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Political Issues This forum is for discussing the political aspects of divorce: reform to divorce laws, men's rights, women's rights, injustices in the divorce system, etc.

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  #471 (permalink)  
Old 02-01-2017, 03:18 PM
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Originally Posted by Ange71727 View Post
I don't think a new relationship should be considered a material change in circumstances. Relationships are fleeting (cynical but true). This is much like basing an access schedule on someone's shift work schedule - jobs are fleeting too. Plus, material change is further defined as something that was unforeseen at the time of separation and has to significantly change the quality of the parenting or have a large effect on the child. If an access parent has to rely on his/her new partner to fulfill his parenting plan, then I would have concerns as a judge; especially if that access parent was not so involved for years beforehand. Again, it goes to the nuances in a particular case.
It is actually pretty reasonable to assume that both parties will re-partner at some point, so I don't see this as a material change.
I'm sure a whole lot of case law will come our way now....
You're right, new relationships alone are not material changes in circumstances. No change is a material change in circumstances unless it directly affects the child. If the relationship effects the child's current needs, than yes, it is most indeed a material change. If it has no effect, then there is no material change.

Each case turns into it's own facts. No two family law cases are the same. That's my opinion anyway. The general framework and governing laws may be the same but those are generally flexible and open to interpretation by the judges. The judges discretion is huge.

PS. yes I will post a case law (to your credit).

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[6] I think it is fair for me to observe that it is not uncommon for parties to remarry or enter into new relationships after the original relationship has been ended either by divorce or otherwise. It is also not uncommon for the new partner to have children from a previous relationship.


[7] In my opinion, the applicant’s remarriage and the fact that her new partner has children from a previous relationship is not a material change of circumstance justifying a change in the original variation order. Furthermore, the only change in circumstance is that of the applicant and not that of the children. That is, there has not been “a change in the condition, means, needs or other circumstances of the children.” Accordingly, as there has not been “a material change which will adversely affect the needs of the children”, I have no alternative but to dismiss the application.
http://www.canlii.org/en/sk/skqb/doc...&resultIndex=6


I really wish they never closed your "update" thread where we were discussing material change , they did and now we keep running into that issue here. Almost as if we need a separate thread to openly talk and/or have a debate about material change

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  #472 (permalink)  
Old 02-01-2017, 03:48 PM
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Originally Posted by trinton View Post
You're right, new relationships alone are not material changes in circumstances. No change is a material change in circumstances unless it directly affects the child. If the relationship effects the child's current needs, than yes, it is most indeed a material change. If it has no effect, then there is no material change.

Each case turns into it's own facts. No two family law cases are the same. That's my opinion anyway. The general framework and governing laws may be the same but those are generally flexible and open to interpretation by the judges. The judges discretion is huge.

PS. yes I will post a case law (to your credit).



http://www.canlii.org/en/sk/skqb/doc...&resultIndex=6


I really wish they never closed your "update" thread where we were discussing material change , they did and now we keep running into that issue here. Almost as if we need a separate thread to openly talk and/or have a debate about material change


Well I could open it back up but LF is going to have to play nice. I will do that later. I am very interested in discussing this issue.


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  #473 (permalink)  
Old 02-01-2017, 04:02 PM
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Well I could open it back up but LF is going to have to play nice. I will do that later. I am very interested in discussing this issue.


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Do it. Or post a new one. We'll battle it out.

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  #474 (permalink)  
Old 02-01-2017, 04:03 PM
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What I would like to see is all the BS weeded out (unfounded allegations, etc) and a standard set of criteria similar to 24(4) of the CLRA whereby one's actual "ability to parent" is thoroughly analyzed.
An excellent point. There is very little in the forms of "tests" for Rule 24.(4). Some comments have come from the judiciary about how to evaluate this rule but, it is very subjective.

This is one area where judges need to focus more on developing a test for evidence. More often than not it is a "i don't believe person X". There needs to be a better way to address this sooner in cases. If this can be determined earlier then a lot of the long-drawn-out-cases could find a resolution sooner.

We have some case law that does put some criteria around it but, we need something stronger. A justice like Justice Chappel could easily put the time into researching the case law and putting forward this test in case law. She is very detailed and versed in case law.
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Old 02-01-2017, 10:00 PM
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I meant that basing material change on the fact that you now have a new partner is tenuous just like basing an access schedule on a shift work schedule. What happens when you lose your job? Schedule no longer works. What happens when you lose your partner? No more supports. You should have to prove you can stand alone in your parenting plan. No?


