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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 02-22-2017, 10:21 AM
Trix Trix is offline
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Default OP resitant to OP challenging CAS efforts to return to parenting schedule

There is a long history, but at present, we have an ongoing file with CAS.

D10 and D12 were diagnosed with depression and anxiety respectively.

2015, OP alleges I assaulted her, police investigation and reality state otherwise.

2016, OP alleges two instances of abuse and attempts to articulate an ongoing fear for our daughters safety while in my care.

CAS "verifies" two concerns, my anger, which has led to outbursts which were witnessed by our daughters on two occasions and OP's messaging to our daughters and her treatment of our access arrangement (I cannot remember the wording thereof).

Historically, for 7 years, and up until October of 2016 we had a true 50/50 parenting regime. At that point, our daughters started expressing a desire to spend more evening with OP, but expressing a level of anxiety in relationship to it. Their counsellor described it as being "unhealthy".This proceeded years of hearing our daughters say they felt as though OP wanted them to choose to live with her, detailing what ages they could make that decision at, that the courts wouldn't split up siblings, that all they had to do was tell their counsellor (this continued messaging became the basis for CAS's concerns regarding OP).

I have always had an issue dealing with my frustrations. In early 2016 I completed an anger management course. While this was useful to a degree, it has led to what I can only describe as a far more exhaustive process. In the spring of last year I began, and continue to engage in CBT and Schema Therapy.

So in short, this is the present situation:

By mid December, our daughters were not only not sleeping in our home but were rarely staying home for dinner. I had put my foot down at one point but once the depression and anxiety in our daughters was diagnosed I backed off.

CAS, in conjunction with our daughters' counsellor, has introduced a planned approach to make sure our daughters' get back to being happy and easy while facilitating a return to our shared parenting arrangement.

At present, our daughter's come home as usual on all of our days together, but return to their mom's to sleep (8pm - 7:45am on weekdays / 9pm to 9:30am weekends). Our daughters' seem easier and happier than they have in months and our family life feels far more normal and without intrusion (there were a number of clauses put in place to limit OP's involvement in time together).

Finally, CAS has stated that they will re-introduce overnights gradually.

Problem:

OP is extremely resistant, having outright told CAS (in a joint meeting), that if they re-institute overnights and our daughter's say that they don't want to go, she will not tell them that they have to. This falls well into line with my concerns that she does not, in any real way, support our relationships or have any interest in seeing a return to a shared parenting regime (note that she had flatly refused to discuss a formal increase in days spent together if our daughter's wanted to spend more of the evening with her).

CAS's plan was put in place two weeks ago, this past weekend, along with a message from her that she doesn't necessarily agree to it, she has requested an amendment to our divorce order for increased child support which would be predicated upon the present situation where our parenting time is 70/30. This represents a huge red-flag in terms of believing that OP would proceed in any good fait to return to a 50/50 parenting schedule but there are processes to deal with that resistance, but my question is this:

Is there precedent for me defending against the argument to have our divorce order changed given that:

- while we have an existing order for shared parenting, the most beneficial steps for our daughters would be to gradually return to 50/50 from the present 70-30 and CAS is facilitating that.

- we have only been away from the true 50-50 for three months

- that the present parenting schedule is temporary to ensure that our daughters' emotional well being remain at the focus as we return to 50/50

-that requests to revisit the schedule so as to maintain shared parenting were flatly rejected and that the pursuit of that legally at the time would only have meant greater conflict which would have further impacted our daughter's. As a result, a planned and coordinate approach, put together by CAS and our daughter's counsellor was deemed to be far less impactful on our daughters.

- that OP has articulated her resistance to this plan in favour of ensuring that our daughter's continue to live with her the majority of the time

Of great importance. It should be noted that CAS, having visited with both families, our daughter's, and having spoken to my therapist and whomever else, had originally intended (two weeks ago) to re-inforce our existing, true 50/50 parenting schedule. I was not surprised that the input of our daughter's counselor was to return to it gradually. What was apparent to them, however, was that while there were things I could do to make sure that our home environment was as consistently positive for our daughter's as is possible, that I was "doing everything [I] needed to do" and that there was no reasons for our daughter's not to be spending their regular evenings at home.

Any precedent or anecdotal reference would be greatly appreciated.

