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Old 08-30-2012, 03:21 PM
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Default Weight of Settlement Conference Recommendations - Sole Custody vs. Joint Custody

I have had my settlement conference, it was myself (unrepresented) and his lawyer (he was a no show, which apparently there is no consequence for even though it is mandatory). The judge still ran through our outstanding issues and gave "recommendations". I have had sole custody for 3 yrs (since separation) and the OCL recommended sole custody. The judge today said that she doesn't "like" sole custody and that she read through the OLC report and the OCL often makes that recommendation but that if we took that fight to trial the trial judge would not be happy and she really pushed toward settling for joint custody (even though we are completely unable to communicate) she mentioned a communication book.

what are the issues that can arise out of suddenly going from sole to joint custody as far as now he would be able to say left to my right just because he can. If I tried to push for joint with final decision making would that make me unreasonable? I always tell him about anything important that comes up and have always included him in important medical appts, he has access to the children's schooling information.

I guess what I'm trying to find out is exactly what is the difference between having sole custody and joint?
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Old 08-30-2012, 03:52 PM
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Why not suggest parallel parenting (I think it is called) where say you have final say on school or religion and he has final say on medical and such? That way you both discuss, but if you cannot come to a common ground, once of you gets the final say?
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Old 08-30-2012, 04:26 PM
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Originally Posted by momto3 View Post
what are the issues that can arise out of suddenly going from sole to joint custody as far as now he would be able to say left to my right just because he can.
Custody only relates to the material upbringing of the child. Health, schooling and religion. In joint custody scenarios, the parents are required to agree. In sole custody, only the parent with custody makes the determinations.

You could argue for joint custody and in the event of disagreement mandatory mediation and/or arbitration.

Quote:
If I tried to push for joint with final decision making would that make me unreasonable?
"Joint with final decision making"......easily translates into sole custody......yeah, you'd be obligated to let the ex know and have their input, but their "joint custody" isn't as equal as your "joint custody".

A lot of courts figure parents should be able to communicate for the sake of the kids and to suck it up (except in abusive situations). They don't like sole custody it may allow the custody parent to abuse their position by to marginalizes the other parent who prior to the break up had equal authority.

Having joint/sole custody does not mean that either parent has any say in the day to day upbringing of the kids in the other parents house. If you have sole and your ex does something with the kids you don't like, like keep them up later then you do or feeds them McD's regularly, you wouldn't have the authority to make the ex change what they are doing.
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Old 08-30-2012, 04:47 PM
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If that is your last sticking point, you may wish to consider joint custody with final decision making authority to yourself. This way, if there is a conflict, your vote carries without having to go through a mediator or back to court.
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Old 08-30-2012, 04:53 PM
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Originally Posted by OrleansLawyer View Post
If that is your last sticking point, you may wish to consider joint custody with final decision making authority to yourself. This way, if there is a conflict, your vote carries without having to go through a mediator or back to court.
So in other words...sole....

Care to explain how "joint with final say" differs from sole custody? I mean, even with sole custody the NCP can be allowed to obtain medical/school records etc. If this is about decision making, joint with final say is essentially sole custody.
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Old 08-30-2012, 05:01 PM
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Originally Posted by HammerDad View Post
So in other words...sole....

Care to explain how "joint with final say" differs from sole custody? I mean, even with sole custody the NCP can be allowed to obtain medical/school records etc. If this is about decision making, joint with final say is essentially sole custody.
Totally agree with HD

Joint custody with parallel parenting is only way to go if there is hi conflict. And I like what judge said. Too bad no judge said this in our case (not tat our mom would think to change her position for sec but still would be nice)

Join with final say it like you can tell what you think but I do it my way anyway so it ultimately sole custody.
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Old 08-30-2012, 05:19 PM
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Originally Posted by HammerDad View Post
So in other words...sole....

Care to explain how "joint with final say" differs from sole custody? I mean, even with sole custody the NCP can be allowed to obtain medical/school records etc. If this is about decision making, joint with final say is essentially sole custody.
I was just thinking the same thing.

