Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law > Common Law Issues

Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

Closed Thread
 
Thread Tools
  #1  
Old 05-10-2011, 03:56 PM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default Mom Takes Away Child without Dad’s Consent – Seeking Answers

I know this topic has already been discussed and hotly debated for by many people, but I just wonder what WILL actually happen if Parent-A leaves with the kid without Parent-B in any agreement. I want to re open it up because I would really appreciate if someone can give some step by step analysis or advice as I can see that this might happen to me one day…

Say if a common law couple are not getting along well, and one day mom picks up the kid from daycare and decides not to come home (where the child has been living since birth), with the intention to continue living away from dad so that she can keep sole custody. What will happen and what actions should dad take to get the child back?

1. If the kid is small 1-1/2 years old, would the young age be a factor in favor to the mom so that they can be together? This has been her argument. She took the maternity leave but has returned work for many months.

2. If after a couple of days she still refuses to return the kid, I understand that even if you call the police, the police would not forcefully help you to take the kid from mom and return her to dad. So is it a good idea to call the police so at least I will have an official witness?

3. Many people have suggested going to court for an emergency motion to ask a judge for a temporary order to have the child returned. Is this a complicated process? Do you need a lawyer to help out at this stage? Can you just simply fill the forms and file with court?

4. What if you don’t know her exact address (well, you may know the physical address but again the postal code etc.)? How would you have her served by court (in such cases how will I or the court notify her?) What if she doesn't let me know her where-about?

5. How long will this order be effective? What happens during this time? If the court does grant the Dad some sort of custody, how will the Mom see the child? I think for the best interest of the child, mom should come see the child and even for some overnights at her place. But how should this be determined?

6. Will the action itself have any negative impact on the parent who takes away the child when eventually the case is in court? And possibly by how much? Will the Judge see this action less cooperative on Mom’s side?

7. Is it a sure thing for the court to actually order the child returned?

Sorry for the too many questions. But for the those of you who have any experience, would someone give a little insight?
  #2  
Old 05-10-2011, 04:19 PM
dinkyface dinkyface is offline
Senior Member
 
Join Date: May 2009
Posts: 2,476
dinkyface will become famous soon enough
Default

There is a very good chance (90%) that
- mom will be permitted to move out with the child.
- within a few months you will obtain an order for at least 6h visitation per week (but likely more, and increasing over time).
- mom will eventually gain sole custody

On the other extreme, there is a slight chance (10%) that
- within a few months mom will be ordered to return the child to the home
- you will achieve joint custody

That's how I'd rate the possible outcomes.

And then there are all the possibilities in the middle.
  #3  
Old 05-10-2011, 04:30 PM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default

Quote:
Originally Posted by dinkyface View Post
There is a very good chance (90%) that
- mom will be permitted to move out with the child.
- within a few months you will obtain an order for at least 6h visitation per week (but likely more, and increasing over time).
- mom will eventually gain sole custody

On the other extreme, there is a slight chance (10%) that
- within a few months mom will be ordered to return the child to the home
- you will achieve joint custody

That's how I'd rate the possible outcomes.

And then there are all the possibilities in the middle.
Why for the 90% chance that mom is allowed to move out with kid? That's my biggest fear. What are the logics behind it that the court applies in such decisions?

I have heard that a child is like a plant. With the established existing family residence, it's like her roots are spread in that home so that court will normally order the child be returned at least temporarily before a final arrangement is reached.

This has been my biggest concern and confusion.
  #4  
Old 05-10-2011, 04:34 PM
dinkyface dinkyface is offline
Senior Member
 
Join Date: May 2009
Posts: 2,476
dinkyface will become famous soon enough
Default

Because they will not force mom to stay in the house, and courts/society still feel that a child is most strongly bonded with the mother and that it is not in child's best interest to disturb this bond. Sad, but that's the way it goes.

For older children perhaps there is more argument to preserve roots in the house (friends, STUFF, school).

Your fears are well-founded.

