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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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Old 11-04-2016, 02:20 PM
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Default Excellent Case Law (LF32)

Hi All, (Especially LF32)

Some excellent case law on shared residency.

Basley v Basley, 2016 ONSC 5877 (CanLII)
Date: 2016-10-06
Docket: FD311/16
Citation: Basley v Basley, 2016 ONSC 5877 (CanLII),
http://canlii.ca/t/gv311

Quote:
[5] The inability of the parties to disentangle themselves for the better part of two years after separation, even though each had found a new partner, made this a high-conflict separation which featured unfortunate incidents of domestic violence and allegations of abuse levelled against both the father and the mother.

Source: Basley v Basley, 2016 ONSC 5877 (CanLII), par. 5, http://canlii.ca/t/gv311#par5
Quote:
While Mr. Basley was quick to acknowledge that he drank alcohol to excess because of the strain of the unusual circumstances in which the parents and the children were living, he denied the allegations of abusive patterns of behaviour. From the recordings, it appears clear that it was Ms. Basley herself who was quite willing to indulge in singular verbal and physical abuse of Mr. Basley.
Interesting... How recordings changed the situation...

Quote:
The importance of the recordings, instead, lies in their effect on the apparent reliability of Ms. Basley’s material. It was Ms. Basley who strongly condemned Mr. Basley for abuse and a violent propensity when influenced by alcohol. She went to great lengths to characterize herself as having been the children’s protector and constant saviour. It is but a weak answer for Ms. Hassan to submit that neither parent claimed perfection (undoubtedly true), that Ms. Basley’s displayed conduct was “not who she is” or that Mr. Basley might have somehow provoked her to her outrage. The revelations in the audio tapes belied Ms. Basley’s words about abuse and violence and weigh significantly against her in considering the evidence.
I won't quote para 18 through 26 - it is extensive, well done and on-point. If anyone is looking for good review of case law for equal residency this is a great one!

For LF32 read para 38-41 on "maximum contact". It is the best review of case law on that principal I have ever read. Thumbs up to the justice in this matter. It was executed well!

Quote:
60 Finally, it is fully recognized that the present order is based on information provided in affidavits prepared with a view to these motions for temporary relief. The present order is subject to variation in accordance with the rules of court or ultimate determination by final order at trial that will depend upon the evidence. Both parents are reminded that their conduct in the intervening period will be subject to exacting scrutiny and will very likely assist in the further variation or determination of the issues. Reasonableness, sensitivity to others, flexibility, generosity of spirit and action and selflessness are hallmarks that guide courts in considering parenting plans and in determining which parent is better disposed to advancing the best interests of the children.
The result: Shared Residency.

What about custody?

Quote:
[33] I decline to make an interim order with respect to custody.

Source: Basley v Basley, 2016 ONSC 5877 (CanLII), par. 33, http://canlii.ca/t/gv311#par33
You should read the analysis priot to para 33. Excellent stuff.

Good Luck!
Tayken
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