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Ulysses101
Ulysses101, Lawyer
Category: Canada Law
Satisfied Customers: 3478
Experience:  11 years experience in Canada family law, plus criminal, civil, and employment
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I want to get an Emergency Interim Custody order in place to

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I want to get an Emergency Interim Custody order in place to have my 2 grandsons removed from the home of their father's girlfriend. Their mother is deceased and her common law boyfriend, father of the boys is neglecting them, emotionally and mentally abusing them and is not providing parenting required to raise 2 sons who are now ages 10 and 6. I am a senior citizen but do not qualify for legal aid and can not afford a lawyer. Can you offer me any advice or direct to to someone who can help me?
Submitted: 8 years ago.
Category: Canada Law
Expert:  Ulysses101 replied 8 years ago.

Hello Gramma

 

Where do you live?

 

What did the child welfare authorities say most recently?

Customer: replied 8 years ago.
I live near Guelph Ontario, but the children live in London, Ontario.

They said the complaints were taken care of by the father! They did not interview the children - I am exasperated.
Customer: replied 8 years ago.
Have you asked another question? - if so I can't see it.
Expert:  Ulysses101 replied 8 years ago.

I'm here, gramma.

 

sometimes I do a bit of research before answering, and sometimes I'm looking at other questions too. It's also midnight for both of us.

 

To get an emergency motion granted, you have to show that the children are in imminent and serious risk of physical or severe emotional harm. What would your evidence be for that?

 

Ulysses

 

 

 

 

Customer: replied 8 years ago.
This is difficult - I can only go by what the boys have told me in visits - also, the younger child has become very withdrawn, always says that no one loves him or cares about him. The older one is starting to rebel, and has become depressed and I am concerned he is going to hurt himself or run away. Neither of the children are happy -they are always quite sad and when they are away visiting, they never want to go home. In their words, their father loves his girlfriend first, her 3 children second, his possessions and personal interest next and the 2 boys are last on his list. Since Sept 2008, both boys have spent the majority of their time after school grounded to their room (which they share with the g/f 15 year old son). Their father does not help them with school homework, but always has time to help the g/f.
Expert:  Ulysses101 replied 8 years ago.

OK, this is clearly very important but not an emergency in law and I'll tell you why.

 

Under rules 14 and 15 of the Ontario Family Court Rules, one of three situations has to be in place before you can get an emergency motion granted. Keep in mind that by bringing an emergency motion you are asking the court to change another person's rights and obligations without notice to them (ie without serving them with your documents and sworn information about the allegations, and giving them an opportunity to reply) which is a big deal in a democracy.

 

Firstly the children have to be under an immediate risk of serious physical or emotional harm, and I do mean immediate and serious. Based on what you've said, the court would most likely not give you emergency custody if the child welfare authorities haven't deemed it to be an emergency and acted already.

 

Secondly, there has to be a recent and credible threat that the other parent is going to take the children out of the province contrary to the expressed wishes of the custodial parent. Since you don't have custody as I understand it, this won't apply.

 

Thirdly, there has to be evidence that the other party can't be located and you can't serve him with your documents, which is clearly not the case here.

 

Judges hate emergency or "ex parte" motions because they are asked to move children around with only having one side of the story. From what you've told me, I don't see you getting an emergency order.

 

By all means bring your application for custody and a motion for interim custody returnable as soon as possible. But I don't think you have grounds for an emergency motion. Keep your appointment with duty counsel next week, fill out the forms and get dad served with a copy as soon as possible, and press on from there. Duty counsel will help you as best they can. I always recommend getting a lawyer if you can afford it, but if Legal Aid won't help you then you have to press on yourself or trust the Children's Aid Society to do the right thing. Personally, I rarely trust the CAS to do the right thing.

 

Good luck.

Ulysses

 

 

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