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  #476 (permalink)  
Old 02-01-2017, 10:56 PM
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I meant that basing material change on the fact that you now have a new partner is tenuous just like basing an access schedule on a shift work schedule. What happens when you lose your job? Schedule no longer works. What happens when you lose your partner? No more supports. You should have to prove you can stand alone in your parenting plan. No?


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Th problem with judges is that they are not gypsies or fortune tellers. They have no ability to predict the future.

With your theory, there's no such thing as a material change anywhere or anytime because things can change.

John gets a new high paying job, and a new home close to his child with a nice, big spacious room for his child. His job is work-from-home with ultra flexible hours to care for his child.

Do you consider this a material change? Yep. But with your reasoning, it's NOT a material change because John's home has a chance of catching fire perhaps....or a tornado could hit .....or an airplane could crash in to it. Should the judge not call it a material change in the moment because things could happen in the future?

Yes partners break up, houses burn down, people lose jobs .. but in the moment they are still material changes.

I posted a few caselaw where partners had a HUGE impact on the situation and added to material changes. New partners and siblings DO affect the child's life. I thought the same thing as you in my case. I didn't even want to bring my new g/f and her daughter up .. but I'm glad I did because the judge looked at the pictures, saw that I had great support and my new g/f had a great bond with D5. The judge also saw that D5 befriended and loved her daughter very much and that she taught her things, etc.

In your case you said it yourself, your ex's new g/f cooks, cleans, organizes his life. One might assume that good meals, cleanliness, a strong bond and support system for your children and an organized life would definitely affect the lives of your children in a positive way. In fact I'm not sure how it couldn't.

Darwin comes to mind ....the giraffes necks are long for a reason....hundreds of years of reaching for the high branches to eat...they survived. Us humans deal with change all the time .... and we also adapt accordingly. Change is actually inevitable .. no escaping it really.

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Old 02-02-2017, 12:08 AM
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Originally Posted by LovingFather32 View Post
In your case you said it yourself, your ex's new g/f cooks, cleans, organizes his life. One might assume that good meals, cleanliness, a strong bond and support system for your children and an organized life would definitely affect the lives of your children in a positive way. In fact I'm not sure how it couldn't.
If her boyfriend/husband affects the live of her children in a positive way, then how is that a "material change" ?

Let's discuss in Angie's new thread here on material change : http://www.ottawadivorce.com/forum/f...stances-20761/


For the purposes of this thread, can we stick to the issue of 50/50 ? Though it's good to see all of things that can come up against 50/50, even material change threshold, I think that's a different issue all together.

SO let's assume material change is established or the case is afresh with no final or interim orders in place.

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The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaulting to the existing arrangement: Francis v. Francis (1972), 8 R.F.L. 209 (Sask. C.A.), at p. 217. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v. Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement now accords with the best interests of the child. The threshold of material change met, it is error for the judge on a variation application simply to defer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist.

Until a material change in the circumstances of the child is demonstrated, the best interests of the child are rightly presumed to lie with the custodial parent. The finding of a material change effectively erases that presumption. The judge is then charged with the fresh responsibility of determining the child's best interests "by reference to that change". To reinstate the presumption in favour of the custodial parent at this stage would derogate from the finding that the child's interests may, by reason of the change, no longer be best protected or advanced by the earlier order. It would be to reinforce the earlier order when its continuing propriety is the very issue placed before the court. This in turn would depreciate potential adverse effects of the established material change. In short, the two-stage procedure required by the Divorce Act supports the view of Morden A.C.J.O. in Carter v. Brooks, supra, that once the applicant has discharged the burden of showing a material change in circumstances, "[B]oth parents should bear an evidential burden" of demonstrating where the best interests of the child lie (p. 63).
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Old 02-02-2017, 11:37 AM
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Originally Posted by LovingFather32 View Post
Th problem with judges is that they are not gypsies or fortune tellers. They have no ability to predict the future.

With your theory, there's no such thing as a material change anywhere or anytime because things can change.

John gets a new high paying job, and a new home close to his child with a nice, big spacious room for his child. His job is work-from-home with ultra flexible hours to care for his child.

Do you consider this a material change? Yep. But with your reasoning, it's NOT a material change because John's home has a chance of catching fire perhaps....or a tornado could hit .....or an airplane could crash in to it. Should the judge not call it a material change in the moment because things could happen in the future?

Yes partners break up, houses burn down, people lose jobs .. but in the moment they are still material changes.

