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Discussion Starter · #1 ·
she left her emotionally abusive ex of 12 years. he has taken both their kids, 6 and 3 into his custody and she is, according to his laywer, "permitted" supervised visitation in his home (he lives with his mom and dad now). she has done NOTHING at all ... anyway, she has not seen her 6 year old for 6 months (dad would not permit visitation or follow the civil court order). he is now keeping the 3 yr old dd as well. her inlaws physically assualted her this week while she was at the home (long story but they are being charged). so there goes the last possibility of her seeing her kids. they do have a civil order (non-enforceable) where they are to share the kids week by week (not being followed, and there are no other orders in place so she cannot have visitation apparently.)

she is scared of him, he has been stalking and following her or having someone do it for him. the police will not do anything because they say that is what happens between exes. apparently her fear of him is not enough.

her current lawyer says there is nothing they can do. she has spent $23000 on her lawyer and really has no money left. her current lawyer has told her to go to legal aid (knowing my sister's financial situation).

she has been to legal aid who told her she qualifies financially but that it is very unlikely they will take on her case because of the nature of the case. he told her that her best bet is to leave it until the kids are old enough to decide themselves (yeah right). going to trial will cose her tens of thousands of dollars (which she doesn't have).

she was told by the clerk at the court that she should really find a lawyer and not take it on herself because they will eat her alive in court due to the nature of her case. the legal aid worker told her it is a bad idea to take it on herself because of who the ex's lawyer is.

really there has to be SOMETHING that can be done ... anyone have any ideas what she needs to be doing? anybody know any laywers or anyone we can contact in alberta who could help guide her? any pro bono lawyers? there has to be someone who can help.

thanks (she is in alberta).
 

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Hmmm. I don't know. I do know that you can get free advice at the local family law information centre (in my city it is in the courthouse). And I can't imagine legal aid not taking on a case that is about a mama's right to see her own children???? Makes NO sense to me.
 

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Discussion Starter · #3 ·
all she is being told is she needs a lawyer - firstly because her ex's lawyer has a reputation and would eat my sister alive and secondly because how complicated the case is getting

in regards to legal aid, the man she talked to said it would be unlikely any legal aid lawyer would take on a case of that magnitude ... that it would likely take 50 hours alone just to go through all the paper work and then also go to trial. they haven't outright turned her down but he was not encouraging about taking her on.
 

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well how is it that she cannot get legal aid? is she above the income cut off? because a case about access to children is exactly what legal aid does.
 

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Discussion Starter · #5 ·
he said she qualifies financially but that legal aid will likely not take on her case. i don't understand, believe me, i really don't.they didn't make a decision today so their is still a small possibility. she is calling around today to see what else she can possibly do.
 

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She should apply, for sure. As far as I understand it, there is no way they wouldn't take that case. Makes NO sense.

If worse came to worse, she could go to court and be represented by duty counsel, no? Better that than give up.

What a horrible situation.
 

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You say there is a civil order granting visitation? She should call the police and say her kids are being kept from her (aka kidnapping).
She needs to get in contact with a womyn's centre that can provide her with a list of lawyers who may take on her case. To hell with what that man told her. Surely she'd be able to find someone to take on the case. Legal Aid lawyers do get paid for their time.
There should be a government office with free mediators/legal help. They can point her in the right direction to obtain a restraining order against him.
The courts (regardless of who his lawyer is) are extremely reluctant to remove all visitation. The most common scenerio in a case like hers (if her ex has a really airtight case against her) is an order of supervised visitation with a government appointed supervisor. If I were her, I would hit the pavement and try for two weeks straight to find a lawyer that would take the case. If that didn't work, I would head to the Ministry of the Attorney General's Family Justice Centre and seek help there. If that all failed, I would go to the courthouse and bug the crap out of the onsight Duty Council, and even the Clerks, to get the right documents---fill them out, and submit them on my own.
 

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Discussion Starter · #8 ·
great idea. the civil order is actually a joint custody order - kids at one house one week ... next week the other. but, it is not enforceable. period. she has been to the police many times and they keep saying ... it is not enforceable, there is nothing she can do.

she has applied for legal aid and they will be making a decision.

she has gone the women's shelter route ... actually she also lived there with her kids. so far no leads from her women's shelter but i am going to get her to call all of them in the province until we get some help.

she has seen the court clerk who advised her against doing it on her own. they do not HAVE a case against her ... she has done nothing ... it is just that they make it so physically bloody impossible for her to see her kids.

i like the ideas of going to the ministry. she is going down to the MP's office tomorrow and we are tossing around the idea of going to the media.
 

