Q&A By John T. Syrtash, Associate, Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 36 years
Question: I was married for almost ten years and have a six-year-old son. My wife was having an affair with my son’s Godfather, which resulted in the birth of a baby girl. The truth came out about the affair and the baby girl in May when the baby was seven months old, making it an affair of more than two years. Now my wife is on maternity leave until early November, and she has more time with my son in a new house into which she moved six months ago with the boyfriend, baby girl, and my son. I never agreed she could leave with our son, but she left anyway. I am trying to get 50 percent of access time with no luck. How is that possible? What are my rights?
Answer: The problem is getting “50 percent” access is that you appear to be seeking advice after the most significant event has already happened. Six months have elapsed since she left with your son, but without your consent. This is a crucial mistake most men make. The mother has no legal right to unilaterally leave with your child without a court order or your express consent. But because you did nothing at the time she left, a “status quo” situation has now developed. It is now difficult to undo the damage. Normally, I advise clients that if their spouse attempts to take matters into their own hands and leave with a child, but without an agreement then my client should make an urgent application for an Order for the police to locate the child and return him to his care. The “parent left behind” should also apply to a court for sole or shared custody at the same time on the basis that his/her spouse has attempted to take away a child from the other parent without prior written consent.
Why and how can I give such advice? Well, under Ontario law, both parents are presumed to share the child’s time equally until a Court orders otherwise, even if the parties have separated. I give this advice even if such a parent leaves by giving notice of where he/she is going, but without a written parenting agreement. In the absence of violence or the threat of violence that recently occurred, no parent has the right to unilaterally take a child away from the other parent without his/her prior written consent or do so in accordance with a Court order. It’s usually not in a child’s best interests. In your case, you are best to have your lawyer assemble good witnesses and other evidence about your relationship with your son.
Alternatively, you may ask the Court to order the Ontario Children’s Lawyer to investigate your relationship with the child, or the Court could order a private clinical Assessment with a social worker, psychiatrist, or psychologist trained to do so with stellar credentials and experience. The Children’s Lawyer’s services are free, but they are very selective about which cases to investigate or for which to represent a child. Under Ontario’s Children’s Law Reform Act you will usually share payment of fees with the other parent in a Clinical Assessment, but its total cost can range between $10,000-$15,000 in most cases. In such an Assessment. The clinician interviews everyone including the children, teachers, physicians, and friends. Obviously if the child is too young there would be no such interview with that child, but the child will be observed in his/her interactions with each of the parents. They will then make recommendations to the Court in a written Assessment Report about a child’s needs and the ability of each parent to satisfy those needs, i.e. who should have custody, whether it should be shared or not and what access if any should take place by the other parent. This process usually leads to an increase in your time with your child, unless you have been truly abusive in the past towards them. If this is the case, the recommendation may be that your access should be supervised.
This is a very difficult and sensitive area of family law. The recommendations of clinician are usually accepted and endorsed by the Court but can be contested if the clinician fails to adopt the proper steps for such a task. For this reason I always recommend the services of the very few clinicians whom a totally trust after 38 years of family law practise. However, I have no control over which lawyer or social worker will be appointed if the parties or the Court opts for the services of the Ontario Children’s Lawyer.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash, Associate
GARFIN ZEIDENBERG LLP
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