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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 101042
Experience:  Lawyer
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The case here is that you broke up with your common-law partner

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The case here is that you broke up with your common-law partner and appeared in court for parenting/custody of the children. The Judge decided that both parents have same custody and parenting as usual. One of you traveled and came back a few months after. The other went to court in your absence, filed and received court order for parenting of the children. On your return, you were neither served nor told of the court order, and you resumed your parenting duties as usual to the children, thinking that the judge’s decision was as your left it. The children lived with the mom but would come and live with you for all school holidays and weekends. About two years after you had returned, you tried to file for an unrelated matter which needed proof of parenting for the children. You then discovered that a parenting order for the children was given to your partner unknown to you. What are your rights and legal obligations in this situation?
Thank you for your question. My name is XXXXX XXXXX my goal is to provide you with the best possible answer.

To achieve that goal it may be that I will find that I need to gather further information from you. As well, it's quite possible that you may feel the need to ask me additional questions for further clarification.

But, please understand that as a careful lawyer I will always give you an honest answer even if the answer is sometimes not what you were hoping for.

Did you see if the mother lied about serving you or not?
Customer: replied 3 years ago.

She never mentioned the order to me. She had kept a sealed lip about it. I have only now started the court proceedings and we have not appeared in court yet.

Did you check in the court file?
Customer: replied 3 years ago.

Only after I discovered about the court order and I was given the order from court on paying the search fee.

Customer: replied 3 years ago.

Please answer my question.


But what I am trying to find out is when you say the order did it say this was by way of default? In other words did it say you didn't defend?

And then in the file was there an Affidavit of Service and if so was it false?
Customer: replied 3 years ago.

All I know about the situation is what I told you in my text.


This is not adding up.

It's not possible to get an order of this type without your being served.

And do it's important that you examine the order and find out what has gone one.

In any event, you can bring an application to vary that order based on a material change of circumstance, namely the passage of time if you cannot get that order set aside.

But if you can get the order set aside on the basis that you were not served that may be best.

So find out what happened in terms of how she got the order.

If she lied about serving you then bring a motion to set the order aside.

If you cannot do that then you can bring a motion to change that order and then you have to prove that what you are asking for is in the best interests of the children.
Customer: replied 3 years ago.

Are suggesting that I should be served on my return from my trip even if it took few months. Not being served is ground good enough to put aside any decision made in my absent?

I am saying that she had to get an order to serve you by way of substitutional service and that you would then be entitled to be served with the copy of the order.

So if that didn't happen you can likely get the order set aside.

But as there has been a passage of time and as you just found out about the order there is enough that has changed to allow you to go back to court and ask for this order to be changed anyway.
Customer: replied 3 years ago.

Will I be compelled to pay child support in retrospect?

Customer: replied 3 years ago.

In retrospect, I mean for all the time I was away even when I was out of job?

You can defend a claim for a retroactive order by showing this will cause you undue hardship.
Customer: replied 3 years ago.

You advice is very true. In our appearance for custody/parenting, as I mentioned in my initial text, we were both allowed shared parenting as usual and child support was not imposed on either of us. And when I returned from my trip, I continued my responsibility as a parent, least expecting that child support would come into play. There is an insinuation of child support in retrospect and this surprises me. I do see great rational in your advise and I salute your wisdom.

I am a family lawyer so I sure hope I am helpful!
Debra and other Canada Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi Debra,

On the same issue, I was told that I was not served the parenting order because there was an order not to serve me since I was out of the country. What are my rights and obligations to regain parenting of my children.

It sounds to me that actually what happened is that the mother got an order to serve you by way of substitute service and then likely was told to serve the order the same way.

In any event, you are back and so can seek to vary any order about the children based on a material change of circumstance and regardless of past orders the court will make any order going forward basked on what it finds to be in the best interests of the children.
Customer: replied 3 years ago.

Please explain substitute service to me. Does that mean I did not have to be served, and if I did, by what means?

It usually means you would be served in a different way such as by an ad in the paper.
Customer: replied 3 years ago.

Thank you. I did not see any advert. But in any case, like you said, I am back and I have filed to vary the decision in the best interest of the children. Certainly, their best interest is for me to have a parenting right over them as well. This is a right I am entitled to as a parent since I have done nothing wrong to them, nothing whatsoever. I love them and they love me. I would be very surprised if I should be deprived of such right by a court. But I believe in the integrity of the court and I hope I would not be disappointed.

I hope things work out.
Customer: replied 3 years ago.

Hi Debra,

When relationship break down due to irreconcilable differences, and with no abuse of any sort, what are the conditions that would favor any of the parties over the other for custody of the children? If there were a request for shared custody, what are the reasons that would deny that?

Please post this as a new question.

This is not a follow-up question.

If you want me to answer I am happy to do so, so you can put my name into the subject line.
Customer: replied 3 years ago.

The question I have just asked is a follow up to my case that is to be heard on the 22nd of November. I am asking for a shared custody and my ex is counter claiming to refuse that because she is craving for child support. This is indicated in the affidavit. I believe that both parents being in the lives of the children should take precedence over money. I sincerely need shared custody because I want the children to be in both of our lives. I also want to feel that right as a parent. I want to be able to help them without a hammer over my head.

I don't think this is a follow up question to your first question.

I've answered many, many questions on this post a month ago. I cannot be expected to answer endlessly and not be paid further. Nor can you do this to the site.

Follow-up questions are included in the initial price but to be honest the amount of questions you asked when well beyond what most ask for this lower price and I kept answering and answering but it's not fair that I be expected to keep answering for free and not fair to the site.

So if you want to ask more questions I believe you should be posting a new post.

This question is about your situation but that it's not something that is asking for clarification of my answer for your first question.
Customer: replied 3 years ago.

I am sorry if I went beyond the limit. I never knew until now. In any case, I would thank you for your assistance so far and I would definitely get back to you when the need be.

That's OK.

You can post a new question when you need to and I will happily answer.