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Ulysses101, Lawyer
Category: Canada Law
Satisfied Customers: 3502
Experience:  11 years experience in Canada family law, plus criminal, civil, and employment
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I am writing because a situation has arisen where my 13 and

Customer Question

I am writing because a situation has arisen where my 13 and 1/2 year old daughter (who lives in Langley Bc with her mother during the day and travels on weekends to visit me in Nanaimo) refused to go back to Vancouver today and refuses to talk to her mother for now. We have a shared/joint custody arrangement and she has been seeing counselors at her school as well as counselors outside of school about feeling afraid and unsafe, as well as unsupported in her home in Langley.
The relationship between her and her older sister is one that she has described as volatile and dangerous both physically and emotionally. At one point last year, her counselor in Nanaimo was obligated to open a case with MCFD to look into her safety in her home in Langley. The case was explored, measures were put into place to ensure that the two girls were never left alone in the house, and the case was closed in December. Since then, she has told her counselor things have reverted back to the way they were and now she feels ostracized by the family for bringing the attention of the ministry to their home.
So she took matters into her own hands and arranged with her counselor to come over to nanaimo and simply not go home this past weekend. As a parent and a father, I felt compelled to support her in her decision, and so I spoke with her mother who had a large reaction to the situation and was very unsupportive when her daughter wrote to her to explain why she was making this decision to move over here full time.
My questions are as follows:
1) I need to apply to change the custody or at least get a temporary custody order for my daughter to be on this side.
2) My daughter needs to go to school while she is here, but I doubt the mother will release registration at the other school, what is my best option to ensure she keeps up her education.
3) What are my daughters rights as a 13 and 1/2 year old? and How can I ensure that those rights are protected?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Ulysses101 replied 1 year ago.

Hello, thank you for the question.

I'm afraid that you don't have a lot of options. You need to bring this to court on an emergency basis if you're going to do that route, and that's not a guaranteed result without the input of the child welfare authorities. So first thing tomorrow, contact the MCFD branch which was involved earlier and tell them what's happening. Then you can at least put in your court papers that you have done so.

If you get an emergency order, which could be issued the same day you file, you can then enrol the child in school on the same day. However, if you go to court nearest to you there's a problem. Your court could assume jurisdiction over the child, but the preferred jursdiction is the one where the child lives primarily, ie at mother's home. This is part of the reason why I'm saying that an emergency motion isn't a slam dunk.

You ask about your child's rights. The child is a minor and doesn't have the right to say where she will live or what the access regime will be. If the litigation gets off the ground, I'm pretty sure that the court would appoint a lawyer or social worker to help bring the child's views and preferences to court, as a piece of evidence. But the child does not have the right to decide. As the child gets older and more mature, and understands what's in their own best interests, the court is more likely to give the child what they say that they want. But they never have the absolute right to determine those issues; if the parents can't decide then the court does, not the child.

Does that make sense? I'll await your questions or comments.

Customer: replied 1 year ago.
Thank you, ***** ***** me a lot to get going with. One last question, Do I as a parent, have the right to keep her here if it seems clear that she is unsafe in the other home?
Expert:  Ulysses101 replied 1 year ago.

No. You have a court order which governs the child's primary residence, time sharing, and who has custodial authority. You said that you joint or shared, which means that if you want to keep the child there then mother has to agree. If she doesn't, you need to change the order.

Only the child welfare authorities can override a custody order if they believe that the child is at risk of harm. Which is why you have to start with them if the basis for your emergency motion is that the child is being abused or neglected.

Anything else? If so then please reply. If I've answered you then I'd appreciate a positive service rating please.

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