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rvalentines · #1 01-10-2020, 07:30 PM

Hi all,

I am thinking of bringing a motion for "Right of First Refusal". My ex-wife travels 5 nights a month for work and leaves the kids with their grandparents. I want the kids to stay with me when she's traveling.

Background:
-Separated in August 2019
-October 2019, she reports me to police for historical abuse allegations against her. As a result, she has exclusive possession of the house and "de facto custody" of the kids.
-Since then, she has only allowed me see my kids once a week, even though I was very involved all their lives.
-I have criminal charges pending as a result of my ex-wife's allegations and am planning on going to trial to defend myself. As a result, I have NO CONTACT ORDER (so can't talk/email her).

Please let me know if I can bring a motion for right of first refusal. Are there any CanLii cases on this? What are my chances?

Thank you all so much.

Tayken · #2 01-10-2020, 10:22 PM

I wouldn't recommend it.

Read: http://www.yoursocialworker.com/s-ar...st_Refusal.htm

Quote:

As the parents enter combat over the right of first refusal, the game playing heats up. If the parent who is unable to meet their obligation uses a grandparent or allows the child a sleepover with a friend or other family member from their side, is that contravening this right of first refusal? This becomes a very sticky point, as both parents can be remarkably manipulative at withholding or at least not supporting the relationship with the other parent whilst coming up with ways to beat the rules.

This mess takes on the appearance of two young children fighting over the same toy and then hanging on to it for dear life to assure the other child doesn�t swipe it back.

...

Typically the best solution is for both parents to address their respective issues, whether it is unresolved anger at their former partner or jealousy that a new person may enjoy a relationship with the child. It may well be that one or both parents have to face their own insecurities that have little to do with the other parent specifically. Counselling is thus indicated.

Good Luck!
Tayken

rvalentines · #3 01-10-2020, 11:18 PM

Dear Tayken,
Thanks for sharing the article. I actually read that prior to posting.

Was more curious if there were any specific interim motions around Right of First Refusal (which I could not find). I also went through the Family Law Rules and Best Interest of the Children Act and also could not find any clause.

Which I interpret to mean low likelihood of success through a motion I guess

Tayken · #4 01-11-2020, 12:17 AM

Quote:

Originally Posted by rvalentines

Which I interpret to mean low likelihood of success through a motion I guess

Correct. Considering your matter you have significantly bigger fish to fry. Do not try to boil the ocean or you will only drown in sorrow while attempting to do it.

rvalentines · #5 01-11-2020, 10:55 AM

Dear Tayken,
You're absolutely correct. However, having read all the CanLii articles you have posted, I have concluded the following:

1. Shaw vs. Shaw where the judge ultimately provided equal time-sharing between the parents despite the criminal charges. His Honorable Justice Pugsley:
� Motions judge concluded that circumstances created by mother�s arrest and her subsequent release on terms of bail should have no effect on court�s decision for interim custody
�Likewise, those events could not establish peremptory status quo in father�s favour, particularly when assault incident had nothing at all to do with children and when it had occurred month before mother�s arrest, all of which fed suspicion that father had kept that incident alive while he was deciding how best to exploit it to his personal benefit in final separation from his wife that he knew was inevitable �"

Also:

In Kimpton v. Kimpton, supra, it was noted at para.1 that �By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.� This is echoed in Horton v. Marsh, supra, at para. 6: �The status quo which ordinarily is to be maintained is the status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child dictates otherwise.�

What I take it is that criminal charges should not impact my motion asking for additional access and that the status quo is which existed prior to the arrest, not the one created to gain a tactical advantage.

Would love to hear your thoughts on my analysis.

Janus · #6 01-11-2020, 09:53 PM

Quote:

Originally Posted by rvalentines

What I take it is that criminal charges should not impact my motion asking for additional access and that the status quo is which existed prior to the arrest, not the one created to gain a tactical advantage.

You are facing criminal charges which have not been dismissed, and you are fighting about RoFR?

You are facing a situation which is potentially completely lethal to your custody aspirations. Right of First Refusal is so far down the list of things you should be worried about right now.

Also, parents who fight for that usually come across as controlling jerks. Abusive husbands are usually controlling jerks. You want right of first refusal and you are facing charges for being abusive.

You can quote Shaw all you want, a judge is going to play it safe and see how your criminal charges shake out before giving you anything. Note the genders involved in Shaw. It should not matter, but it matters.

I'm also not sure how Kimpton helps you. You are facing charges that are not dismissed, how can you possibly argue that the new status quo is fake? For all the judge knows, this is a status quo created by the fact that you are an abusive controlling jerk. You gotta beat those criminal charges first, otherwise you are dead in the water.

Tayken · #7 01-12-2020, 12:53 AM

Quote:

Originally Posted by rvalentines

Would love to hear your thoughts on my analysis.

I have no analysis as I do not have the facts of your case. You can bring the matter to family court if you have solid evidence. Everything in these matters turns on evidence and not case law. You need to focus on your matters at hand not past cases. Those are references on how to argue and present your evidence. Nothing magical is going to happen. If you need to have evidence to support any argument you put before the court.

rvalentines · #8 01-12-2020, 10:12 AM

Wow...you literally took all the motivation from under me.
I am trying very hard to advocate for my kids who do not like going to their mom's house. A 2-year old is telling me "Mommy no" every time our time together is over. I've spent $30k in only 4 months trying to get access to my kids.
Should I sit back for the next year and not do anything until my criminal charges are done?

Now, I would have loved it, if instead, you could have provided CanLii posts where someone in my shoes was denied additional access due to the criminal charges and due to the new "status quo" being artificially built to gain a tactical advantage. I posted CanLii posts where it argued that Status quo is prior to the separation not one built on short term status quo.
Do you have anything that talks about Status Quo with criminal charges? Or additional access being denied until criminal charges are done?

Stillbreathing · #9 01-12-2020, 11:45 AM

You should speak to a family lawyer in your area. They can look at your case and give you a much better idea of where things stand for you and are likely to go. They can look at any evidence you have that pertains to your personal case plus they know the judges and can give you an idea on how those judges will rule in your case.

Janus · #10 01-12-2020, 06:50 PM

Quote:

Originally Posted by rvalentines

Wow...you literally took all the motivation from under me.

Think of it as saving you money. Fighting pointless battles is expensive.

Quote:

I am trying very hard to advocate for my kids who do not like going to their mom's house. A 2-year old is telling me "Mommy no" every time our time together is over.

If it makes you feel better, 2 year olds are notoriously unreliable story tellers. Many kids are not even talking at 2 years old, let alone putting together coherent tales.

Using the words of your 2-year old to justify a court case will not get you far.

Quote:

Should I sit back for the next year and not do anything until my criminal charges are done?

No, but I do think you should drop the right of first refusal fight.

Why not make a deal that lays out a 2 year schedule that ends with you getting 50%? Include a clause that says that if you get convicted, the schedule reverts to one where you get every other weekend access only.

This is assuming you have no chance of getting convicted.

Quote:

Now, I would have loved it, if instead, you could have provided CanLii posts where someone in my shoes was denied additional access due to the criminal charges

Honestly, that would be a boring case so I would never bookmark it. A father with criminal charges will almost certainly not be getting much access. I would be more likely to bookmark one where the father somehow pulled off a miracle and got access.

Quote:

and due to the new "status quo" being artificially built to gain a tactical advantage.

How is it artificial? You were actually charged. It does not get any less artificial than that.

On this forum, we always recommend that fathers record every interaction with their ex. This is due to the fact that if you happen to get charged, you're kinda screwed.

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