Last edited by dinkyface; 05-10-2011 at 04:55 PM.
  #5  
Old 05-10-2011, 05:49 PM
NBDad's Avatar
NBDad NBDad is offline
Senior Member
 
Join Date: Dec 2009
Location: New Brunswick
Posts: 2,734
NBDad is on a distinguished road
Default

Your fears are well founded...but you can take measures to be proactive and limit that kind of unfavorable outcome:

Quote:
1. If the kid is small 1-1/2 years old, would the young age be a factor in favor to the mom so that they can be together? This has been her argument. She took the maternity leave but has returned work for many months.
What was the status quo up until she left? Did you participate in raising the child equally....ie. while she returned to work, who looked after the child? If it was you, you have a better chance of getting back your status quo. If the kid sat in daycare....you have a tougher battle. By the absolute letter of the law, the second you split up, you both have joint custody with 50-50 physical, barring the child being in danger or an established status quo that says otherwise.

Quote:
2. If after a couple of days she still refuses to return the kid, I understand that even if you call the police, the police would not forcefully help you to take the kid from mom and return her to dad. So is it a good idea to call the police so at least I will have an official witness?
Police will not generally do anything. If you suspect the child to be in danger (ie. if her mental health is a documented issue) then you should contact both CPS and the police to file a report over safety concerns.

Quote:
3. Many people have suggested going to court for an emergency motion to ask a judge for a temporary order to have the child returned. Is this a complicated process? Do you need a lawyer to help out at this stage? Can you just simply fill the forms and file with court?
Usually better to get a lawyer for this, it's expensive and complicated, but you can have a hearing in as little as 4-24 hours in the right circumstances. (ie. the child is in danger). If not, you are looking at a couple of weeks on the long end of things. It sucks, but it nips her attempt at setting status quo in the bud, the longer you wait to get this process started, the less chance you have of reversing things. Silence is implied consent, remember that.

Quote:
4. What if you don’t know her exact address (well, you may know the physical address but again the postal code etc.)? How would you have her served by court (in such cases how will I or the court notify her?) What if she doesn't let me know her where-about?
The lawyer would know how to address this. If you know where she works, you can have her served there. If she tries to run to a woman's shelter and goes on welfare, they are automatically going to push her to go after you for support, you can get the documents served to her lawyer. If her parents are in the area and you know she has a relationship with them and can reasonably assured she'll have contact with them, you can try to serve her there. Ditto relatives, close friends, etc.

If you know the physical address, www.canadapost.ca will give you the postal code.

Quote:
5. How long will this order be effective? What happens during this time? If the court does grant the Dad some sort of custody, how will the Mom see the child? I think for the best interest of the child, mom should come see the child and even for some overnights at her place. But how should this be determined?
The order will be effective from the moment the judge tells you what the ruling is in the courthouse (regardless of whether the paperwork is done at that point) until a final order is issued. You will most likely wind up with an interim custody order that establishes custody/access and support until a permanent order can be put into place. A permanent order can take months if not years to get completed.

Quote:
6. Will the action itself have any negative impact on the parent who takes away the child when eventually the case is in court? And possibly by how much? Will the Judge see this action less cooperative on Mom’s side?
Withholding access without cause is frowned upon. By itself it won't matter much, but chances are you will see a pattern of uncooperative behavior and can use this in conjunction with other examples to show a pattern of denial of access/contempt.

Quote:
7. Is it a sure thing for the court to actually order the child returned?
No, but it's a sure thing you will get some sort of access restored. How much is dependent entirely on how well prepared you are and what your status quo was before she took off.

