is graduated/ supervised and to allow him to demonstrate his parenting ability to care for the child.

                  c) it is the child's right to know their parent in their own environment and such unnecessary restrictions on the child's access should not be based on one parties unproven erroneous allegations.

                  Keep in mind the following - The onus is on the party that wants the access to demonstrate that it is in the child's best interest for it to occur. There is a presumption that access to their parent is best for the child unless substantial harm is a factor. To limit the child's access, the other parent has the onus to prove that substantial harm will occur to the child

                  Centre the pleadings around the best interest of the child and what Dad can offer the child into the future.

                  Litigating the matter demonstrates Dad's commitment to the child notwithstanding all the difficulties encountered to date to have a meaningful relationship.


                  lv

                  Comment


                  • #24
                    FL,

                    some good reading for Dad:

                    Fatherneed: Why Father Care Is as Essential as Mother Care for Your Child, by Kyle D. Pruett, M.D.

                    http://www.drkylepruett.com/publications.htm

                    SOmetimes the local library may have a copy or used copies to purchase can be found at Amazon.ca

                    lv

                    Comment


                    • #25
                      LV,

                      Thanks again.
                      I went to Chapters online and ordered the book after reviewing the posted passages on their site.
                      Sounds like a great reference.
                      Have signed up for long distance family counselling as we were unable to get work schedule to work with a local therapist’s schedule. They offer limited telephone help, not great but a good start.

                      Just when I think I have a firm grasp of what and how FL works and there is something new in the mix,
                      I understand that starting a new motion it is separate and is completely different from what we are going through with this whole SC, TMC and October Trial. So correct me if I am wrong, we must start this independent of what we are already doing? Do we also mention all this SC, TMC, & trial stuff in our motion?

                      Comment


                      • #26
                        FL,

                        Since you have already had a settlement conference and no doubt other case conferences, and basically the issue has yet to be settled.

                        Since there is no mention that you must seek leave of the court to bring forth a motion, I think you are free and clear to bring forth such.

                        As I mentioned your reason for the motion can be the following:

                        a) trial will be many months away and its not in the best interest of the child to continue to not have access to their father much longer. A child is only a child once.

                        b) pending trial of the action; the father should be given as much opportunity as is possible to reinstate the bond with the child even if it is graduated/ supervised and to allow him to demonstrate his parenting ability to care for the child before trial.

                        c) it is the child's right to know their parent in their own environment and such unnecessary restrictions on the child's access should not be based on one parties unproven erroneous allegations.
                        d) no doubt that this parental dispute has consumed a significant part of the child's development previously and interim relief is required.

                        It can be pointed out that a pending trial may take place over several months rather than a block of time. There is no upfront knowledge of how a trial will be scheduled. If the time for trial is under estimated, it could takes months from the first day to get resolve.

                        The interim motion would be based on sworn affidavit evidence from the parties where you could attach your exhibits and assessments. Basically you would want to persuade the Judge on the sole issue of the child's access to occur in the interim pending trail for the reasons listed above in a,b and c and d.

                        If they are alleging DAD is a criminal, attach a police data base search certificate rebutting their allegation and so forth.


                        Basically you will want to focus on the best interest of the child test and further persuade the court of the benefits to the child that such a relationship occur. (you would think the courts would know this already as its common sense.) You may want to speak about what future contributions Dad could make to the child's pending post secondary education. You will want to identify what the environment will be like for the child such as their own room, describe the community, describe the home, potential recreation and future parenting plans. In other words, how will dad care for the child. If Dad receives significant holidays, propose that Dad wants to spend such time parenting his child.

                        You will also want to disclose all the rejections and denials of the child's access notwithstanding all the travel you endured. Since the other party may perhaps be indirectly defaming you, you may want to submit into evidence your background and prove that your not a criminal and also your experience in parenting. You may also point out that the child had no problem adapting to the other parties new partner.

                        To summarize, all you trying to do is persuade here, while the other party will be trying to demonstrate that the child will be in substantial harm if the child exercised their access to their other parent.

                        Be open for graduated supervised access - As long as it occurs and certainly demonstrates the reasonableness of the request.

                        I would also ask for an order to have the OCL involved under Section 105 to represent the child independently and to bring the views of the child out into the open.

                        lv

                        Comment


                        • #27
                          FL,
                          If they are alleging DAD is a criminal, attach a police data base search certificate rebutting their allegation and so forth.[/QUOTE]


                          We did get a print out as this was a claim, and of course "neither" of us has any record or charges etc. We even had out car insurance company print out our history and not so much as a speeding ticket.


                          Originally posted by logicalvelocity
                          In other words, how will dad care for the child. If Dad receives significant holidays, propose that Dad wants to spend such time parenting his child.
                          Tried to do this in SC included the gradual access regime, and several options for future access both supervised and/or in a facility for same. etc etc.

                          Originally posted by logicalvelocity
                          You will also want to disclose all the rejections and denials of the child's access notwithstanding all the travel you endured. Since the other party may perhaps be indirectly defaming you, you may want to submit into evidence your background and prove that your not a criminal and also your experience in parenting. You may also point out that the child had no problem adapting to the other parties new partner.
                          Had all this ready for SC and still have it. Have always had it ready yet it just seems we are always getting kicked in the teeth no matter the amount of proof or documents etc. No word of an exaggeration, the binder of JUST PROOF is more than 6" thick, and this is “only” the bare basics to disprove the many, many allegations ex has alleged. It would be impossible to cut back as there are so many claims by the ex and so much to disprove it. Why won’t the courts listen why won’t the courts at least see this for what it is. She comes in with “I feel” and “I believe”, and we come in with substantiation and we are the ones left with literally nothing? Hello?



                          Originally posted by logicalvelocity
                          I would also ask for an order to have the OCL involved under Section 105 to represent the child independently and to bring the views of the child out into the open.
                          Already a done deal, child was awared OCL at SC.
                          Thanks again I have alot of work ahead of me don't I?
                          Time to go looking for forms.
                          Ta Ta.

                          FL

                          Comment


                          • #28
                            FL,

                            are you completing the forms yourself? If so send me an email as I have some unprotected and unlocked so you can change the font to black rather than blue.

                            logicalvelocity@yahoo.ca


                            lv

                            Comment

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