OFF TOPIC- Family Law Question

[Dave - WebGuy]

My son came back from his visit at his Mother's Last week and upon entering the house I could smell (rather strongly) the smell of freshly smoked pot, and I mean strong enough to burn your throat.

I had Children's Aid drop in on Tuesday and we had the discussion where it was found out that the mother had regularly been using Air Fresheners to conceal the smell so I couldn't tell (as well as keeping me out of the house), on top of which my son was told that they were smoking cigars (he know the difference now, and is quite aware that cigars aren't rolled by hand in white paper)

So to add to that he pretty easily offered up that they rolled them in the car while he was in it. He didn't know that they were doing anything wrong, or I may not have found out so easily. I've booked an appointment with my Doctor to have a drug screen done on him (if possible)

So after 8 years of receiving no support, having to drop of and pick my son up from visits after clearly stating in an order it was her resposibility. And , adding to that, finding out he's left mostly in the care of others while at his mother's with a group of regularly intoxicated adults, some of which I have banned in writing with Sigs from her and I about implicity not being left in the care of them, I've had enough. And am Suspending Visitation until I can arrange 3rd party supervised visitation (I can't stand the sight of my ex, and she can't so easily get the same sympathy for my son seeing his mother from a 3rd party.

My question is this:

If I take her to court (an I plan to), should I get a lawyer? I looked into legal Aid... But apparently if I initiate the case and ask for support via FRO I may not be eligable. I'm in a spot right now that I can't feasably afford a lawer to look after this due to my debtload and income.

Any suggestions or comment's on how I should go about this? I have all the motion, Affadavit and case conference papers, just not sure how to put it all into legal jargon and keep myself from messing this up.

Dave

 

[mypussykat]

You don't have the right to suspend visitation without a court order.

There are law students who run a family law clinic in Toronto. They can help you with your paperwork, but they will not represent you.

You could represent yourself. All family court judges are prepared to deal with unrepresented litigants.

I think that many men use those Men's Rights organizations to get help.

And my only other unsolicted advice, please try to keep your son's best interests in mind. It's clear that you despise her, but she will always be his Mother.

MPK

 

[Dave - WebGuy]

You don't have the right to suspend visitation without a court order.

I was told (and encouraged) by Children's aid and the Councel at the courthouse I'm within my rights to suspend or terminate access under the current order. I'm apparently resposible for his safety and well being een when he's with his mother.

Oddly enough I was told that the court order is only as usefull as those willing to follow it, to which she's practically ignored.

There are law students who run a family law clinic in Toronto. They can help you with your paperwork, but they will not represent you.

You could represent yourself. All family court judges are prepared to deal with unrepresented litigants.

Such is tha plan, but the document writing is the important part, I'll look into that, thanks.

I think that many men use those Men's Rights organizations to get help.

And my only other unsolicted advice, please try to keep your son's best interests in mind. It's clear that you despise her, but she will always be his Mother.

MPK

I've been too leniant really, I keep giving her chances because I want my son to make the choice ..... But there has to be a limit somewhere doesn't there?

 

[DenWa]

You don't have the right to suspend visitation without a court order.

And my only other unsolicted advice, please try to keep your son's best interests in mind. It's clear that you despise her, but she will always be his Mother.

MPK

Yeah, and it sounds like she's an irresponsible woman who is thoughtless enough to smoke so much weed around her son that he reeks of it. She may always be his mother, but that doesn't mean she's good for him to be around.

DW

 

[Dave - WebGuy]

In the decree nisi or the minutes of settlement, what does the order specificially say about custody? Is it joint/shared custody?
Or do you have sole custody?
Aurora xxx

I'm the custodial parent with full rights and no need to consult on any decisions. She has right to records via request in writing to me.

 

[Dave - WebGuy]

Dave - it sounds like you are right on track. I was going to ask if you where the custodial parent, but your most recent reply indicates that you are which means you have a legal resposibility to protect the child. Two things here that I would be leaning towards - pull the plug on the visitation and let the mother go to court to regain them ( she spends the money on legals) or go to court to change the terms of the order and include back payment of all child support payments or if there wasn't such an order for support to now include one since her means seem to have change to afford drugs. Your in a stronger position than you think, you have all the control but either way I would suspend visitation as of today based on the advice you have already received and tell her why.

good luck

I knew ther was something to that the initiator has not right to any aid. So the plan is pull the plug and let her start the motion.

