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Parenting Issues This forum is for discussing any of the parenting issues involved in your divorce, including parenting of step-children.

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Old 04-04-2006, 11:21 PM
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Default child alienation---please your help

I moved out of the family home at the reccomendation of the OCL so that my spouse who had placed herself in hiding , with the aid of FACS , would move the children back in rather then a shelter. She elected to move in with "friends".It was not until the OCL disclosure suggesting that I should have sole custody did she move back home. I had already been living in my own home by this time. At first my son was very happ y to visit ,he was proud of his room , his trains , and the toy room I had made for him and his sister. We had a play area in the yard and friends up the street. Alarge play park was a mere 8 houses away.
But over the course of the summer , particularily after a judge put some sense to our order in respect to vistation did the trouble begin. My ex carries on at every exchange as if the children have just came home from there first military detail and we are only a few minutes across town. her attics telling them of how much she missed them , after a four hour visit are over the top at best. She totally ignores me , will answer no questions about the children .
picks them up a scurries inside locking the door vehind her. She won't let go of the children for a second goodbye and when the baby age two has been sleeping would rather I put her on the ground, signalling like a refferee ,rather then takde her direcltly from me . On those occassions when it looked like i might enter the front porch she has stood on the steps waving her arms, similar to an air traffic controller might at Pearson INternational. If you are laughing trust me it is not funny.
My son has become distant at best when he is with me ,"worrying about mommy" a thought I'm sure she has planted.Lately he has been telling me how his grandmother , mother and , friends of his mother do not like me.This would be humorous if it wasn't coming from a three year old little boy who hardly has the vocabulary and speech to come up with such thoughts.
His stuttering has worsened, although his free speech eg. identifying pictures from flash cards seems to be normal, maybe even advanced for his age.
It is a constant struggle to get him to focus on us rather then his idol the TV.
Although I have asked my ex to call at the dinner hour (5pm) when I have weekend visitation , she insists on calling at 7pm , his bed time, and a provision of our court order, . Unfortuneately whatever she says cranks him up to the point that it will be 10pm before he goes to sleep , and usually in tears. Obviously this makes for a fun wow visit.
I'm suggesting that not only is he having trouble with the transition of the divorce/seperation but quite possibly being subtley manipulated by his mother in what is amounting to a major problem for the two of us.
I love my son passionately, I would give my life for him at a moments notice and I know I'm a ggod father. But that is not enough when your son has his arms around you as on Christmas day and says Daddy , I don't love you. I laughed it off and said Erik who would say such a silly thing about you and daddy.His reply " Auntie Cathy" ...my ex's best friend.
So gang I need your help. Is alienation taking place or am I just stressed out and over sensitive. I am going to partake in some counselling for Erik starting in the next few week ( and myself ) but I think the problem is deeper then this and I shudder at the consequences as most likely my ex and her friends will not give up easily.

Brokendad
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Old 04-05-2006, 12:04 AM
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Default

I'm very sorry to hear about your difficulties, it must be heartbreaking. You didn't say how long you have been seperated so it is hard to say if this is just everyone getting used to a new situation or whether this has been ongoing for a while.

I would most definitly seek counselling for your children. Either way this is very difficult for them. I hate hearing about instances like this because it makes me so very angry. Adults have no right to inflict their feelings on children. Speaking as a mom who's 2 kids who leave every other weekend..at first it was very difficult to let them go but I certainly never acted like that..she sounds ridiculous. You may want to communicate this to her in some fashion..whether in person or letter or email. Kids are hypersensitive to their parents feelings and it must be causing him great deal of stress to see his mother behave that way. She has an obligation to behave in a manner that will best serve her children and that doesn't include them turning into basket cases cause Moms a flake.

As for what the 'other' side says, you tell your son that no one knows what is in your heart but you and that you love him, and no matter what anyone says you always will and that it is okay to love you back..and by doing so he is not hurting anyones feelings.

I would also document all of this, even if you don't think you'll need it right now it may prove invaluable in the future as well as for the counsler to help your kids.

I'm sorry I couldn't be much more help. Good luck to you!
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Old 04-05-2006, 01:23 AM
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Default Hi jlalex

Thankyou for your reply and I will heed your advice.I don't know what happened to her, although a female friend of mine called it a two by four experience and had seen several cases where she herself does volunteer work at a womans shelter.At first I thought it was post -partum depression but its much worse , its like post partum on steroids.
I truly feel sorry for her but the final betrayal was just to much to walk backwards ( she accused me of child battering which the OCL and Facs would not support)
Its a personal blow to watch this person who was loved ---no cherrished to disintegrate into angar 24-7. Seperation never just affects your immediate family it extends to your friends,family , even the guy who fixes your car and the neighbors. Friends for years ---gone.
I wish people would just give more thought to the consequenses of there own actions after the I-do's

Thanks
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Old 04-05-2006, 02:25 AM
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brokendad,

from what you have mentioned it does appear to be that your ex is somewhat manipulating the child.

Please read this case. Your statement reminded me of this case


Cox v. Stephen

Ronald Henry Cox, Applicant / Respondent in Appeal and Holly Lynne Down,
Respondent / Appellant in Appeal

Ontario Superior Court of Justice

Templeton J.

Heard: September 3-5, November 28, 2001
Judgment: May 21, 2002
Docket: 841/97

Proceedings: reversing (2001),
Counsel: Kenneth A. Cole, for Applicant/Respondent in Appeal

Jeffery Wilson, for Respondent/Appellant in Appeal

Subject: Family

Family law --- Children born outside marriage -- Custody and access -- Custody

Custody of son was changed to father -- Mother appealed -- Appeal allowed -- Trial judge had erred in law -- Joint custody was awarded on "parallel parenting" model -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2).

Family law --- Children born outside marriage -- Custody and access -- Access

Custody of son was changed to father and father was given control over mother's access to son -- Mother appealed -- Appeal allowed -- Trial judge had erred in law -- Terms of access were to be based on son's best interests alone -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2).

Family law --- Custody and access -- Joint custody -- General

Custody of son was changed to father -- Mother appealed -- Appeal allowed -- Trial judge had erred in law -- Joint custody was awarded on "parallel parenting" model -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2).

The mother of two children had a son while in a relationship. After the son's birth, an order was made on consent, granting custody to the mother and generous and liberal access to the father. The father applied for a variation of the custody order, seeking sole custody of his son, on the basis that the mother had wilfully and repeatedly defied the terms of the settlement by preventing the son from having access to his father and had refused to answer numerous requests for access. The mother subsequently married and had a fourth child. From birth, the son had lived with the mother, her other children and her husband. An order granted in 1998 continued access and two years later an order was made fixing access to the father and specifying a location for transfer of the son. In 2001, the trial judge granted the father's application, changing custody to the father. The mother filed a notice of appeal and a stay of the judgment was granted. The mother appealed the judgment.

