[logicalvelocity]

smadax,

to ease the conversation in a flowing manner; I double quote what I mentioned and your quote response in italics and my subsequent response in blue

Originally Posted by logicalvelocity
What should be scrutinized and focused on is how did the parent with the current primary residence manage the ongoing responsibilities of the child. Do they include the other parent into the life of the child? Do they facilitate the
child to have reasonable access to the other parent? Do they keep the other parent informed of the results of all medical appointments and education?

Originally Posted by smadax
They have not facilitated her in anyway, in fact she's attempted a visitation with the child and the stepmother was very unkind and controlling. A long list of rules was left at my sisters Hotel before she arrived, she was forbidden to even step foot on their property when she came to pick up and drop of the child, she was ordered to give them an iterinary or be refused access for a day and dictated what she could and could not purchase as a gift for the child while she was visiting him!

It is unfortunate and horrible that this occurring. Your sister is not in a supervised access regime. See this case which refers to the SCC decision
Young v. Young:

D.D. v. A.S.S., 2004 BCPC 56

http://beta.canlii.org/en/bc/bcpc/do...2004bcpc56.pdf

http://beta.canlii.org/eliisa/highli...004bcpc56.html

In the matter of D.D. v. A.S.S., 2004 BCPC56, Justice Valmond Romilly of the Provincial Court of British Columbia held that the mother appeared to be proceeding on the assumption that she had exclusive proprietary interests in her son, definitely to the exclusion of the father, and for him to have access to that child he must qualify by meeting her standards and conditions for access. In other words she seems to feel that she is the only one entitled to make decisions regarding her son, and certainly not the father.

Romilly J. referred to the previous authority A.M. v. C.G., Vancouver Registry 94-6555, a decision of Judge White which states in paragraph 8 as follows:

Counsel for the applicant referred me to Mr. Justice McQuaid's 1993 decision of Sherry v. Sherry, D.R.S. 94-05914 where Mr. Justice McQuaid referred to a leading Supreme Court of Canada decision of Young v. Young, quoting from Mr. Justice Sopinka's judgment as follows:

The long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child.

Romilly J, found that the mother will be well advised to heed Mr. Justice Sopinka's words of the SCC decision Young v. Young if she is really interested in the best interests of the child, not try to encumber the father's access by forcing him "to act out a part or assume a phony lifestyle" just to meet her subjective standards and conditions of access, so that "a meaningful relationship with both parents" could be achieved.

In the result, unsupervised alternate weekends access was awarded for the eighteen month old child to their father along with mid-week access, other holidays and sharing of the child's access travel between the parents.

Your sister should document all this controlling behaviour in regards to the child's access by the stepmother and father.

Originally Posted by logicalvelocity
Courts generally don’t like to interrupt the status quo if everything is working out fairly well for the child. The problem with your sister bringing forth an interim motion for interim access; The other party may bring forth an order for interim custody at same hearing and an additional order for child support for said child.

Originally Posted by smadax
The Father already has the child on an interim bases, therefore I doubt they'd bring it into question again unless they wanted to attempt to gain sole custody which would not surprise me. My sister does not make alot of money she's on Disability and their Lawyer has advised them to not pursue Child Support, although personally I would.

Don't underestimate your opponent. To me it is best to cover the worst case scenario. Just because of your sisters place on the economic ladder is not a sufficient reason that she be denied some form of custody sole, joint etc. I suspect she is quite aware of where she falls on same. Child support is the right of the child and calculated by ones respective income whatever that amount may be.

Originally Posted by logicalvelocity
If it were me, I would be asking for custody from the start. In competing claims in climates of contradictory evidence, the court may just maintain the status quo and leave the issue for custody pending trial where they could observe the demeanor of the parties, and may ask questions. I would also cover the bases and ask for liberal access in the interim.


Originally Posted by smadax
The Judge questioned why my sister took a year to file for custody of the child and decidedly left the child with his Father since that was now the status quo. There were factors involved in her delay, but irrelevant at this point.

The Father still persists on causing road blocks to her access, but from what I've seen from CanLaw the Judge will not change the set status quo until after a scheduled access and visitation order has been attempted unsuccessfully, therefore the parent would be in clear breech of the order. I presume we should expect the same process to occur??

Do you feel she should purchase minutes for the cellphone although the Father has a landline that they've used successfully in the past and she did not consent to paying even more money to gain telephone access to the child??

It appears by waiting a year before your sister pursued custody of the child created an acquired consent to act as a parent and additionally a status quo regime for the child. Status Quo living regimes are very difficult to change unless you could create a material change such as locating to the direct vicinity to where the child currently resides or continue bringing forth motions to reinforce previous orders of the child's access. The latter will take years of litigation, lots of stress and frustration. If it was me I would relocate to where the child resides as it would create an immediate material change of circumstance and thus a review of the current status quo. A child is only a child once.

It is difficult to comment on whether your sister should purchase cell phone minutes as it appears that she may not be able to afford same due to no fault of her own due to disability. On the other hand, cost of such may create a significant hardship for her to a degree that she may be eligible to be granted a undue hardship for paying a child support amount. Telephone contact is considered access.

I do suspect that your sister has limited means to shoulder all of the child's access travel. Common Sense has to prevail here. To me it is both parents responsibilty to the best of their ability to ensure that the child maintains a meaningful relationship with both parents. This is the child centered approach and the child's right. Both parents should be participating to the best of their ability and means in the child's access travel either monetary or physically so that the child can foster same and such relationship to flourish.


lv