The support area had stiplulated that she submit withing 14 days any and all paystubs via employers and copies of all tax returns to be exempt from support until she could afford it... She was on Social assistance at the time. But she's ben cocky lately tellingme she doesn't have to help out since the order says so (incidentally she has only ever given me one pay stub since 1997).

I'm trying to tell her that her visitation is suspended... but her phone wont take calls and she's notorious for not having minutes on it (another reason to suspend, I know )

 

[papasmerf]

Dave

If you lived in New York I would tell you to BEND OVER AND TAKE IT LIKE A MAN.

With all the talk of the decriminilization of pot in Canada, will the court see the mothers DRUG use as a danger to your son???

As for drug testing your son as a parent you should have that right. If refused in Canada we have several places here in New York that can do the testing.

 

[Pyro]

Divorce Sucks!

It always makes me angry when I hear about divorced parents that put their own comforts ahead of the basic care of their children. Though we only have one side of the story, I'm inclined to take what "Dave" has written at face value.

"Dave" is obviously concerned for the wellfare of his son and, in my opinion, if he comes home reeking of fresh pot he's not getting appropriate care.

It looks as though the mother has been ignoring and contravening many of the conditions in the custody agreement. She has been getting away with it because Dave has been unwilling, and finacially unable, to take concerted legal action to correct the matter. This sucks, IMHO, because she is taking advantage of Dave's concern for his son to act irresponsibly and, potentially, dangerously. I can understand why Dave has been unwilling to take action up to this point: he wants to keep his money for better chilcare uses and avoid further disruption in his son's life taht would be sure to come with legal action.

Though I am not a lawyer (and have never played one on TV), I would suggest that Dave start making some unilateral decisions of his own. Dave, don't send your son into situations where you have legitimate cause to believe he is unsafe. Intoxicated or stoned caregivers (and drivers) are a prime example of the type of environment any concern parent would take serious steps to avoid for their son.

If Dave starts to act in the best interest of his son, his ex-wife may back off some of the behaviour that is inapproriate in an effort to regain her access. If she does take Dave to court, he may get the benefit of legal aid as he would not be the initiator of the action. Since she has already broken so many aspects of the custody agreement, Dave has a strong case for his unilateral actions.

Just stop sending your son to his Mother. Explain to him what you're doing and why but, since she is so difficult to contact (another poor parenting trait) don't knock yourself out. Make her come to you and then you can pick the time and place to tell her what's happening on your own terms. She has ignore her obligations to both your son and to you for a long time. You can ignore her for a while (though, of course, you will continue to care for your son). If she's as whacked as she sounds, she may just drop it for a while and this will give your son time to get stronger and more emotionally healthy and it will allow you to prepare for future legal action if she does eventually take it to court.

In the best of times, I think a child is better off with access to both parents. However, when one of the parents is awash in dru-use and other irresponsible behaviour, a child can sometimes be better off without that influence.

Good luck Dave, I hope you will prevail as you seem to be in the right here.

Pyro.

 

[papasmerf]

Typical Yankee position - think they know best for the world, and have the god given right to fuck with other peoples laws. Of course drug use in Canada would be seen as a potential danger, just like an alcholic parent would be considered a danger to child welfare yet I believe alchol is legal both here and in New York.

Actually BB my coment on NY was infact a comment on the courts here. A woman might well ahve to shoot the judge before she is deemed unfit.

As to the question on pot. It refers to the pending and or desired law. Often courts will over look indiscression (breaking the law) if the law is about to be changed.

You are correct alcohol is legal here and yes many people drink.

 

[i_am_good]

...Dave...

...you're doing the right thing...

Keep working at it.

In the back of my mind is: http://www.aislingdiscoveries.on.ca/
Will you and your young one benefit from this?

Also, you mentioned the FRO. Was there a support deduction order? If so, is it not payable to the Director of the Family Responsibility Office in respect of the payor out of money owed to or paid by the income source to the payor (i.e. the order makes your ex pay the courts)?

Did Legal Aid say you did not qualify? Why? Don't they just consider your income level and then give you a "voucher" to take to a lawyer?

How are things going?

 

[Geographic]

Make her bring you to court

You can deny access and when she asks for it tell her to bring you to court. It might make things easier for legal aid if you are the respondent in the action but that would depend upon your income.

The way she sounds she might not even go to court and forget about it.

