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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 11-14-2016, 12:28 AM
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If you don't celebrate Christmas, and she does, why not let her have Christmas every year? If you want to have a whole week to travel with the child over school break, plan it for the second half. Propose that you are willing for her to have the child for the first week of Christmas holidays if you get the full second week. This shows that you are trying to negotiate reasonably.

Anything you think your ex is being unreasonable about, document it, and save it for later to demonstrate a history of not negotiating with you and withholding access if her demands are not met.
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Old 11-14-2016, 12:32 AM
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Originally Posted by Rioe View Post
If you don't celebrate Christmas, and she does, why not let her have Christmas every year? If you want to have a whole week to travel with the child over school break, plan it for the second half. Propose that you are willing for her to have the child for the first week of Christmas holidays if you get the full second week. This shows that you are trying to negotiate reasonably.

Anything you think your ex is being unreasonable about, document it, and save it for later to demonstrate a history of not negotiating with you and withholding access if her demands are not met.


Thanks for your response. That's exactly what I proposed. She can have Christmas every year if I get new year at least every other year.

Reality is she is an orthodox and doesn't celebrate Christmas in December , they celebrate it in January.

Question now is, can I bring a motion for this although Christmas break request is not in my initial application ?

Is your opinionated suggestion that I should just let it go and bring it up at the final hearing ? That's what I was thinking. But I may need to bring motion for additional disclosure so I could always slip those in there.


And what about he idea of bringing up the issue at next court date, I.e., in first week of December? See if judge feels it reasonable for me to bring the motion ?


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Old 11-14-2016, 10:43 AM
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Originally Posted by Janus View Post
That is untrue.

Parents that are litigating in court generally do not cooperate well. These parents have chosen to spend tens of thousands of dollars rather than come to an agreement.

If joint custody was only ordered for cooperative parents, then it would almost never be ordered.

From http://canlii.ca/t/1n29p
Correct. In addition to this great case law I add:

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09
Docket: DF 2217/09
Other citations: [2011] CarswellOnt 9144; [2011] OJ No 4046 (QL)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII)
http://canlii.ca/t/fn2r2

Quote:
[72] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the ability of the parents to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[21]

[73] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.[22]

[74] The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[23] The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”[24]

[75] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order.[25] In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.[26]

[76] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.[27]
Triton do you actually read the case law people post for you? Honestly, it doesn't seem like you are investing any time in understanding these matters. You are simply reacting to anything the other parent does without truly understanding how to navigate the situation.

Good Luck!
Tayken
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Old 11-14-2016, 02:06 PM
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Tayken, that is the case I was searching for . I remembered the word blissful and that was it.
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Old 11-14-2016, 06:09 PM
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Quote:
Originally Posted by Tayken View Post
Correct. In addition to this great case law I add:

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09
Docket: DF 2217/09
Other citations: [2011] CarswellOnt 9144; [2011] OJ No 4046 (QL)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII)
http://canlii.ca/t/fn2r2



Triton do you actually read the case law people post for you? Honestly, it doesn't seem like you are investing any time in understanding these matters. You are simply reacting to anything the other parent does without truly understanding how to navigate the situation.

Good Luck!
Tayken
Yes I do, and I have read that case.

What is the best way to navigate this situation? Give her both Christmas and New Years weekends and take whatever else she offers?

Quote:
[para10] 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 childis not returned exactly on time after an access visit, future access will be “cut off”. The threat of being “cut off” access is occasionally leveled at the parent who may be late in making support payments. In such instance, access parents often feel frustrated in their attempt 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 whom they may feel are the accomplice 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 their 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.
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Old 11-14-2016, 06:12 PM
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This is some of the joint custody case law I have already reviewed.


Quote:

In Mudie v. Post, 1998 CanLII 14883 (ON SC), [1998] O.J. No. 3180, Justice Salhany built upon his reasoning in Kaemmle v. Jewson, [1993] O.J. No. 2597 in holding that the parents of a child may be granted joint legal custody of the child and that each party may be granted legal custody while the child is in that parent’s physical custody. He stated the following:

41 In Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70, I expressed the view that there was no legal reason why "joint legal custody" cannot be separated from "joint physical custody". I said there, at p. 73,
"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 been [sic] 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 a joint custody order, why can not 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?"

One of the main arguments advanced by those who believe that legal custody should not be separated from physical custody is that it does not work. My experience, after trying custody cases for almost 20 years, is that it does work and works far better to reduce post-trial applications than a sole custody order. Indeed, the frequent applications that are brought in this court in this jurisdiction after a sole custody order has been made to enforce an access order has led me to the conclusion that joint custody orders are less subject to ongoing litigation than sole custody orders.

As I said in Kaemmle v. Jewson,
"A joint custody order, on the other hand, has a 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 the 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."


Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child's life, yet have difficulty communicating or reaching a consensus on the child's upbringing. See T.J.M. v. P.G.M.(2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.

[para11] A joint custody order, on the other hand, has the psychological advantage of allowing a parent 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. A joint custodial parent may be prepared to accept that they can not 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.
[para12] 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.
[para13] 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. The philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operat

I have considered the recent comments of Justice Benotto in the case of M. v. F.[28] wherein speaking for the court she opines that court can make no order for custody:
For many years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.
It was therefore open trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody”. It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

[227] However, in this case given the multiple medical and other professionals involved in Dean’s life and the difficulty that the father has encountered obtaining medical and other records from the various institutions, I find that using the traditional terms of “custody” and in this case the term “joint custody” is necessary to ensure there is no further misunderstanding about the ability of both parents to access information about their son. Based on the evidence before me, I find that the reputable institutions involved in this case have been stymied by the mother and their own internal regulations about the release of information and that clear language indicating that both parents are custodial parents is required in addition to a detailed parenting plan.
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  #17 (permalink)  
Old 11-14-2016, 09:25 PM
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Originally Posted by Janus View Post
Tayken, that is the case I was searching for . I remembered the word blissful and that was it.
The one you referenced was great too. If you ever need to find it again it is referenced in WorkingDad's case. Just click headnotes and you will find it.
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