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If it was achoice between doing it on my own and waiting until the children are older, I'd do it on my own. Hope she finds help
 

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I'm in N.B. and found out recently that legal aid is only available to people who were in an abusive relationship. I found legal help (for free) through the Y.W.C.A. and I also called the Family Court and asked about help and they gave me a toll free number to call about family law questions. Not a lot of help, but it was free and gave me a starting point.

I'm pretty sure the Y offers similar services in most provinces. She could also check any women's centers or shelters to see if they know how she could get free legal help. I thought it was ridiculous that legal aid wasn't available unless my husband had hit me,
 

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Quote:

Originally Posted by mandib50
great idea. the civil order is actually a joint custody order - kids at one house one week ... next week the other. but, it is not enforceable. period. she has been to the police many times and they keep saying ... it is not enforceable, there is nothing she can do.
Has she gone to the court? I'm not sure if Canada works the same way as the U.S., but she should be able to have him held in contempt if he's ignoring a court order.
 

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Yes, if it is a joint custody order then he must comply or he's breaking the agreement and they can get back into court asap to make sure she gets to see her kids. If it's an agreement between the two of them and not court ordered then basically one parent has as much rights as the other parent.

Re: the physical assault by his family.....did she go to the police? That would certainly help raise issues of safety for her children and social services could be called in to investigate the safety and situation of the children.

Is there no way she could follow them or do something to see her children? I would also suggest she contact the domestic violence people in her area and see what names of lawyers would be willing to help.

She could start the process without a lawyer, but I wouldn't suggest getting into court without one. The courts seriously frown on that and it definitely will be used against her.

Are they in the same city? How can he keep the kids from her? Is there no way she could follow them or do something where she coud see them too?

I guess I don't understand how he could keep them from her (unless of course he's threatening her) without her being able to do a thing. And if she is being threatened, then it would be really great for her to get some counseling with someone who deals with abuse to help her get the strength and courage needed to be a mom to her kids.
 

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Discussion Starter · #13 ·
Quote:
Yes, if it is a joint custody order then he must comply or he's breaking the agreement and they can get back into court asap to make sure she gets to see her kids. If it's an agreement between the two of them and not court ordered then basically one parent has as much rights as the other parent.
it is a civil order, not enforceable. it was an agreement made between them in "good faith" on the, imho, crappy advice of her lawyer. she has been to the police, there is nothing they can do.

Quote:
Re: the physical assault by his family.....did she go to the police? That would certainly help raise issues of safety for her children and social services could be called in to investigate the safety and situation of the children.
yes, after the assault she called 911. what is even worse is that she was HOLDING HER DD the whole freaking time they assaulted her. child welfare was called in but have told her it is an isolated incident and they will only be able to talk to the inlaws and do nothing about it.

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Is there no way she could follow them or do something to see her children? I would also suggest she contact the domestic violence people in her area and see what names of lawyers would be willing to help.
yes, but they do not let the kids out of their site for a moment. she has tried and tried and tried. they believe, and this is no joke, that my sister is possessed and also that she had an affair (not true). they do not let my sister near the kids.

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Are they in the same city? How can he keep the kids from her? Is there no way she could follow them or do something where she coud see them too?
yes, they are. he basically quit his job to stay home with the kids - his family owns a very successful red basket. she does what she can and was going into the school to see her son. her lawyer has repeatedly told her not to breach the order by taking the kids - against her instincts. she did keep the youngest for 2 days and then the husband took her from my 14 yr old niece while she was babysitting the little one.

Quote:
I guess I don't understand how he could keep them from her (unless of course he's threatening her) without her being able to do a thing. And if she is being threatened, then it would be really great for her to get some counseling with someone who deals with abuse to help her get the strength and courage needed to be a mom to her kids.
she has been worn down since last august. it is a long story but she is completely drained. i agree with the counselling and has been seeing someone off and on.

thanks for your help.
 

