Is De Facto Custody Enough??

[mom22galz]

Hi all,

I finally managed to get the ex out of my house. A summary of what went down is posted at http://www.ottawadivorce.com/forum/c...n-claim-2.html if you’re inclined to know the details :-}

My question pertains to custodial rights.

He has not spoken to his children since he moved out, and the last time I heard from him was when he attempted to enter my home unannounced at 7:30 a.m., only to discover I’d changed the locks. That was about a week ago now.

I encouraged the girls to call their dad every day since he left. He has not returned any voice messages they left on his pay-go cell, both before and after his unsuccessful attempt to return to my house. That phone is no longer able to accept calls, so I assume he’s run out of time.

We do not know where he is staying, and his best friend didn’t even know he’d moved out. He recently started a job in the food court of our local mall, but I do not know if he’s still working there. He might have left the country for all I know.

The kids don’t understand why their dad won’t talk to them. The only things I can think of to get in touch with him are:

• show up at the mall and look for him at work (which he’ll spin as me stalking him if we do find him there, trust me, this I know already)

Or

• buy another top-up card for his phone so they can call him again (which I did when he initially moved out and resent having to do again, but I will if folks think it’s a good idea).

Any insights – LV, Sean, anyone??

Obviously, I have de facto custody of the kids. But with no formal documentation, I’m pretty sure he can show up at school and take them if ever he feels like it. So perhaps I should file for interim custody, ex parte, to have some documentation for school and daycare??

I did ask about de facto vs interim back in June, more from a “how would the courts perceive either course of action” perspective. Given that his behaviour has become ever-more-unstable since then, I’m now asking from a “safety planning” perspective.

I don’t want to always regret not filing should something happen… I’ve already been burnt by not removing my name from the joint account and having him withdraw a sum total in excess of $1000 of which he deposited $0. I don’t really think he’d kidnap the children, but I really don’t know… desperate people do desperate things.

That said, I don’t want to do anything that could be perceived as me further alienating him from the kids, and I think filing for interim custody would likely cross that line. Right now, he’s doing all the alienation himself.

Thanks for the advice everyone, as always!

[logicalvelocity]

mom22galz,

That is a big hurdle to get beyond. Things should get better now.

At law both parents have coextensive custody of the children until an order from the court or a separation agreement providing otherwise. The authority to act is suspended for that parent but not ended when the parents separate and the children remain with one on the acquired consent. The longer this status quo goes on with the acquired consent of the other parent, the less likely a court would interrupt a status quo living arrangement.

Interim custody orders and the evidence filed for same are often left untested for credibility. If the matter does go to trial, you can be sure the evidence will be tested. Ex parte orders are dangerous, and most likely the court will order the matter back a subsequent two weeks later to allow the other party to respond formally and provide an answer and their evidence.

If it was me, I would allow the status quo living arrangement to develop. This by far would carry more weight on a final custody hearing.

It is a known fact that interim custody orders offer a tactical advantage at trial, this is why more courts are hesitant to put these types of orders in place. Often a court will order a primary residence of the children on an interim basis and leave custody for trial, keeping both parents on equal footing.

If you develop a status quo, taking care of the children solely, this is your strongest position and your best foot forward.

lv

[mom22galz]

I agree 100% in terms of a future custody battle, LV. I'd much rather let a de facto situation become well established.

My fear though is with no paperwork in place, he'll show up at school one day and disappear with the kids. That's the sole reason I'm contemplating filing right now. I've been told they can't prevent him from picking the kids up unless they have supporting paperwork.

He's burnt me so many times before I'm probably being paranoid. He's never physically hurt the kids. But while money and possessions can be replaced in time, my children are irreplacable. All the stats on domestic violence indicate the time immediately before and after separation is the most dangerous.

I've made many a stupid choice in the past, mainly by NOT taking action on things when I SHOULD have.

As an aside, how can he be served if no one knows where he is?

I discovered last night that he hasn't been to his job all week. At present, all I can say is he's still in the province, based on the ID code of the ATM withdrawal he made in the wee hours between when my pay was direct deposited and 7:30 a.m. when I had the chance to manually transfer the funds to my new account... my HR folks advised that the next pay should go right into the new account, but for now it's still going into the joint.

Thanks!