Held: The appeal was allowed.

The evidence at trial was clear that the conduct of the parents, particularly the mother, had a detrimental effect on the son. The trial judge was correct in finding that there had been a material change in circumstances such that the application for variation ought to be considered. The trial judge isolated two questions to be answered: Who should have sole custody, and where should the son live and for what periods of time? The trial judge erred in framing the issues in this way. In basing the analysis on "who should have sole custody" rather than on "what is in the son's best interests", the trial judge created a framework in which the parents became the object of the court's attention and concern rather than the son. Using this approach, the parents' efforts to compete with one another were sanctioned. An analysis under s. 24(2) of the Children's Law Reform Act requires a thorough and detailed consideration of the conduct of each parent and what each parent has to offer the child, but always with the centre of attention focused on the child. No law or precedent provided that a court may give more weight to one factor enunciated in s. 24 than the others. To change custody on four factors alone, as enunciated by the trial judge, and give less than equal weight to the love, affection and emotional ties the son had for and to his mother, her husband and her other children amounted to an error in law. The trial judge's criticism of the mother's conduct was well founded. On the other hand, to remove the son completely from the only home environment he had ever known and leave the nature and extent of all contact with the mother in the discretion of the father was to override the mandate outlined in the legislation. The trial judge's response to the mother's conduct completely ignored the effect, if any, the removal of the son from the only home he had ever known, placement into a nanny's care when he had been primarily cared for by his mother his whole life and termination of daily intimate contact with his siblings, would have on the son.

The trial judge erred in law in recommending terms of access that the father could decide not to implement if he deemed them deleterious to the son. Whether or not access was deleterious to a child was not the test, and to delegate responsibility of defining access on that basis was an error in law. Terms of access were to be based on the son's best interests alone.

Joint custody requires a high degree of cooperation between parents and is usually awarded only when parents have demonstrated the ability to co-operate. "Parallel parenting" orders have become a form of joint custody which does not depend on cooperative working relationships or even good communication between the parents. The concept is that parents have equal status but exercise the rights and responsibilities associated with custody independent of one another. It was in the son's best interests, taking into account all factors outlined in s. 24(2) and giving each factor equal weight, that the mother's struggle for control and efforts to minimize the presence or significance of the father in her son's life be removed from the equation. The concept of "parallel parenting" is intended to remove the power struggle between parents for control over their child. This was an appropriate case for a joint custody order using the "parallel parenting" model. Joint custody was ordered, with the parties exercising their rights and responsibilities as set out and in the best interests of their son.

Cases considered by Templeton J.:


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Old 04-05-2006, 02:40 AM
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Barnes v. Parks, 141 O.A.C. 362 (Ont. C.A. [In Chambers]) -- considered

Behrens v. Stoodley, 90 O.T.C. 399 (note), 128 O.A.C. 58, 3 R.F.L. (5th) 8 (Ont. C.A.) -- followed

Cook v. Mounce, 26 O.R. (2d) 129, 12 C.P.C. 5, 104 D.L.R. (3d) 635, 1979 (Ont. Div. Ct.) -- followed

Cooney v. Cooney, 36 O.R. (2d) 137, 27 R.F.L. (2d) 136, 132 D.L.R. (3d) 439, 1982 (Ont. C.A.) -- followed

Dionne v. Bidinost, 1999 (Ont. S.C.J.) -- followed

Droit de la famille - 1150, 49 R.F.L. (3d) 317, (sub nom. P. (D.) v. S. (C.)) 58 Q.A.C. 1, (sub nom. P. (D.) v. S. (C.)) 18 C.R.R. (2d) 1, (sub nom. P. (D.) v. S. (C.)) [1993] R.D.F. 712, (sub nom. P. (D.) v. S. (C.)) 159 N.R. 241, 108 D.L.R. (4th) 287, [1993] 4 S.C.R. 141, 1993, 1993 (S.C.C.) -- followed

Dumas v. Dumas, 30 R.F.L. (3d) 127, 1990 (Ont. C.A.) -- followed

M. (T.J.) v. M. (P.G.), 2002, 25 R.F.L. (5th) 78 (Ont. S.C.J.) -- considered

McLean v. Russell, 1999, 126 B.C.A.C. 203, 206 W.A.C. 203 (B.C. C.A.) -- followed

Moge v. Moge (1992), [1993] 1 W.W.R. 481, 99 D.L.R. (4th) 456, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 30 W.A.C. 161, 43 R.F.L. (3d) 345, 145 N.R. 1, [1993] R.D.F. 168, MANITOBA 1992 (S.C.C.) -- followed


R. v. Nielsen, [1988] 3 W.W.R. 193, (sub nom. R. v. Stolar) [1988] 1 S.C.R. 480, (sub nom. R. v. Stolar) 82 N.R. 280, 52 Man. R. (2d) 46, (sub nom. R. v. Stolar) 62 C.R. (3d) 313, (sub nom. R. v. Stolar) 40 C.C.C. (3d) 1, 1988, (S.C.C.) -- followed

R. v. Palmer (1979), [1980] 1 S.C.R. 759, 30 N.R. 181, 14 C.R. (3d) 22, 17 C.R. (3d) 34 (Fr.), 50 C.C.C. (2d) 193, 106 D.L.R. (3d) 212, 1979(S.C.C.) -- followed

Rail v. Rail, 2 R.F.L. (5th) 448, 1999, 180 D.L.R. (4th) 490, 129 B.C.A.C. 245, 210 W.A.C. 245, 1999 BCCA 587 (B.C. C.A.) -- followed

Talsky v. Talsky (1975), [1976] 2 S.C.R. 292, 21 R.F.L. 27, 7 N.R. 246, 62 D.L.R. (3d) 267, 1975 CarswellOnt 166, 1975(S.C.C.) -- followed

Statutes considered:

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


s. 19 -- referred to

s. 19(a) -- considered

s. 20(1) -- referred to

s. 20(2) -- referred to

s. 24 -- considered

s. 24(2) -- considered

s. 24(2)(a) -- considered

s. 24(2)(a)(i) -- considered

s. 24(2)(a)(ii) -- considered

s. 24(2)(a)(iii) -- considered

s. 24(2)(b) -- considered


s. 24(2)(c) -- considered

s. 24(2)(f) -- considered

s. 29 -- considered

s. 30 -- referred to

Words and phrases considered

joint custody

"Joint custody" means a sharing of parental rights and obligations regardless of the marital status of the parents.

APPEAL by mother from judgment reported at 2001 (Ont. C.J.) granting custody of son to father.

Templeton J.:

1 This is an appeal from the judgment of Justice P.W. Dunn dated February 19, 2001.

The Disposition

2 The trial lasted nine days and took almost a year to complete. At the conclusion of his judgment, the trial judge made the following orders:

1. Sole custody of Nathan Steven Webber to Dr. Cox. The applicant will notify Ms. Stephen of major decisions he has made about Nathan.

