Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

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

Reply
 
LinkBack Thread Tools
  #1 (permalink)  
Old 06-19-2013, 10:35 AM
FB_ FB_ is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,407
FB_ will become famous soon enough
Default My Factum

I thought I would share this since I paid a lot for it.

It may be helpful to someone else who is seeking shared access and custody along with set-off child support.

I've tried to remove any personal information from it...hopefully I got it all.

I really hope it helps someone.
Reply With Quote
  #2 (permalink)  
Old 06-19-2013, 10:36 AM
FB_ FB_ is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,407
FB_ will become famous soon enough
Default

A) ISSUE #1: INTERIM PARENTING ARRANGEMENTS


26. Pursuant to the Divorce Act:

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

[…]

Joint custody or access

(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.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Order respecting change of residence

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, 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.

Divorce Act, R.S.C. 1985, c. 3, s. 16.

27. Although these are divorce proceedings pursuant to the Divorce Act, the principles set-out in the Children’s Law Reform Act are also useful to reference and consider. The relevant portions are as follows:

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to
provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24.

28. As noted in the Children’s Law Reform Act, “Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child”.
Children’s Law Reform Act , R.S.O. 1990, c. C.12, s. 20.

29. As was observed in Watson v. Reiter:
Joint custody has certain advantages. It allows each parent to have a meaningful say in the upbringing of his or her child. As the child grows older, he will appreciate this. If there is an order for sole custody, he may believe that one parent is more important than the other. Generally speaking, it is in a child’s best interests that each parent have maximal involvement in his or her upbringing.

Watson v. Reiter, 2011 CarswellOnt 4146 (Ont. S.C.J.) at para 48 [See Tab 1 of Book of Authorities]

30. Further still, “Perfect communication and cooperation are not required. Even in cases of high conflict, an order for joint custody can nevertheless be made if the judge is persuaded it can work”.
Ibid. at para 50.

31. As put by Justice Quinn in Brook v. Brook:
In determining whether a joint custody order is appropriate, one must take care not to hold the parents to an unrealistic level of mutual cooperation. After all, they are estranged. The cooperation needed is workable not blissful; adequate not perfect. And, one must not use a too-finely-calibrated yardstick for measuring parental character. The quest for joint custody must not be restricted to those who can pass the Ozzie-and-Harriet test.

Brook v. Brook, 2006 CarswellOnt 2514 (Ont. S.C.J.) at para 66. [See Tab 2 of Book of Authorities].

32. Justice Quinn also observed the prejudice that can flow from an order for sole custody:
A non-custodial parent is frequently perceived in the community as undeserving or unqualified to have custody of his or her child; and this perception is not always accurate. The result is that, sadly, a great many non-custodial parents are unfairly seen as second-class parents. It is not in the best interests of a child to have one of his or her parents viewed in this fashion. The interests of a child are better served by having two parents participate in making the important decisions in his or her life. Therefore, I begin with a rebuttable presumption that an order for joint custody is best for a child and then I look for evidence to the contrary.
Ibid. at para 61.

33. Recently the Ontario Court of Appeal, notwithstanding the substantial deference owed to a trial judge on issues of custody and access, has allowed 2 appeals, principally on the ground that the maximum contact principle was not given sufficient weight in deciding custody and access issues which resulted
in orders which were not in the best interests of the children.

Berry v. Berry, 2011 ONCA 705 (CanLII) (Ont. C.A.) [See Tab 3 of Book of Authorities]
B.V. v. P.V., 2012 ONCA 262 (CanLII) (Ont. C.A.) [See Tab 4 of Book of Authorities]

34. In a third case, namely, Ruffudeen-Coutts v. Coutts, an order for shared custody was upheld, notwithstanding a dissenting opinion, given that the arrangement on its face was consistent with the maximum contact principle”.

Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 (CanLII) (Ont. C.A.) [See Tab 5 of Book of Authorities]

35. With respect to disclosure of medical records, the Honourable Justice Wolder stated that, where one party’s medical history may be relevant to the issue of the party’s ability to parent, “the [party] should disclose [his or her] available medical history, in order to determine whether that condition has been diagnosed, and if so, whether it in any way negatively affects [their] ability
to parent.”

Webb v. Greenhalgh, 2007 CarswellOnt 2816 at para 5 [See Tab 6 of Book of
Authorities]

36. It is respectfully submitted that the interim parenting plan proposed by the Applicant/Father is in the best interests of the children for several reasons, amount them being that it:

a) Preserves a status quo pending trial that, save and except for some issues pertaining to the continued joint cohabitation of the parties has been working well and has been in place since separation on or about August 7, 2011;
b) Is consistent with the maximum contact principle and ensures the maximum involvement with each parent in the lives of the children which is in their best interests, particularly on an interim basis; and
c) Provides the least disruption to the children’s lives, in the face of a need for two new homes to be established for the children.