[logicalvelocity]

Ultimately the choice is yours and it is a gamble. If you brought an ex parte motion, you will have to serve him anyways and have the matter returned a few weeks down the road to allow him to present his evidence, answer etc.
The courts may not hear the motion until you do. Courts do not like to railroad orders in without both sides presenting their evidence.

You may be opening up a can of worms, since he has limited funds and decides to contest the issues such as custody, I suspect he will be covered by legal aid. He will be most likely bitter after the events that has occurred. Generally, if this is the scenario, expect a long battle as his legal fees are fully covered. ie: no reason to settle the issues. Moreover, since you have supported him in the past, he may claim spousal support against you.

If he takes the kids, then that would be the time to bring an emergency motion. The courts would not condone this conduct if a few months elapse and all of a sudden he takes the children.

If it was me, I would wait and establish a status quo. This demonstrates acquired consent to act.

lv

[mom22galz]

Thanks as always LV. That's just the perspective I needed. Reading someone else confirm my own notions is refreshing! I really don't like to put myself in the "abuse victim" camp (not that anyone really does) and the advice from the women's advocates was to file yesterday. Better safe than sorry and all that. I have documentation, he's served time for past assault charge, it's not he said/she said, blah blah blah.

But as you mentioned, I'm the party with more financial resources and I do fear mounting legal costs in trying to fight a nasty court battle while his side is covered by legal-aid. I'd rather stay out of court entirely, although haven't much hope of that considering he tore up the separation agreements and parenting plans etc. I presented to him in the past.

Knowing of PrincessKatie's story where her abusive ex won spousal support from her, among other rulings, has me prepared for the worst if it ends up in court. It won't be pretty.

2 other items I'd appreciate some input on:

I don't want to put too much on my children's shoulders, I think they've been through enough already. With no custody documents on file, I've considered simply asking the eldest to call mom should her dad come to pick her up from school. She's already accustomed to calling me from her after school care, so it wouldn't be a whole new thing. But I fear burdening her. I'm sure she'll pick up on the implication of my request, even if I remain silent.

Lastly, while I do have more financial resources than my ex, I am in no way rich. I'm actually very tight financially right now, to the point that I've thought of selling my house. I do however have the space in my home to take in a tenant. A fellow at work whom I've known for the past 8 years is looking for a place to share so he can better save for his own downpayment. I'd feel comfortable renting to him, and he's not a stranger to the kids since they've already met him on several occassions. Might be win-win.

But If I rent space to him, could my ex somehow use that against me?? Claim I moved a "new dad" into the house or something??? The space isn't even on the same level where the kids and I sleep, but the kitchen and bath areas would be shared. The ex is adept at mud slinging, so I have to be cautious...

From the "best interest" perspective, having a tenant means the kids can have the stability of staying in their family home. The money I'd collect would mostly cover my daycare fees. Not renting to a border very likely means moving to a new home, or at the very least, living quite frugally for 2 years until both the children are in f/t school.

I count my lucky stars for having found this great site!!

[logicalvelocity]

mom22galz,

It is obvious that your ex is down and out. Most likely no home, no job, no assets etc. He could even be on social assistance. If the kids are in school, and if by chance he suddenly appeared out of no where and uprooted the kids after a status quo living arrangement has been demonstrated, this would look really bad on him. The courts would not condone this conduct. Children require stability and security, and this is something your ex cannot offer them at this time. Uprooting them out of the blue would be not in their best interest.

If it was me, I would establish a status quo ie 6 months, then bring forth an order for custody and child support.


Right now you are holding the cards, caring for the children solely. The longer this regime goes on, the courts would not interrupt this status quo arrangement if everything is working out well for the children. Make an reasonable attempt and encourage the children to maintain some sort of relationship with their father. Keep track or your efforts, phone calls, correspondence etc. Keep copies of your children's report cards and build your case. You could cross reference the marks against the previous year. Keep a log of events such as parent teacher meetings that you attend, medical appointments etc. Eventually what will be scrutinized is your conduct and your ongoing responsibility to act in the best interest of the children. Walk the walk so to speak.

I don't want to put too much on my children's shoulders, I think they've been through enough already. With no custody documents on file, I've considered simply asking the eldest to call mom should her dad come to pick her up from school. She's already accustomed to calling me from her after school care, so it wouldn't be a whole new thing. But I fear burdening her. I'm sure she'll pick up on the implication of my request, even if I remain silent.