2. Peel Regional Police are ordered to locate, apprehend and deliver Nathan Steven Webber to Dr. Cox, as the sole custodian, at any time Dr. Cox requests the police to do this. If a specific order on any occasion is needed, Dr. Cox may request same of this court.

3. Access by Ms. Stephen to Nathan shall be in the sole discretion of Dr. Cox as to frequency, duration, place and degree of supervision, subject to paragraph 4 herein.

4. Unless Dr. Cox deems the following access to be deleterious to Nathan, I recommend the following access:

(a) every second weekend from Friday at 5:30 p.m. to Sunday at 7:00 p.m. If the weekend is a long or holiday weekend, then the return time shall be Monday at 7:00 p.m. If Nathan is in school on Fridays, access shall begin after school;

(b) on Tuesday in the week when there is no weekend access from 4:00 p.m. to 7:00 p.m.;

(c) two weeks consecutive in July and two weeks consecutive in August of each year. The July access and the August access will have at least two weeks separating them. Summer access will not include the last two weeks before school starts. The respondent must notify the applicant in writing which weeks she wishes for access by May 1st in each year. Regular physical access is suspended during the summer vacation;

(d) in odd years, Dr. Cox will have Christmas access from 4:00 p.m. December 24th, to 2:00 p.m. December 25th. In odd years, Ms. Stephen will have Christmas access from 2:00 p.m. December 25th, to 5:00 p.m. December 26th. In even years, the parties' access will be reversed. The parties will share equally the balance of the school Christmas vacation;

(e) if Nathan is in school, the parties equally will share the March school break;

(f) Ms. Stephen and her family may have telephone access to Nathan at his father's, with the length of the calls and their frequency to be reasonably determined by Dr. Cox. (I am concerned that Ms. Stephen and her family may be intrusive and unreasonable in their telephone calling.);

(g) Dr. Cox may have reasonable telephone access to Nathan while at his mother's.

5. If Ms. Stephen, as access parent, wishes to leave Ontario on a vacation with Nathan, she must obtain written permission from Dr. Cox, or obtain a court order. Ms. Stephen must furnish Dr. Cox with an itinerary and photocopy of tickets for plane or other means of transport, if any. Telephone numbers must be provided where Dr. Cox can telephone Nathan during the trip.

6. If Dr. Cox, as custodial parent, wishes to leave Ontario on a vacation with Nathan, he does not need written permission from Ms. Stephen nor a court order. However, he must provide the same information to Ms. Stephen as set out in paragraph 5 above.

7. Dr. Cox will ensure that Ms. Stephen receives copies of all of Nathan's report cards, annual school pictures or invitations to extra-curricular activities in which Nathan participates, directly from the school.

8. On Nathan's birthday, Nathan will be with the parent he would not ordinarily be residing with that day, from 12:00 noon to 4:00 p.m. So for example, if his birthday fell on a Saturday of an access weekend where he would ordinarily be with Ms. Stephen, Nathan would go to his father's from 12:00 noon to 4:00 p.m.

9. Ms. Stephen will refer to Dr. Cox, while in Nathan's presence, as "Daddy" or "Daddy Ron".

10. Nathan will spend Halloween with Ms. Stephen in odd numbered years, from the end of the school day until 7:00 p.m. Dr. Cox will have Halloween access in even numbered years from after school to 7:00 p.m.

11. On Mother's Day, Ms. Stephen will have access from 2:00 p.m. to 7:00 p.m., if she is not enjoying regular access on that day. On Father's Day, Dr. Cox will have access from 2:00 p.m. onward, if Nathan is with his mother for access on that day.

12. Access exchanges will be inside Peel Regional Police, Twenty-Two Division.

13. Dr. Cox will provide Ms. Stephen with the names, addresses and telephone numbers of all physicians, dentists or orthodontists or counselors providing care to Nathan.

14. If there is an emergency visit to a physician, specialist or hospital, the parent where Nathan is ordinarily residing at the time, will notify the other parent as soon as possible. Both parents may attend.

15. Dr. Cox will authorize Nathan's physician(s) and dentist(s) to release any professional information about Nathan to Ms. Stephen, if she so requests such information from the physician(s) and dentist(s).

16. Dr. Cox shall have the right to obtain a passport for Nathan and Ms. Stephen shall consent to the issuance of it. Dr. Cox will provide the passport to Ms. Stephen for international travel during access. Ms. Stephen will return the passport to Dr. Cox when Nathan is returned to him after the access.

17. On each party's birthday, unless Nathan is already scheduled to be with that party, Nathan will have access to that party from 3:00 p.m. to 7:00 p.m.

18. Dr. Cox will have no further obligation to pay child support from the last day of this trial, 11 January 2001. Ms. Stephen is obliged to repay Dr. Cox any child support paid to her after 11 January 2001

19. There was no formal request by Dr. Cox for an order against Ms. Stephen for child support or contribution for extraordinary expenses, which would not be known as of the conclusion of the trial. These claims may be pursued if Dr. Cox wishes.

20. Ms. Stephen will provide to Dr. Cox, such possessions of Nathan that Dr. Cox shall request. Peel Regional Police are ordered to assist Dr. Cox in this regard, if requested by the applicant.


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Last edited by logicalvelocity; 04-05-2006 at 03:13 AM.
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Old 04-05-2006, 02:55 AM
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3 The net effect of these orders was to change sole custody from Ms. Stephen to Dr. Cox and to leave the opportunity for access by the child to his mother within the control of Dr. Cox, with the test being whether or not access would be deleterious as determined by Dr. Cox. The judge makes recommendations concerning access and orders regarding travel and communication based on the implementation of those recommendations.

Standard of Review on Appeal

4 I accept the state of the law with respect to the standard of review on appeal as outlined in the Factum of the Respondent:

(a) The scope of appellate review in custody cases is very narrow, and should be applied rigidly.

(b) An appellate Court should not disturb factual determinations of a trial judge in a custody case. Trial judges are uniquely situated to determine the best interests of children in custody disputes. Absent any error in principle, it is inappropriate for an appellate court to interfere with the trial judge's determination of this issue.

Behrens v. Stoodley (1999), 3 R.F.L. (5th) 8 (Ont. C.A.).

McLean v. Russell, [1999] B.C.J. No. 1621 (B.C. C.A.).

Talsky v. Talsky, [1976] 2 S.C.R. 292 (S.C.C.).


(c) An Appeal Court will not interfere with a judge's exercise of discretion unless there has been an error of law, or the conclusion reached is so perverse on the facts as to exceed the generous ambit within which reasonable people might disagree.

Moge v. Moge (1992), 99 D.L.R. (4th) 456 (S.C.C.) at 466-7.