Sorry for the long morning post, I will go back to scanning CanLII and waiting to hear back from my lawyer.
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  #2  
Old 02-23-2017, 11:21 AM
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Unless CAS has an order that was obtained under the Family Services Act they can't tell you to do anything. They have NO AUTHORITY to control custody and or access of children to their parents unless a court orders otherwise.

The other parent can tell CAS to go to hell as they have done. CAS has no jurisdiction until such time there is a protection concern. They can then apprehend the children but, they have a limited time until they actually have to go to court and get an order.

You have given CAS power that they rightfully SHOULD NOT HAVE.
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  #3  
Old 02-23-2017, 06:55 PM
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Getting a lawyer to try to make your daughters sleep at your house after three months of letting them sleep at Mom's strikes me as the wrong way to go. Unless you can prove that sleeping at Mom's is somehow harmful to them, a court is likely to think, well, he was okay with that for three months, there's no indication that Mom is a dangerous parent, and the kids have access to both parents, so keep on going with what you have. If you and your ex have deviated from your court order after interventions by the police and CAS, I don't think a court will order you to return to it, because the circumstances now are different from what they were when the order was written: you didn't have an open CAS file, you hadn't had police intervention, etc.

I suspect that much of the daughters' reluctance may be related to the issues you have with "anger" and "frustration", even though you are dealing with them now. Did your "anger" mean you complained a lot after a bad day at work, or did it mean that you yelled loudly and threw things? If it is something like the latter, and if the girls witnessed it, it's going to take a long long time for them to get past it. The girls will have to really believe that you've changed before they will trust you. I think you might be a better candidate for some sort of reunification counselling with your daughters to rebuild trust than to litigate.

(And Tayken is right, CAS does not have legal authority over parents, except when a parent may be breaking the law by endangering a child. If your argument is that your ex isn't following CAS' recommendations, that won't get you too far because she isn't obligated to follow them).
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Old 02-23-2017, 11:24 PM
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Our daughters started displaying what was termed 'an unhealthy' attachment to OP in the fall, characterized by separation anxiety in our older daughter.

It was our younger who first started asking to spend extra nights and would text with OP upwards of 20 times during the day.

This started after they moved for the third time with their mom in five years and she declared bankruptcy. She takes runs at them when they do not contact her regularly when ar their home here and it has been years of hearing them recount how their mom believes that everything I do is not done out of love, but a constant series of attempts to undermine her as a parent. To the point where, a month ago, my younger daughter said "mommy says that if we want to stay here we can, but she doesn't think it's a good idea because then you will think you are in control'.

CAS noted a 'significant concern' regarding the messaging she has been providing to our daughter's after interviewing them.

As for my anger. Yes. I flew off the handle. I yelled and threw something and scared my daughters. That it was in relation to hearing a number of similar comments as above after months of trying to figure out what was going on notwithstanding. I lost my temper, and it was loud.

But what I ok with this arrangment? No.

I made that clear, from day one.

I suggested that we work out something where our daughters spend more time during a few more days if they need to sleep there at night. Answer was 'no', regardless of the fact that their counselor thought it was a good idea.

I never agreed to this, what I wasn't going to do was pull our daughters out of a home using police.

So now, our daughters come home on every one of their usual days, we do everything together, except they don't sleep here.

As per their counselor, she 'doesn't get it'

CAS states they show no signs of fear around me.

The bridgebuilding I have to do with our daughters bas started and our home feels lighter again. They seem happier and easier again.

All I know is that we were, and can be good again. It is somthing I am working hard at.

But this attachment which was deemed unhealthy predates that outburst by months. It is to an OP who has withheld contact betweem our daighters and her own parents for nearly a year on two separate occasions and whom she has never allowed contact with their only cousin as she is completely estranged from her brother.

I made things very difficult on us, but I do not believe she has any intention of supporting our relationships and I do believe that our daughters who again came home tonight and with whom we had another easy night only for them to go sleep in her bed, know that it is better that they do so. It is the path of leadt resistance.
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Old 02-24-2017, 11:04 AM
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You are a verified risk to the children.

How will it help the children to go from 30% to 50% with you?

Is the mother a danger? If so, how can you support the children being with her 50% of the time? What is so special about the change from 30% to 50% that will help the children?