I guess it makes sense in a situation where both parents are reasonable and are both looking out for the best interests of the child(ren). This little card in the back pocket wouldn't come in to play for 99% of decisions. From the description of their relationship this doesn't sound the case.

Good luck momto3
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Old 08-31-2012, 04:48 AM
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Originally Posted by momto3 View Post
The judge still ran through our outstanding issues and gave "recommendations". I have had sole custody for 3 yrs (since separation) and the OCL recommended sole custody. The judge today said that she doesn't "like" sole custody and that she read through the OLC report and the OCL often makes that recommendation but that if we took that fight to trial the trial judge would not be happy and she really pushed toward settling for joint custody (even though we are completely unable to communicate) she mentioned a communication book.
Just a general observation (guess) but, it sounds highly likely that you were before a particular female justice in the Brampton Superior Court for your CC? If my suspicions are correct, I highly recommend you seriously consider her recommendations.

Rather than a "communication book" recommend back to the other party the use of "Our Family Wizard". The old "communications books" of the past on paper are often manipulated by highly conflicted people.

With regards to the comment "we are completely unable to communicate" the thing you need to seriously consider when making this "argument" before the court is this:

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09
Docket: DF 2217/09
URL: CanLII - 2011 ONSC 4305 (CanLII)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII)

Quote:
Originally Posted by V.K. v. T. S., 2011 ONSC 4305 (CanLII)
C. Joint Custody

[70] Section 16(4) of the Divorce Act authorizes the court to make an order for custody in favour of more than one person. The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. The Act does not set out any specific criteria to assist in determining whether a joint custody order is appropriate, apart from the general “best interests” test.

[71] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger v. Kruger[18] and Baker v. Baker[19], the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with each other.[20] The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[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]
You won't believe how many negative advocate solicitors who are still practicing in family law that will try, even in the year 2012, to bring forward a custody and access dispute requesting "sole custody" with the subjective argument that the parties cannot communicate when there are stacks of correspondence from these solicitors containing threats of litigation, emergency motions, threats of removing access to the children by way of motion, threats against other professionals, threats for additional writs (lawsuit) taken by that solicitor against the other party, threats of "telling it to the judge", threaten in a "grey" manner criminal charges, have a client that tries several times to have the other parent arrested unsuccessfully wasting public resources, withhold proper financial disclosure, serve contempt motion paperwork in the presence of minor children at exchanges and then try to present their client as the "all good" party in the litigation.

Eddy 101 (William Eddy) stuff and transparent as glass to the courts these days. I highly recommend you "objectively" look at your argument (unable to communicate) you are making (just as the court will do, see above) and not "subjectively" from your own point of view.

Good Luck!
Tayken

Last edited by Tayken; 08-31-2012 at 05:00 AM.
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Old 08-31-2012, 05:28 AM
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Originally Posted by HammerDad View Post
So in other words...sole....

Care to explain how "joint with final say" differs from sole custody? I mean, even with sole custody the NCP can be allowed to obtain medical/school records etc. If this is about decision making, joint with final say is essentially sole custody.
Which, can be even worse in many situations when the highly conflicted parent conducts themselves in this manner:

Quote:
Many high-conflict parents try to control the other parent (and the children) by withholding information, giving limited information, giving conflicting or false information, withholding information until after an event or appointment has passed and/or withholding information until the last minute.
Our Family Wizard: An Excellent Tool for Co-Parenting with a High-Conflict Person, Part 1 l Dr Tara J. Palmatier | Shrink4Men

One would question that if the parties are able to communicate and rationalize their children's needs in the area of education, medical, religious and other elements of "custody" why one parent would need to be the "final decision maker"?

The best way to remove conflict is to give both parents "equal control" over the decisions and rely upon professionals to be the ultimate decision makers should the parent's not come to an agreement and not either of the parents. Especially for medical decisions as generally, neither parent is a registered clinician and the "final decision maker", exhibits patterns of avoidance and parental anxieties regarding the children's health and well being.

