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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11 (permalink)  
Old 12-31-2013, 12:40 PM
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One last thing, have you considered taking parental time as well.
Since the child is yours then you can share the time with both parents.
I just had a baby with my gf and I am going to be taking the second 6 months.

This will likely need to be discussed in court as apparently the mother needs to sign off on it. But again it is another way you can show the courts that you want to be fully and equally involved in the childs life.

Read my threads on organizing court papers and custody and access.
Read Tayken's threads and Mess's as well.
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Old 12-31-2013, 12:54 PM
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With regards to breastfeeding, mothers who use this has a tactic to withhold access aren't acting in the children's best interests.
Yes there are cases where children have allergies to formula but there are alternatives and there is always the option of pumping.
I know this child is older 29 months but the arguments still apply.

With regards to breastfeeding.
See this case: Cavannah v. Johne, 2008 CanLII 65587 (ON SC), CanLII - 2008 CanLII 65587 (ON SC)

Read [40, 41]
First off I didn't read everyone's advice yet, but feel I have to add some pointers.

With regards to breastfeeding.
See this case: Cavannah v. Johne, 2008 CanLII 65587 (ON SC), CanLII - 2008 CanLII 65587 (ON SC)

[22] Jen did not deny overnight access without consultation. She consulted Dr. Jack Newman, a pediatrician who operates the Newman Breastfeeding Clinic & Institute. Dr. Newman discouraged any overnight access until the child was two years of age.

[24] Following a case conference in April 2007, Jen reluctantly agreed to increased access to include overnight visits after the child reached one year of age. The first overnight was on Kai’s 2008 CanLII 65587 (ON SC)
first birthday and, since that time Carl has had one overnight visit every two weeks. Carl has been consistent in attending all of his scheduled visits.

[26] While living in Collingwood, Carl signed a lease to move to Duntroon, the town where Jen and Kai resided. Unfortunately, just as he moved into Duntroon, Jen made plans to move to the town of Maxwell, approximately twenty kilometres away and across the county line from Duntroon. Jen felt that the trailer that she was living in was not an appropriate residence for a child and, therefore, moved into her mother’s new residence in Maxwell. I do not find that this move was made to make access more difficult for Carl, but that it was done without giving proper consideration to the role of Carl in Kai’s life. The move does not facilitate the equal time sharing requested by Carl.

[37] While this case is not being decided under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), that Act contains the maximum contact principle:
16(10) …the court shall give effect to the principle that a child of the marriage
should have as much contact with each spouse as is consistent with the best
interests of the child and, for that purpose, shall take into consideration the
willingness of the person for whom custody is sought to facilitate such
contact.


[38] A similar provision is not in effect at the present time, but has been proposed as an amendment to the CLRA. Bill 33, An Act to Amend the Children’s Law Reform Act, 1st Sess., 39th Parl., Ontario, 2008, cl. 2(3) provides for the following addition to the current CLRA: 2008 CanLII 65587 (ON SC)
24(2.1) The court shall give effect to the principle that a child should have as much contact with each parent and grandparent as is consistent with the best interests of the child.

This principle has long been recognized as a proper consideration in the best interests test, even if it is not explicitly in the CLRA: see Woodhouse v. Woodhouse (1996), 20 R.F.L. (4th) 337 at para. 32 (Ont. C.A.); Lickfold v. Robichaud, [2008] O.J. No. 4117 at para. 55 (S.C.J.) (QL); Takenaka v. Kaleta (2006), 28 R.F.L. (6th) 119 at para. 42 (Ont. S.C.J.); Easton v. McAvoy, 2005 ONCJ 319 at para. 26; Mills v. Gibbs, [1997] O.J. No. 1977 at para. 75 (Ct. J. (Prov. Div.)) (QL).

[40] Despite the enormous commitment to this child by Carl, his contact has been restricted by the breastfeeding. He has shown patience with Jen’s desire to breastfeed the child, patience that has restricted his time with Kai. Now, due to the fact that the child appears to be thriving, Jen argues that there is no need to alter the status quo in a radical way. While status quo is important, the result for a baby would be to deny the father an equal opportunity to parent a child if he acquiesces to the mother’s request to breastfeed.

[41] It is clear in Jen’s evidence that she has not accepted the provision in section 20 of the CLRA that both the mother and the father are equally entitled to custody of a child. In an e-mail she sent to Carl on September 9, 2006, she states the following:
As time goes on there will be more opportunity for you to spend time with Kai. But a baby belongs with its mother, and if you had an understanding of the needs of a fully breast-fed baby and truly had Kai’s interests at heart, you would not be bringing this subject up again.

[42] Jen has been unwilling to give a timetable as to when the breastfeeding will end. She believed strongly, through medical advice, in the merits to Kai of breastfeeding; however, the breastfeeding has a secondary impact upon Carl in that it is used as an excuse to restrict his access. Kai is now more than twenty-nine months of age and is still being breastfed. Jen continues this practice not because of literature that suggests that it is important to breastfeed a child after the age of two, but rather because there is no literature suggesting that it is not in the
interests of the child to continue this practice. Hopefully, Jen recognized the comment from her own mother, Millie with whom she lives who recognized the importance of the child having much contact with both parents. Millie testified that the continued breastfeeding was interfering with Kai spending time with Carl such that it was not in the best interests of Kai.


