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CatvsLion 04-25-2006 08:22 AM

How to proceed
 
Well I've been fairly quiet for the last couple of months because my x and I have been trying the councelling approach to help get to a joint custody agreement if possible.

Within these months things haven't been the best but they sure weren't the worst either. There was a lot of headway with regards to my girlfriend and the councellor basically told her that my relationship is going forward and time with my daughter and girlfriend was going to increase not decrease and there isn't much she can do about it. He also said that if my g/f and I were to move in the stipulation of overnights would have to be emended to include her.

Now in the last session she said she didn't want to continue sessions because she couldn't stand me and didn't want to have to deal with me at all. She said the last few months we haven't really had to deal with each other so that's why things have been ok.

The councellor was recommending a parallel parenting style and she didn't want to do this. He said he also recommended an assessment to be done - which she also didn't want to have done. He concluded by saying that our daughter is doing esecptionally well with both parents and there is no concern for her at all - and both parents seem to be able to parent her in a very positive maner. I asked the councellor for a report on his views/recommendations.

The councellor acknowledges that the amanosity between us is so great that he feels joint parenting wouldn't work at this time (why he suggested parallel parenting). He also recgonizes that the amanosity is caused because of my girlfriend and she has omitted that she with holds my daughter from me (for any extra time - or vacation sharing etc) because I'll most likely be spending it with my g/f. This is the other reason for him suggesting an assesment because she claims that we can't co-parent and that I'm a lier and he says that a further look would be required to make any further recommendations on custody.

He agreed to give us a letter/report but stated that it would be very short. My concern is that it'll just say that we can't co-parent and not why.

So basically I need to know what approach to take next - at it is, we're only really fighting for custody right now and then about the overnight stipulation that my x put in for my g/f (not spending overnights in the same house).

We've already had the case conference - which didn't go well at all because the judge couldn't make a ruling unless there was concent - and my overnights got taken away.

So do I now file a motion? How much leverage will the psychologist have on the custody? I do have lots of facts of how we've joint parented but she'll say he agrees that it won't work. Should I then push towards joint custody and failing that parellel parenting and failing that sole custody? I know logicalvelocity will say go for sole custody first... I've recommended this to my lawyer but he kind of dismissed it. Would this be a good tactic to go by even though I don't want sole custody unless all else were to fail?

I know she's just playing a game... all her little acqusations stopped while we were going to the councellor and the weekend after we stopped they started again. - stupid stuff like my daughter saw her in the shower and pointed and said 'mommies boobies'. She called me outraged saying that was inappropriate and where did she learn that from. - Well she learned that from me I said because I dont' wear my shirt sometimes and she asked. Then the next day I get an email saying she doesn't believe me and doesn't see how our daughter can make the connection between man and womens breasts and she must have seen my g/f's at some point! She drives me nuts!

logicalvelocity 04-25-2006 11:17 AM

Catsvlion,

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.


continued on next post

logicalvelocity 04-25-2006 11:18 AM

10 In the Lewis case, I expressed my views as to the advantages of a joint custody order. One of the common complaints of the access parent in a sole custody regime is that the custodial parent will announce at the last minute that a particular access visit conflicts with other plans made for the child, such as a family visit or a sport activity, and unilaterally decide that the access parent must accept another time "to visit" under the threat of not seeing the child at all. Another is that the access parent will be told that if the child is not returned exactly on time after an access visit, future access will be "cut off." The threat of being "cut off" access is occasionally levelled at the parent who may be late in making support payments. In such instance, access parents often feel frustrated in their attempts to develop a relationship with their own child. They regard themselves as strangers, on the outside looking in. Resentment may be directed at the courts, which they may feel are the accomplices of the custodial parent, telling them when and where they can see their own child. Often an access parent will give up in frustration, taking on a more limited role in the life of his or her child, with the resulting loss to the child of the opportunity of developing a relationship with that parent. It is perfectly understandable that a parent, who may have played an important role in the rearing of his or her child, will feel frustrated if the custodial parent is now dictating the terms of access under the constant threat of a contempt application if a term is breached.