You could disguise the real issue by saying anyone and not just emphasizing Dad. This is a safety measure or due diligence. ie: If my own child does not return when and where as previously agreed, he calls by default. This is a rule I have instilled in him.

Lastly, while I do have more financial resources than my ex, I am in no way rich. I'm actually very tight financially right now, to the point that I've thought of selling my house.

This suggests that you have means. Generally spousal support is not to come from capital but you could also be facing an unjust enrichment claim.


I do however have the space in my home to take in a tenant. A fellow at work whom I've known for the past 8 years is looking for a place to share so he can better save for his own down payment. I'd feel comfortable renting to him, and he's not a stranger to the kids since they've already met him on several occasions. Might be win-win.

But If I rent space to him, could my ex somehow use that against me?? Claim I moved a "new dad" into the house or something??? The space isn't even on the same level where the kids and I sleep, but the kitchen and bath areas would be shared. The ex is adept at mud slinging, so I have to be cautious...

Bringing a Tennant in the home may of be of some help financially, but this also could construe to be a material change for the children. This could also complicate the issues. Keep the issues as simple as possible. If it was me, I wouldn't give your ex any ammo.

From the "best interest" perspective, having a tenant means the kids can have the stability of staying in their family home. The money I'd collect would mostly cover my daycare fees. Not renting to a border very likely means moving to a new home, or at the very least, living quite frugally for 2 years until both the children are in f/t school.

Any rent received would have to be declared as income and would effect the ctb gst the Harper child care grant etc. Now that you are separated, you could declare one of the children as an equivalent to spouse amount giving you an additional 7K plus tax shielding on your income. Go to your employer ASAP and file a new federal and provincial TD1 so your employer will take less income tax off your pay. You would reap an immediate monetary gain once the forms are processed. Federal TD1 form can be found here

http://www.cra-arc.gc.ca/E/pbg/tf/td1/README.html

and Ontario TD1

http://www.cra-arc.gc.ca/E/pbg/tf/td1on/README.html

In the best interest perspective, the fact that you would have a Tennant in the home will no doubt be brought forward and advanced if the matter is litigated.

see section 24 of the Children's Law Reform Act

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 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; "Status Quo"

(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

[mom22galz]

Thanks so much for the thorough analysis, LV. So, either way -- by selling the home and moving, or by bringing in a tennant, I'm effecting a material change. That's harsh. I'd never budgeted to pay all the home's upkeep + f/t daycare fees on my salary alone .

The rule for letting me know where the eldest will be is firmly established. I like your idea to further generalize the after school concept -- she typically boards a school bus, thus not doing so for any reason is surely out of the ordinary.

I have been keeping track of the children's attempts to reach their dad. It kills me that he hasn't returned a single message (they managed to get his voice mail on Saturday). I feel like I'm instilling cruel and unusual punishment by allowing them to call him, leave a heart-felt emotional message, only to be continually ignored. Breaks my heart, so I can only imagine theirs. But I'll add school meetings, doctors appts etc to the tracking list.

I'd like to enroll my eldest in the Rainbows program at her school but know her dad would not support this decision, based on past reaction to "therapy-esque" suggestions. Here's the program descriptor:
Are you or your family going through a tough time? Since 1991, the DDSB has offered the Rainbows program. This program offers peer support to elementary and secondary students who are experiencing a loss through death, divorce or any other painful transition in their family. Students meet once a week in small groups with a trained facilitator. Using journals, games and stories, the students discuss issues dealing with their loss. The key to the program is confidentiality. Each student and the facilitator sign a confidentiality contract.

Could this action be skewed to the negative if I proceed with Rainbows for my daughter?? With school just beginning, I'd like her to start fresh, so to speak, rather than joining later on. It's so weird having to take all this into consideration, rather than doing what my gut says is best

[logicalvelocity]

mom22galz,

On the face of what you have posted, it appears to be a good program. It is being offered and endorsed by the school, therefore the curriculum of the program must of been scrutinized to ministry of education guidelines. I think it would be a big plus.

lv

[logicalvelocity]

mom22galz,

I recommend to anyone on a recent separation when children are involved to take parenting courses such as KIDS FIRST. This program makes parents aware of the subsequent effects of divorce and separation has on children. These courses are offered free of charge through the Ontario Early Years Centres. A nearby centre can be found here. Taking a course or two is a big plus.

http://www.ontarioearlyyears.ca/oeyc/en/home.htm

lv