View Single Post
  #4 (permalink)  
Old 11-07-2017, 02:11 PM
Tayken's Avatar
Tayken Tayken is offline
Senior Member
Join Date: May 2011
Posts: 6,563
Tayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant future

Originally Posted by Doctor Martins View Post
There has been moves to pass 50/50 shared parenting, joint custody legally as the default.. and I think unless there is abuse, and as long as both parents want involvement this would be a way to reduce legal conflict.
You should read the studies. What you are wishing to discuss has been studied in depth: is a trove of information. But, it doesn't apply to Canada.

Although the presumption of "equal shared residency" (50-50 access) is not explicitly stated in the various jurisdictional laws (for example the CLRA in Ontario) jurisprudence (case law) has evolved to better establish a routine of courts ordering "equal shared residence" on the onset of a matter. (First motions now more often than not end in shared residency.)

So, without totally understanding how the "law" works in your specific jurisdiction and how the system of jurisprudence works... It is a hard discussion to have with most people.

Case law suggests that equal residency should be established even in the event of an "emergency".

For example, this case law that I have reviewed on this site is a prime example of a justice working to establish in jurisprudence the requirements to award "sole custody" and "majority access" on a first appearance.

Coe v. Tope, 2014 ONSC 4002 (CanLII)

Date: 2014-07-03
Docket: 2839/14
Citation: Coe v. Tope, 2014 ONSC 4002 (CanLII),

Furthermore, it has 9 direct citations in CanLII. To give you an idea... If a case has 9 citings (which is a lot!) it means that about 60% of those people practicing law with a specialty in Family Law has probably read it.

As well, if you combine that with the "set" of case law this one is commonly cited with it nets you a spiderweb of connected cases that is 1,032 large. Which means, that VAST MAJORITY of legal professionals are informed about the requirements to establish "sole custody" and "equal access" on a first motion.

The challenge that most people face is that the general population of people does not know the requirements the court NOW requires for establishing "sole custody" and "majority access" on a motion. Most parents who get the "e-o-w shaft" have, unfortunately, "agreed to this on consent" without having sought proper legal advice.

The "tender years doctrine" is dead... But, people still talk to the principals of "mother knows best" for young children. Even though the court system in Canada has denounced this doctrine!

What needs to change is that people in Canada need to "assume" they understand custody and access law. That they should retain a lawyer or at least get advice from one prior to doing anything! If this were what happened 90% of the people who come here lamenting about Canada and how it works would stop coming. Because, well, they would have gotten proper legal advice, not agreed to an EOW-screwjob and pressed to settle on joint custody and equal access.

All the presumption of equal residency and joint custody does is make it so people don't have to inform themselves of how things work. It is simply a safety net for the cheap, lazy and uninformed...

To this I say: Ignorantia juris non excusat!!!!!!!!!!!

Originally Posted by Doctor Martins View Post
Another incentive I notice for conflict is child support.
Child Support is federally mandated under the FCSG. It is a law! There is little to debate. What people are jockying for in the conflict is not about child support but, again "access".

People are often trying to break the 60/40 split where the rules for the off-set "shared parenting" calculations can possibly get applied. So, although you may think it is about "child support" it is the binding that CS is based on the amount of time a child spends in a particular home.

The offset method works ok. It isn't the best way to do it but, it is an easy way to calculate it.

Originally Posted by Doctor Martins View Post
Say there was no child support, and given the above 50/50 expenses just paid equally.. how much would this reduce conflict in court.
It would only shift the burden of the courts to when children turn 12, 13 and leave millions of parents hopeless to have a relationship with their children at age 14 when they are listened to by the court and 14+ can ultimately make the decision.

Little known fact is that the majority of children end up by the age of 13/14 end up spending the majority of their time with the higher earning parent if the matter has previously been 50-50 for a number of years.

You can search my threads for the Stats Can study where that info is hidden.

Child support is the right of the child. They have a right to be supported by BOTH of their parents no matter where they reside. Just because the parents can't get along and live under the same roof DOES NOT MEAN they shouldn't benefit only from their parents when they live under that specific parent's roof.

A parent supports their child under all roofs at all times! -- The principal being applied in child support!

Not "only my roof" and on "my time". (where the my is a parent!)

Originally Posted by Doctor Martins View Post
As far as lifestyle children are used to, thats going to change as a result of a split in marriage and third going to lawyers. In fact there would be more net money within the family if no court conflict so the financial would likely be better for children. I think its crazy to think an involved parent wouldn't pay for things for their child. I think it would be natural and if 50/50 wouldn't need to be forced..
There are many logical fallacies in your argument and position which is ok really. They are happening because you are going through this experience and trying to find solutions that suit your need. Might I suggest that your scope is way to large and that trying to solve for the systemic issues is not going to get your matter resolved and only going to make it more complex and conflicted.

You are better off laser focusing on your matter and leave the social justice warrior stuff until you have actually resolved your own issues on your file.

Originally Posted by Doctor Martins View Post
There seems to be a massive incentive to be the Sole custody parent and then try and get as much child support as possible. This results in an expensive mud slinging contest that destroys families and hurts children.

I disagree. It is a legal strategy that gets applied in court cases often yes... But, ultimately, if someone has a proper lawyer who knows what they are doing... It rarely becomes the reality these days.

A very qualified lawyer can quickly disarm mud slinging. Mostly, mud slinging happens when:

1. You have one or both parties unrepresented.
2. You have a stupid lawyer representing both or one parties.
3. You have a crooked lawyer representing one or both parties.

Stupid lawyers are different from crooked lawyers. With a crooked lawyer I know what they are going to do. They have an easy to figure out pattern of behaviour. You can pull it out of CanLII and their past cases. All their pleadings and allegations are the same on every file. Stupid lawyers are the dangerous ones... They are unpredictable because they are stupid. They do stuff even a crooked lawyer would scratch their heads over. Because they are stupid. A crooked lawyer will never put their client in a bad position. A stupid one will.

Worse than a stupid lawyer is a "justice warrior I read everything on the interweb self-represented know-it-all nutjob".

Don't be a justice warrior. Be a parent. The court will respect you more if you present as a parent trying their best... Rather than a social justice warrior trying to right all the wrongs of family law.

Good Luck!
Reply With Quote