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Old 09-03-2006, 12:10 PM
logicalvelocity logicalvelocity is offline
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brokendad,

that is quite a predicament your in, BUT DON'T GIVE UP and don't lose hope! When your at the bottom down and out, there is no other place to go but up!

I suspect your estranged spouse's strategy is to NOT co-operate and then wave the flag that there is no historical co-operation or communication between the parties for a Joint custody regime to work. It is apparent that she is doing everything to frustrate the children's relationship with you. Document EVERYTHING and all requests for information pertaining to the health and welfare of the children. Make it in writing, cc'd to her solicitor!

Courts are aware of this tactic. If you are running out of funding for your litigation, educate yourself on the law; Children's Law Reform Act, Divorce Act, and the Family Law Act. Moreover, it a good idea to read the Family Law Rules to obtain a better understanding of how the system works. You can represent yourself! I also recommend that you read case law to receive a greater understanding of how the courts would rule in similar situations as yours.

One case that does come to mind that is similar to your situation, is this

Z.(A.) v. W.(J.), 2004 ONCJ 157

http://www.canlii.org/on/cas/oncj/2004/2004oncj157.html

Summary of the authority (TRIAL)

ACCESS TO CHILD — Form of order — Supervised access — Grounds — Parental impasse — Supervised access is interim measure reserved for resolving impasse over access that should evolve to more normal access regime — It has distinct disadvantages such as (1) conveying message that child’s safety cannot be otherwise entrusted to access parent (which in this case, was pernicious message because evidence did not support conclusion that father presented any sort of risk to child); (2) reducing access time because it must accommodate access centre’s availability and hours of operation; and (3) costing money — In this case, even though court ended supervision about 2 years ago, mother wanted return to supervised access but offered no evidence at trial to justify step backwards to renewed involvement of supervised access centre — Mother’s request for supervised access dismissed.

ACCESS TO CHILD — Form of order — Supervised access — Grounds — Risk of harm to child — Access to former child abuser — Father’s interim access order included term prohibiting son’s unsupervised access to paternal grandfather who, 10 years ago, pleaded guilty to charge of sexual touching of his then 11-year-old daughter and who received suspended sentence and probation — Grandfather had completed his probation and had had no criminal record since then (or even prior to that offence) — Social worker with Office of Children’s Lawyer recommended continued restriction on grandfather’s contact with boy but could identify no “risk” specific to this boy and this grandfather — Worker’s reliance on vague unaccredited dogma of “once labelled, forever labelled” was speculation and conjecture but not evidence of likely risk to child — Court could find no likelihood of risk to boy in his grandfather’s unsupervised presence and rejected request for supervised access.

CIVIL PROCEDURE — Offers to settle — General — When to file with court — During trial — In claim for joint custody where court was examining level of co-operation that parties had demonstrated during litigation, it paid particular attention to various interim agreements that formed part of trial evidence — Court refused, however, mother’s invitation also to examine offers to settle — Offers to settle cannot be examined during trial and come before court only for purpose of decision of liability and quantum of costs.

CUSTODY OF CHILD — Best interests of child — Conduct of parties — Resistance to court process — Custodial mother who firmly believed that child’s relationship with father had no value repeatedly ignored, stalled or created impediments to implementation of string of access orders — Mother effectively sabotaged order for investigation and report by Office of Children’s Lawyer by withholding child from observational visit at father’s home — When investigating social worker at Office of Children’s Lawyer sought mother’s consent to speak with persons likely to have information for proposed report, mother regarded overture as attack on her character and then set about to attack worker’s competence and professionalism.

CUSTODY OF CHILD — Best interests of child — Fostering ties to non-custodial parent — Evidence showed that mother’s enthusiasm for cultivating relationship between father and child was, at best, lukewarm and, at worst, irresponsible and mean-spirited — At start of case, mother obtained ex parte order custody order on evidence that, at trial, was shown to have no basis in truth — Despite string of court orders dealing with father’s access, mother (with support of child’s maternal grandfather who shared mother’s belief that child’s relationship with father had no value) consistently ignored, stalled or created impediments to implementation of court-ordered access — She failed to complete intake requirements at access centre in timely manner — She then “discovered” problems in transporting child to and from access centre and chose another centre that forced father to travel longer distances on public transit — Court could not trust mother as sole custodian of child and, despite difficulties in parents’ ability to co-operate, it imposed joint custody to promote child’s best interests.

THE RESULT

CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Court’s distrust of principal caregiver as sole custodian — Evidence at trial showed that mother’s enthusiasm for cultivating relationship between father and child was, at best, lukewarm and, at worst, irresponsible and mean-spirited — Appeal courts have ruled that joint custody needs to be predicated on high degree of co-operation between parents but this should not preclude joint custody in situations where one parent deliberately provokes and engineers discord in expectation of being rewarded with sole custody and escaping any examination of source of and impetus for ongoing conflict — If used carefully, joint custody within parallel parenting plan may promote child’s best interests in cases where court finds that it would not serve child’s best interests to entrust primary caregiver with sole decision-making power — In this case, child’s bond with access father was strong, despite mother’s efforts to frustrate it — Father’s plan of parenting time with child was modest and built incrementally on regime currently in place — Unlike mother, he had never sought to impair child’s relationship with mother and had always respected child’s ties of affection with her and her family — He had always been ready to work co-operatively with mother had been generous and flexible with mother in access arrangements — Removal of sole decision-making power from mother would ensure that decisions that previously caused disruption if implemented would no longer feed mother’s needs and whims but would centre on child’s needs and benefits — Joint custody ordered.

CUSTODY OF CHILD — General — Rights of parent — Where parents separate — Parent with de facto or de jure custody has (1) no authority to deny child access to other parent or to dictate terms of child’s access; and (2) no authority to withhold information from other parent or to obstruct other parent’s inquiries about child’s well being (such as child’s health, education and welfare) — Non-custodial parent’s rights to access and information survive separation unless court order or agreement provides otherwise.

Comment- Until an order from the court or a separation agreement providing otherwise, BOTH parents have coextensive custody of the child, however the authority to act is SUSPENDED, but not ended.

CUSTODY OF CHILD — Interim custody — General — Purpose of interim custody order — At best, interim order is temporary solution, made on partial and untested evidence, for child’s ongoing care until outcome of court case — Ex parte interim order is most temporary of interim orders, resting on evidence not even exposed to challenge of other parent — Such orders therefore are weak foundations on which to construct any argument for continuity of care (status quo).

RESTRAINING ORDER — Grounds — Harassment, molestation or annoyance — Evidence — Mother’s evidence for ex parte interim restraining order against father was exposed at trial as untruthful — Her “fear” of recurrence of alleged spousal abuse was, at best, figment of her imagination and, at worst, deliberate fabrication to hide her role in breakdown of parents’ relationship and to portray father as unfit parent — Mother failed to adduce any evidence of any abuse or threatening behaviour by father — Instead, evidence revealed that she marketed her alleged “fear” as reason for avoiding something that she did not want to do, such as complying with access orders or sharing information about child with father — Allegation of abuse is not proof of abuse and claim of fear is by itself no proof of good reason for that fear — There had never been need for restraining order against father — Court dismissed mother’s attempt to turn back clock on claim that should have been discontinued long ago.

lv