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Divorce Support This forum is for discussing the emotional aspects of divorce: stress, anger, betrayal of trust and more.

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Old 10-25-2012, 11:03 AM
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This is my first post so bear with me.
I am a serving mbr of the CF (22+yrs) and have recently (2010) gotten divorced. My daughter is 14 and lives with her mom in Kingston, On. this year I was posted to Borden, On (about 3 1/2hrs from Kingston).
In my separation agreement, which we did ourselves but have not submitted to the courts, it stipulates that she has Full Custody (which because of the childs age fighting for joint didn't seem worth it) and I have visitation every other weekend and we split holidays.
Now that I have been posted my the military and living in Borden I am wondering if there is a "law" that can force my Ex to meet me half ways for my visit days or is it up to me to drive the distance?
I have also brought up that I would pay for my daughter to take the train to the halfway point as she is 14 and legally allowed but my Ex is blocking that saying she isn't comfortable with that. My daughter is all for the idea...this seems like my ex is trying to block my access...is there anything I can do?

Thanks
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Old 10-25-2012, 11:19 AM
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Generally, the person who moves is the person who absorbs the costs of transporting the child for their parenting time.

The other parent should not be adversely affected by the other parents decisions.

Now that said, you being in the military may change things slightly, but not much. You would also have to look at the costs/benefit of a court action. If it costs you $75 per weekend to transport the kid, but it would cost you $5000 to fight her in court to get a judge to order she meet you 1/2 way (with no guarantee you would be successful) the numbers simply don't add up to court making sense.

See what you can do to get her to meet somewhere like Port Colbourne/Port Hope etc (Bowmanville if you are really lucky). If necessary, offer to pay her something for her troubles, like $20 per weekend or something. Because there is no "law" that says each parent must contribute to transporting the child.
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Old 10-25-2012, 11:28 AM
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If you're willing to pay for the train, this obviously isn't about the money. It seems to me it's about the driving distance and time. It's one thing to drive for 3 1/2 hours to pick up your kid. If you are responsible for all the driving, you are driving twice that amount of time, half of it all alone.

CN is perfectly comfortable with a 14 year old travelling alone, as long as they know someone is picking the child up. There is no reason the ex should feel uncomfortable with it. It really isn't much different than taking the bus across town, except that it is much more comfortable and the porter will take care of her.

Your ex doesn't have to transport the child but she does have responsibility to co-operate with your access needs. Regarding the train, your position is reasonable, hers is not. Unfortunately you would have to go to court to enforce this. Unfortunately there is no legislation you can point to and say, "Look, you're breaking the law, smarten up."
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Old 10-25-2012, 11:31 AM
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Quote:
Originally Posted by speedball0622 View Post
This is my first post so bear with me.
I am a serving mbr of the CF (22+yrs) and have recently (2010) gotten divorced. My daughter is 14 and lives with her mom in Kingston, On. this year I was posted to Borden, On (about 3 1/2hrs from Kingston).
In my separation agreement, which we did ourselves but have not submitted to the courts, it stipulates that she has Full Custody (which because of the childs age fighting for joint didn't seem worth it) and I have visitation every other weekend and we split holidays.
Not sure what you mean when you say fighting for joint custody wasn't worth it. Think about it, you don't want joint decision making in regards to your daughter? You don't want equal input on her education, religious upbringing and other important matters? Of course you do. You can do that from Borden.
Also your posting may be temporary plus you might retire within a few years and move back, so keep your commitment open.

Last edited by baldclub; 10-25-2012 at 11:35 AM. Reason: Difficulty posting by phone
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Old 10-25-2012, 12:24 PM
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Originally Posted by baldclub View Post
Not sure what you mean when you say fighting for joint custody wasn't worth it. Think about it, you don't want joint decision making in regards to your daughter? You don't want equal input on her education, religious upbringing and other important matters? Of course you do. You can do that from Borden.
Also your posting may be temporary plus you might retire within a few years and move back, so keep your commitment open.
Simple fact: Child is 14.

Under the Medical Act, a child of 14 can easily request that their parents not have access to their medical records, contact their doctors, etc... They can get out having to attend school, choose what school they will attend and even sue their parents for child support.

"Custody" is really of a concern for minor children who are 14 years or less. I would say even 12 and less.

If someone wants the "label" of being a "sole custodial" parent for a child of 14... Let them. Don't waste the money fighting over it I say. The child of 14 can pretty much shut down both parents from making decisions at this age regarding them.

Try and "control" a 14 year old with "custody" and see what happens as a result.
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Old 10-25-2012, 01:04 PM
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Definitely a point worth considering Tayken. However, won't that help him if he comes back and wants to achieve a 50/50 shared custody later?
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Old 10-25-2012, 01:13 PM
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Quote:
Originally Posted by baldclub View Post
Definitely a point worth considering Tayken. However, won't that help him if he comes back and wants to achieve a 50/50 shared custody later?
You have the concepts of "access" and "custody" mixed up.

Custody - decision making
Access - a child's right to be seen, cared for, reside with, and have "access" to a parent.

Access, is the key element for which Child Support, CRA credits, and most of everything in family law churns on. When children <12 and/or <14 years of age are concerned, "custody" does matter.

You can have 50-50 access with one parent being the "custodial parent" (having sole custody).

For example in the matter of:

Date: 2011-11-09
Docket: F-2172/09
URL: CanLII - 2011 ONSC 6451 (CanLII)

The Respondent in that matter was ordered after a 17 day trial "sole custody" of the child and 50-50 access.

