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Parenting Issues This forum is for discussing any of the parenting issues involved in your divorce, including parenting of step-children.

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  #1  
Old 03-19-2007, 04:11 PM
mom22galz mom22galz is offline
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Question Maybe the time has come to formalize??

This question is mainly for LV, but I welcome everyone's input -- Grace, you around??

Over 6 months have elapsed since the ex physically left the family home.

He had been couch surfing with friends for a while in the same city where we live. When he outwore his welcome, about 4 months ago, he moved in with his sister in the bigger city where we're from.

He hasn't seen the kids since September, no xmas or bday gifts, calls sporadically wreaking havoc, no CS. I'm dealing with these things best I can, thanks in large part to the info I've gotten via these forums.

Last w/e (Mar 10), his sister came to visit her nieces at the family home, and carted several bags of the ex's belongings back home with her. The kids thoroughly enjoyed the visit, and we adults tried to remain child focussed.

But here's the kicker:
Something happened this past w/e, causing his sister to have the ex removed from her home with a police escort. I've yet to speak to the sister, and only have the ex's crazed voicemail message to go by. As usual, everything is my fault and I somehow convinced his sister to throw him out when she came for the visit - LMAO!

Anyhow, I am once again afraid for our personal safety. Desperate people do desperate things and all that. I have not sought formal custody of the kids, but given this recent turn of event, now may well be the time to move forward on that end.

Since he now has no fixed address, no phone etc, I'm not sure how he could be served, nor whether there's even a point jumping through the custody loops, under the circumstances. It would simply give me a sense of security that he can't up and take them away from school or whatnot...

Your insight is much appreciated.
  #2  
Old 03-19-2007, 06:18 PM
logicalvelocity logicalvelocity is offline
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mom22galz,

That is a difficult situation.

Quote:
Over 6 months have elapsed since the ex physically left the family home.

He had been couch surfing with friends for a while in the same city where we live. When he outwore his welcome, about 4 months ago, he moved in with his sister in the bigger city where we're from.

He hasn't seen the kids since September, no xmas or bday gifts, calls sporadically wreaking havoc, no CS. I'm dealing with these things best I can, thanks in large part to the info I've gotten via these forums.
Because the children have remained in your sole care for the last six months with the acquired consent of the other parent; suggests to me that this status quo living arrangement should not be interrupted and should prevail.

In light of this, to me custody is not an issue. I suspect if you filed now, you would receive interim sole custody of your children.

If the individual came out of the blue and attempted to apprehend the kids while your at work or away from the home; You could always bring forth an emergency motion with out notice to have the children returned. If such process is used, the courts generally have the parties return for same issue afew weeks down the road to allow the individual to serve and convey his views. Considering, the situation and efforts to buy time to avoid the potential claims; It really is a judgment call.

If the individual attends your home or property and you are concerned for your safety or the safety of your children - Call the police. Hopefully the children are not around to view same.

If you do proceed with litigation; You could always hire a process server for a nominal fee to track and serve the individual. If you started the process now even on fast track; it may take a few weeks/months before you have your first appearance.

lv
  #3  
Old 03-20-2007, 07:46 AM
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mom22galz,

LV is a wealth of information and has been on the opposite side of the fence.
I have been on both sides of the fence, the crazed ex husband on my end and the psychotic ex wife on my man’s end. LV has offered the same advice I would have suggested. For piece of mind I would proceed with the interim full custody.

I did not in the beginning after I left my ex. I didn’t want to rock the boat, and as long as he left me alone I was happy, or so I thought. One day he up and asked for a weekend visit. I agreed, he had asked before, sporadically but always brought them back as agreed. So I thought nothing of it. I chose not to be present for the pick up and made other arrangements. He took the children and unbeknown to me was attempting to leave the country and never come back. His family knew he was planning this, but didn’t think he would go through with it. Well he did, but the mistake he made was calling me Sunday evening when he was due to return them to tell me how everything was my fault and he wasn’t bringing the kids back. As I didn’t have a custody order his lawyer indirectly alluded he had rights to the kids so he was taking them. He told me, “if anything happened to them it would all be my fault.” I have never been so scared in all my life, and doubt I’ll ever be that scared again. It was a horrible experience going to the police and having to get my lawyer to convince them void any order that they must search for and return the children to me. Had I had an order it would have been a whole lot less difficult and the police would have been more corporative.