I posted a few caselaw where partners had a HUGE impact on the situation and added to material changes. New partners and siblings DO affect the child's life. I thought the same thing as you in my case. I didn't even want to bring my new g/f and her daughter up .. but I'm glad I did because the judge looked at the pictures, saw that I had great support and my new g/f had a great bond with D5. The judge also saw that D5 befriended and loved her daughter very much and that she taught her things, etc.

In your case you said it yourself, your ex's new g/f cooks, cleans, organizes his life. One might assume that good meals, cleanliness, a strong bond and support system for your children and an organized life would definitely affect the lives of your children in a positive way. In fact I'm not sure how it couldn't.

Darwin comes to mind ....the giraffes necks are long for a reason....hundreds of years of reaching for the high branches to eat...they survived. Us humans deal with change all the time .... and we also adapt accordingly. Change is actually inevitable .. no escaping it really.


Yes but one could argue that if you are going to allow one party to bring the argument that obtaining a new partner has been so wonderful for the kids and is a material change then you are suggesting that it wasn't so great for them beforehand.
It sounds like in your case that you already had the material change proven and that the new girlfriend and living situation was just further evidence that supported the judge's awarding of 50/50, not necessarily the reason for granting 50/50 in the first place?


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Old 02-02-2017, 11:44 AM
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Originally Posted by Ange71727 View Post
I don't think a new relationship should be considered a material change in circumstances. Relationships are fleeting (cynical but true). This is much like basing an access schedule on someone's shift work schedule - jobs are fleeting too. Plus, material change is further defined as something that was unforeseen at the time of separation and has to significantly change the quality of the parenting or have a large effect on the child. If an access parent has to rely on his/her new partner to fulfill his parenting plan, then I would have concerns as a judge; especially if that access parent was not so involved for years beforehand. Again, it goes to the nuances in a particular case.
It is actually pretty reasonable to assume that both parties will re-partner at some point, so I don't see this as a material change.
I'm sure a whole lot of case law will come our way now....


I don't think a new relationship should be a factor AGAINST custody. There are many ex spouses who try to argue that a new partner will have a detrimental effect on the kids. This happens more often in the minds of the children before the mind of the court.

Which then goes back to my original point on all things divorce--unreasonable people should have levels of punishment in the court like ordered counseling, fines and changes to custody to share time with both parents!
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Old 02-02-2017, 12:38 PM
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Yes but one could argue that if you are going to allow one party to bring the argument that obtaining a new partner has been so wonderful for the kids and is a material change then you are suggesting that it wasn't so great for them beforehand.
It sounds like in your case that you already had the material change proven and that the new girlfriend and living situation was just further evidence that supported the judge's awarding of 50/50, not necessarily the reason for granting 50/50 in the first place?


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I'm not saying that a new partner or stable, loving family unit is a material change all by itself.

Material changes are not that black and white. I think that it may put one party over the threshold of a material change when combined with other factors, such as "children growing older since last order" = new challenges that affect the parents ability to meet all the needs of the child.

Quote:
you are suggesting that it wasn't so great for them beforehand.
Nope. In fact the caselaw I presented (and my own case), the kids were actually already happy and thriving ... and the judge still granted the father's 50/50.

Material changes don't just happen when children arn't thriving. They can happen when they are also, as my caslaw has pointed out.

Quote:
It sounds like in your case that you already had the material change proven and that the new girlfriend and living situation was just further evidence that supported the judge's awarding of 50/50, not necessarily the reason for granting 50/50 in the first place?
I started 3 hours/week supervised access (due to vicious false allegations and the CC judge having to err on the side of caution)....Material changes were that D5 was getting older and MAXIMUM contact was a huge deciding factor.

D5's relationship with my g/f and step sister really helped my case. The judge stated that this new family unit was a very significant material change in circumstances. I had a stable, loving family life with females that D5 formed great bonds with.

I was never granted 50/509 via an order. After 2 years of requesting mediation my ex finally did (after an SC judge scorned her behaviours). It was in this mediation that her lawyer told her that a) she was running out of Legal Aid money; and b) I would probably get sole custody if it went to trial (and we were on the trial list).

My ex quickly agreed to 50/50 and low and behold....life has been so great ever since. Equal footing just seemed to heal everything. Things couldn't be better.

But to sum up ... a new loving, stable family unit was in fact a material change in my case, which altered my ex's false status quo created through allegations and BS. New partners also served as a material change of circumstance in the caselaw I posted.

So although each case is different, it's not accurate to say it can never play a part.

You said your ex's new g/f cooks, cleans and organizes his life. These are all very positive changes for the children no?
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