[43] The medical evidence that Jen presented supports the practice of breastfeeding until a child has reached his/her second birthday. Carl respected her views, but now the time has come for Jen to have greater consideration for the relationship between Kai and Carl. If she used a breast pump and provided the milk to Carl, he would be willing to give it to Kai.

[47] A time sharing of three nights with father (Thursday to Sunday) and four nights (Sunday to Thursday) with mother each week during the school year has several benefits for Kai. It maximizes her time with each parent. It minimizes the time she is away from either parent, which is important for young children. It reduces the exchanges of the child between the parents to two per week, rather than six per two weeks as proposed by Jen or four per week as proposed by Carl. It allows father to continue to work four days per week, which is important for the income that he receives, especially when he has agreed to pay full Guidelines support regardless
of the time that the child is with him. The schedule can be reversed in the summer to give the father some additional time with Kai. As a preschooler, every day can be considered a holiday or weekend for Kai such that no specific holiday arrangements are necessary at this time.


[49] The parents, together or with the assistance of a mediator or through the direction of the court, will be able to make the parenting schedule meet the needs of Kai. I agree with the comments of Eberhard J. in Tymoszewicz v. Tymoszewicz (2007), 42 R.F.L. (6th) 397 at para. 8 (Ont. S.C.J.), which deal with parenting in separate households:
If each of them does well, absent impediments of distance or practical impossibilities, then the children will have the benefit of maximized parenting from each. If one proves incapable, rigid or obstructionist, then we will have that evidence to choose the better plan. If practical impediments or [particular] needs or wishes of the children or one of them demands a plan more aligned to one household than the other, then we will know it, not just speculate that it might happen.
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Old 12-31-2013, 01:02 PM
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Quote:
Originally Posted by involveddad75 View Post
Having been a parent who went through this this is my opinion.

File First:
File first and become the applicant. The longer you wait the more of an uphill battle you will face. By not waiting you show the courts you want to be involved from day one, not just after the child turns 1 or 2 years old.
And I would file where you live not where she lives. You both decided that the child would be born in _____ and not (where her mother lives now)
Excellent, advice from Involveddad (all of his posts on this thread). How lucky for you that there are people on this forum who have gone through the same thing you are going through.

Last edited by Mess; 12-31-2013 at 01:13 PM. Reason: to fix quote
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Old 12-31-2013, 01:05 PM
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There is nothing wrong with filing first.
You can always go to mediation while going to court. But by waiting your allowing the other party to build a status quo.

Filing in court also sends a message to the court and the other side that you are serious about equal shared parenting.
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Old 12-31-2013, 01:15 PM
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More than 90% of cases filed in family court end up settling out of court. Filing doesn't obligate you to go to trial. What it will do is indicate to the other party that they should stop playing games.
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Old 12-31-2013, 01:17 PM
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Quote:
Filing in court also sends a message to the court and the other side that you are serious about equal shared parenting.
@Hova....

There you have it, I mentioned this previously in my post and it is being echoed here by Involveddad75.

This is the route I took when months of Mediation (initiated by me) turned out to be a dud

HOVA.....I really do hope you are taking notes, printing stuff out and not overlooking anything that is being said here, and not feeling overwhelmed?????

What you are getting here is a combination of personal experience and some rational thinking. GET WORKING ON FILING AN APPLICATION PRONTO. There is an online wizard that can help you, and you can ask questions here

To add to the Spousal Support info from post #10 here from Involveddad

Case Commentary - Burns v. Krebss, 2013 ONCJ 76 (CanLII)

Quote:
Spousal Support requires that the parties cohabit: “Cohabited in a Relationship of Some Permanence”.


It is not enough that the parties have a child together.

[19] The statute and case law are clear that both the preconditions of cohabitation and a relationship of some permanence must be present to meet the definition of spouse under section 29(b) of the Act. In Molodowich v. Pettinen reflex, (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) Justice Kurisko sets out the factors and issues that a court must consider in making a determination of whether two parties meet the definition of “cohabit” under the Act:
http://santosfamilylaw.com/family-la...t-cohabitation
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Old 12-31-2013, 03:13 PM
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Quick note about breastfeeding - be wary of saying "she can always pump". It doesn't always work that way - some women have no trouble pumping; for others it's physiologically impossible. There's also the issue that if the mother goes without nursing the child for more than a day, she may lose her milk supply. Doesn't always happen, but you should be aware of the possibility.

