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Old 11-08-2017, 02:49 PM
Doctor Martins Doctor Martins is offline
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result of my “Right of First Refusal” order imposed by Justice J.E. Hughes. Once again Applicant Mother is concerned about what is in her best interest rather than what is in _________’s best interest.


7) The Applicant Mother admits that changes need to be made to this agreement, she lists among other things changes that regarding holidays, regarding schooling, regarding trips, all of which show that indeed this agreement requires amendment. There are several details that will need to be addressed prior to _________ going to school next fall, and the sooner they are addressed, the smoother the transition for her.

8) The Applicant Mother states that at the upcoming settlement conference only custody and child support are to be dealt with, thus showing this motion to change is the proper forum for shared parenting vs. sole parenting to be addressed.


9) As a result of jurisprudence the threshold to deny 50/50 shared parenting is very high.

It must meet the criteria focusing on one's "ability to parent" set out by the CLRA. In addition to the best interests test, 24(2), your ability to act as a parent is analyzed via:

Past conduct
(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

and of course,
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

The courts must also be very wary analyzing the term "abuse". Abuse is a serious issue and should be treated as such indefinitely, but it's now unfortunately also become an overused strategy for leverage in family law.

In Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)

Justice Piercea states:
[13] Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour...
The same judge also stated:
[12] The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.


10) And it just so happens that the maximum time a child can get with each parent is 50/50.

In much caselaw, such as Young Vs Young [1993] 4 SCR 3 (below), Maximum Contact with each parent is one of the most significant factors.

It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized."
Young v Young, [1993] 4 SCR 3 at para 204, [1993] 8 W.W.R. 513.
Justice McLachlin went on to explain:"The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit
In Cavannah v Johne, [2008] OJ No 5027 at para 38, [2009] WDFL 614.

Justice Ingram found that it would be unfair to deny the father an equal opportunity to parent the child. Time sharing was ordered with three nights with the father and four nights with the mother each week. Cavannah v Johne, [2008] OJ No 5027 at para 38, [2009] WDFL 614.


11) The overwhelming jurisprudence on equal time share and Parallel Parenting has changed greatly in the past few years with rulings at trials and appeals courts in situations similar to this case, even if there is high conflict.

A key case that defined Parallel Parenting with equal time share in high conflict cases in Ontario, with reference to several appellate jurisprudence is V.K. v. T. S. 2011 ONSC 4305 (Exhibit “B”)

With the conclusion of THE HONOURABLE MADAM JUSTICE D. CHAPPEL that:

“Each party requested an Order for sole custody and primary residence of R.S.* For the reasons that follow, I have determined that it is in R.S.’s best interests to spend an equal amount of time with each party, and for the parties to both have a role in decision-making respecting the child.* I have concluded that a parallel parenting order is the custodial arrangement that would most effectively safeguard and promote R.S.’s best interests.”
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