Rail v. Rail (1999), 2 R.F.L. (5th) 448 (B.C. C.A.).

(d) The standard of appellate review in custody cases has been recently set forth in the following statement of principle in the reasons of Cory, J. and lacobucci, J. in the Supreme Court of Canada decision of Droit de la famille -- 1150

Similarly the trial judge is in the best position to assess evidence pertaining to the best interests of the child. It is the trial judge who not only hears the evidence but also has the great advantage of watching the demeanor of all who testify. It is the trial judge who can take into account the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern. In the vast majority of cases as a result of hearing and seeing all the witnesses, it is the trial judge who is in the most advantageous position to determine the best interests of the child.

Droit de la famille - 1150, [1993] 4 S.C.R. 141 (S.C.C.) at 192

Cooney v. Cooney (1982), 36 O.R. (2d) 137 (Ont. C.A.)

The Fresh Evidence

5 The Appellant seeks leave of the Court to file fresh evidence in the form of affidavits from three sources: Dr. Graham Berman, psychiatrist; Dr. Michael Lester, the child's doctor; and Rita Reitsma, the child's therapist.

6 Once again, I accept the law as set out in the Factum of the Respondent in Appeal:

(a) Information that speaks to a change in the best interests of the child is not properly put before the court by way of a motion to introduce fresh evidence. The Ontario Court of Appeal decision in Dumas v. Dumas is controlling on this issue. If there is a change in circumstances or evidence which is significant and might cause a change in the order as to custody, it should be raised by way of an application to the trial court to vary the order.


Dumas v. Dumas, [1990] O.J. No. 1668 (Ont. C.A.).

Dionne v. Bidinost, [1999] O.J. No. 2600 (Ont. S.C.J.).

(b) The fact that some of the affidavits were admitted as fresh evidence on the stay application does not prejudge the issue on this Appeal. A stay application is an interim proceeding, and its purpose is not to determine any issue. In contrast an Appeal is a determinative and final step in a legal proceeding. The applicable standard that applies for fresh evidence on a stay application cannot be as rigid as on an Appeal. While two affidavits were introduced in that proceeding, they cannot be automatically introduced in this proceeding. The court must engage in a fresh analysis of the evidence in light of the applicable standard and test as set out in the cases of R. v. Palmer and R. v. Nielsen.

(c) The procedure which should be followed when an application is made to a Court of Appeal for the admission of fresh evidence is set out in the case of R. v. Nielsen.

The motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard. In this way, the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case. It is then in a position where it can decide realistically whether the pro-offered evidence could reasonably have been expected to affect the result of the case. If, then, having heard the appeal, the court should be of the opinion that the evidence could not reasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to the disposition of the appeal. On the other hand, if it should be of the view that the fresh evidence is of such nature in effect that, taken with the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there. Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the pro-offered evidence and direct a new trial where the evidence could be heard and the issues determined by the trier of fact. ...

R. v. Nielsen (1988), 40 C.C.C. (3d) 1 (S.C.C.).

(d) The test for the admission of fresh evidence on appeals was set out by MacIntyre J. writing for the Supreme Court of Canada in R. v. Palmer.

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases...

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

3. The evidence must be credible in the sense that it is reasonably capable of belief.

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

R. v. Palmer, [1980] 1 S.C.R. 759 (S.C.C.).

(e) Any new evidence introduced on appeal, whether by affidavit or viva voce, will have to be considered and weighed against the transcript of the trial evidence and this will place the judge in a very difficult position, particularly in making assessments of credibility. For that reason, a judge must exercise his discretion sparingly in allowing such new evidence to be adduced.

Cook v. Mounce, 26 O.R. (2d) 129 (Ont. Div. Ct.).

I find that the evidence could have been adduced at trial and for the most part offers little more than a response of the Affiants to the Judgment issued by the trial Judge. I find that this evidence does not meet the tests set out in the caselaw above. The Application for the admission of fresh evidence is therefore dismissed.

Background

8 In 1982, Holly Stephen (formerly Down) married Brian Down. They have two children together, Ryan, born July 24, 1984 and Jamie-Lee, born March 20, 1986. Ms. Stephen and Mr. Down separated in 1993 and are now divorced.

9 In 1992, Ms. Stephen, a registered nurse met Dr. Cox, a family physician. On January 31, 1995, their son Nathan Steven Webber was born. "Webber" is Ms. Stephen's maiden name.

10 In 1998, Ms. Stephen married Greg Stephen after having lived with him for approximately two years. Their son Brandon was born on August 11, 1998.

11 Therefore, as of the time of trial, Nathan had an older brother and sister and a baby brother with whom he lived in his mother's home. Nathan shares his bedroom with Brandon. Ryan and Jamie-Lee live in a divided and equal custody arrangement with their mother and father, Mr. Down. They live with their father one week and with their mother the next. This arrangement has worked well for these children.

12 Nathan has lived with his mother on a full-time basis since birth. He has known no other principle residence. "Ryan and Jamie-Lee have a significant relationship with Nathan, as the facts will reveal" (Judgment: p. 2, para. 3).

13 In referring to her children, Ms. Stephen testified "You would think there wasn't an age difference between these children. They are so close that they all support each other through everything. We -- when there's hockey for Ryan or hockey for Jamie-Lee, or dance recitals for Nathan, whatever it is, they all want to go to everything. They want to support each other" (Transcript: January 9, 2001: p. 118, lines 23-30).

14 There was no evidence before the trial judge to contradict this testimony as to the close bond between Nathan and his siblings.

15 As for Mr. Stephen, the trial judge found that "Mr. Stephen became a constant in Nathan's life, practically from the infant's birth" (Judgment: p. 5, para. 11).

16 In summary, these were the circumstances of Nathan's family life with his mother and "[Ms. Stephen] qualifies as a successful parent" (Judgment: p. 68, para. 132).

17 The difficulty since his birth has been the extent and quality of Nathan's contact with his father. "Ms. Stephen had a real propensity to at least diminish the significance of Dr. Cox in Nathan's life" (Judgment: p. 69, para. 134).

18 She has actively interfered with access and discouraged a relationship between Nathan and his father.

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19 Dr. Cox loves his son dearly and has continuously sought the development of an ongoing relationship with his son. He is well qualified and able to provide his son with stability and emotional support (Judgment: p. 75, para. 150).

20 The proceedings resulting in this Appeal were launched by Dr. Cox in June 1997. Dr. Cox believed that if he did not obtain an order for custody, he would never be allowed to play a significant role in Nathan's life (Judgment: p. 8, para. 16). Nathan has great support in his father's family. Dr. Cox testified, "There is my sister and cousins ... I can raise Nathan better than Holly, without aggravation and disturbance to Nathan's health" (Transcript: January 8, 2001; p. 20; line 1).

