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Debra, Lawyer
Category: Canada Law
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Experience:  Lawyer
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I have a custody agreement in place. The agreement is not

Customer Question

I have a custody agreement in place. The agreement is not enforceable by the law, i recently found out. I have sole custody father has visitation every tuesday overnight and is to bring him to school on wednesday mornings and he has everyother weekend from Friday afterschool.
He has not been following the agreement and has asked me to keep him tuesday nights as he says he cannot get him to school in the morning. He has been droping him off at all hrs of the night on Tuesdays. I am no longer able to recieve him back into my care on tuesday nights forcing him to follow the agreement and keep him overnight.
Yet he is still fighting to drop him off though I havr stated im not available. He has even called my parents home saying he will drop him there if im not here.
What do I do? Can I keep him tuesdays going forward as he is unable to follow the agreement and get our son to school. Or should i be refusing yo take my son back tuesday nights?
Submitted: 11 months ago.
Category: Canada Law
Expert:  Debra replied 11 months ago.

Hello! My name is***** you for your question. I'm reviewing it now, and will post back again shortly.

Expert:  Debra replied 11 months ago.

I am sorry to hear that you are in this difficult situation.

When you say it is not enforceable by law what do you mean?

Customer: replied 11 months ago.
He refused to return him one time i called the police and they said they could not enforce him to bring him back. But they could visit him and suggest it. Its not a police enforced agreement thats exactly what she said
Customer: replied 11 months ago.
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Expert:  Debra replied 11 months ago.

There is no such thing as a police enforced agreement.

But the agreement is most assuredly enforceable.

You can seek to enforce it in court by getting an order and then the agreement will become an order. But you also have to have a provision in the court order that makes it enforceable.

But you cannot force someone to take a child. You can only force them to give the child back.

If you want the Tuesday evening access to stop you have to bring an application to the court to vary the agreement.

If you keep the child then you are breaching the agreement and then the father can take you to court.

So it is your choice about what to do with the Tuesday nights but it sure sounds like bringing the child back late on a school night is terribly selfish and not in the child's best interests.

Do you see what I mean?

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Customer: replied 11 months ago.
if he is not cabable of getting him to school on Wednesdays do we have a strong case to remove the tuedsay visits, is this something that can be done without throwing a ton of money at lawyers fees?
Customer: replied 11 months ago.
What if he chooses to not take him to school on Wednesday. What are my rights then? Or he just leaves him at my parents house and not my residence as stated in the agreement
Expert:  Debra replied 11 months ago.

I cannot say if it is a strong case as I don't know why he cannot take the child for dinner and then bring him back to you.

So I don't know if the court will say cut out the Tuesday visits or just change them so they are not overnight visits any more.

You have custody of the child so it's not really about your rights about what to do on the Tuesday night. If you want the order changed your right is to seek to vary it.

But no court will force a parent to have a child when the parent doesn't want the child so the court is not going to say an overnight visit is mandatory on the Tuesday night. The court will either say no visit or an evening visit that is not overnight depending on what you both prove is in the best interests of the child.