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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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Old 05-08-2017, 01:15 PM
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Default What's in the wording "shall" or "may"

Looking at the definition of some wording on the agreement in place.

Interpretation of

The applicant shall be in direct care of S5 for the duration of each visit unless agreed otherwise.
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Old 05-08-2017, 01:23 PM
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Shall means MUST. No ifs ands or buts.

May means they don't have to, but could if they feel like it, and can change their mind at any time.

S5 MUST (no ifs ands or buts) be under direct care of applicant for the duration of each visit unless the applicants agrees with respondent differently.

Applicant can't leave child with aunt uncle or babysitter without agreement from respondent. if applicant does then respondent will have to prove. If respondent proves such case then applicant is in contempt.

why do you have such clause to begin with? Is it a caution or control thing?

Last edited by trinton; 05-08-2017 at 01:31 PM.
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Old 05-08-2017, 02:09 PM
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^^ What he said. Shall means must.

However, that clause is likely unenforceable as I would think a judge would find it onerous and unreasonable. What happens when the party goes to the bathroom and leaves the kid with anyone else? They'd technically be in default of the clause.
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Old 05-08-2017, 02:22 PM
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It's a clause that has been in the agreement since day one, never really thought about it until now.

This year however, applicant wants summer visitation but will actually not be there as the applicant works away from home and screwed up their vacation dates. Informed the respondant after the agreed upon date of April 30 that they had to have certain dates. The Respondant had already made plans for those dates.

The agreement states that in odd year the Respondant shall have preference and in Even years the Applicant shall have preference.

This year the Applicant is demanding dates which do not work for the respondant and again " scream contempt". It's a usual rant so we will just ignore that! It's the respondents year to have preference so has offered alternate dates that work this summer. There was some discussion about switching years of preference but past experience has shown that this,is,not a good idea as the applicant usually reneges on any promises

Applicant has said they are not available except these particular 3 weeks which clash with the plans of the Respondant. So the question was who wouldlook after S5 if you are not there but away for work.

When asked the reply was. "myob".

The applicant has a bit of a history of trying to bully their way into getting what they want.

So just checking on the wording. The dates the Respondant suggest gives the same amount of time.

So to answer your comment. It's not control it's trying to follow an agreement which The respondent feels that after all the time and effort and money spent on the agreement they should abide by all it's details and not pick and choose. No one is truly completely happy with agreements but you do what you can and do the best you can. Then you live with it.
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Old 05-08-2017, 02:26 PM
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Quote:
Originally Posted by HammerDad View Post
^^ What he said. Shall means must.

However, that clause is likely unenforceable as I would think a judge would find it onerous and unreasonable. What happens when the party goes to the bathroom and leaves the kid with anyone else? They'd technically be in default of the clause.
Good point. But it's more that the parent will be out of town so is it reasonable to ask who will the child actually spend the 3 weeks with? And also what is the point if the parent is not going to be there?

Last edited by Beachnana; 05-08-2017 at 02:27 PM. Reason: Spelling
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Old 05-08-2017, 02:42 PM
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Quote:
Originally Posted by Beachnana View Post
So the question was who wouldlook after S5 if you are not there but away for work.

When asked the reply was. "myob".
I have to admit, I agree with the reply. During parenting time, the parent with the child makes child care arrangements, and the other parent needs to mind their own business.

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It's not control it's trying to follow an agreement which The respondent feels that after all the time and effort and money spent on the agreement they should abide by all it's details and not pick and choose.
In other words, it is about control.

Anyhow, you lose this one. Unless the father leaves the kid alone or with some coked-out meth heads, no judge is going to care about the particular child care arrangements.

If the arrangements bother you (or your daughter) so much, then let him have his weeks. Of course you are totally in the right, and this was your year to choose first, and he's an unorganized idiot. It is also true that your daughter has made plans.

Can the plans be changed?

Legally, you have nothing. However, if you can be flexible, then you can save the day for the child.
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Old 05-08-2017, 03:07 PM
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The child is 5 years old so of course there is concern that he would be left with strangers. Also why have your child visit if you are not going to be there. That's a control thing. - it's my time so I am going to deprive you of that time despite the fact I will not see the child.

So in this unfortunate stalemate they need to follow the agreement. Hence asking what certain wording meant.

FYI

The applicant actually put the original phrase in to prevent the Respondant from going on a work related training course that could have improved career. Over the last 2 rounds of changes the lawyers metophorized it into this vague clause.

I believe tha Respondant was actually pushing for the applicant to actually take 3 weeks vacation while S5 visits and not palm the child off to strangers as that is more convenient.

Parenting means the parent needs to physically and mentally be with the child not just have them located in your house like a book you own.
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Old 05-08-2017, 03:12 PM
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I think that clause needs to be deleted and amended. It's going to reach that point sooner or later. These "as the parties can agree" or "unless the parties agree otherwise" clauses are nothing but asking for trouble for separated parents. Judges should know better. I have one in my order and don't even get me started on it - the other parent is in contempt on 4 counts now. Basically what happens is one parent wants A and the other parent wants Z and the parents can't agree on any other letter in the alphabet.

If respondent get's to pick this year then the applicant is screwed. The applicant could however just hire a nanny and respondent will never know - unless the child says something.

Last edited by trinton; 05-08-2017 at 03:16 PM.
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Old 05-08-2017, 03:33 PM
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Originally Posted by Beachnana View Post
The child is 5 years old so of course there is concern that he would be left with strangers.
To be clear: You are concerned that a school aged child might be in the care of an adult who is not the parent? Seriously?

Quote:
Also why have your child visit if you are not going to be there.
None of your business. This is his parenting time, he can arrange it as he sees fit. Unless he is harming the child, I don't see the problem here. Are the caregivers on drugs? No? Not a problem.

Quote:
That's a control thing. - it's my time so I am going to deprive you of that time despite the fact I will not see the child.
I agree, this is a control thing. We disagree slightly on who is being controlling.

Quote:
So in this unfortunate stalemate they need to follow the agreement. Hence asking what certain wording meant.
Well, it turns out that the right of first refusal clauses are all almost completely unenforced, therefore you don't need follow the agreement here.

Back to my original recommendation: Stop trying to look at the agreement. Find another way to compromise, or accept the fact that his parenting time is his parenting time, and that he is going to parent in a way you don't like.


Quote:
Parenting means the parent needs to physically and mentally be with the child not just have them located in your house like a book you own.
Beachana believes that parenting means that a parent needs to be physically and mentally with the child. It does not logically follow that this definition must be accurate.
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Old 05-08-2017, 08:04 PM
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Quote:
Originally Posted by Janus View Post
Well, it turns out that the right of first refusal clauses are all almost completely unenforced, therefore you don't need follow the agreement here.
Isn't the clause in this order basically the same thing as a first of refusal against the applicant but with a different wording?
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