11 A joint custody order, on the other hand, has the psychological advantage of allowing parents to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future. Joint custodial parents may be prepared to accept that they cannot determine what school their child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues, such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church, and visiting the doctor.

12 I cannot agree with the suggestion that a sole custody order which entrusts all legal decision making in the hands of one parent will necessarily minimize the conflict between them. Parents who declare war on one another will continue to battle whatever order the court makes. I view the role of the court in custody matters as one of attempting to balance the competing interests of suitable parents, remembering that, above all, the best interests of the child are paramount. But it must be remembered that often what is in the best interests of the child is to know that both parents are interested in playing an important and possibly equal role in his or her life.

13 This is not to suggest that there may not be conflicting legal duties and responsibilities in a joint custody regime that will have to be resolved occasionally by the courts. In my experience, these problems are far outweighed by the frequent applications that are made to the court in those instances where sole custody has been granted. Joint custody orders are more apt to encourage the parents to co-operate than sole custody orders. In my view, the philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operate fully in every aspect of child rearing only encourages parents to refuse to co-operate so that they can pursue a sole custody order.



LV

logicalvelocity 04-25-2006 11:54 AM

To support no interim order in regards to custody of the child pending trial,

Recent jurisprudence on an interim motion

Crocker v. Hooke

http://www.canlii.org/on/cas/onsc/20...onsc12886.html

and

Schmidt v. Haley

http://www.canlii.org/on/cas/onsc/20...onsc10739.html

and don't forget the priciple of maximizing contact although no specifically mention in the children's law reform act in can be inferred from the best interest of the child test.

See this case - interim motion by the way :)

Easton v. McAvoy, 2005 ONCJ 319

http://www.canlii.org/on/cas/oncj/2005/2005oncj319.html

Principle of maximum contact is specifically recognized in subsection 16(10) of federal Divorce Act but not mentioned in Children’s Law Reform Act (Ont.) — Nevertheless, this principle can be readily extracted from various “best interest” factors listed in provincial statute and must be considered in court’s evaluation of children’s best interests.

In this case it appears the a parallel parenting regime was ordered on an interim basis.

CatvsLion 04-25-2006 01:19 PM

Thanks LV - this will help a lot! Much appreciated!

I couldn't find the Kaemmle v. Jewson on Canlii though - where did you find this? ;)

CatvsLion 04-25-2006 02:22 PM

Also, I should point out that since the case conference there was a 4 way meeting which did get my overnights back - just with a stipulation that no 3rd party would stay overnight while my daughter was in my care. (also another area to deal with now - as she is going on vacation with a friend and they are staying in the same hotel room - her friend is female but the stipulation says 3rd parties so it should go both ways)

So as it has been for the past month and a bit I've had my daughter every other weekend from fri to sun and every tues & thurs for 3 hours. I would like to push for more time but unless I push for weekday overnights then this wouldn't be an option I don't think.

logicalvelocity 04-25-2006 08:18 PM

Catsvlion,

Read this jurisprudence interim motion

D.D. V. A.S.S.

http://www.canlii.org/bc/cas/bcpc/2004/2004bcpc56.html

2004 BCPC 0056

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
before the honorable JUDGE VALMOND ROMILLY

Paragraphs 20, 21, 26 and 27

ANALYSIS AND DECISION

[20] D.D. in my opinion seems to be proceeding on the assumption that she has exclusive proprietary interests in her son, definitely to the exclusion of the father, and for him to have access to that child he must qualify by meeting her standards and conditions for access. In other words she seems to feel that she is the only one entitled to make decisions regarding her son, and certainly not the father.

[21] I certainly understand the father of the child taking offence to this misguided attitude taken by the mother that she is the only one competent enough to set standards for access to her child, and that the father must be supervised during any access allowed, because of subjective and irrelevant concerns of the mother, which have nothing whatsoever to do with what is in the best interests of the child.