The easiest way for her to screw you over is to flee to a shelter, file a false DV charge, and get you removed from the home and have her assigned de facto sole custody while you fight the false charge in criminal court.
  #6  
Old 05-10-2011, 11:01 PM
LostFather LostFather is offline
Senior Member
 
Join Date: May 2010
Posts: 639
LostFather is on a distinguished road
Default

Quote:
Originally Posted by Acura View Post
I know this topic has already been discussed and hotly debated for by many people, but I just wonder what WILL actually happen if Parent-A leaves with the kid without Parent-B in any agreement. I want to re open it up because I would really appreciate if someone can give some step by step analysis or advice as I can see that this might happen to me one day…

Say if a common law couple are not getting along well, and one day mom picks up the kid from daycare and decides not to come home (where the child has been living since birth), with the intention to continue living away from dad so that she can keep sole custody. What will happen and what actions should dad take to get the child back?

1. If the kid is small 1-1/2 years old, would the young age be a factor in favor to the mom so that they can be together? This has been her argument. She took the maternity leave but has returned work for many months.

2. If after a couple of days she still refuses to return the kid, I understand that even if you call the police, the police would not forcefully help you to take the kid from mom and return her to dad. So is it a good idea to call the police so at least I will have an official witness?

3. Many people have suggested going to court for an emergency motion to ask a judge for a temporary order to have the child returned. Is this a complicated process? Do you need a lawyer to help out at this stage? Can you just simply fill the forms and file with court?

4. What if you don’t know her exact address (well, you may know the physical address but again the postal code etc.)? How would you have her served by court (in such cases how will I or the court notify her?) What if she doesn't let me know her where-about?

5. How long will this order be effective? What happens during this time? If the court does grant the Dad some sort of custody, how will the Mom see the child? I think for the best interest of the child, mom should come see the child and even for some overnights at her place. But how should this be determined?

6. Will the action itself have any negative impact on the parent who takes away the child when eventually the case is in court? And possibly by how much? Will the Judge see this action less cooperative on Mom’s side?

7. Is it a sure thing for the court to actually order the child returned?

Sorry for the too many questions. But for the those of you who have any experience, would someone give a little insight?
This is going to be a response that will likely get some shots across the bow....but. If you really think she is capable of doing that. As much as it pains me to say this, but I firmly believe fathers today are left with little options many include countless court appearance...lots of money you do not have, hartbreak and financial ruin . It has been proven time after time. Mom takes child and really nothing more than a finger wave happens to mom, at the end of the day...she establishes status quo and your screwed...that's the harsh reality today for father's though things have been improving the wheel moves slow...not to say fathers do not get a break...but it is rare. So my thought is. If its good for mom, and works, why not dad?

If i had it to do all over again. That's exactly what I would do. I did not, I thought my ex would be decent about it...did not happen....me and thousands of other fathers. The thing you could do different is offer equal access to mom through a temp order or agreement. Then allow access.

Again these words and advice do not come easy with me. I am only telling you what I would do knowing what I know now about my spinless, self center self involved, ex. I have much stronger words of which I will frame from using.

Good luck

And oh. I cant remember the thread but someone in here will. There is a mother asking a similar question but ahem is asking...if i just take the child can anyone do anything about it....the answer is no...dad can get her back in court...but....how long....no good for the child etc, etc....her only response was....so...the then the answer is no no..
  #7  
Old 05-11-2011, 01:13 PM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default

My understanding is that the Tender Years Doctrine is not a factor anymore in today's law (ok, we all know that the law is anything but fair in this regard for fathers). I think someone has said on this forum that for those parents who both work 9:00~5:00PM and the child goes to daycare, there is no primary caregiver (the daycare is!).

So why is it accepted that Mom can take away a young child? I have been under the impression that in such cases the court would automatically order the child returned, provided that there is no DV on dad's side. How true is this in real life?
  #8  
Old 05-11-2011, 02:21 PM
LostFather LostFather is offline
Senior Member
 
Join Date: May 2010
Posts: 639
LostFather is on a distinguished road
Default

Quote:
Originally Posted by Acura View Post
My understanding is that the Tender Years Doctrine is not a factor anymore in today's law (ok, we all know that the law is anything but fair in this regard for fathers). I think someone has said on this forum that for those parents who both work 9:00~5:00PM and the child goes to daycare, there is no primary caregiver (the daycare is!).

