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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 06-02-2020, 09:13 AM
Ange71727 Ange71727 is offline
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Default What justifies a request to change custody

Hello everyone,

Question: if one parent has charges against them for something pretty major, does that justify the other parent immediately seeking changes to the custody and access agreement?
If that parent is feeling that, due to the nature of the charges, their children could be negatively impacted by continuing to see the charged parent according to the current schedule, do they have grounds to seek a motion to change it?
Are custody/access changes likely to be granted or do courts tend to await the outcome of the trial first?
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Old 06-02-2020, 09:45 AM
HammerDad HammerDad is offline
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Short answer - People are innocent until proven guilty in Canada. Charged =/= convicted.

I would say that it is unlikely a judge would order custody be changed unless the charge was a) murder, or b) child porn/pedophile stuff.

If the parent is convicted and goes to jail, the parenting schedule would by default change, as the parent in jail cannot parent the children. When they get out, the schedule may change depending on the parents bail conditions.
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Old 06-02-2020, 09:49 AM
Ange71727 Ange71727 is offline
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Default What justifies a request to change custody

So lets say it did involve something you mentioned....
How does the parent go about seeking changes?


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Last edited by Ange71727; 06-02-2020 at 09:53 AM.
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Old 06-02-2020, 09:57 AM
HammerDad HammerDad is offline
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Then I would speak to my lawyer about it and see what their advice on the matter would be.
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Old 06-02-2020, 10:22 AM
rockscan rockscan is offline
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Is CAS involved? Have they ordered no contact with children?

Definitely speak to your lawyer. Innocent until proven guilty is a big thing and it would make you look opportunistic considering the difficulties you have had all along with your ex.

You may be able to ask for supervised access but as for a change in custody until a verdict is given or an order from CAS is provided, you may be putting the cart before the horse.
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Old 06-02-2020, 11:02 AM
Ange71727 Ange71727 is offline
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Ok. Good points.
How does CAS get involved? Is this something the other parent asks for or will the court (crown) involve them? The children of the accused parent have already been interviewed by police during their investigation.
Its all very early days and the other parent (non-charged parent) does not actually have all the information yet as to the extent of the allegations. Obviously a lawyers advice is greatly needed.


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Old 06-02-2020, 11:29 AM
rockscan rockscan is offline
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Wouldnt hurt to call CAS and ask them. If it involved child pornography or assault against a child the police would involve CAS knowing that the charged person has children in their home.

If it was an offense that would be serious enough to put the children in danger then the police would involve CAS as well.

You should definitely speak to a lawyer even as a basic first step over the safety of the kids. Even if there is no threat to them directly it would help to make sure your ducks are in a row moving forward.
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Old 06-02-2020, 12:01 PM
Stillbreathing Stillbreathing is offline
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Depending on the charge, criminal court judges can make orders relating to child access. My ex was charged with several counts of assaulting his children and the criminal court judge made a no access order as part of his bail conditions. It was the criminal court judge and crown who changed this order to supervised access at my request months later not a family court judge.

If the matter affects you or your children personally you can ask the crown about his/her bail conditions. You will eventually need to bring the matter back to family court.
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Old 06-03-2020, 12:51 AM
backinthesaddle backinthesaddle is offline
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I deal with this directly with my job. If the charges are related to the children, CAS is notified right away and you would know the details and kids would be in your care. If the offence happened in front of the child ie. domestic abuse then CAS would also be notified and they do their own risk assessment and those facts are given to the crown attorney. Unless there is a direct correlation of the offence to the child the custody would remain status quo unless you took it to family court where you plead your case like all other custody issues. A drug charge whereby a large quantity was found in the house where children reside would also be cause for concern. CAS has their own threshold for custody of children. Natural parents they tend to be lenient but if mom has a criminal bf who has a history of domestic assaults, drug abuse, robberies etc and all-around a POS, then CAS will order that the kids are not allowed around him. This is where many lose custody of their children. Not because the parent him/herself is negligent but the simple fact you put the safety of your children at risk for a partner who is not the father of the children speaks volumes about priority and simply making bad parenting choices. If the charges involved the children the accused would be released with an order for no contact. A criminal charge does not automatically take away your parental rights. Half the country would lose their children. However, you can take whatever you have and its your call to take it to family court and have a judge decide.
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Old 06-03-2020, 11:26 AM
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To simplify it... If the police upon laying the charges did not get the CAS involved then, its highly unlikely that a court will change custody based on the charge.

If CAS does get involved and they need to remove children they should be bringing their own motion under the Family Services Act (or similar legislation in your province). CAS doesn't have the power to remove children per-say... They can on a temporary basis but, they need to get a court order. They have a short grace period to get a court order after an emergency removal.

"However, you can take whatever you have and its your call to take it to family court and have a judge decide." -- backinthesaddle

I agree with BitS ^^^. Just remember judges are not going to make any sort of major order on a motion. Especially if the police didn't contact the CAS and CAS has made no move.
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