Similarly with the few possessions I left with. I left pretty much with the cloths on my back, the kids and their belongings, in addition to a few items I had been storing for a family member. One day while I was out, he took it upon himself to rummage through these things and the things I acquired since the break up as donations from friends and family and took what ever he pleased. I was shocked obviously, but again I did not have anything in writing that said we were legally separated and in the eyes of the police he “technically” had legal rights to any property of the marriage and I kid you not, did nothing!! IN hind sight I would have gotten an order day one! Including an order clearly outlining the dissolve of the relationship and that anything in my possession was to remain mine until a court orders otherwise.

mom22galz, LV is a great source of information and always offers an unbiased reply backed with legal examples. And again has proven that with the above reply. I believe the court will rule status quo also, and you'll feel much more at ease knowing you have a court order to protect the kids.
  #4  
Old 03-20-2007, 10:15 AM
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Hey Hon,

You need to get out of victim mode and get into survivor mode, I know easier said than done. Do it for your children, you are not doing them or yourself any favours with the route you are taking. Abuse is past on through the generations, and you are teaching your kids to "take it". You need to get yourself some help, you can't do this alone. Most women can't, including myself. Abused women have had the fight beaten out of them and normally take the, walking on egg shell position, do nothing and hope it will go away/change, but we both know that is not going to happen.

I completely understand you are scared that going for custody, (which in my opinion should have been done on an emergency motion, no case conference, from the get go), is going to aggravate his temper. Of course it will, but you are just delaying the enviable and may be putting your children at greater risk, in the meantime. With your ex's criminal record, there was little to no hope from the beginning he was going to get custody of the children, anyway. Based on his past history, you should also be asking the Judge for a restraining order. Then take a copy to your local police so they can flag you in their system.

Let's say he did one day show up at school and take the kids to his unknown address. What are you going to do, run to the Police & CAS and say "I thought this could happen but I was waiting for "status quo" to set in, I read about it in a forum, on the internet, from a guy I've never met named LogicalVelocity" (LV, no offence, just getting a point across). They would have you in a straight jacket heading to Whitby Phych. I remember from previous posts that you don't have trust in CAS, but if they ever had to become involved in your case, you would be off to a really bad start with them, with your current approach to custody imo. Look at it from their stance, 2 young children, abusive convicted father, mom wont take action. This is why children are removed from homes. If you take a pro active stance, and have taken actions and can show them this, its unlikely they would remove the children, just monitor the situation. At least that has been my personal experience with them. Right now, someone has to protect the children, let that be you and not CAS.

Get yourself to your local women shelter ASAP, run don't walk. They will be able to help you with the resources you need. Have you not consulted with a lawyer yet? If not the shelter can help you with this one too. You need a lawyer that understands the imbalance of power in domestic abuse cases.

I know we are neighbours, I have probably dealt with the same people you will be dealing with in order to get this done. If you have msn add me or e-mail me at There is excellent help & resources for you in your own community, with professionals that have a better understanding of these types of domestic situations. Their are also resources available to your ex. The John Howard Society in your area comes to mind. He may be able with help, to deal with his anger and be part of his childrens lives in a more positive and healthy way.

You can do this, just don't do it alone, remember it take a village.

Last edited by logicalvelocity; 03-20-2007 at 07:19 PM.
  #5  
Old 03-20-2007, 11:48 AM
mom22galz mom22galz is offline
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Thanks everyone, for all your perspectives

LV, not sure what you mean by:
Quote:
If the individual came out of the blue and attempted to apprehend the kids while your at work or away from the home; You could always bring forth an emergency motion with out notice to have the children returned. If such process is used, the courts generally have the parties return for same issue afew weeks down the road to allow the individual to serve and convey his views. Considering, the situation and efforts to buy time to avoid the potential claims; It really is a judgment call.
Would this be the route to take without having formalized custody papers? Or if I did have them?? I very much see what FLN2C said about police not intervening w/o papers.

FLN2C,
What a horrible gut wrenching experience to lose your kids like that. I sure hope everyone is ok now.

Grace,
There's even more to the story than what I've gotten into on this forum. I have spoken to lawyers, this time a non-DV one, in 2003 it was a DV one. I've been documenting, recording calls, kids' usual caregivers are all aware and will play the delay game if he does show (Thankfully I can be anywhere they are within 15 minutes from either work or home.)
I think maybe I'll send you an email...