I wouldn't let that stand in the way of your quest for more involvement in your child's life - I agree that bonding with both parents is at least as important as, if not more so than, continued breastfeeding; and to my knowledge the major health benefits of breastfeeding are conferred in the very earliest days of infancy, which are already past - but you should try to appear aware and sympathetic about the issues associated with breastfeeding (esp. if you're dealing with a female mediator/social worker/lawyer/judge. They (like me) have probably encountered clueless non-mothers who assume it's like turning a tap on and off, and you don't want to sound like one of those).
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Old 12-31-2013, 04:28 PM
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Quote:
Originally Posted by arabian View Post
Excellent, advice from Involveddad (all of his posts on this thread). How lucky for you that there are people on this forum who have gone through the same thing you are going through.
Guys/Gals - I'm so appreciative of the advice you've given in this thread and the time you've taken to respond. I wish what I'm going through on no one as there are lots of painful areas I've left out which I do have documented - like the times she holds my son in her arms when I'm around and says "I'm sorry your daddy doesn't love you anymore or love us as a family", "your daddy destroyed us", etc. Then there are the times I have to go over to her moms house to see my boy for the 1 hour allotted and I have to put up with them both chastising me during the entire visit. She's now even sending me texts saying that I'm threatening and emotionally abusing her - based on a quick text I sent her to ask when she'd be able to remove her stuff from my house - so I imagine this is only going to get worse before it gets better.

For those that mentioned paternity tests, this boy looks like his daddy. There is def no milkman involved.

I will file on Thursday as noted above and get all the papers together over the holidays. I will also print out the case law noted and use that as ammunition for my asks in mediation along with many of the great recommendations (how to negotiate, breastfeeding is not to be used as a hostage taking technique, common law relationship this is not, SS is never on the table, etc.) in this thread.

Given that it's NYE, it's a really tough day as was Christmas knowing that I don't have my little boy with me and my family to celebrate. However, Happy New Year to you all and please feel free to add any more thoughts or suggestions you may have as I probably will need all the help I can get. I think I will need to retain a lawyer even with mediation upcoming. Thank you all so much!
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Old 12-31-2013, 04:39 PM
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To file focus on the following:
Form 8 Application
Form 35.1 Affdiavit in support of custody and access
Form 13 Financial Statement (Support Claims) not 13.1 (property and support claims)

This is the stating point.
Read the Ontario Family Law rules each form number lines up with the rule that governs it. Applications Law 8, etc etc.

Relate everything as to how it benefits the child.
Don't say I want more time with my child, instead
Our child will benefit from equal shared parenting. I can teach these skills. etc. etc.

Focus on the child.
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Old 12-31-2013, 04:52 PM
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When dealing with issues use headings and explain.
See below for a guide of what I would put in an application / offer to settle / Urgent Motion now that I have been though the process myself and what I have learned.

CUSTODY
1. An order for joint custody
2. In the alternative if the justice deems joint custody to not be viable then an order for joint custody with a parallel parenting scheme.
a. The parents will communicate, and discuss taking each parents views as equal parents into account. Where an agreement can not be reached the applicant father has final say over education and the respondent mother has final say over medical.

3. In the alternative if the justice deems joint custody with a parallel parenting scheme not to be viable due to conflict then an order for sole custody of the child to the father.
RESIDENCE

4. An order that the primary residence of the child will be with the applicant father.

5. In the alternative that the primary residence of the child be with both parents and that neither shall move the child outside of the county/city of ______ without written consent or court order.

6. An order that the jurisdiction of the child will remain in __(enter town where you live___ or country.

ACCESS
7. A order the access be restored to equal shared parenting 50% with the father and 50% with the mother as has been the case between birth and the date of separation (give date).
8. An order for one of the following access schedules, which are consistent with the age and development and maturity of the child as set out in previous case-law and or by the Orange County of California Parenting Guidelines. (see attached)
a) Week about, week one with the applicant father, week two with the respondent mother.

b) Week about, with on 24 hour mid-week visit with the non-residential parent.

c) A 2-2-5-5 schedule such as
Mon Tues Wed Thur Fri Sat Sun Mon Tues Wed Thur Fri Sat Sun
Dad Dad Mom Mom Dad Dad Dad Dad Dad Mom Mom Mom Mom Mom
This schedule insures every Monday, and Tuesday the child is with their father and every Wednesday and Thursday the child is with their mother, this schedule allows the parents to sign the children up to activities during their days without effecting the access of the other parent.
d) A 2-2-3, 2-2-3 schedule such as
Mon Tues Wed Thur Fri Sat Sun Mon Tues Wed Thur Fri Sat Sun
Dad Dad Mom Mom Dad Dad Dad Mom Mom Dad Dad Mom Mom Mom

This schedule has the days of the week alternating, which means the child is away from either parent for a short amount of time, but parents must cooperate with respect to weekly activities.

These schedules ensure maximum contact with both parents as set out in section 16(10) of the divorce act as well ensures the child is not away from either parent for more than 5 days.

These schedules also are in line with the age and development of a child of 1+ years old as stated in the Orange County of California Parenting Guidelines. It is also in line with the Section 24 of Children Law Reform Act (Merits for Custody and Access).
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