[26] Counsel for A.S.S. has provided me with the decision of A.M. v. C.G., Vancouver Registry 94-6555, a decision of Judge White which states in paragraph 8 as follows:

Counsel for the applicant referred me to Mr. Justice McQuaid's 1993 decision of Sherry v. Sherry, D.R.S. 94-05914 where Mr. Justice McQuaid referred to a leading Supreme Court of Canada decision of Young v. Young, quoting from Mr. Justice Sopinka's judgment as follows:

The long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child.

[27] I find that D.D. will be well advised to heed Mr. Justice Sopinka's words and if she is really interested in the best interests of the child, not try to encumber the father's access by forcing him "to act out a part or assume a phony lifestyle" just to meet her subjective standards and conditions of access, so that "a meaningful relationship with both parents" could be achieved. I feel that she should instead use her best efforts to facilitate the father's access to the child. I also find that A.S.S. is entitled to further access to his child if he is to have a meaningful relationship with his child, and that D.D. has failed to demonstrate any reason whatsoever why such access should be supervised, and I decline to order that A.S.S.'s access be supervised.

LV

logicalvelocity 04-25-2006 08:35 PM

Cats v. Lion

In this case (Interim motion) expert opinion cited Kelly/Lamb article and you can also see the honorable Justice inferred to the principle of the child knowing the parent in their own environment to nurture a meaningful relationship between parent and child. This principal originates to the words of the highly cited SCC Case Young v. Young although not mentioned.

Baird v. Webb, 2002 SKQB 518 (CanLII)

http://www.canlii.org/sk/cas/skqb/2002/2002skqb518.html

Paragraph 8

[8] The father dismisses the mother's fear that the child will be distressed by change of his overnight caregiver. He presented an article by Joan B. Kelly and Michael E. Lamb published in Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, Family and Conciliation Courts Review, Vol. 38, No. 3, July 2002, 297-311 at pages 308-309:

The extent to which infants and toddlers can tolerate separation from significant attachment figures is related to their age, temperament, cognitive development, social experience, and the presence of older siblings. Aside from their very immature cognitive capacities, infants have no sense of time to help them understand separations, although their ability to tolerate longer separations from attachment figures increases with age. The goal of any access schedule should be to avoid long separations from both parents to minimize separation anxiety and to have sufficiently frequent and broad contact with each parent to keep the infant secure, trusting, and comfortable in each relationship.

Preschool children can tolerate lengthier separations than toddlers can, and many are comfortable with extended weekends in each parent's home as well as overnights during the week. In general, however, most preschool children become stressed and unnecessarily overburdened by separations from either parent that last more than 3 or 4 days. The exception might be planned vacations, in which parents and siblings are fully available to engage preschool children in novel, stimulating, and pleasurable activities. Even so, most parents would be advised to limit vacations at this age to 7 days and to schedule several vacations rather than one single lengthy vacation.

and paragraphs 9 and 10 respectively

[9] I am concerned about the impact on a one-year old child of an access order that subjects him to six hours of highway travel every time he is delivered into the care of his father. Unfortunately, it cannot be avoided. If the access is to be meaningful and beneficial to the child, it must be exercised as the father sees fit. It must take place in a surrounding that is comfortable for both father and son; a place where the father can behave in a spontaneous and relaxed manner. Only then can the child know his father. That will not happen if contact with the father is limited to a few hours in a Wal-Mart mall.

[10] I am satisfied that alternate weekend access is appropriate in this case, although not for the length of time suggested by the father. To begin, his access should be from Saturday morning to Sunday evening twice a month. The mother should share the transportation burden by delivering the child to the father in Regina and picking him up there when he is returned. It would, therefore, be convenient to her if Daniel's access weekends coincided with the weekends the mother takes her older child to Regina for visits with his father. Time of delivery to the father and return to the mother will have to be worked out by the parties to their mutual convenience. There will be an order accordingly. If the visits go well, Daniel's time with his father should be extended, perhaps commencing on Friday. Hopefully, the parties can work this out themselves, together with such things as holiday and special events access.



