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Doctor Martins 11-08-2017 02:45 PM

Tayken, please review Motion to Change..

I had filed a motion to change, that's supposed to be tomorrow. I had already filed the motion, the Applicant filed a response. Here is my reply. Or I should say the reply I was working on. The motion has been stayed till I get clarification on a judges order and then meet that order.

What started as a reply in terms of a Affidavit quickly changed as I started adding in case law, which I know you don't recommend. And then I added a table of contents etc. Its almost become a factum but isnt. Pretty much I would say its more become a document for me personally to use upon which i am building my case. Ive taken a lot of information from yourself and others in the forum. It even includes basically a parenting plan. In any case I would like your thoughts. For the purpose of simplicity lets call it my argument:

Table of Contents


The Applicant Mother has on many occasions argued that there is an imbalance of power. The true imbalance of power is our three and a half year old daughter _________ _________ who has no voice. It is not about father’s rights, or mom’s rights. It’s about _________’s rights to have BOTH parents in her life. In truth neither father’s nor mother’s rights actually matter in the situation. _________ is deprived of rights when she is deprived of both parents equally. Fathers and Mothers are both key to the development of children.
The "tender years doctrine" is dead and no longer relevant in Canada.

Even on a first appearance equal parenting time has begun to be recognized. Reference: Coe v. Tope, 2014 ONSC 4002

This is a well thought out decision by Honourable Mr. Justice Pazaratz that relied on 9 direct citations in CanLII.


2) Much like the saying “those who seek power are the ones who should least have it”, the Applicant Mother only seeks sole custody on her terms while rejecting all forms of mediation and compromise. From the beginning I have sought equal custody and shared parenting. Repeatedly I have written the following to the Applicant Mother (Exhibit “A”) with absolutely no reply as well suggested parenting plans with no reply:

“I suggest moving forward that:

a) we use or similar app (there are free ones such as "2 houses") for easier communication
b) exchange parenting plans
c) engage in a shared parenting 50/50 week-about arrangement (week on, week off)
d) that we come to agreement on holidays including summer holidays for both parties as well as how to split PA days and school trips.
e) work to come to a final agreement on the above”

3) I have had to fight for _________’s rights every step of the way in the face of parental alienation on Applicant Mother’s part. She falsely claimed I had nothing to do with _________ her first year which is clearly not true as seen by this picture slideshow of _________ and I during her first year:____________ She used this false allegation as the basis to deny initial access. Since that time I’ve had to fight via motions for initial access, for overnights, for vaccines, which she also deceived this court stating that _________ had all of her vaccines when in fact she had not gotten the 18 month vaccines _________ should have received two years ago, and only after a motion on this did she get _________ her mandatory vaccines. I even had to fight to get _________ the flu shot and file a motion on this. I even had to fight to get a copy of _________’s health card after months of denial. When I booked an appointment with _________’s doctor the Applicant Mother asked me why I want to meet him.


4) Over the past year things have greatly improved in relations between Applicant Mother and myself and a new status quo has been established.* Because of the nature of my location and our respective schedules Applicant Mother and myself elected to have a schedule that would alternate weeks and be often Wed or Thursday from 11AM* to 6PM or 8PM Sunday.* Additionally Applicant Mother often works weekends with her job as a make-up artist.* As a result she would ask me if I would take our daughter _________ on her scheduled weekend, giving me additional weekends with our daughter.* I would happily agree and take every bit of time that I could, almost never turning down the opportunity.* At times I would have _________ for 3 or 4 extended weekends in a row (See Exhibit A), in many cases having _________ for longer than Applicant Mother.* I kept detailed records and calculated that over the past year I have had _________ for 46% of the time so we were doing de facto shared parenting.* In September it creeped up to 60% of the time that _________ was in my custody. The bond with my daughter has continued to deepen.** I have seen a big change in our daughter from when I first had overnight access to her to a year later.* She has opened up and grown into her own and there is no doubt that the shared parenting has resulted in a massive improvement in her disposition.


5) Since I served this motion, the Applicant Mother has cut back my time to the bare minimum of 4 days every two weeks. While prolifically asking me to help watch our daughter over the past year, now that I have filed this motion she hasn’t apparently had to work once and need my help. She stated that she intends to cut back and have family watch my daughter instead of myself. The court ordered first right of refusal in this case to combat this but so far I have not been asked even though I know that the Applicant Mother works often out of town.