Peace out everyone!
  #6  
Old 03-20-2007, 01:56 PM
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mom22galz, yes everything worked out for the best. That was more than 11 years ago, but every bit as fresh in my memory.
  #7  
Old 03-20-2007, 10:36 PM
logicalvelocity logicalvelocity is offline
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mom22galz,

What I meant by this:

Quote:
Logicalvelocity said:

If the individual came out of the blue and attempted to apprehend the kids while your at work or away from the home; You could always bring forth an emergency motion with out notice to have the children returned. If such process is used, the courts generally have the parties return for same issue a few weeks down the road to allow the individual to serve and convey his views. Considering, the situation and efforts to buy time to avoid the potential claims; It really is a judgment call.


Basically at law, both parents have coextensive custody of the children until an order from the court or a legal separation agreement provides otherwise.

See section 20(1) of the Children's Law Reform Act:

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK23
Father and mother entitled to custody

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).
However, when the parents separate and the children remain with one parent with the consent, implied consent or acquiescence of the other; the authority to act is suspended for that parent but not ended. At law, Both parents still have coextensive custody of the children. The child's access remains intact which includes an equal entitlement to information bearing on the health, welfare and education of said children.

see section 20(4)

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).
Six months have elapsed to your favor which you have established a Status Quo living regime for your children. The other parents authority to act has been suspended. In that time, the individual has pretty much abandoned the children. Moreover, they have not supported the children monetary or emotionally. However, you have done your duty and fulfilled your responsibilities to the children in more ways than one.

If you bring an emergency ex parte motion, I strongly suspect and without hesitation the court would grant you interim-interim custody. The court would further order the matter to return usually about two weeks later before the same court so that the individual can present their views and evidence. A further adjournment may be granted or required for the individual considering ex parte is a one sided ambush approach and to facilitate the individual to seek legal aid or legal representation and additional time to file their Answer and other mandatory and respective claims. Restraining orders are quasi criminal which bear significant penalties of such if violated.

On the return hearing, the court will review both parties evidence and review previous interim-interim orders. They may also vary or affirm said orders made at the ex parte once all of the evidence of the parties is reviewed. The court will most likely give direction on how the case is to proceed for case management to address each parties claims and final settlement of the issues.

In other words ex parte is a good way to open up a can of worms or start a war with a litigant that has nothing to loose and would most likely qualify for legal aid representation with significant hours of free legal coverage up front. Considering what the issues and claims could be; ex parte would definitely defeat your initial goal of diminishing their claims.

I say it is a "Judgment call" by yourself and yourself alone as "time is of the essence" to lessen the other sides claims and further solidify the Status Quo regime. I could be wrong but I believe this was your main goal to protect your assets and your livelihood so that you could provide for your children in a comfortable way.

The longer a Status Quo living regime goes on with the acquiescence of the other parent suggests that such living arrangement should prevail and definitely not change for the children.

Interim-interim custody orders issued on ex parte or interim custody orders issued on interim motions are one of the weakest stances to base a final custody adjudication of the children.

Affidavit evidence is seldom cross examined on interim motions and never cross examined at ex parte.

However, Status Quo custody regimes carry significant weight as it is a clear demonstrated arrangement of BOTH parents post separation on the living and care arrangements of the children. Status Quo regimes are very difficult to change after time.

If the individual apprehended the children without your permission, as you currently have the authority to act where as their authority is suspended as a parent; You could bring forth an ex parte motion for interim-interim orders based on your sole evidence of the established status quo and evidence of the individuals conduct since separation such as:
  • their involvement with the police;
  • rejected the children since separation;
  • have not provided support to the children emotionally or monetary since separation;
  • concerns of harm;and,
  • Instability - a change in residency would disrupt their schooling, routine and Status quo living arrangement.
  • Any other relevant fact pertaining to your circumstance.


Bottom line is that you do have significant issues and you should consult with your lawyer on which way to pursue and to fully assess your situation and develop a strategy of your stance to maintain custody, preserve your wealth and assets and livelihood. However, once litigation is started it may take many years and significant costs to you to finalize the issues which no doubt to me would have significant effects on yourself, your household and your children.

I have attempted to give the best unbiased neutral advise when asked of you that I could give with consideration to all the issues. I don't believe I have steered you wrong but I do concur that I am just:

Quote:
a guy named LogicalVelocity" on the internet.
I am by no means a lawyer, paralegal or any other occupation that practices in the area of law to earn a income.

