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helpme124 · #1 05-17-2006, 04:48 PM

Hi All, I'm new to this forum so I hope you'll excuse my ignorance if I'm posting in the wrong forum here.

I had a relationship with my childrens mother, I call it that because we were never legally married. Although we did live together off and on for 10 years it was never regarded by either party as a common-law marriage. All thoughout our "relationship" I was the primary caregiver for our children and I still am to this day. The kids have been living with me for the past 3 years. My ex now decides she wants the kids to go live with her now (so I'll have to pay her support for the kids, it's always about money with her).

Let me give you a little background first, when the kids were first born neither of us had full-time jobs and sometimes relied on social assistance for support. In order for us to get social assistance I was forced give her custody even though we were living together. Don't ask me why I don't know.

So my question is now 13 years later, given that I have been the primary parent for my children's entire lives supporting them financially, emotionally, spititually, etc and the fact they have been living with me for the last 3 years, solely support by myself with no support from her whatsoever, does she have a leg to stand on in court?

The kids prefer to stay with me, they are 12 and 13 years old now. My ex can't even support herself let alone support two kids even with my help.

Any thoughts would be appreciated, thanks.

logicalvelocity · #2 05-17-2006, 06:59 PM

Hi helpme124,

welcome to the forum. Lots of good people here with great advice and opinions. Feel welcome to share same.

I am assuming you are in Ontario, with that said,

The Children's Law Reform Act R.S.O. 1990 c. C.12 is going to apply to your situation and for support puposes the Family law Act R.S.O. 1990 c. F.3

Both acts can be found at these links.

Childrens Law Reform Act
http://www.e-laws.gov.on.ca/DBLaws/S...sh/90c12_e.htm

Family Law Act
http://www.e-laws.gov.on.ca/DBLaws/S...sh/90f03_e.htm

Incidents of Custody and Access is determined by the best interest of the children.

Childrens Law Reform Act

First off, so your somewhat clear on the statutes

Part I

Equal Status of children

Rule of parentage

1. (1) Subject to subsection (2), for all purposes of the law of Ontario a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage. R.S.O. 1990, c. C.12, s. 1 (1).

Common law distinction of legitimacy abolished

(4) Any distinction at common law between the status of children born in wedlock and born out of wedlock is abolished and the relationship of parent and child and kindred relationships flowing therefrom shall be determined for the purposes of the common law in accordance with this section. R.S.O. 1990, c. C.12, s. 1 (4).

In regards to Custody and Access

Part III - Children's Law Reform Act

Section 20

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).

Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

If your children are living with you, this would be known as Defacto Custody.

If everything is going well for the children and you have exercised those rights and responsibilities in the best interests of the child, The courts would seldom changed this status quo arrangement.

Your ex's entitlement to incident's of custody is suspended but not ended.

A custodial parent either acting in a defacto regime or an order by a court has NO right to dictate the terms of the children's access to the parent.
If a person denies the children's access to the other parent, this could question their abiliy to parent children. It is the children's right to have a meaningful relationship with BOTH parent's unless there is a cogent reason not to such as harm. (Harm would be defined as physical, emotional, or sexual abuse)

Information sharing between the parent's

Regardless of the custody regime BOTH parent's by default of the law and until a court order's otherwise are entitled to information in regards to their children's health and welfare. ie: medical, schooling, religious and other other circumstance that effects the children's welfare.

see section 20(5)
Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

In a Custody adjudications the paramount consideration is the best interest of the child

As listed in section 24(2)

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

LV

helpme124 · #3 05-17-2006, 08:12 PM

Wow! Thanks for all this information. I've been looking for this for a long time.

I haven't restricted my ex with repect to access to the children whatsoever, she can see them whenever she wants. In that respect we agree that no parent should be denied access to there children unless the childs welfare would be at risk.

I'm very greatful I found this website, and most certainly for the info you've provided. If first impressions are worth anything I think I'll be hanging around here a while as there seem to be a lot of people here with similar problems.

Thanks again,
helpme124

logicalvelocity · #4 05-17-2006, 08:41 PM

helpme124,

This site is awesome. Feel free to contribute in collaborative discussions, post a question, express a view, tell a story, vent(not at other members)
We all learn from each other here

LV

daredevil · #5 05-23-2006, 03:54 AM

this is normally quite common regarding divorce cases now . parents always fight for their child but i dont hink that all paents try to think what ths innoncent child is going to suffer .

good luck man

logicalvelocity · #6 05-23-2006, 06:44 PM

Yes it is quite normal.

In determing incidents of custody and access, the court SHALL give paramount consideration to the best interest of the child/children.

There is a set criteria that a court shall review in determing the best interest of the child. The courts will also look at the facts of the case. Each case is unique and will swing on its own facts.

LV

rossan · #7 05-30-2006, 04:54 AM

this is true that the court will only see what the best for the child only and thats all . nothing will be done against the interest of the child .
hope this will u understand it well
good luck

hubby · #8 05-30-2006, 07:47 AM

As well, Defacto comes to mind as does the ages of your children, their wish's may be taken into consideration. I'd say you stand a good chance.

Hubby

mom22galz · #9 05-31-2006, 01:11 PM

LV,

I've been reading this site for quite a while but only recently registered. I'll post another thread with some background, but I'm not sure whether I "belong" in common-law, domestic violence or custody.

Anyhow, something in this thread spurred my first post.

I've been following the tediously slow progress of changes to the Children's Law Reform Act for eons... Last I checked, it still had the bright red "This Act is not yet in force...on a day to be named by proclamation of the Lieutenant Governor" disclaimer at the top.

When I followed your link today, I still see the proclamation verbage in a few subsections, but it's not there re: best interests test.

Are you 100% certain that the spousal abuse part is now in force?

I've been using the Ontario Women's Justice Network to track the progress, but their site hasn't been updated since March (lack of funding).

I've been sticking it out awaiting that change, but I finally gave up and he's supposed to move out June 1. Putting my foot down was a big risk. He threatens to play the primary caregiver card and seek custody. Legal advice indicated he has a shot. Until that section was proclaimed, the courts wouldn't consider his past assault charge against me in determining their best interest...

Thanks much!

logicalvelocity · #10 05-31-2006, 04:29 PM

mom22galz

This is what is in force.
http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK23

anything highlighted in grey is awaiting to be proclaimed. As an example:

Note: On a day to be named by proclamation of the Lieutenant Governor, section 20 is amended by section 77 by adding the following subsection:

Duty of separated parents

(4a) Where the parents of a child live separate and apart and the child is in the custody of one of them and the other is entitled to access under the terms of a separation agreement or order, each shall, in the best interests of the child, encourage and support the childâ€™s continuing parent-child relationship with the other. R.S.O. 1990, c. C.12, s. 77.

See: R.S.O. 1990, c. C.12, ss. 77, 85.

The above cited paragraph is not yet law and has been awaiting to be proclaimed law for over 15 years.

In regards to abuse, section 24(4) is law.

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the childâ€™s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the childâ€™s family who reside with the child, and

(iii) persons involved in the childâ€™s care and upbringing;

(b) the childâ€™s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the childâ€™s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).

Past conduct

(3) A personâ€™s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the personâ€™s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a personâ€™s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the personâ€™s household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

lv

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