Communication & Custody

[CatvsLion]

First let me start by saying how I feel that the whole process of custody and the legal system in such is unfair to fathers in most cases.

A little history of my situation: almost common law, x moved out with our 8 month old (now 16months), of the first 8 months I could argue that I was also primary parent, We've been trying to settle on an agreement for the last 10 months now. We did have one on our own after 3 months of lawyers but she's since changed it and will not agree to joint custody (she never did).
I basically see my daughter for a couple hours after work tues & thurs and have her every other weekend from fri-sun. We're now dealing with lawyers again and I'm filing an application to the court for joint custody.

Since my daughter has been born every situation has been dealt with together and we usually put our differences aside. We've had her christened, made a decision at CHEO which refused medical advice, had issues with daycare and took my daughter out of one after I spent the day with her, both goto almost all her Doctor's appointments, the list goes on.

My X claims we can't communicate, that we always fight when we're together. It's true when she starts asking questions about personal stuff that she doesn't want to hear it turns into an argument. We also bicker a lot and sometimes we get upset at each other. We also can't come to an agreement on custody and recently who is responsible for transportation - I'm not argueing that. My point to her is that when it's concerning our daughter we can make a decision and move on in most circumstances. She saying no we can't and that's why she doesn't want to give me joint custody. (funny how she puts it 'she wont' "GIVE" me' - I find every situation or argument we have it's what she 'gives' me, and I can't do anything about that)

I have done some research and have found unless I can provide ample amount of proof that we can communicate that the courts will only give sole custody. Now, I do have a lot of emails, and just general situations where I think I can prove that we can communicate. I'm not sure what she's going to say other then 'no we can't'. In our draft she put that she would have sole custody but would consult with me before making any decisions. (more words but that's basically what it says)

So my question(s),

- If by chance she does get sole custody would they still put that stipulation in?

- Considering they don't give joint custody to non-communicators and that's all she seems to have to say to get her joint custody. Would it be foolish for me to ask for sole custody as well?

- Following the above - Status Quo - how long is taken into consideration to determin status quo? My daughter has been primary residence with her mother for about 7 months now. Also, my daughter was staying at my place an extra 3 overnights a month for 4 months and the last 2 months her mother took those away (when we started lawyers again). I would like 2 more overnights a month but she's argueing now it's not her routine - which she changed.

- Is case managment usually helpful - would I be right to assume this should get solved at that point if not before?

Thanks, and glad to see a decent forum up. I'm also in the works of starting a page for helping fathers and was going to do a forum as well as there weren't many out there for support.

[logicalvelocity]

Go for sole custody with a detailed parenting plan and subsequently failing that a joint custody parallel parenting regime. Make up a communications log book and send your x a letter or her lawyer stating what it is about. If she co-operates and fills it out in regards to issues concerning your child, thats your eveidence of communication. If she disregards the request and does not co-operate it will proove that she is not child centered and controlling and is delibertly not communicating in an effort to obtain sole custody citing no communication. Its a win win situation for you to do this and will benefit your child.
A recent case law that I have come across Court of Appeal ontario is similar to your predictiment. You will see why I suggest you ask for sole custody and subsequent failing that parallel parenting regime.

Kaplanis v. Kaplanis January 2005 http://www.canlii.org/on/cas/onca/20...onca10071.html
Cheers

[logicalvelocity]

Respose to your comment "Almost Common Law"

If you lived together when your child was born, this is considered common law in the family law act of ontario, which also opens the door for spousal support if she is in need and you have the means.

Cheers

[Jeff]

Hi CatvsLion,

I see you’re from Ottawa too :-)

I think that judges look deeper than just the fact that parents can’t communicate in deciding custody. For instance, they are likely going to ask why that’s the case, whether this is something that’s just artificially started since separation, etc.

Logicalvelocity is also right about parallel parenting. This is essentially a type of joint custody for couples who can’t communicate. You can find out more about it here:
http://www.ottawadivorce.com/parallel-parenting.htm

[CatvsLion]

Originally Posted by logicalvelocity

Go for sole custody with a detailed parenting plan and subsequently failing that a joint custody parallel parenting regime. Make up a communications log book and send your x a letter or her lawyer stating what it is about. If she co-operates and fills it out in regards to issues concerning your child, thats your eveidence of communication. If she disregards the request and does not co-operate it will proove that she is not child centered and controlling and is delibertly not communicating in an effort to obtain sole custody citing no communication. Its a win win situation for you to do this and will benefit your child.
A recent case law that I have come across Court of Appeal ontario is similar to your predictiment. You will see why I suggest you ask for sole custody and subsequent failing that parallel parenting regime.