Litigation History Re: Custody and Access

21 In 1996, Nathan Steven Webber was born on January 31. On October 17, 1996 Fuller J. made the following Orders on consent:

(a) custody of child to Applicant, Holly Down;

(b) liberal and generous access to Respondent, Ronald Cox, subject to notice on 48 hours and unless Ms. Down had already made definitive plans;


(c) both parties to endeavor to co-operate with each other to ensure that Nathan has regular contact with his father and mother and that the access accommodates the needs of both parents and the child.

22 In 1997, Dr. Cox commenced an Application for a variation of the custody order in June, 1997 and sought custody of Nathan on the following grounds: the Respondent mother has (inter alia) willfully and repeatedly defied the terms of the court settlement by preventing Nathan from having access to Applicant and his family and the Respondent mother has refused to answer numerous requests for access. Flaherty J. specified access for Dr. Cox in his Order.

23 In 1998, Wolder J. granted an Order that access be continued and for an assessment pursuant to s. 30, Children's Law Reform Act, R.S.O. 1990, c. C. 12.

24 On January 28, 2000, Dunn J. ordered access to Applicant father fixed for midweek and alternate weekends, removal from the country for vacation; summer access, and specified a location for transfer of the child from parent to parent.

25 The trial commenced on February 21, 2000 before Dunn J. During the trial, the trial judge also made the following orders:

(a) July 27, 2000: Application by Ms. Stephen for variation of order dated January 28, 2000 is denied.

(b) August 25, 2000: Dr. Cox's Motion without Notice to Ms. Stephen is endorsed by the trial judge. In the Endorsement, the trial Judge notes that it is "in Chambers" and makes a hand written order regarding the location for transfer of child; allowing police enforcement, if necessary; and orders costs payable by Ms. Cox on the Motion without Notice fixed at $1,000.00 to be paid before she can call any evidence in this case or bring any further proceeding in Court.

(c) September 26, 2000: Application for Judicial Review brought by Ms. Stephen on the basis of apprehension of bias and is ultimately abandoned.

26 In 2001, the trial continues and concludes January 8. The Judgment of Dunn J. is released on February 19, changing custody to Applicant father. A Notice of Appeal is filed on February 26 and on the Order of Snowie J. dated March 7 a stay of the Judgment of Dunn J. is granted. A Notice of Amended Appeal is filed May 22.

The Law with Respect to Custody and Access

(a) Purpose

27 The purpose and principles of the legislation are set out in s. 19 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12 (CLRA).

28 The relevant subsection in this case is s. 19(a):

19. Purposes -- The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

29 Except as otherwise provided in the legislation, the mother and father of a child are equally (my emphasis) entitled to custody of their child subject to provisions in the legislation (CLRA s. 20(1)).

30 A custodial parent must (my emphasis) exercise the rights and responsibilities of a parent in the best interest of the child (my emphasis) (CLRA s. 20(2)).

(b) The test on an application for custody and/or access

24. (1) Merits of application for custody or access -- 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.

(2) Best interests of child -- In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child 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 care and upbringing of the child;


(b) the views and preferences of the child, where such views and preferences 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) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is party to the application.

(3) Past conduct -- The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child.


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

(c) The test on a variation

29. Order varying an order -- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

31 The test set out in s. 24 of the CLRA is the same with respect to variation applications and/or originating applications touching upon custody and access. The first focus of the Court on a variation application must be whether or not the test in s. 29 has been met. If satisfied that a variation of a previous order is warranted, the Court must then turn to s. 24 and consider all the needs and circumstances of the child. The factors set out in the subparagraphs in s. 24 are those that Court is to take into account in considering "the needs and circumstances of the child" (my emphasis).

Analysis

32 The crux of the variation application before the trial Judge concerned the extent and quality of contact between Dr. Cox and his son Nathan. The difficulties encountered by Dr. Cox and reviewed by the trial Judge in nearly 80 pages of his reasons may be summarized as follows:

(a) Ms. Stephen encouraged, asked, or told her son to call his stepfather "Daddy" and to refer to Dr. Cox as "Ron";

(b) Initially, all access agreed to by Ms. Stephen had to be exercised within the confines of her residence;

(c) Ms. Stephen was of the view that Dr. Cox lacked adequate and/or appropriate parenting skills necessary to look after an infant;

(d) Ms. Stephen demanded that the child attend the church of her choice when Nathan was with Dr. Cox for access;

(e) Ms. Stephen would use a babysitter for Nathan rather than calling on the child's father when child care was needed;

(f) Ms. Stephen cut access short notwithstanding an agreement or arrangements to the contrary;

(g) Ms. Stephen was resistant to and refused to agree to overnight access for Nathan in Dr Cox's home;

(h) Ms. Stephen interfered with access to the extent that she appeared at Dr. Cox's home while the child was with his father;

(i) Ms. Stephen has denigrated Dr. Cox to and in front of Nathan and has used inappropriate language in front of the child;

(j) Ms. Stephen has changed the dates and times of access without consultation with or the approval of Dr. Cox;

(k) Ms. Stephen has changed the location of transfer of the child without the consent of Dr. Cox;

(l) Mr. Stephen has become involved in a physical altercation with Dr. Cox;

(m) Ms. Stephen has coached Nathan and encouraged him to withdraw from Dr. Cox.

33 There is no doubt that the trial judge had evidence of a willful, manipulative mother who was focused on control of Nathan's relationship with his father and the alienation of Dr. Cox from her son's life.

34 Ms. Stephen has acted consistently as a woman in pursuit of power. She has adopted an attitude of superiority toward Dr. Cox, requiring him to meet her standards of parenting skill and home environment. She has been aggressive and confrontational in her dealings with Dr. Cox both in the presence of the child and elsewhere.

35 It is clear from the evidence that Ms. Stephen has been of the view that Dr. Cox is superfluous to Nathan's life and does not merit the time or effort required of her as the child's mother to ensure the ongoing development of a truly meaningful relationship between father and son.


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36 Ms. Stephen has involved Nathan in counseling without consulting Nathan's father. Her conduct in front of the child in dealing with Dr. Cox has been childish, temperamental and driven from what appears to be a sense of insecurity. She has shown little or no respect for Nathan's paternal heritage. In some instances, such as her telephoning to Nathan telling him of a new puppy and locking the child in the car while his dad is outside waiting for him, the appellant's conduct has amounted to emotional abuse of both child and Dr. Cox.

37 In his judgment, the trial judge noted, "Ms. Stephen testified that her son was ill, in failing health and in childhood depression, resulting from parental conflict."

38 The evidence at trial was clear that the conduct of the parents, particularly Ms. Stephen has had a detrimental effect on the child. The parties are even unable to agree on whether a medical condition known as 'encopresis' exists or results from the tension and animosity between them. There is evidence to support the trial judge's finding that the "words and actions of Ms. Stephen, and perhaps of others, have upset this sensitive child" (Judgment: p. 87, para. 176).