6) Rather than encouraging more time, the Applicant Mother is now suggesting that when _________ starts school that I be cut back from Thursday to Sunday every other weekend to Friday to Sunday every other weekend. She suggested in her reply to motion to change, that I can get make up time on the weekends in the summer. She proposes this because she works most of the weekends in the summer for which time I would already get as a

Doctor Martins 11-08-2017 02:49 PM

result of my “Right of First Refusal” order imposed by Justice J.E. Hughes. Once again Applicant Mother is concerned about what is in her best interest rather than what is in _________’s best interest.


7) The Applicant Mother admits that changes need to be made to this agreement, she lists among other things changes that regarding holidays, regarding schooling, regarding trips, all of which show that indeed this agreement requires amendment. There are several details that will need to be addressed prior to _________ going to school next fall, and the sooner they are addressed, the smoother the transition for her.

8) The Applicant Mother states that at the upcoming settlement conference only custody and child support are to be dealt with, thus showing this motion to change is the proper forum for shared parenting vs. sole parenting to be addressed.


9) As a result of jurisprudence the threshold to deny 50/50 shared parenting is very high.

It must meet the criteria focusing on one's "ability to parent" set out by the CLRA. In addition to the best interests test, 24(2), your ability to act as a parent is analyzed via:

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); 2016, c. 23, s. 7 (2).

and of course,
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

The courts must also be very wary analyzing the term "abuse". Abuse is a serious issue and should be treated as such indefinitely, but it's now unfortunately also become an overused strategy for leverage in family law.

In Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)

Justice Piercea states:
[13] Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour...
The same judge also stated:
[12] The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.


10) And it just so happens that the maximum time a child can get with each parent is 50/50.

In much caselaw, such as Young Vs Young [1993] 4 SCR 3 (below), Maximum Contact with each parent is one of the most significant factors.

It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized."
Young v Young, [1993] 4 SCR 3 at para 204, [1993] 8 W.W.R. 513.
Justice McLachlin went on to explain:"The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit
In Cavannah v Johne, [2008] OJ No 5027 at para 38, [2009] WDFL 614.

Justice Ingram found that it would be unfair to deny the father an equal opportunity to parent the child. Time sharing was ordered with three nights with the father and four nights with the mother each week. Cavannah v Johne, [2008] OJ No 5027 at para 38, [2009] WDFL 614.


11) The overwhelming jurisprudence on equal time share and Parallel Parenting has changed greatly in the past few years with rulings at trials and appeals courts in situations similar to this case, even if there is high conflict.

A key case that defined Parallel Parenting with equal time share in high conflict cases in Ontario, with reference to several appellate jurisprudence is V.K. v. T. S. 2011 ONSC 4305 (Exhibit “B”)

With the conclusion of THE HONOURABLE MADAM JUSTICE D. CHAPPEL that:

“Each party requested an Order for sole custody and primary residence of R.S.* For the reasons that follow, I have determined that it is in R.S.’s best interests to spend an equal amount of time with each party, and for the parties to both have a role in decision-making respecting the child.* I have concluded that a parallel parenting order is the custodial arrangement that would most effectively safeguard and promote R.S.’s best interests.”

Doctor Martins 11-08-2017 02:50 PM


12) Izyuk v. Bilousov, 2011 ONSC 7476 (Exhibit “C”)

5.** ** The Respondent was overwhelmingly successful.* When the trial started in June 2011, the Applicant had temporary residency of the now almost three year old child, and the Respondent had very limited non-overnight access.* The Applicant sought a sole custody order in her favour, with modestly liberalized access to the Respondent.* Her position was supported by a s.112 report prepared by the Office of the Children’s Lawyer (OCL).*
6.** ** At the commencement of the trial the Respondent submitted a comprehensive parallel parenting plan which would have quickly evolved into equal time sharing, with mechanisms to deal with parental decisions and dispute resolution on an out of court basis.* In the alternative – if parallel parenting was not viable – the Respondent sought sole custody in his favour, again with an equal time sharing arrangement.
7.** ** In my judgment I concluded the Respondent father had exemplary parenting skills; the Applicant unilaterally terminated a viable co-parenting arrangement when the child was 9 months old; she lied at the motions stage to marginalize the Respondent and create a self-serving status quo; she misled the OCL investigator (who in turn did a superficial investigation which simply rubber stamped the status quo); she engaged in alienating behaviours to shut the Respondent out of the child’s life; she demonstrated questionable decision making in vitally important areas such as the child’s health and education; and she clearly demonstrated that she was unprepared to promote meaningful and beneficial contact between father and son.
8.** ** As a result, the Respondent’s alternate position prevailed at trial:* sole custody to the father, with gradually evolving equal time-sharing. *Child support was not in issue at trial, but may need to be further addressed to reflect the evolving shared parenting arrangements.