Kaplanis v. Kaplanis January 2005 http://www.canlii.org/on/cas/onca/20...onca10071.html
Cheers

But should I go for sole custody even if the status quo is in her favour? In regards to the log book - what exactly should I be requesting be put in the book? Our communication is usually through email and this is the 'evidence' that I'm using. We email regularly about health, decisions, holidays, daycare etc. Could this be the same thing? She actually already wanted 'me' to write up a journal type thing after I had my daughter on each visit. (so she didn't have to 'talk' to me) I declined as I told her we already do that in emails and in person. I guess I should ask for that again but for her to do the same thing.

I've read the Kaplanis v. Kaplanis as well as another one that was simular in canlii.org. (I can't think of the case right now - but I'll reference it later) The other case actually gave joint custody despite the non-communication.

To address the almost common law. She's already wave the spousal support in the draft agreement her lawyer wrote up. We lived together for 2 years with a break in the middle of about a month. She's working again and makes $5k less then I do so I wouldn't think she'd be entitiled to this anyhow.

Thanks for the comments and suggestions.

[CatvsLion]

Originally Posted by Jeff

Hi CatvsLion,

I see you’re from Ottawa too :-)

I think that judges look deeper than just the fact that parents can’t communicate in deciding custody. For instance, they are likely going to ask why that’s the case, whether this is something that’s just artificially started since separation, etc.

Logicalvelocity is also right about parallel parenting. This is essentially a type of joint custody for couples who can’t communicate. You can find out more about it here:
http://www.ottawadivorce.com/parallel-parenting.htm

I have a question about lawyers too - everyone always says 'get a good lawyer' or 'I hope you have a good lawyer'. So how do you know your lawyer is doing a 'good job'. Basically I'm wondering if I'm happy with my lawyer and what costs are involved in switching and if this will go against me. Also, when my lawyer and her lawyer communicate are they entitled to share all of their discussion with me? Can I request to see my 'file' or get a copy of all the documents on file? (that I don't already have).

I asked my lawyer to file 2 weeks ago and it's still not finished as of yet. The longer we wait the longer status quo is on her side. I don't want to 'harras' my lawyer either but sometimes I feel like I'm just sitting on the desk in a pile. There's nothing more frustrating then when I get told it'll be done tomorrow and I'll receive a call to go 3 days without a call and then when I do call I get 'I've been in court, busy, haven't finished it but I'm working on it and I'll give you a call when it's done' etc

[nitrocellulose]

I have found that, if you have the time, you are your best lawyer. Take time to do the research and make sure the job is done right; the way you want it done. I only learned this from some very expensive mistakes. However, don't discount the value of having legal assistance. it will do you well in the long run to shop around and find legal assistance that suits what you want and need. I know this can be a scary and expensive journey, but you will thank yourself later for all of this.

My fiancee and I recently made up a detailed parenting plan with regards to access to my daughter. I have been told by many that, since we did the research and detailed exactly what we wanted, we have created a precedence setting document here in the Upper Ottwa Valley. It took a lot of work (and discussion) to draw up 14 sheets of 81/2 by 14, but the sum of the product has far outweighed the effort.

I can only caution you to make sure that, before all cases are closed, you get the document in and settled. Filing a Variance can get costly...very, very costly.

[logicalvelocity]

Cat vs. Lion

It is up to you and you alone on your choice to what to ask for sole vs. joint custody. In the end its the best interest of the child thats counts and they have stipulated clauses that are grey and are open for interpretation. I posted the link of the kaplanis case as no doubt it will become jurisprudence in future decisions in regards to joint custody. To summarize, on appeal the justices had no other choice than to reverse the decision made at trial. Since the father never asked for sole custody with no detailed parenting plan they awarded sole custody to the mother. They had no other alternative to consider. It was a suggestion to cover your bases.

A hand written logbook is better than emails. Emails attached in an affidavit may be rejected under the evidence act. Have you ever printed out an email. Anyone with a computer and a word processing software can fabricate an email. There is no signature. You would need proove that it was sent and that it was genuine I would think. You would need receipts for receiving and sending. The logbook or journal shouldn't be used to criticize the other parent. Be positive in your entries. No matter how many times she pushes your buttons, bite your tongue. She may be setting you up to become irrational.

[CatvsLion]

Originally Posted by logicalvelocity

Cat vs. Lion

Since the father never asked for sole custody with no detailed parenting plan they awarded sole custody to the mother. They had no other alternative to consider. It was a suggestion to cover your bases.

You would need proove that it was sent and that it was genuine I would think.

My only concern for going for sole custody is that I don't feel it's in the best interest on my child and the only reason why I'd do this is if we cant' get joint. I see your point though and had already thought of that - hence my question of should I go for sole custody. I just don't think I have a hope in hell of getting sole custody because my daughter has been living with her mother for the last 8 months.

On the email - does anyone know for sure if this can be used? I work for the GOV and all the email is through that address and I still have the electronic versions of them. I did get her to agree to the log book now as well though so we'll be starting that.

Thanks for the input.