Last edited by FB_; 06-19-2013 at 10:48 AM.
Reply With Quote
  #3 (permalink)  
Old 06-19-2013, 10:37 AM
FB_ FB_ is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,407
FB_ will become famous soon enough
Default

B) ISSUE #2: INTERIM CHILD SUPPORT

37. Pursuant to section 9 of the Child Support Guidelines:
“ Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.”

Federal Child Support Guidelines, S.O.R./97-175, s. 9.

39. Although not presumptive, in a shared parenting arrangement the preferred starting point for the analysis of the appropriate support is a simple set-off.

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217 (S.C.C.) at para 49 [See Tab 7 of Book of Authorities]

40. It is respectfully submitted that a simple set-off of support is not only the preferred starting point in the event that a shared parenting arrangement is ordered on an interim basis, but also is the most fair and appropriate result under all of the circumstances of this matter and based on the evidence before this Honourable Court. This is particularly so in the event that the Respondent resides with her boyfriend in Orangeville, notwithstanding the Applicant’s objections.

Last edited by FB_; 06-19-2013 at 10:49 AM.
Reply With Quote
  #4 (permalink)  
Old 06-19-2013, 10:38 AM
FB_ FB_ is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,407
FB_ will become famous soon enough
Default

C) ISSUE #3: MATRIMONIAL HOME

1. “All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part
thereof, whether the estate is legal and equitable or equitable only.”

Partition Act, R.S.O. 1990, c. P.4, s.2.

2. A joint tenant has a prima facie right to the sale of the Home.
Pagnanelli v. Pagnanelli [2002] O.J. No. 2705 (Ont. S.C.J.) at para 8.[See Tab 8 of Book of Authorities]

3. The loss of a right to buy-out the other spouse’s interest in the home, is not a basis upon which to deny a sale. “ ‘An application by a joint tenant for sale should only be refused if the application is vexatious or malicious’ ”.
Ibid. at para 10.

4. In Cox v. Adibfar, Benot J. stated with respect to an interim motion for the sale of the Matrimonial Home:
“The matrimonial home is an issue that has sabotaged the orderly resolution of the case. It has less to do with the best interests of the children than it has to do with the tactical manoeuvres in the litigation. All of the facts, taken together, demonstrate that the house has obtained a false significance. It is viewed as a prize that one will win and the other will loose. The ages of the children, their daily routine and their lifestyle do not require that this house be preserved. The sale of the house, in this particular case, is an inevitable result of the separation. The sale, which has been delayed for over a year, should proceed.”

Cox v. Adibfar, [2000] O.J. No. 2238 (Ont. S.C.J.) at para 16. [See Tab 9 of Book of Authorities]

41. In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.

Family Law Act, R.S.O. 1990, c. F.3, s. 24 (3)

42. It is respectfully submitted that it is in the best interests of the children and the parties that immediate physical separation take place between the parties. Further still, there is joint debts that need to be disposed of in order to assist the parties’ and disentangling their financial affairs from one another and
so as to avoid further unnecessary interest.

43. It is respectfully submitted that there is no prejudice to either party from an immediate sale. The net proceeds of sale can be held in an interest generating account pending final resolution of the equalization payment owing to the Applicant from the Respondent.

44. In the alternative, and in the event the matrimonial home is not to be sold at this stage, the Applicant is seeking an interim order for exclusive possession of the Matrimonial Home as continued joint cohabitation is neither tolerable nor in the best interests of the children. The Respondent has already been spending substantial times away from the home which suggests the availability of alternate accommodations.

Last edited by FB_; 06-19-2013 at 10:51 AM.
Reply With Quote
  #5 (permalink)  
Old 06-19-2013, 10:38 AM
FB_ FB_ is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,407
FB_ will become famous soon enough
Default

Sorry the formatting sucks.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Factum and Motion mr.mom Divorce & Family Law 10 11-01-2012 03:44 PM
Factum Writing and exhibits maverick Divorce & Family Law 4 08-11-2012 01:25 PM
factum writing and exhibits maverick Divorce & Family Law 0 08-06-2012 12:21 PM
Factum DDD Divorce & Family Law 2 04-08-2011 08:30 AM
Factum Advice Looking4Answers Divorce & Family Law 4 04-06-2011 09:32 PM


All times are GMT -4. The time now is 07:15 PM.