However, I am a caring parent and very reasonable father who participates and contributes to this forum with unbiased views based on facts and clear perceptions. I don't belong to any particular gender movements. I don't jump the gun to assign a label without being privy to facts. I attempt to apply the common sense approach with the attitude of "what would I do if I was in this situation." For what it is worth and with all that said, I gave this post my all.


lv

Last edited by logicalvelocity; 03-21-2007 at 12:19 AM.
  #8  
Old 03-21-2007, 02:53 PM
mom22galz mom22galz is offline
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Default Lol!!

Yes, LV, I already knew you weren't a lawyer or whatnot, you've consistently stated same all alongh!! That said, I did get the concept Grace was trying to convey

My concern about not having custody papers, and then having him take the kids is: HOW WILL I FIND THEM?? That's why I'm now considering going forward, despite the potential financial negatives. Gotta keep the kids safe, firts and foremost.

And what happens if he simply doesn't appear at the court to respond? He has repeatedly stated he won't set foot in this city.

Back to my laywer next week, just trying to have my Is dotted and Ts crossed so as not to spend more $$ than needed on the consult...
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Old 03-22-2007, 07:50 AM
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mom22galz,

Quote:
My concern about not having custody papers, and then having him take the kids is: HOW WILL I FIND THEM?? That's why I'm now considering going forward, despite the potential financial negatives. Gotta keep the kids safe, firts and foremost.
I agree safety and security of children are a paramount consideration. In the last 6 months; Has the individual made any attempts to apprehended the children or any threats to that effect?

If per say they did apprehend the children:

Call the police and report same. The police have a duty to locate the children. If it is subsequently determined that the individual did indeed apprehend the children, its not abduction but their authority to act as a parent is suspended. To me this is the time to file ex parte to have them returned to your care which I suspect you would receive interim-interim legal custody considering the facts and the police will subsequently enforce the ex parte order and have the children returned to your established care.

I'm not really clear why the CAS would be involved in the matter at this point in time, after all 6 months have already elapsed since separation and obviously the individual has not been a threat to apprehending the children. From the sounds of it, this individual has very little resources, very little income and definitely no accommodation presently and perhaps is living on the street. How could they care for the children.

Quote:
And what happens if he simply doesn't appear at the court to respond? He has repeatedly stated he won't set foot in this city.
Everything will hinge if the individual is served. If he is not served then his judicial rights are violated and any orders made at ex parte could be varied on the ground alone.

If the individual is served and willfully chooses to not participate; You could file for subsequent summary Judgment on the issues.

Once an action is started, the courts can also issue a warrant for their arrest to have him appear to face the action.

All I can say is that you know the individual better than anyone and what they are capable of doing.

lv
  #10  
Old 03-22-2007, 10:10 AM
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PARENTS STEALING CHILDREN
Safeguards to Help Prevent Parental Child Abduction
Made possible in part by a grant from the
Ministry of the Solicitor General
July 2000
And from a generous contribution by
Child Find Ontario - St. Thomas Chapter

WHAT IS PARENTAL CHILD ABDUCTION?

Most children who are abducted in Canada are not taken by a stranger, but by a parent. These children are taken without the other parent’s consent or knowledge.

Parental child abduction is illegal and a person found guilty of abduction can be sentenced up to 10 years in prison. The charge of parental child abduction applies not only to parents, but to guardians and others having the lawful care or charge of children under the age of 14.


WHO IS A POTENTIAL CHILD ABDUCTOR?

The custodial parent is less likely than the non-custodial parent to abduct his/her child, although there are exceptions. A parent who takes little interest in or responsibility for the children is, ironically, a potential abductor. A parent who is a potential child abductor fits the following profile:



Someone who angers easily, is erratic or impulsive.
Someone who is hostile, vengeful, spiteful or abusive.
Someone who possesses the skills, finances and personal connections to support him/herself and the abducted children while moving frequently.
Someone who has a poor record of employment, and has no business responsibilities that could stop him/her from fleeing.
Someone with close ties to another country where laws and traditions may be discriminatory towards the rights of foreigners or of people of a certain gender.
In 1999, 200 children and teenagers in Ontario were abducted by estranged parents.
That’s four children a week.

UNFORTUNATELY, NO AMOUNT OF PRECAUTION
CAN COMPLETELY PROTECT YOUR CHILDREN
FROM AN EX-PARTNER WHO IS INTENT ON TAKING THEM.
BUT YOU CAN TAKE STEPS TO REDUCE THE RISK.