39 Notwithstanding all this, the trial judge goes on to acknowledge, the evidence of Dr. Lester who testified that Ms. Stephen had "made good medical and parenting decisions" (Judgment: p. 81, para. 166).

40 The trial judge writes further, "For this child to be developing as well as he has, is a tribute to Ms. Stephen's other decisions regarding discipline, family unity and respect, to name a few" (Judgment: p. 81, para. 166).

41 In my view, the trial judge was correct in finding that there had been a material change in circumstances since the Order of Fuller J. dated October 17, 1996. The trial judge did not err in finding that the three factors outlined in paragraph 117 constituted a material change in circumstances such that the Application for a variation ought to be considered. The consent provisions of Judge Fuller's Order were no longer viable or in the best interests of the child by virtue primarily of the mother's subsequent conduct.

42 The trial judge then isolates two questions to be answered, namely:

1. who should make decisions about Nathan, that is who should have sole custody; and

2. where should Nathan live and for what periods of time?

43 With respect, the trial judge erred, in my view, in framing the issues in this fashion and in the result, lost sight of the essential and primordial test to be applied in these circumstances, that being, what arrangement is in the child's best interests in consideration of all the needs and circumstances of the child?

44 It may well be argued that the difference in the wording of the issues is merely semantics and that, given that the trial judge went on to examine the elements of s. 24(2), this is simply a "distinction without a difference". The effect of the different approaches to the issues, however, is subtle and profound.

45 In basing his analysis firstly on "who should have sole custody" rather than on the broader more fundamental question "what is in Nathan's best interests", the trial judge created a framework in which the parents become the object of the Court's attention and concern rather than the child. Using this approach, the parents' efforts to compete with one another for the Court's favour are sanctioned and the focus becomes "what can each parent offer" rather than on the basic question and starting point in any analysis in custody matters which is "what does the child need and what is in the child's best interest to meet those needs?". It is in this manner that the purpose and test set out in the legislation become thwarted and mutated.

46 Aston J. recently expressed the point well, "The focus in any particular case is not the parental hostility in a vacuum, but rather the consequence for the child" (M. (T.J.) v. M. (P.G.), [2002] O.J. No. 398 (Ont. S.C.J.) at para. 19).

47 The analysis under s. 24(2) requires a thorough and detailed consideration of the conduct of each parent and what each parent has to offer the child but always with the centre of attention focused on the child himself/herself. S. 24(2)(a) (and (b), for that matter) requires the Court to look at life through the heart, mind and emotion of the child with the objectively and maturity of an adult.

48 In his analysis, the trial judge finds that:

(a) Nathan has spent most of his life with his mother;

(b) Nathan is very close to his mother;

(c) in his early years, Nathan did not know his father;

(d) Nathan's bond with his father is strengthening, because as he ages, he will be able to appreciate on a higher level, the depth of his father's commitment to him. It is interesting to note that the trial judge is able to draw this conclusion, (correctly, in my view, based on the evidence) notwithstanding the evidence of the mother's manipulative and adverse conduct with respect to access. Clearly the mother has not succeeded;

(e) Mr. Stephen is devoted to Nathan and would treat Nathan with as much loving care as his natural son Brandon;

(f) Ms. Stephen's four children have a warm affection for each other;

(g) Dr. Cox lives alone. His parents and sister would help out if special occasions arose. His family is private, reserved and very close;

(h) Ms. Stephen's extended family is large, gregarious and close;

(i) Nathan has known only two homes with his mother since his birth;

(j) Nathan shares a bedroom with his younger brother Brandon;

(k) when Ms. Stephen is working, there are babysitters, but when she is available she gives very good care;

(l) Ms. Stephen is unwilling to allow Nathan to refer to Dr. Cox as Daddy;

(m) Dad could provide a stable home. Nathan would have his own room;

(n) both parents are well able to provide necessaries of life;

(o) university education or attendance at a professional school, or foreign training or travel would be a stretch for Ms. Stephen with three other children to support even with help from Mr. Stephen. Dr. Cox could afford any reasonable sum;

(p) both parties can well meet their son's usual needs for nurturance, stability and emotional support;

(q) Dr. Cox is willing for Nathan to know it is alright for him to love both parents, the reverse is not true;

(r) there is a "large variance" in their respective abilities to guide and educate. Dr. Cox has made life an adventure;

(s) Dr. Cox has complied with court orders and has shown admirable restraint;


(t) Dr. Cox has well-educated predecessors and is willing to have his son understand his paternal heritage;

(u) unlike Ms. Stephen, Dr. Cox would seek out and accept professional advice that would benefit Nathan;

(v) Ms. Stephen proposed sole custody although, in her view, both parties should be involved in all major decisions concerning the child's health;

(w) Ms. Stephen proposed to continue the close relationship between Nathan and his stepfather and half-brothers and sister. Ryan and Jamie-Lee could baby-sit if required depending on her work schedule;

(x) Dr. Cox would engage a full-time nanny and proposed that Nathan live with him one week and one week at this mother's to coincide with Jamie-Lee and Ryan's residency at Ms. Stephen's;

(y) Both Ms. Stephen and Mr. Cox offered stable family units. There are a number of nurturing people in the Stephen household. Nathan would not have the same opportunity for socialization with younger and older siblings.

49 In the end, the trial Judge indicated that the following four factors:

1. Access frustration by Ms. Stephen, restrictions on access and the likelihood of continuing conflict between the parties;

2. The prospect of Ms. Stephen's failure to foster Dr. Cox's involvement in Nathan's life;

3. Dr. Cox's superior ability to guide and educate the child. The child needs high quality emotional and intellectual stimulation;

4. Ms. Stephen was concerned that the child's health was being affected by the parties' conflict but no one can be specific about exactly what was affecting Nathan. A reasonable inference can be drawn that the words and actions of Ms. Stephen and perhaps of others have upset the sensitive child. Ms. Stephen should accept the majority of responsibility for Nathan's upset.

must be weighed against:

1. strong elements in Ms. Stephen's plan (for care of Nathan);


2. the fact that she was the decision maker for five years;

3. the fact that she has provided a stable environment;

4. the fact that Ms. Stephen is a competent parent;

5. the fact that Ms. Stephen's home is the main home that Nathan has known (Judgment: pp. 85-90; paras. 173-180).

50 The trial judge decides that it would be best for Nathan if Dr. Cox is awarded sole custody because of:

1. the likelihood of continuing conflict between the parties;

2. the prospect of Ms. Stephen not adequately including Dr. Cox in his son's life;

3. the outstanding ability of Dr. Cox to inspire Nathan. (Judgment: p. 90; para. 181)

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51 With respect, in his final analysis, the trial judge appears to almost completely discount the factors set out subparagraphs 24(2)(a)(i)(ii)(iii), 24(2)(c) and 24(2)(f) in particular except for brief reference.