LV

logicalvelocity 04-25-2006 09:01 PM

Another case interim motion

Stewart-Croll v. Croll - 1996

Manitoba Court of Queen's Bench

Factors governing award of interim custody -- Status quo.

The parties separated six months after the birth of their child. The child, now almost aged 2, had remained in his mother's care ever since the separation, but the father had been exercising access every second weekend when he worked weekdays, and two days per week when he worked weekends. The mother moved to a town 45 minutes away to live with her parents. The father remained in the matrimonial home. The father grossed $2,692 per month. The mother grossed $2,168 per month. She anticipated that if she moved out of her parents' home, she would be in a deficit position of $900 per month. The child care costs alone were $357. The father had been paying $400 per month child support pursuant to an interim interim order, but he did not disclose that he received rental income over the summer, nor did he volunteer to pay increased child support when his income was increased by the rental income. The mother sought an order of sole custody and the father sought an order of joint custody.


Paragraph 5

On an interim basis, it is my view that there should not be an order of custody. However, in light of the fact that the mother has been the primary care giver of Dylan prior to and after the separation, common sense dictates that on an interim basis, this situation should not be disturbed. I am therefore satisfied that on an interim basis, it is in Dylan's best interests to remain in his mother's primary care and control.

and Paragraph 6 and 7 respectively

6 In considering the father's periods of care and control, I wish to ensure that the child have as much contact with each parent as possible. This becomes more complicated due to the 45 minute drive between Winnipeg and Carman. Fortunately, frequent and regular contact by the father is not impossible, due to his work schedule. Although the affidavit material did not set out the father's present work schedule, counsel agreed that I could take into consideration unsworn information that was presented respecting his present schedule. When he works weekdays, the father works shifts from 6:00 a.m. to 2:00 p.m. This arrangement will be in place until spring of 1996. In addition, there will be some weekends when the father will be required to work.

7 I am therefore ordering that when the father is working weekdays, he will have care and control of the child every second weekend from Friday after day care to Sunday at 6:00 p.m. In addition, during the weeks when the father is working weekdays, the father will also have access to the child 3:00 p.m. to 8:00 p.m. on Tuesdays and Thursdays. When the father is working on the weekend, his periods of care and control will be three days during the week, the days to be chosen by the father. The father will have the choice as to whether or not he wishes to pick the child up at noon from the day care on the first day and/or drop the child off at the day care in the afternoon of the third day. This would be one way of avoiding the inevitable penalty imposed by the day care for missed days. In any event, the father will be responsible for any penalty imposed by the day care for missed days, while he is exercising his access.


The language in this endorsement is similar to Joint Parallel Parenting regime and endorsed the child's primary residence in the interim due to status quo.

It appears that both parties received a custody order of when the child is in theri respective care and control.

LV

logicalvelocity 04-25-2006 10:10 PM

Although, an unrelated case, this interim motion accepted the highly cited SCC case of Young v. Young on an interim motion

M. V. v. J. R. T

ONTARIO COURT OF JUSTICE

Before Justice Penny J. Jones

http://www.canlii.org/on/cas/oncj/2004/2004oncj244.html

[18] In Young v. Young, 1993 CanLII 34 (S.C.C.), [1993] 4 S.C.R. 3, 160 N.R. 1, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, 56 W.A.C. 161, [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, 49 R.F.L. (3d) 117, [1993] R.D.F. 703, [1993] S.C.J. No. 112, 1993 Cars*well*BC 264, Justice Beverley McLachlin made the following comments at page 120 [S.C.R.]:

[212] I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodial parent has no “right” to limit access. The judge must consider all factors relevant to determining what is in the child’s best interests; a factor which must be considered in all cases is Parliament’s view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the child. The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access — what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is. It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence.

[19] Although Young v. Young was decided in the context of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, I accept that the above-noted comments are equally true in the context of the Children’s Law Reform Act, R.S.O. 1990, c. C-12. The best interests of the child must govern any determination of the form of access to be granted to the non-custodial parent and the court must decide this issue on the evidence.

LV


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