MEASURES YOU CAN TAKE TO PREVENT PARENTAL CHILD ABDUCTION

In order to prevent parental child abduction, the initial measure you can take is to keep a friendly, or at least civil, relationship with your ex-partner. This may ease tension and discourage your ex-partner from planning an abduction. Also, try to remain friendly with your former in-laws. If they are angry with you, they may encourage your ex-partner to abduct the children. When children are abducted, the grandparents almost always know where they are.

If an amicable relationship with your ex-partner cannot be achieved, the following are suggested measures you, as a parent, can take if you fear your children may be threatened with abduction. These are suggestions, not guarantees.

OBTAIN A COURT ORDER FOR CUSTODY, ACCESS AND MOVEMENT LIMITATIONS

Obtain a court order for interim custody with an apprehension and residence clause included. Ensure the court order clearly defines the details of custody, access, and limitations for travel. The court order should state the following:
The non-custodial parent may not travel with the child outside of the province without first notifying you or the court in writing.
The non-custodial parent is to surrender his or her passport, and the child’s if they possess it, to his/her lawyer. Be aware that the potential abductor may still seek an additional or duplicate passport from his/her country of birth.
The non-custodial parent is to post a bond (buy a special insurance policy) to ensure that the child is returned at the end of the visitation period.
Certify the custody order and keep it up to date. Keep a copy with you at all times.
Be sure that your children’s school, day care, babysitter, and camp understand the custody arrangements and state clearly, in writing, who is allowed to pick up your children. Give copies of the custody order to these people.
If the non-custodial parent is allowed visitation with your children, specify time-frames, e.g., Fridays from 6 p.m. to Sundays at 6 p.m.
If you as the custodial parent agree to allow the non-custodial parent to take your children on a holiday, you can get a consent order through the courts. Or, you can simply put your consent in writing, documenting departure and return dates and times. Be specific and leave no room for interpretation. Request that the non- custodial parent sign the document. If he/she refuses to sign it, file a copy of the document with his/her lawyer, if he/she has one, and with your lawyer. If you are worried about the other parent not returning the children, permission can be withheld.


COLLECT DOCUMENTATION

Keep a record of as much physical information on your children and the non-custodial parent as possible, such as birthmarks, scars, tattoos, body piercing and disabilities. (A Child Find Kidcheck ID package can help you prepare this information.)
Keep your children’s Health Card, Passport and Birth Certificate with you at all times.
Keep important information about your former partner, such as his/her vehicle license and registration numbers, driver’s license number, Social Insurance Number, passport number, bank accounts and credit card numbers.
Keep a list of names, addresses, and phone numbers of friends and relatives, both locally and internationally, whom your spouse may contact when planning, or following, an abduction.
Have your children fingerprinted. You can call Child Find at 1-800-387-7962 to find out where this free service is available.
Make sure each of your children has a valid passport. Apply to the Passport Office at 416-973-5781 to prevent the other parent from getting a passport for your children. You must submit a written statement, along with a copy of the court order for custody, access, and movement limitations. The passport office considers each case individually and makes no decisions until it has received and reviewed all documentation. Once approved, your children’s names will be added to the Passport Control List.
Start a family tree of your ex-partner’s that tracks all his/her relatives, including their location and phone numbers. • If you are still living with your partner, place all documents in a safety deposit box or in care of a relative or personal friend of yours rather than with a mutual friend or relative of your ex-partner’s.

COMMUNICATE WITH YOUR CHILDREN

Explain the custody/access order to your children. Let them know what the legal custody order says and what it means.
Teach your children how to dial 911 and their home phone number.
Familiarize your children with the ‘safe adults’ in their lives. Explain to them what to say to a ‘safe adult’ if an abduction is attempted.
Think of a simple code word, i.e., the name of a toy, pet, or food, to use with your children. Give each child a separate code word and tell him/her not to tell anyone what it is. Change the code word regularly. Teach your children not to go with the other parent (or anyone else) unless that person can give the code word without stumbling. Tell them that if they have any doubts, they should say “no” and call you immediately.
Be aware of how much information your children see or overhear. Your children may accidentally repeat private information to the other parent.
Tell your children that you are not likely to die during their childhood. Tell them that unless they have been to your funeral and have seen that you have died, you are alive and well.
Make sure your children know they are loved and wanted. Tell them that you will never stop loving them or looking for them.
Listen to your children. This is probably the most important prevention tool. Your ex-partner may have suggested plans for moving or living with them. Your children may be able to give you some advance warning before they are abducted.

GET THE AUTHORITIES INVOLVED

Record any threat of abduction and seek legal advice and/or call the police.
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