So why is it accepted that Mom can take away a young child? I have been under the impression that in such cases the court would automatically order the child returned, provided that there is no DV on dad's side. How true is this in real life?
it would seem that dv is one of the perferd weapons of choice for some. By the time it gets all sorted out...status quo is reached.

There is a phrase of which I heard sometime back and wasn't until Ive been through the hells of the family law system that i really understood its meaning.

"A mans anger is chastised while a woman's anger is feared"!
  #9  
Old 05-11-2011, 02:30 PM
WorkingDAD WorkingDAD is offline
Senior Member
 
Join Date: Mar 2011
Posts: 1,660
WorkingDAD is on a distinguished road
Default

Quote:
Originally Posted by LostFather View Post
it would seem that dv is one of the perferd weapons of choice for some. By the time it gets all sorted out...status quo is reached.

There is a phrase of which I heard sometime back and wasn't until Ive been through the hells of the family law system that i really understood its meaning.

"A mans anger is chastised while a woman's anger is feared"!
what is DV ? is it acronym for Domestic Violence?
Good phrase - never heard it ))
  #10  
Old 05-12-2011, 02:24 AM
Tayken's Avatar
Tayken Tayken is offline
Senior Member
 
Join Date: May 2011
Posts: 6,997
Tayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant future
Default Parental Abduction is CHILD ABUSE & Illegal

Hi,

It is a criminal offence to remove children without consent or a court order from their habitual residence. If your ex is threatening to do this it is an admission to committing a crime under the CCC.

Section 283.(1) of the Criminal Code of Canada is very clear on the removal of children without consent or a court order.

Section 282


(1) [ Abduction in contravention of custody order ]


Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
  • (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
    (b) an offence punishable on summary conviction.
If you do not have a barrister and solicitor I would get one fast and fire off a letter immediately to your ex notifying her that if your children are removed without consent or a court order that you will take matters to court immediately.

Also, I would go into your local division (police) and report the threat. If you have it in writing (email/txt/whatever) bring the documentation. The police are very uninformed on CCC 283.(1) so educate yourself on the law and be prepared to defend your position with the police. If there is a threat of parental abduction take it seriously.

Furthermore, Parental Abduction is a recognized form of CHILD ABUSE in Canada. Canada is a member of the United Nations and a signatory on "UN Convention on Child Rights".

Nancy Faulkner, PhD did an excellent paper on the review of the "UN Convention on Child Rights" which covers all the ins and outs of Parental Abduction. (Google it.)

Furthermore, Children's Law Reform Act section 22.(3) Abduction clearly states:

The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).


So, if your ex thinks that removing children without consent or a court order is a good idea, think again. False allegations of domestic violence always come with these attempts. Order a copy of your Vulnerable Records Search from your local police department pronto. Have it on you and ready to give to the police once your children are taken. Justice Brownstone has strong words in his book "Tug of War" regarding accusations of Domestic Violence without evidence. (Specifically pages 24-27)



Furthermore, go to your Family Practitioner and report the threat. If you have any other health care providers go to them as well and report the threat. Notify them of the law, your ex's intent to abduct your children and present the evidence. Get your concerns recorded in your medical records even if they don't believe you. That way you can submit the recording to a professional of your concern prior to the event to court when it does happen. Dragging in service providers is often a no-no but, when you have valid concerns and a verified threat that your ex intends to abduct the children it is better safe than sorry. (Best interests of the children.) Warning: Be prepared that they may call CAS to intervene. Be prepared to present your evidence and concerns of these threats to the case worker.



Start preparing your evidence and documenting the dates and threats. Record them if you can on a digital recorder. Transcribe them and have them all put together in a statement to the police. "Document, Document, Document". Date and time (to the minute). If you can, try to get your ex to tell this to you in writing in an email. Make sure that when you submit email evidence that you provide the full email header too. (if you don't know what I am talking about, Google it.)


