If you are preparing an affidavit for an interim custody order, how much information do you include? How much detail into past events do you go into?
The ex-spouse has a mental health problem (professionally diagnosed personality disorder) that causes him to have frequent rages, and poor judgement. He was abusive throughout the marriage to both children and myself. He is still very controlling with me, and difficult to deal with. It has become increasingly difficult to co-parent in any way.
Upon second review of your message HockeyMom2012, it appears that you have a structured agreement possibly in place, possibly court ordered with the other parent whom you are making these allegations against.
If you have an existing and FINAL court order you would need to file and serve materials in support of a Material Change in Circumstance. Depending on the date of your agreement (if one is in place) you would have to establish on a prima facie basis that what you are presenting is a material change in circumstance which impacts the children in question's "best interests" in accordance with Rule 24 of the Children's Law Reform Act.
The onus will fall on you as the Applicant to establish on a prima facie basis that the evidence you are relying upon demonstrates a "material change in circumstance" which is no small task.
Furthermore, do note that an Application on a Material Change in Circumstance will have a long return date and still require appearance before a Case Conference for any motion to be heard.
Unless filed as an "urgent" motion ("emergency") you could, as a recent poster identified to this forum, be waiting up to 6 months depending on the court of competent jurisdiction's waiting time.
Unless the children in question are at significant risk, CAS has provided evidence in support of your claims to the endangerment of the children in question.
Again, to establish "urgency" falls upon your responsiblity as the Applicant in the matter and for the "urgency" to be established on a prima facie basis for the matter to even be heard. If you do get an "urgent" hearing, you appear and you fail to establish "urgency" in accordance with the court's expectation and jurisprudence (case law) that your request is urgent... Expect to pay significant and substantial costs to the other party and you do run the risk of possibly having an order made against you with regards to matters of custody and access of the children in question.
I caution you to seek legal counsel and to read the following thread prior to making an "urgent" application to any court of competent jurisdiction:
http://www.ottawadivorce.com/forum/f3/dont-panic-what-defines-urgency-before-court-13291/
My motion is based on status quo arguments - the order would be for the status quo of the past three years (day to day care and custody to myself, and extremely generous access to the ex-spouse (some amount of weekly care and every other weekend) ).
As you stated you cannot "co-parent" with the other parent and "co-parenting" (shared parenting, joint residency, et all...) generally denotes to the community of readers on this forum that full joint custody with 50-50 access is in place.
If this is the case, you have even MORE challenges facing your Application to the court. You are asking a judge to make a determination on the children's "best interests". Currently the children have been in a 3 year 50-50 access schedule. You would be hard pressed to find a justice in the Superior Court that would disrupt this existing Status Quo and especially if established in a FINAL order.
Not just the other party's ability will be up for judgement by the justice hearing the matter but, *your* abilities as well. There are *two* parties (parents) conduct for which a judge has to consider.
If you are indeed making an application to upset a status quo of 3 years on a 50-50 access schedule and joint custody the onus will be on you to be very honest with the court. The last thing you would want to do is present all the "bad evidence" against the other party to the matter and have a response attaching back possibly even worse evidence against you.
Do you describe past events of abuse where he has hurt myself or our children (they were not reported)? Or do you just build your affidavit around best interests of the child: your positive parenting plan, the status quo, your availability to parent, and your role as primary caregiver?
If the matter has been 50-50 for the past 3 years and is court ordered, you claims to "primary caregiver" are moot with the court more than likely. You would have to have SIGNIFICANT and COMPELLING evidence to disrupt a 50-50 status quo.
How much do you focus on the positives of your own situation vs how much time given to the negative behaviours of the ex-spouse?
Also, you seem to be confused and think that Family Law is a battle between two parents. I can honestly tell you that if you go into court with this mentality you will not be happy with the results.
The only consideration a judge will make in determining a child's best interests in accordance with the Children's Law Reform Act of Ontario. If you "focus" on either parent you are not providing the evidence the court needs to make a determination regarding custody and access. You are only demonstrating you can sell yourself as a "great parent" which often is interpreted by justices as a "martyr" parent and that the other parent is awful. You will demonstrate that you have no understanding of the children's "best interests" and that you just want to fight.
I caution you... If the other party understands the Rules, Laws, jurisprudence (case law) and is an active and involved parent your allegations, even about how great of a parent you are and how bad of a parent the other parent is... Will fail miserably before the court.
If all you are able to do is fire hearsay evidence, make statemenst of "belief", "emotional reason" and present no cogent and relevant evidence in relation to Rule 24 of the CLRA your argument will be quashed, costs ordered against you, and a judge - depending on how vexatious your statements are - may place custody and access with the other parent (respondent) and you may be ordered to pay significant costs.
Good Luck!
Tayken