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I'm so sorry your sister and her kids are going through this. I hope she finds the strength, and resources, to get her babies back.

Quote:

Originally Posted by mandib50
the civil order is actually a joint custody order - kids at one house one week ... next week the other.

Quote:

Originally Posted by mandib50
it was an agreement made between them in "good faith" on the, imho, crappy advice of her lawyer
Just for a little clarification on this, because I'm a bit confused. Was this order made through a court? Was it signed by a Judge? I guess I just can't see how this all wouldn't be enforcable if they went through lawyers and came up with an agreement (presumably the lawyers then submitted papers to the Judge who approved and signed them... and if the lawyer didn't I'd be on the lawyers a$$ about it because that certaintly wasn't looking out for your sisters best interest!). Right? Or did something else happen? If a Judge signed off on it, agreeing to the week on week off thing, then it is enforcable and I'm lost on why she's being told it's not.

Someone help me out here- what am I missing?

If I were in that position I would be pulling every string I could, begging and borrowing money from anyone I knew, to get a GOOD lawyer (see if she can find a lawyer who will work with a payment plan. She can flip burgers on the weekend if she has to to pay it off). If I couldn't pull it off I'd be marching my butt down to the courthouse and filing the papers myself, just so I could at least be heard in court. I'd rather go down fighting for my baby then roll over and play dead
:
 

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Discussion Starter · #16 ·
my sister was living in the women's shelter at the time. through his lawyer he offered my sister the chance to move back into the house and he would move out and they would each have the kids one week at a time. she had no choice but to accept the offer and i feel she was railroaded into accepting.

this agreement was signed by a judge and it is a civil court order. i have no idea why it cannot be enforced, but her lawyer and the cops have told this to her several times. i found this on the internet from a law site in BC

"On the civil side, contempt of court proceedings can lead to a fine or imprisonment for a short time. The criminal provisions are rarely enforced (expense to the government being one reason). Even civil contempt proceedings are often unsuccessful. Judges are understandably reluctant to jail or fine a parent, particularly if that parent has custody. The disobedience needs to be severe and flagrant before one contemplates contempt of court proceedings. Other remedies for enforcing access include penalties under the BC Family Relations Act, and sometimes changing custody."

Quote:
Just for a little clarification on this, because I'm a bit confused. Was this order made through a court? Was it signed by a Judge? I guess I just can't see how this all wouldn't be enforcable if they went through lawyers and came up with an agreement (presumably the lawyers then submitted papers to the Judge who approved and signed them... and if the lawyer didn't I'd be on the lawyers a$$ about it because that certaintly wasn't looking out for your sisters best interest!). Right? Or did something else happen? If a Judge signed off on it, agreeing to the week on week off thing, then it is enforcable and I'm lost on why she's being told it's not.
 

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Quote:

Originally Posted by abac
I'm in N.B. and found out recently that legal aid is only available to people who were in an abusive relationship.
It is available here in BC if there is no contact/visitation as well.
 

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Quote:

Originally Posted by mandib50
"On the civil side, contempt of court proceedings can lead to a fine or imprisonment for a short time. The criminal provisions are rarely enforced (expense to the government being one reason). Even civil contempt proceedings are often unsuccessful. Judges are understandably reluctant to jail or fine a parent, particularly if that parent has custody. The disobedience needs to be severe and flagrant before one contemplates contempt of court proceedings. Other remedies for enforcing access include penalties under the BC Family Relations Act, and sometimes changing custody."
I would say keeping a young child from his/her other parent for 6 months is "severe and flagrant". She needs to get back into the courtroom, but she also needs to make sure she can prove that she's been trying to see the kids and he hasn't let her. Does she have phone records? Has she been keeping track of when she asks and when he rejects?
 

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Discussion Starter · #19 ·
i agree it is severe and flagrant ... but no one she has spoken to thinks so. the court clerk said it is highly unlikely he would be found in breach.

i know what you are all saying, i really really do. that is why it is so frustrating that no one else thinks so but we will track someone down who DOES and who can help.

yes, she does have her cell phone records.
 

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Good. Make sure she keeps those records as they might be helpful in proving she really is trying to see the kids.

Have you posted in the tribal area for where she is? See if anyone there has any ideas or knows of a good lawyer?

That is just so frustrating. I can't even imagine. I'm sorry
 
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