Thread: How to proceed
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Old 04-25-2006, 11:17 AM
logicalvelocity logicalvelocity is offline
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It appears the wheels have fallen off the cart and a few more months have gone by. One positive thing is that you have a highly credible expert witness.

I seem to recall it was your ex that pushed so heavily for this assessment and counseling and now the expert opinion is out there, your ex is not to satisfied with the recommendation of the parenting arrangement of same.

File a interim motion and use the expert opinion to support your stance. Your primary goal of this interim motion would be to increase your child's contact and perhaps get overnights reinstated. I am sure the courts will see your ex's stance and certainly it is not child centered.

I always recommend anyone in a custody dispute to ask for sole custody and subsequently failing that a joint custody parallel parenting regime right from the start. In your situation I would not veer off track and stay on course. Stick to the Joint custody regime. You do have a problem on your hands that being defacto custody. The courts will not interrupt the status quo especially if things are going well for the child. Your ex is the primary caregiver of the child, and for the most part she has a proven track record.

You could ask that no interim order be made in regards to custody of the child pending trial. A court often orders this but will order a interim residence. This way both parties are on the same playing field. Ultimately the choice is between you and your lawyer.

From the words of the honorable Salhany J.

Kaemmle v. Jewson
Ontario Court of Justice (General Division)
Judgment: October 19, 1993

Paragraph 3 forward of Judgement -This was a motion.

3 The concept of joint custody is a recent one. Historically, Ontario courts regarded joint custody as an exceptional disposition, reserved for a limited category of separated parents. Joint custody was not to be awarded unless the parents were able and willing to co-operate with respect to the child: Baker v. Baker (1979), 23 O.R. (2d) 391, 8 R.F.L. (2d) 236 , and Kruger v. Kruger (1979), 25 O.R. (2d) 673, 11 R.F.L. (2d) 52 , both decisions of the Ontario Court of Appeal. Taken to its logical conclusion, what the Court of Appeal was saying was that unless the parties agreed, there could be no joint custody. If agreement was a condition of joint custody, it logically followed that no court could ever make an order for joint custody in a disputed custody case.

4 In Lewis v. Lewis (1989), 18 R.F.L. (3d) 97 (Ont. Dist. Ct.) , I expressed the view that this view has been implicitly overridden by subsequent legislative enactments. For example, section 16(4) of the Divorce Act provides:

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

5 Section 20(1) and (3) of the Children's Law Reform Act , R.S.O. 1990, c. C.12, in less specific language, provides:

(1) Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of the child.

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibility of a child on behalf of them in respect of the child.

6 In Lewis , I viewed these new provisions as instructing the courts to no longer regard joint custody orders as exceptional circumstances which are rarely, if ever, present in cases of disputed custody. I concluded that if the old law was to prevail, then the new provisions had been enacted in vain.

7 If I am correct that joint custody is no longer to be limited to exceptional circumstances, then it may be necessary to re-examine the court's understanding of the nature of a joint custody order. Traditionally, the courts have considered that a joint custody order must involve mutual and overlapping rights and duties by the joint custodians. I have some difficulty in understanding why that approach has been considered to be essential to a joint custody regime. There are two aspects to a joint custody order -- one is legal custody, the other is physical custody. Although the courts have recognized that there can be divided custody between the parents when determining the aspect of physical custody, there has persisted the view that legal custody must be undivided in a joint custody order. Surely, the concept of joint custody can be a shifting one. When the child is under the care and control of a particular parent pursuant to the joint custody order, why cannot that parent have exclusive legal as well as physical custody, care, and control of that child for the duration of the period specified in the order?

8 I see no logical or historical reason for insisting that a joint custody order must mean that the legal rights of both parents must co-exist at the same time. When a sole custody order is made, legal and physical custody, care, and control are awarded to one parent and access to the other. If access is specified, then the access parent is entitled to see the child during the access period. Such access periods are often described as visitation rights -- the parent has the right to see his or her child and no more. The custodial parent has the exclusive legal right to make decisions for the child pertaining to such matters as schooling, religion, medical or dental treatment, etc. The access parent has no rights in these matters and must rely on the co-operation of the custodial parent to provide information about what decisions have been made for the child.

9 On the other hand, the usual practice in a joint custody order is to define the time when the child will be under the care and control of each custodial parent. Whether the word custody or access is used to describe when the child shall be with one parent or the other is not, in my view, determinative of the legal relationship of the particular joint custodial parent vis-à-vis the child. The legal rights of that parent will depend upon when the child is required to be under his or her care and control. Thus, if the joint custody order specifies that the child is required to reside with the mother during the school week, then the mother has the exclusive legal right to determine what school the child will attend. Similarly, if the order specifies that the child is required to be with his father on weekends, then the father will have the exclusive legal right to make decisions involving events that occur while the child is in his care and control, such as what religious training the child will receive. If the child requires medical treatment, then the parent under whose care and control the child is at the time will have the legal responsibility to ensure that the child receives the appropriate treatment. Although that would give the parent the right to choose the doctor, the courts must assume that he or she will take the child to the usual family doctor who is familiar with the child's history. Deliberately ignoring that common sense approach will demonstrate that he or she is not a suitable parent to have custody.

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Last edited by logicalvelocity; 04-25-2006 at 08:21 PM.