Never give consent to the removal of the children from their habitual residence. If the police even try to hint that you have tell them NO and ask them to produce the evidence. A statement from your ex is NOT evidence. It is hearsay.



Judges are starting to really draw a negative inference on parents who attempt to use the criminal justice system to remove children from the other parent. The tactic is well documented and the best decision is Shaw regarding the matter.



Shaw v Shaw:


CanLII - 2008 ONCJ 130 (CanLII)


Note paragraph's 8 & 9 to the investigating officers. Be very clear on the warning given to solicitors and the police who act inappropriately in attempting to and laying criminal charges. Note how fast the judge returned the children to a 50-50 / full joint custody. Have this decision printed and ready to present to police. Even highlight the paragraphs that are relevant to your complaint/concerns.

There are great resources on "False Allegations of Domestic Violence" out on the net. I highly recommend Dean Tong's materials on how to organize your evidence against these threats. Furthermore, I highly recommend William Eddy's materials as well. Specifically "High Conflict People in Legal Disputes".

Children are not pawns in a divorce! They should not be used to threaten the other party nor should the be thrust into these situations without just cause. There are many reasons that someone may run with children but, on many occasions they are for all the wrong reasons and as a tactic.

Be prepared to file an emergency motion immediately should your children be removed. Don't wait. Act immediately. This requires a solicitor though. Trying to self represent on an emergency motion is very hard. Few can do it and it will be an incredibly stressful time.

Another way to prevent the removal of the children is to file an application with minimal details just focusing on the habitual residence, the threat of removal and the need to establish residency. Let the other party throw mud then respond. This will stay any "emergency" ex-parte motion your ex may want to file behind your back. This forces due process and establishes a case conference path.

Maturity is a key factor in all this. It is immature to remove children without consent or a court order. Someone has to be the responsible parent. A parent who threatens to remove children without consent or court order is not mature. They want to control the situation and are using the children to do this. Judges DO NOT find this funny.

Your ex is free to leave but, not with the kids. Make this very clear to your ex but, do it with the assistance of a solicitor! You cannot threaten criminal action in a civil lawsuit so you need an EXPERIENCED solicitor to draft the letter or it will backfire on you.

Furthermore, in the event your children are taken under no circumstance should you contact your ex. Just go to the police and report it as an abduction and provide any evidence to the known location of your children and ask for them to be returned. Notify them of the law and their duty as a "peace officer" to enforce the law but, your main objective is to return your children to their habitual residence and deal with the matter in the Family Court system.

Furthermore, any phone call to your ex after the removal (even an email) directly from you can be taken as "harassment" by the police. "Fear" is the keyword to the police used by the abducting parent. Particulars matter in these events and make sure the police detail the "Fear" being sighted by the abducting parent. Just saying you "fear" something is not good enough. There has to be evidence and solid reasons for removing children.

All communications after an abduction (removal without consent or a court order) should be done by a solicitor. Act as if you are under a restraining order and you will be arrested at any time. This is the worst time to call and say anything to your ex without it going through a solicitor. It will be used against you and there is a good chance they will call the police and may have even been instructed by the police to call them so you can be charged!

Parental Abduction IS CHILD ABUSE.
Parental Abduction IS A FORM OF SPOUSAL ABUSE.

Do not allow your ex to abuse your children or you. Everyone has rights under the law and there are ample laws to protect the left behind parent. The problem you face is that the police are not educated about this.

Good luck!
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Joint custody - questions & answers (US) first timer Parenting Issues 0 03-20-2011 12:07 AM
Reinstating Child Support maggie99 Financial Issues 14 09-01-2010 12:47 PM
CP cc'd child on email to NCP sidelineref Parenting Issues 4 04-04-2010 04:41 PM
Child Support: Guidelines vs "I Want Money!" #1StepMom Divorce & Family Law 25 12-22-2009 11:50 AM
Being a single parent with kids? hubby Parenting Issues 5 01-10-2006 02:53 AM


All times are GMT -4. The time now is 02:12 PM.