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ulysses101, Lawyer
Category: Canada Family Law
Satisfied Customers: 3468
Experience:  Over 10 years litigation experience in family, criminal, and civil law
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M and A have an order for custody, no support payable, from

Customer Question

M and A have an order for custody, no support payable, from 2012. Primary custody is with A, with a clause for access to be agreed upon between parties. Initially there was a specified access schedule, for which no access was specifically detailed After summer of 2013.
The child is now 9. The status quo since July of 2015 has been that M has the child L 50 percent of the time during school holidays, including summer, and every 2nd weekend or more often during the school year.
In approximately March of 2016 the child L started to ask mom M to do a week about rotation because he wanted more time with her. M canvassed this with A and A immediately refused. Over a period of months, L has raised this request many times and even done so with both parties present.
A still refuses to sign a consent motion to change to allow for L to do his week about rotation.
A has even threatened M via text message that he will "reduce her access to that stipulated in the order" with the only stiooylated access having been in effect for 2012 and 2013.
M feels there is a risk that A may cease access entirely.
M is thinking that she should file a motion to change and related documents, asking for a children's lawyer, but would like to know what her odds of a successful outcome would be in obtaining an order for the week about, continued equal sharing of holidays, with forced joint decision making via a court appointed mediator if parties are unable to agree.
Submitted: 9 months ago.
Category: Canada Family Law
Expert:  ulysses101 replied 9 months ago.

Hello, thank you for the question. So M is mom, and A is dad?

What province is this taking place in?

Are you mom or dad? What's your interest in this?

Customer: replied 9 months ago.
M is mom, a is dad.Province of residence for all is Ontario.I am mom.
Expert:  ulysses101 replied 9 months ago.

This is dicey, I won't lie to you.

I assume that mom and dad live in the same community, or at least in the same town or city. Is that true?

Customer: replied 9 months ago.
both in the same city.
Customer: replied 9 months ago.
Please feel free to be honest. I would like to know realistically where I stand on this one.
Expert:  ulysses101 replied 9 months ago.

This is tough because the child is only nine years old. The child's views and preferences don't carry a lot of weight at that age, unless those views and preferences are strongly held and and are held for reasons which are in the child's best interests.

Don't expect that the child's expressions will carry the day if this goes to court. The child is nine.

Has the child told dad directly that the child wants to spend half time with you? You say that this has been raised by the child to both of you together. I find this very unusual for a child of nine. Tell me more about it.

Customer: replied 9 months ago.
The child has been asking me to do what I can to make the week about happen for almost a year, every time that he has had access, without coaching whatsoever.He is intelligent beyond his years, and very decisive so I doubt that he would waiver on this.And yes, he has mentioned this directly to his father both in front of me and also when alone with him. The child reports that "I keep asking dad for a week and a week and dad says no. He says that I cant come because I have no bus for school".I have verified that there is a bus to my son's school from my home and reported same to his father so that argument is a flat out lie.
Expert:  ulysses101 replied 9 months ago.

I see.

Firstly, I want to give you a caveat. Every parent in my (nearly 20 years in family law) experience says that their child is remarkably intelligent and mature when the child's views and preferences support what that parent wants.

Please read that again. It's important. Family court judges know this.

Nine is very young to rely on the child's views and preferences. But if you're confident that the child will tell a neutral third party like a lawyer or social worker appointed by the court to gather that evidence, that the child wants to have half time with you or more, then you have nothing to lose by making a request from the court for half time and for appointment of the provincial Office of the Children's Lawyer. While children never get the right to unilaterally decide custody and access issues between their parents, the court often wants to have their input. And at age nine, the child is well within the "range" of ages where the court will want to appoint for the child.

You've asked if father could deny access back to what's in the order. Technically, yes he could. But you've had a new status quo for a long time by mutual agreement so I really doubt that father could make you look bad in court and try to have you declared to be in contempt.

You really need to consult with a decent family law lawyer in your area for a consult to find out how the courts and judges in your jurisdiction treat these issues. I can't tell you that. This may well be a good time to bring a variation motion to the court.

I can't tell you the odds of success. It depends on the evidence, and the child's views and preferences as expressed to a neutral third party is just another piece of evidence. It's up to the judge to decide how relevant and reliable that evidence from the child is.

Does that make sense? I'll await your question or comment.

Expert:  ulysses101 replied 9 months ago.

Is there more to discuss about this? If I've answered you, may I please have a positive service rating? Ratings are how I get credit from the site for helping its customers.

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