Imagine I'm the judge. The kids want to be with mom. Dad has serious anger management issues. Dad has some vague assertions of "separation anxiety" diagnosed by somebody who is not a medical professional. I actually don't see how you can win legally.
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Old 02-24-2017, 11:23 AM
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Well, a little more then:

D10 and D12 assessed and by a child psychologist with twenty years experience as being depressed and suffering separation anxiety respectively, with an "unhealthy attachment" to their mom.

I do not believe %50 of the time with their mom is necessarily in their best interest, but to fight to remove the possibility of them having a relationship with their mom when the Society is suggesting counselling for her etc would only serve to undermine the possibility of them having a healthy attachment with her later on while also undermining our relationships which had been positive up until very recently. (please remember that for 7 years we worked a shared parenting arrangement).

In terms of a "verified risk to the children", the Society stated plainly (having been in significant contact with my therapist), that they are convinced that I am "doing everything that I need to do" and, as a result, believe it is in the best interest of our daughters to return to our pre-existing shared parenting arrangement.

The difference between the %30 and the %50 is that the %50 represents a return to what our family had experienced since the time of separation: a far fuller opportunity to maintain and foster parental and familial relationships.

It should be noted that our daughter's counselor and CAS had both suggested that our daughter's spend more time during the days with us. Something our daughters were agreeable to, but was not something OP would agree to if it impacted her parenting time.

So the kids want to be with mom....at night, and are happy to spend more time with Dad during the day, but mom won't hear that if it means moving back to relatively equal parenting time between our daughters' two homes.

I am wondering how a judge would look at that?
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Old 02-24-2017, 11:25 AM
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Her new founded parenting time that is....
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Old 02-24-2017, 11:35 AM
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You have to get a court to order it and you have to bring the Application/Motion to do this. You have to present evidence. CAS can't do anything. So, trying to manipulate the other parent through CAS is a waste of time. Stop wasting time and if you have REAL evidence bring it to the only place that can make an order - family court.

Stop playing with CAS.
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Old 02-24-2017, 12:01 PM
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I am not trying to play with anyone.

I am trying to make sure our daughters have relationships with both of us. I've been trying to do that for seven years. I'm no martyr. But it's been seven years of having my family as well as her family say there is something going very wrong with her but not saying anything to anyone else about it. Of watching our daughters reel as she moves from home to home, relationship to relationship with them in tow as she writes off friends and family members and sinks herself financially to the point of bankruptcy and can afford nothing of their needs.

And their attachment to her now, well that's easy, be loyal or else.

And so in the middle of that I display anger in a damaging way and that is now her flagship, and while I am trying to go through what seems like the most reasonable to process to ensure that our daughter's that this is the same safe home it always has been for them, I am to abandon that and engage in another legal process.

That should do wonders for their emotional stability.

I am watching our daughters move back to being happy, I want that to continue. I am so lost I am sitting at my computer in tears because I have no idea what to do. CanLII, lawyers, counselors, therapists CAS and all I want is for our daughters to be happy.

Every step of me trying to maintain that has been met with resistance by OP in the past and every attempt to rebuild from my outburst is met with double effort on her part.

I have self represented to successfully maintain shared custody. I have maintained this home for them for seven years. I have facilitated their relationships with family members with the threat of legal action when she would deny them access, I have faced criminal accusations, I have faced professional accusations, I have faced personal accusations and none of it has meant anything because our daughters spent more time smiling than not and they are growing up and I love them so much.

But I am so tired and so worried for them, and everyone has the right answer, and every one else says it's the wrong one.

They just deserve to be happy. I am trying to make that happen.
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Old 02-24-2017, 06:59 PM
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I think you're in a really difficult situation. Going to court will not result in your daughters coming back to sleep at your house (and even if it did, would you really want them staying with you because a judge ordered their mother not to let them sleep at her home?). CAS recommendations do not bind your ex to doing anything.

I think you just have to keep on doing what you're doing - going to therapy, co-operating with CAS, and making your time with your daughters the best it can possibly be. Don't push the issue of spending more time with you. Your outbursts may have been momentary, from your point of view, but from the point of view of the kids, someone who is out-of-control angry and throwing things is very frightening, and fear takes a long time to get over.

I'm not sure there's anything else you can do.
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