This order, until such time a court orders otherwise, both parties of this matter had 50-50 access to the child in question but, the Respondent was the "sole custodial parent".

Quote:
The Respondent father shall have sole custody of the child, **** *****, born ***********.
Quote:
By the time ******** becomes involved in full-day attendance in school (anticipated to be September 2013), the parties shall have equal time with the child.
Hope this helps.

"Access" does not churn much on who has "custody". Access is *the most* important aspect of a child's "best interests". Give up access beyond 50-50, which the OP has already done, and you will be an EoW parent unfortunately.

The "title" (or label) of "sole custodial parent" is really a point of conflict and the Children's Law Reform Act should be updated to use a different term.

I propose "residency" to replace "access".
I propose "responsibility" to replace "custody".

And for it to be specifically "Residency and Responsibility" and NOT "Responsibility and Residency" versus "custody and access".

Why? Because residency is the thing that matters. Time with the child!

Collaborative Responsibility (rather than joint custody)
Reasonable Responsibility (rather than sole custody)

So an order would read:

(Sole custody)

The Applicant shall have the *reasonable responsibility* regarding all the major decisions regarding the child's life.

--- OR ----

(Joint custody)

The Applicant and Respondent shall have the *collaborative responsibility* regarding all the major decisions regarding the child's life.

Reason being... Often "sole custodial parents" are not "reasonable" in what they do. Putting in the term "reasonable" with "responsible" makes it clear that what they have to do, even though they are the one making the decision has to be by default *REASONABLE* and *RESPONSIBLE*.

Collaborative means you have to work together and you are both *responsible*.

Good Luck!
Tayken

PS: I just gave away some of the ontological study research I am doing in family law for my side project. ("Reducing conflict in Family Law through better terminology (ontology) - a Study")

Last edited by Tayken; 10-25-2012 at 01:25 PM.
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Old 10-25-2012, 01:32 PM
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Quote:
Originally Posted by Tayken View Post
You have the concepts of "access" and "custody" mixed up.

Custody - decision making
Access - a child's right to be seen, cared for, reside with, and have "access" to a parent.

Access, is the key element for which Child Support, CRA credits, and most of everything in family law churns on. When children <12 and/or <14 years of age are concerned, "custody" does matter.

You can have 50-50 access with one parent being the "custodial parent" (having sole custody).

For example in the matter of:

Date: 2011-11-09
Docket: F-2172/09
URL: CanLII - 2011 ONSC 6451 (CanLII)

The Respondent in that matter was ordered after a 17 day trial "sole custody" of the child and 50-50 access.

This order, until such time a court orders otherwise, both parties of this matter had 50-50 access to the child in question but, the Respondent was the "sole custodial parent".





Hope this helps.

"Access" does not churn much on who has "custody". Access is *the most* important aspect of a child's "best interests". Give up access beyond 50-50, which the OP has already done, and you will be an EoW parent unfortunately.

The "title" (or label) of "sole custodial parent" is really a point of conflict and the Children's Law Reform Act should be updated to use a different term.

I propose "residency" to replace "access".
I propose "responsibility" to replace "custody".

And for it to be specifically "Residency and Responsibility" and NOT "Responsibility and Residency" versus "custody and access".

Why? Because residency is the thing that matters. Time with the child!

Collaborative Responsibility (rather than joint custody)
Reasonable Responsibility (rather than sole custody)

So an order would read:

(Sole custody)

The Applicant shall have the *reasonable responsibility* regarding all the major decisions regarding the child's life.

--- OR ----

(Joint custody)

The Applicant and Respondent shall have the *collaborative responsibility* regarding all the major decisions regarding the child's life.

Reason being... Often "sole custodial parents" are not "reasonable" in what they do. Putting in the term "reasonable" with "responsible" makes it clear that what they have to do, even though they are the one making the decision has to be by default *REASONABLE* and *RESPONSIBLE*.

Collaborative means you have to work together and you are both *responsible*.

Good Luck!
Tayken

PS: I just gave away some of the ontological study research I am doing in family law for my side project. ("Reducing conflict in Family Law through better terminology (ontology) - a Study")
Tayken, with all due respect, I understand the difference the difference between shared custody and joint custody. I was trying to ask if the fact that he remained in the decision making process (whether real or just a matter of options given the age of the child) as a joint custody parent would show his involvement and thus increase chances later for shared physical custody?
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Old 10-25-2012, 01:36 PM
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To add to what Tayken wrote, the Child Support Guidelines (the actual legislation, not just the tables) refers to "shared custody" in section 9. The CRA also uses the term "shared custody". This term is thus fairly well defined to mean the child resides between 40-60% with each parent.

Unless/until legislation is rewritten using different terms, "shared custody" is what we are stuck with, however I agree with Tayken that "residence" is a far more useful and accurate term. Our separation agreement is worded that the children "will reside" in such-and-such a schedule with each parent, and that CS will be determined "according to section 9 of the Guidelines". I don't believe the word "custody" is mentioned even once in our entire agreement. An earlier section describes "decision making." Basicly, the various terms associated with "custody" aren't necessary in an agreement, it's far more accurate to describe the residency schedule and shared/exclusive decision making. In terms of negotiations or even just general conversation, no one seems to use the same understanding of "custody" anyway, so why not just do away with the term?
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Old 10-25-2012, 03:05 PM
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Very good points mess, I don't use the word custody anywhere in my separation agreement proposal either based on your and other's postings.

My question remains: does it not increase chances of having the children reside with the parent at a later date if/when they return by collaborating continually with the other parent during their absence?
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