 

[gramage]

dave, your definately doing the right thing. as a child of a messy divorce I can say from my own experience a hard-line stance will be better for your son in the long run. one thing I would caution is if your ex is a little unstable (you make her sound it, but with all due respect your biased) make sure your son knows what is going on, a cousin of mine was in a similar situation to this, wasn't told what was going on and it led to some bad situations.

 

[Kathy P]

Dave,

I have been going through my own child custody thing for a couple of years. Custody is settled for us now, but I've been representing myself in getting support in the past year. Here's what I know:

1.Qualifying for Legal Aid has nothing to do with whether or not you initiate the action. It is entirely dependent on your income and assets. If you have over $1,500 in savings in the bank and/or own a home, you may still qualify although you might have to enter into a payment plan with them to pay it back (or a portion of it).

2.If you're unsure about the laws, how to draft documents and serve documents, don't do it on your own. I worked years ago in a legal office, so I was able to learn how to do the documentation although it varies even there depending on whether or not you're going to the Unified Family Courts (lower level) or the Superior Court level. If you're unsure, get a professional to do it. It could be more costly timewise if you try to struggle through it yourself.

3.Child support is based on income. If your ex-wife is on social assistance, the court will not order her to pay support although you might be able to argue that she's deliberately underemployed (assuming she has skills) and that she should be making more of an effort to find employment.

4.Support and access are separate issues. You can't trade one off for the other. They have to be treated separately or you can and will get raked over the coals by a Judge.

5.You open yourself up to a contempt charge and a reversal of a custody order if you violate a term. An Order is an Order until a Judge says otherwise. Unless your child is in imminent danger (weapons, etc. pot (as disgusting as it is) does not meet that level of danger) you do not have the right to deny your ex-wife visitation if it's court ordered unless you get the Order varied by a Judge.

6.I can't remember if you said how old your son is. Depending on his age, he may have a say in whether or not he wants to see his mother. 13 and upwards, kids can make choices.

7.The one thing that concerns me about your post is the statement "I can't stand the sight of my ex-wife." As much as your concern about the pot using is a valid one (and I agree with you), you have to be very careful that you're not throwing your hatred of her into the mix. Your relationship with your son is completely separate from your non-relationship with his mother. It isn't right to expect him to feel the same things about her that you do and it's inappropriate to expose him to negative talk about her. It's like journalism: you let him make his own mind up based on what he "reads" in her behaviour and the way she parents him. You are making a lethal mix if you do otherwise.

8.Stay as far away from those men's groups as possible. They are jaded, poisoned and have a very bad reputation with the courts. You will lose credibility if you bring a motion to vary access or support if the Judge knows you're aligned with one of them. Argue the merits of your specific case and hopefully you'll get someone with a fair judicial mind.

9.What will probably happen is a Judge will order an assessment of her home and yours (remember everything you do to her, she's going to retaliate and ask the court to expect the same of you). Assessments are expensive. The assessor we went to wanted $2000 from each of us! Think of that, too, when you're assessing whether or not this is something you really want to start.

10.I think you could save yourself a lot of time and grief and keep things calmer for your son, if you sit down with the woman, have a frank talk (at a neutral place like a coffee shop where you're both less likely to yell if you're out in public) and warn her that you're aware of what's happening and that you expect her to voluntarily clean up her act or you'll go to court to change the order. Perhaps, she'll realize you're serious and decide to do something proactive. That'll solve the problem and you won't be out any of your hard earned cash.

Best of luck,

KP

 

[Sasha Jones]

I'm sorry but I see a few people saying that just the issue of her smoking pot is not enough to suspend her visitation?
I must disagree.
I am not an anti-pot supporter by any means, if you want to smoke it then smoke it, but when you start smoking pot in the same confined air space as your (or any) child that is just wrong.
Not to mention the fact that they were rolling joints (and possibly smoking them) in the car with him in it means they were likely driving around under the influence of narcotics with HIM IN THE CAR!
Would you drive around with your children in the car when you had been drinking? Driving while high is the same damn thing!

That fact alone would force me to make the same decision if I had children in the same situation. Court order or not!