52 There is no law or precedent, of which I have been made aware, that provides that a Court may give more weight to one factor enunciated in s. 24 of the CLRA than the others. To change custody based on the four factors alone as enunciated by the trial judge in his Judgment and give less than equal weight to the love, affection and emotional ties the child has for and to his mother, step-father and siblings amounts to an error in law.

53 To quote Laskin JA, in Barnes v. Parks, [2001] O.J. No. 643 (Ont. C.A. [In Chambers]) at para. 10, "In resolving custody disputes, the Courts have repeatedly emphasized the critical importance of bonding, attachment and stability in a young child's life."

54 This is not the first case before the Court in which the backdrop of the factual circumstances is a power struggle between the parents. It seems, on the evidence before the trial Judge, that there is little or no prospect that these parties will ever be genuinely co-operative with one another.

55 The trial judge's criticism of Ms. Stephen's conduct is well-founded.

56 On the other hand, in the factual circumstances of this case, to remove the child completely from the only home environment he has ever known and leave the nature and extent of all contact with the child's mother in the discretion of Dr. Cox is to override the mandate outlined in the legislation.

57 A determination of the best interests of a child is not completely defined by whether or not conflict between the parents will continue, by the failure of one parent to adequately include the other in the child's life, by the ability of one parent to inspire the child or by the benefit of one parent continuing to make decisions for the child.

58 A determination of a child's best interests starts with the child, the first of which is a consideration of the love, affection and emotional ties between father and child and mother and child. In this case, existence of the love, affection and emotional ties between Nathan and his mother have been given less weight than the factors relied upon by the Judge and that is an error in law.

59 The decision of the Court must be responsive to the issues. In this case, the Court must deal with the animosity and conflict between the parents and the mother's conduct. The Court must deal with adult behaviour but in so doing be ever mindful of the effect of the Court's response to the child's emotional and psychological health and stability.

60 In his Judgment, the trial Judge's identification as to the nature of Ms. Stephen's conduct was founded on the evidence. But the Court's response to that conduct has completely ignored the effect, if any, (a) the removal of this child from the only home he has ever known; (b) the placement of the child into the care of a nanny when he has been primarily cared for by his mother his whole life; and (c) termination of daily, intimate contact with his siblings, would have on the child.

61 There is no doubt that Ms. Stephen has allowed her emotions and conduct toward Dr. Cox to affect Nathan and his relationship with his father. It must be recognized, however, that notwithstanding the difficulties and in the face of adversity, a relationship has been spawned. The Court must support and create an environment such that continued growth is ensured while at the same time the child's emotional and psychological health remain secure.

62 Ms. Stephen has had a seriously mistaken view that custody means control. Her perception must be changed, if not voluntarily. Ms. Stephen must be obliged to realize that Nathan's father has and always will play a vital and significant role in her son's life as does she. The Court's duty is to ensure that in the circumstances of this case, Nathan benefits from the ongoing and deepening development of a loving and trusting relationship with Ms. Stephen and her husband (who also plays a significant role in Nathan's life) and Dr. Cox.

63 Further and, in any event, I find that the trial judge erred in law in recommending terms of access that could not be implemented by Dr. Cox if he deemed them "deleterious" to Nathan. Whether or not access or any incident of access is "deleterious" to a child is not the test. To delegate responsibility of defining access on that basis is an error in law. The terms of access are to be based on Nathan's best interests alone.

Conclusion

64 In the circumstances, the Appeal is granted.

65 Joint custody requires a high degree of co-operation between the parents, as recognized by the trial judge, and is usually awarded only when the parents have demonstrated the ability to co-operate.

66

"The evolution of the case-law on joint custody orders in Ontario, starting with the foundation case of Baker and Baker (1979) 23 O.R. (2d) 391 (C.A.) decided more than 20 years ago by our Court of Appeal is nicely summarized by Bellamy J. in Dagg v. Pereira (2000) 12 R.F.L. (5th) 325 (S.C.J.) at paras. 39 - 45. She identifies Moll v. Moll [1997] O.J. No. 4060 (S.C.J.) as a significant turning point. In [Moll], Kruzick J. reviewed a substantial number of cases from across Canada to conclude that "joint custody" can be an appropriate disposition even in cases where parents are openly hostile and unco-operative if crafted as "parallel parenting" instead of "co-operative parenting". Consequently, "parallel parenting" orders have become a form of joint custody, a sub-category if you will, which does not depend upon co-operative working relationships or even good communication between the parents. The concept (consistent with subsection 20(1) of the Children's Law Reform Act) is that the parents have equal status but exercise the rights and responsibilities associated with "custody" independent of one another. Section 20(7) of the Children's Law Reform Act provides clear authority for the court to deal separately and specifically with "incidents of custody". The form of a "parallel parenting" order addresses specific incidents of custody beyond a mere residential schedule for where children will reside on a day-to-day basis. For example, in South v. Tichelaar [2001] O.J. No. 2823 (S.C.J.), the court granted "joint custody" but then went on to give the father sole decision-making authority over the children's sporting activities and the mother sole decision-making authority over the dental health of the children"

(M. (T.J.) (supra) at para. 20).

67 "Joint custody" means a sharing of parental rights and obligations regardless of the marital status of the parents. Parents who live separately do not forfeit those rights or responsibilities. The move away from a joint custodial regime is required when it is the best interest of the child to take that step.

68 In this case, it is in the best interests of Nathan, taking into account all of the factors outlined in s. 24(2) and giving each factor equal weight, that Nathan's mother's struggle for control and effort to minimize the presence or significance of Dr. Cox in her son's life be removed from the equation. On the evidence, once these factors are addressed, the negative effect on the child described by Ms. Stephen in her testimony and found by the trial judge will be minimized if not eradicated.

69 Ms. Stephen appears to be have been in a state of denial as to her responsibility for the concerns she described. The concept of "parallel parenting" is intended to remove the power struggle between the parents for 'control' over the child. In my view, this is an appropriate case for a joint custody order using the "parallel parenting" model.



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Disposition

70 The parties shall have joint custody of Nathan Webber, exercising their rights and responsibilities as set out in this order and in the best interests of Nathan.

