Absent Parent

Anonymous Asked:

My ex-husband and I are not yet divorced and have one child who is almost 12. He stopped all contact with her when she was 6 years old and we never heard from him again. I have no idea where he is and due to his highly alcoholic and abusive nature, I haven't been keen to seek him out either. I want to remove him totally from her custody agreement as I would like to get her passport and she is very eager to change her last name to mine. Since it is such a lengthy amount of time with zero contact, how do I do this and can I do it without serving him?

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A Family Lawyer

10 years ago

You should ask a family law lawyer about section 62(3) of the Children's Law Reform Act re parties to an application in respect of a child. As for service, you would also want to discuss substitution service, irregular service and circumstances in which service is not required, Rule 6(15) to (18) of the Family Law Rules. It is a duty of the court to satisfy itself that proper arrangements have been made in respect of child support before granting a divorce, section 11 of the Divorce Act. The court does not change custody agreements, rather an order would be made in respect of custody and access of the child. You should carefully review the terms of the passport application to ensure that you do need to reference the custody agreement which he may not be following. The Change of Name application is completed through the Registrar General in Thunder Bay.

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Andrew J. Kania, LL.B., LL.M.

10 years ago

Answer: Based on the facts that you have provided you have a strong case in terms of custody/access. In order to dispense with his consent to the passport you either need to have sole custody, or a Court Order. As well, regardless of whether he sees the child you are 100% entitled to child support based on his income. Once a child support Order is obtained it will be enforced, for free, by the FRO. They will require his employer to pay them directly each month, and the FRO will then pay you. This happens regardless of whether he sees the child.

In terms of your service question, it is possible to seek a Judge’s Order allowing him not to be served if all you are seeking is permission to obtain a passport. I would need to speak with you, to ask some questions, before being able to comment on whether I think that a Judge would dispense with service. You are welcome to call me for a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. Thus, if you wish legal advice that you can rely upon for your specific case, please contact Douglas Briand for a free consultation).

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