13) We have even made plans to move closer for when _________ goes to school so that we can help with taking her to and from school________


14) I suggest that since my location has been brought up as an issue for shared parenting, that a reasonable middle ground would be that shared parenting (eg. in a week-about manner) be conditional on myself moving to _________. Additionally since the OCL could take several months (current completion of assessment time is a minimum of 9 months, once the case has been assigned) then it is reasonable that the parties transition to Shared Parenting and/or parallel parenting with equal time share upon my move to _________. Since only a judge can make decisions whereas the OCL can make recommendations I feel that it is reasonable that a judge can revaluate the parenting situation at that time and make any necessary changes at that time to an order.


15) Again referring to Izyuk v. Bilousov, 2011 ONSC 7476 Exhibit “” There is extensive jurisprudence on these matters: (Exhibit “D”)

Including a detailed breakdown of a Parallel Parenting with equal Custody and Time Share, all broken down detailed jurisprudence with a comprehensive order resulting from extensive case law assumptions.


16) I find Izyuk v. Bilousov, 2011 ONSC 7476 similar to our case. The applicant mother currently has physical custody, I am seeking joint custody and shared parenting. The child is the same age and there is high conflict which requires a detailed outline. Additionally I find Justice A. Pazaratz’s ruling to be well thought out, based on case law in Ontario and Canada, up to date, fair and applicable. Based on this, I suggest a parenting plan almost identical when it comes to parenting and custody. Specifically with regards to the following parts: 566-567, 568 (as it currently stands in our interim order), 569 (the Wizard app proposed or free alternative), 570-
585, 588-589, 591-595, 598. Using this order as a case study, I propose the following:

a) By the time _________ becomes involved in full-day attendance in school (anticipated to be September 2018), the parties shall have equal time with the child.* There shall be a presumption that this shall be on an alternating week basis, with a mid-week visit with the opposite parent.* In making future residential arrangements, both parties should be mindful of the benefit of residing in fairly close proximity to one another, to facilitate the desired 50-50 timesharing.** In any event, the child’s ordinary residence shall not be relocated outside of _________ (including its suburbs within the municipal boundary) without the written consent of both parties or further order of the court.

b) *** Summers: Commencing the summer of 2018, the parties shall have alternate weeks during the summer..*

c)** ** Christmas: in even numbered years the child shall be with the Applicant from December 24 1:00 p.m. to December 25 3:00 p.m. and with the Respondent December 25 3:00 p.m. to December 26 1:00 p.m.* In odd years this shall be reversed.* Whichever parent did not have Christmas Eve overnight with the child, shall have December 31 1:00 p.m. to January 1st 3:00 p.m.

d)** ** ** March Break:* Once _________ has commenced even part-time school, if her March break is two weeks long the ordinary access schedule shall prevail.** If it is only one week, then the total number of days (including weekends) shall be divided equally.*

e)** ** Easter Weekend:* The child shall be with the Applicant Thursday 5:00 p.m. to Saturday 7:00 p.m. in even numbered years, and with the Respondent Saturday 7:00 p.m. to Monday 7:00 p.m.** In odd numbered years, this shall be reversed.*

f)* ** Father’s Day/Mother’s Day:* Irrespective of any other scheduling, the child shall always be with the Applicant on Mother’s Day from 10:00 a.m. to 8:00 p.m. and with the Respondent on Father’s Day from 10:00 a.m. to 8:00 p.m.

g)* ** ** Child’s Birthday:* If the ordinary schedule would result in the child being with one party during the entire day on his birthday, the other party shall have the option of having the child on their choice of either the previous day or the following day from 5:00 p.m. to 8:00 p.m.

h)** ** ** Telephone Access:* If one of the parties will have _________ for two or more overnights in a row, on the second, forth, and sixth overnight, that party shall initiate _________ having telephone access to the other party at approximately 8:00 p.m., for at least five minutes.

I) Right of First Refusal:* If parent has to work 12 hours or more the other parent gets first right of refusal to watch _________ over any other party.

J) Regular Communications:* Unless both parties agree otherwise in writing, all ordinary communications shall be in writing using the Our Family Wizard website (or similar application such as various free versions).** If that website is no longer available, the parties shall use e-mail.*

Doctor Martins 11-08-2017 02:51 PM

K)* Urgent Communications:* For anything of a truly time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication.*

L) Responding to Communications:* The parties shall check for text or e-mails at least once a day.* The parties shall respond to written inquiries within 24 hours.* If a reply to a question and/or a request for a change requires more time than the agreed to response time, an email shall be sent advising that the requested information cannot reasonably be ascertained by then and advising when a response can be expected.