71 Nathan shall be in the care and control of Dr. Cox:

(a) every second week from Thursday after school until the following Monday morning (except if the Monday is a holiday or professional development day in which case Nathan shall be in his care until 7:00 p.m. on the Monday), except as otherwise provided herein. The parties shall fix the alternate weekend dates throughout the calender year such that upon conclusion of extended times provided below, the alternating pattern resumes as if it had not been interrupted;

(b) every Thursday immediately following Nathan's delivery to Ms. Stephen pursuant to para. 71 (a), from after school until 7:00 p.m., except as otherwise provided herein;

(c) every Monday immediately following the weekend Nathan has remained in the care of Ms. Stephen from after school until 7:00 p.m., except as otherwise provided herein;

(d) With respect to paragraph 71(a), Dr. Cox shall pick Nathan up from school on the Thursday and deliver the child to school on the Monday or to his mother if he has spent the day with Dr. Cox as provided for in that paragraph;

(e) for exactly one-half of all summer holidays. In even numbered years, Dr Cox shall provide written notice on or before April 30 in even numbered years as to the dates he wishes to have Nathan. Ms. Stephen shall provide the dates she wishes to have Nathan in odd numbered years. The maximum number of consecutive weeks either party is entitled to have Nathan is three. Provisions and arrangements shall be made for Nathan to call the other parent twice per week on Mondays and Thursdays between 7:30 am and 8:30 am Toronto time regardless of who he is with or where he is. The cost of the calls shall be borne by the parties in whose care the child is;

(f) every Father's Day from 8:30 am until 7:00 p.m.;

(g) for exactly one-half of Nathan's vacation from school at Christmas. Dr. Cox shall have the child from 7:00 p.m. on the Nathan's last day of school until noon on the day falling in the middle of the vacation (including weekends) in the odd numbered years. In the even numbered years, Dr. Cox shall have Nathan from noon on the day falling in the middle of the vacation (including weekends) until 7:00 pm the day before Nathan resumes school;

(h) in even numbered years, from 7:00 p.m. on the last day of school until 7:00 p.m. on the last day of March Break;

(i) In odd numbered years, from 7:00 p.m. on the last day of school before Easter weekend until 7:00 p.m. on the last day of Easter weekend;

(j) in even numbered years, from 7:00 p.m. on the last day of school before Thanksgiving weekend until 7:00 p.m. on the last day of Thanksgiving weekend;


(k) at such other times as the parties may agree;

(l) upon picking Nathan up from school or dropping him off, Dr. Cox shall immediately contact by telephone Ms. Stephen and confirm that he has picked up Nathan or dropped him off at school.

72 Nathan shall otherwise be in the care and control of his mother.

73 In addition to the time when Nathan is not with Dr. Cox, he shall be with his mother every Mother's Day from 8:30 a.m. until 7:00 p.m. regardless of whether he is scheduled to be with Dr. Cox that weekend.

74 Nathan's birthday on January 31 shall be spent with the parent who is scheduled to have care and control of him under the Order.

75 Either party is entitled to remove Nathan from the Province of Ontario for no more than 15 concurrent days per year and no more than twice per year. The removal shall take place during his summer, March or Christmas vacations. Nathan shall not be removed by either party without providing written notice of no less than 30 days setting out the dates of departure and arrival, mode of transportation and a telephone number to contact in case of emergency.

76 Dr. Cox shall have care and control of Nathan's birth certificate (the original) and passport. Should Nathan not yet have his own passport, Dr. Cox shall apply for same within 30 days. Ms. Stephen is ordered to sign the passport application and co-operate with obtaining same. Ms. Stephen shall be provided a copy of the passport including the address and photo pages within 7 days of receipt by Dr. Cox.

77 Ms. Stephen is responsible for all decision-making responsibilities regarding Nathan's education until Nathan is 16 years of age.

78 Dr. Cox is responsible for all decision-making responsibilities regarding Nathan's physical health until Nathan is 16 years of age unless there is an emergency with respect to Nathan while he is in his mother's care, at which time, Ms. Stephen shall contact Dr. Cox immediately and personally advise him as to all details concerning the emergency including but not limited to who is treating the child and where the child is.

79 No decision shall be made by either party with respect to the health and education of Nathan, except in the case of emergency, unless it is on 45 days' notice in writing to the other party.

80 Should counseling be required for Nathan, Ms. Stephen and Dr. Cox shall consult with each other as to the type of counseling required and who should be the counselor. The recommendation of Nathan's family practitioner or education professional as the case may be shall be adhered to by the parties should they be unable to agree.

81 Each party is entitled to select one after-school activity for the child provided that the activity does not fall within the time to be spent by the child with the other parent. Piano lessons, dancing lessons and educational assistance (i.e. tutoring) do not fall within the scope of this restriction. Nathan shall be taken to these latter activities regardless of who has care and control or who has arranged these activities. The parent who has care and control is responsible for ensuring the child's attendance at these activities including competitions and recitals.

82 Both parents are entitled to attend all public events, school activities involving Nathan and any and all competitions and recitals in which Nathan is involved, even when the child is in the care of the other parent.

83 Ms. Stephen shall obtain a "Communication Diary" which shall be a notebook of consecutively numbered pages. At the time of transfer of the child from one parent to another, the diary shall be handed to the other parent. Nathan shall not be allowed to read this diary and no comment shall be made by either party to the child as to its contents. The parties shall ensure that no one else discusses the contents of the diary with the child. Dr. Cox and Ms. Stephen shall provide information to each other in the diary as to Nathan's health, welfare or other matters relevant to the child at the time. No pages shall be removed from the Diary.

84 Any decision required to be made for the benefit of Nathan not dealt with in this Judgment shall be the responsibility of Ms. Stephen. Ms. Stephen shall provide written notice of not less than 45 days to Dr. Cox prior to the making of any decision. Such notice shall contain the need for the decision, the proposed decision and the names, addresses and telephone numbers of anyone else involved.

85 Neither Dr. Cox nor Ms. Stephen shall change their address where the child resides with them without written notice to the other of not less than 45 days.

86 Within 24 hours of the release of this Judgment, both parties shall deliver to the other, the names, addresses and telephone numbers of all persons involved in the health, education and welfare of Nathan. This list shall be updated by the parties on the 30th day of April and October each year.

87 Both parties are entitled to obtain directly from any teacher, school, health practitioner, counselor or other person, hospital, company, institution or agency, any and all information and documentation relating to Nathan. Any and all information and/or documentation obtained shall be forwarded in writing to the other party within 24 hours of receipt.

88 Both parties are entitled to attend medical, health (i.e. counseling) and educational appointments made by either party for the child. On the first day of each month, each of Dr. Cox and Ms. Stephen will provide a written list including the dates, times and locations of all appointments and activities, events, competitions and school activities involving Nathan.

89 All notices and communication between the parties, except for the Communications Diary, as required to be in writing by this Order will be sent to the other party by registered mail.

90 Except as otherwise provided herein, both parties shall make arrangements for the child to speak by telephone to the parent he is not with daily between 7:30 a.m. and 7:45 a.m. save and except if Nathan has to leave for school before 7:45 a.m. in which case the times shall be moved earlier by 15 minutes.


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Last edited by logicalvelocity; 04-05-2006 at 03:15 AM.
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