 

[Kathy P]

In theory, Sasha, you're right. Smoking drugs around children and driving while under the influence are both dangerous. However, having said that, in reality you need proof. A law professor once told me, "it's not what you know that matters in court. It's what you can prove." This is the approach a Judge will take. Judges in Family Court, unfortunately, hear allegations, real or not, thrown back and forth in court every day of the week. If Dave wants to avoid being the subject of a contempt order he has to PROVE that this is what's going on in front of his son when he's with his mother. This is where assessors come in. An assessor, usually a social worker, makes an evaluation and presents his/her report and findings to the Judge who then makes his decision on a variance of the original Order. These reports hold a lot of weight with Judges.

The whole goal here is to lessen the boy's exposure to this negative environment. The problem is, if Dave violates the order he may very well be giving the mother more access rather than less if Dave is then found in contempt. He has to plot his strategy carefully so that the goal he wants to achieve (less dangerous contact) with her is accomplished.

You have to be careful not to react emotionally in issues involved in the Family Court. It is harder to wait, plot and execute plans but in the long run his son will be far better off if he is careful now rather than sorry later.

 

[Sasha Jones]

So what you are telling me Kathy is, if you found yourself in the same situation, that in between the time you KNEW about your son being driven around in a vehicle with an intoxicated driver, and the time you could PROOVE it you would just allow it to happen because the court says?

If this is a regular occurance, by the time you could proove it is happening your son might well be dead.
Well, hey, what do ya know, there is your proof.
A little late though don't you think?

I would rather take my chances with the court.

If the drugs were being smoked say, in the same house as the child that may well be a different story (although I still feel it is not right) the child would not be in as much danger. Driving while intoxicated is an entirely different story altogether.

 

[Dave - WebGuy]

OK an update and hopefully some answers to some of the questions posed.

Being the custodial parent and the wording of the order I can have a drug screen done without any request from the mother. Already in the works.

2nd She admitted it to me when confronted. On the issue of legality of pot, the law has a minimum age, 10 isn't it, and he's on medication for ADHD (methylphenidate)... Anyone have an idea what happens when you essentially mix speed and pot together?

There are numerous point in the order she has broken not the least of which is being 4 hours late dropping him off, or even more common not having means to bring him back, there was an agreement signed by her that she would provide transportation in a fit vehicle properly insured and driven by a licensed driver, or forfeit her visit. I have called the police on more than one occasion when I found out she (having a G1 and no one else with her) had driven my son back.

There are probably numerous times I can have her up on charges for wreckless endangerment, but all I want is for her to follow some simple rules ordered by the court, which she can't find the responsibility to do so.

Upon telling her that her Visits were suspended until I had the issues dealt with through the courts, she pretty much said that she won't argue about it, and that she won't pay for a lawyer so she'll wait until I initiate it. It seems the on again, off again relationship with her common-law spouse has taken some precidence. She'll live with whatever consequences I give her as she's losy my trust, but she won't go back to court. She admitted to having allowed people to smoke pot in the house with a 10, 7, 6, 5 , 2 yo and 8 mo. old in the house .....

So I shall be doing up the info that I'm looking for on the weekend, 3" of files I've kept for records in the event I needed them and come up with what I want to see done in the interests of my son. Take it to a lawer and have them word it for me ... this time in court I will not budge and let someone tell me that "It's assumed that she..." and this time Social assistance isn't an excuse not to pay support, I think after 7 years she should have at least been able to offer something to help with day to day care. I paid it when we first split up, until her parents threatened her with charges of abandonment if she didn't pass my son over to me.

In the interm, I offered to let my son call her twice a week and I'll drop by with him for a supervised visit if there's something that he needs from there.

If there's a family lawer on the board maybe the business can go your way.... PM me

 

[CyberGoth]

blinks... I hope your joking but I know your not.

OK an update and hopefully some answers to some of the questions posed.

2nd She admitted it to me when confronted. On the issue of legality of pot, the law has a minimum age, 10 isn't it, and he's on medication for ADHD (methylphenidate)... Anyone have an idea what happens when you essentially mix speed and pot together?

shudders.

not good. not tragic, but not good.

 

[Goober Mcfly]

Dave: I admire your obvious love for your son, as well as the (seemingly) calm and reasonable steps you've taken to ensure the best for him.

Huzzah! And good luck.

 

[Dave - WebGuy]

shudders.

not good. not tragic, but not good.

He becomes violent towards those around him from what I can tell....

Dave: I admire your obvious love for your son, as well as the (seemingly) calm and reasonable steps you've taken to ensure the best for him.

Huzzah! And good luck.

I appreciate it, I'm calm only because I have given up on her coming around and showing some resposibility in her life. I have to lead by example.