As well one needs to consider the following (as always):

Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII)
Date: 2011-11-09
Docket: F-2172/09
URL: http://canlii.ca/t/fnr57
Citation: Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII)

Quote:
335. The Applicant turned Maxeem’s health into a competition; a power struggle. She had to control everything. The Respondent couldn’t be present. He couldn’t know what was going on. If he made a suggestion, she dismissed it immediately. She became so focussed on winning custody that she closed her mind to the possibility that the Respondent might actually be trying to help their son.

336. During his cross-examination of the Applicant, the Respondent appeared to have a better recollection of the medical issues as they arose at various stages in Maxeem's life. For example, in describing why they took Maxeem to see the orthopaedic surgeon, Dr. Mah, in the first place, the Applicant stated that it was because the child was having difficulty walking. The Respondent corrected her: in August 2009 the child was only 9 months old. It would have been too early to worry that he wasn’t walking. The issue was that Maxeem had a bend or “bow” in his leg which was concerning.

337. The Applicant was hostile and defensive when it appeared that the Respondent was able to better articulate or more accurately describe health issues. Under cross-examination she acknowledged that – particularly since the Respondent is employed in a hospital – he has a better understanding of hospitals and medical terminology. She denied however that the Applicant is more qualified to make medical decisions for Maxeem.

338. The Respondent challenged her: "It's about understanding what the doctor tells you and knowing what to ask the doctor". The Applicant countered that she may not know all the medical words, but she was still equally capable of making medical decisions.

339. I find that the Applicant and the Respondent are not equally qualified, when it comes to medical decisions. Based on the evidence, I have more confidence in the Respondent’s ability and commitment to make the right decisions – and to ensure that the Applicant is included in the process.
Medical decisions are not made on "fears" and/or "worries" and/or "parental anxiety" but, objective facts about a child's health and the application of "evidence based medicine". Imagine the challenge, whereby the party known to the medical community and identified as an "over anxious parent" is given the "control" over medical decision making? What medical "decisions" did they make in the past?

Were they good decisions or ones based on a "belief" based on an "anxiety" that could have impact on the child in questions physical and emotional health and well being? What evidence is there to support that this "over anxious parent" can contain their possibly factitious / somatization / hypochondriasis / concerns about their child's medical conditions and make the proper medical decision?

As stated in the quote (with a slight change): "It's about understanding what the doctor tells you and knowing what to ask the doctor and insuring that the decision being made is not based solely on the parent's personal anxieties."

Doctors rely on parents to be objective and truthful when providing the subjective observations of their child's medical conditions. If the parent is influenced by "parental anxiety" when providing them and on that parent's subjective observations alone... It could have serious consequences as doctors generally believe what their clients bring forward as medical concerns. The rational and objective parent's observations about the child's medical conditions would be rendered null and void by court order and may never be brought to the doctor's attention.

These are the parents who constantly document their children's lives, constantly weigh their children but, "control" their diets improperly, and do not consider the emotional impact that their own parental anxieties may have on the child.

If the parent is always trying to prove to themselves and others that the child is "sick" based on their personal anxieties ("beliefs") which have no grounding in fact, then raises their child as if they are sick, the child could develop the same somatization as the "over anxious parent" to gain attention from the parent and learn that faking illness is the best way to get attention and love from people. It could develop into a pattern of behaviour well into adulthood.

Good Luck!
Tayken

Last edited by Tayken; 08-31-2012 at 06:05 AM.
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Old 08-31-2012, 10:48 AM
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Care to explain how "joint with final say" differs from sole custody? I mean, even with sole custody the NCP can be allowed to obtain medical/school records etc. If this is about decision making, joint with final say is essentially sole custody.
It is joint custody where one parent can make the executive decisions should they disagree with the other parent. Unless there is a conflict then both parents are able to exercise custody.

How does it differ from sole custody depends entirely on the parties involved. Some parents almost never use the "final decision making authority"; others use it like a stick to force their way. In the latter case it is sole custody with a nicer title.
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