M)* Positive Communications: Written communications shall not be shown or read to the child.* All communications, written or otherwise, shall be cordial, brief, and child-focussed.* The parties shall refrain from making personal or negative comments about one another, or extended family members or partners.

N)** ** ** ** The child shall not be used to relay messages between the parents.*

O) ** ** ** The parents shall not communicate about issues or non-emergency arrangements when _________ is present or nearby.

P)** ** ** The parties shall not question _________ (or comment to the child) about the other parent’s personal life and activities.

Q) * ** Dealing with Third Parties:* Both parties shall be equally entitled to communicate with all educational, medical, dental, recreational and social service providers for the child.* Each party shall keep the other fully informed of any communications they have with such services providers, and the particulars of any new providers.* Both parties shall be entitled to attend all meetings with such providers.* Both parties shall execute consents or authorizations which any professionals or service providers may require, to facilitate equal communication and access to information by both parents.

R) ** ** ** ** Consultation:* The parties shall confer with one another in relation to non-emergency decisions in the child’s life.* However, after a reasonable opportunity for such discussion, and in the absence of any determination by a parenting co-ordinator or further resort to the courts, the Respondent shall have final decision-making authority in relation to all issues.

S)** ** * Extracurricular Activities:* _________ may not be registered in more than two regularly scheduled extracurricular activities per week, with each parent being entitled to select one, unless the parties otherwise agree in writing.* The parent selecting the activity shall be responsible to take _________ to the activity when he is with that parent.* When that activity arises during the other parent’s time, the other parent shall have the option of taking _________ to the activity, or allowing the parent who selected the activity to take him.* To maximize the benefit of the child’s participation in ongoing extracurricular activities, both parents should make their best efforts to ensure regular attendance.* If a parent has a non-recurring conflicting commitment for the child on their time with _________, they should provide at least 72 hours advance notice in writing of their alternate plans with the child.

T)** ** * Non-Encroachment on Time:* Apart from the aforementioned provisions regarding extracurricular activities, (and apart from the Respondent’s authority to arrange school, daycare, or medical commitments as _________’s custodial parent), neither parent shall make plans for the child when he is scheduled to be with the other parent, without first having the written consent of the other parent.* In addition, the parents shall canvas proposed and/or potential changes to the schedule first with the other parent and prior to mentioning anything to _________ about a change and/or a social activity.

U)* ** ** *No Make-up Time:* There shall be no make-up time for missed parenting time (regular or holiday time) unless both parents agree to this in advance and it is confirmed in writing.

V) ** Attendance at Events:* Each parent may attend any extracurricular activities open to the public, including sports practices, games, competitions, concerts, performances, recitals, etc.* The parents shall remain cordial during these occasions and not use them as an opportunity to discuss child-related arrangements and issues.* The parent who would normally have _________ at the time shall assume responsibility and control over the child. **The other parent may briefly greet or encourage the child, but shall otherwise observe from a reasonable distance.

W) Scheduling Changes:* If a change in the regular and/or holiday schedule is requested due to a special event, celebration or unforeseen circumstances (e.g. family celebration, work demand or emergency, etc.), a written request shall be provided to the other parent in order to permit that parent to make a reasonable effort to accommodate the request.* A response shall be provided within 48 hours of receiving the request.* The request and change shall be confirmed in writing.

X** ** ** ** ** Ongoing Medical Care:* As custodial parent, the Respondent shall arrange and decide medical issues for _________.* The Applicant shall be provided advance notice of all medical appointments or procedures as soon as they are arranged.* Both parties shall be permitted to attend all medical appointments and events.

Y) * ** ** Emergency Medical Care:* Each party shall have authority to arrange emergency medical treatment for _________, but in such event, the party arranging treatment shall make reasonable efforts to notify the other party immediately, to allow the other party to also attend at the emergency treatment facility as quickly as possible.

Z)* ** ** ** **Contact Names:* Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with _________.

1)** **** ** ** Clothing:* To minimize what _________ must travel with, both parents shall have sufficient clothing for him and these items shall not travel back and forth.** However, outer wear such as winter coats and boots shall travel back and forth between households.

2) ** ** ** **Child’s Name:* Neither party shall change the child’s name – either formally or informally – without the written consent of the other party or further court order.*

3) Passport: The passport shall remain in the possession of the Respondent, subject to being released to the Applicant for such travel as may be agreed upon or authorized herein.* Neither party shall obtain any other passport for the child, and neither party shall name the child under their own (or any other person’s) passport.

4) ** ** ** Travel:* Neither party shall be permitted to remove the child from Canada without the written consent of the other party or further court order.* Subject to agreement or court order, international travel involving the child shall not occur until the child is at least eight years old.* Thereafter, the party proposing international travel involving the child shall provide the other party with full particulars at least 60 days prior to the intended travel, including the exact itinerary, destinations, accommodations, and methods of communication.

5)** ** ** ** Local Travel: _________ may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party.* However, the parents shall notify one another in advance, in writing, whenever _________ will be sleeping away from that party’s ordinary residence for more than two nights in a row.*

6) ** ** ** If either parent plans a vacation without _________, that parent will give the other parent a telephone number where he or she can be reached in case of emergency or if _________ wishes to contact the travelling parent.

7)** ** ** Emergency Contact Persons: Each parent shall designate a contact person of his or her choice should the other parent not be able to be contacted in case of emergency

8)** ** ** *Documents:* The parties shall provide one another with copies of all relevant child related documents such as the OHIP card, birth certificate, SIN documents, etc.* In even numbered years the Applicant shall retain physical possession of the original documents. In odd numbered years the Respondent shall retain physical possession of the original documents.** However, any party travelling out of Canada with the child (as provided for herein) shall be entitled to have the child’s original documents for the duration of the trip.

Doctor Martins 11-08-2017 02:51 PM


17) Another option based on the jurisprudence of V.K. v. T. S. 2011 ONSC 4305 with a splitting of the decision making. An example that could make sense given the Applicant Mother’s history with regard to not handing over the health card, neglecting vaccines and flu shots would be to have myself as Respondent Father shall have sole decision-making rights and responsibilities in all areas relating to the child’s medical and health care, treatment and assessment, including but not limited to issues relating to the child’s physical health, emotional and psychiatric health, dental care and eye care.**

These rights and responsibilities shall include but not be limited to the following:
a.** ** The right to decide which medical and other health care professionals will be involved with the child.
b.** ** The right to make and take the child to all appointments respecting the child’s medical and health care, treatment and assessment.
c.** ** The right to decide all issues and sign all consents relating to the child’s medical and health care, treatment and assessment. **This shall include the right to sign all such consents required to carry out school related assessments.

In Trade, the Applicant Mother could be responsible for shall have sole decision-making rights and responsibilities in all areas relating to the child’s academic education.* These rights and responsibilities shall include but not be limited to the following:
a.** ** The right to decide which school the child attends.
b.** ** The right to determine whether the child requires academic assistance and support, including but not limited to tutoring, and to determine the professional(s) who will provide this assistance and support.
c.** ** The right to sign consents relating to the child’s academic education.* This shall not include the right to sign consents regarding medical and health care, treatment and assessment, which fall within the scope of the Respondent’s custodial rights.
d.** ** The right to sign consents relating to the child’s school activities.

The other elements of the parenting plan could essentially remain the same with some minor changes as it relates to the parental decisions.


Source: Divorced Parents and Child Custody: Less Child Stress in Joint Custody

In the latest studies such as the 2015 Swedish study published in the Journal of Epidemiology & Community Health, results from a sample of 150,000 suggested that children fare better when they spend time living with both of their parents. “Having two parents also tends to double the number of resources a kid is exposed to, including social circles, family and material goods like money. Only having access to half of that may make children more vulnerable or stressed than having it from both parents, even though they don’t live together”. “The more interesting finding was that students who lived with both of their separated parents reported significantly fewer problems than kids who lived with only one parent.”

blinkandimgone 11-08-2017 04:02 PM

Just an FYI, that you can add attachments to your posts so that everything is in one post/document rather than spread over multiple posts. You can also use the PM feature if you wish to communicate directly with a specific member.

Thanks! :)

Doctor Martins 11-08-2017 04:09 PM


Originally Posted by blinkandimgone (Post 225160)
Just an FYI, that you can add attachments to your posts so that everything is in one post/document rather than spread over multiple posts. You can also use the PM feature if you wish to communicate directly with a specific member.

Thanks! :)

Thanks.. didnt know about the attachment. Did want to share with public though as either what I posted or responses might be of use to others on the forum.. Especially considering everyone is at different levels of understanding.

blinkandimgone 11-08-2017 04:10 PM

Not a lot of people know about the attachment feature :)

Doctor Martins 11-08-2017 04:13 PM


Originally Posted by blinkandimgone (Post 225162)
Not a lot of people know about the attachment feature :)

OK, I see it now!
Also .. not just Tayken can respond but anyone.. I like to learn.

arabian 11-08-2017 06:53 PM

K. Relocating

You haven't moved yet so it is irrelevant. Also, to whom are you referring to when you say "we" are going to relocate? You and your ex?

I think it is a cut-and-paste document (from Orders you have read on CanLii).
3-page response is more than enough.

How much time is allocated for your hearing? (20 minutes?)

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