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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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  #11 (permalink)  
Old 05-16-2006, 09:19 PM
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Courts generally prefer to see a continuation of what the kids have normally been exposed to in the way of care as a starting point.
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Old 05-16-2006, 10:17 PM
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Sasha,

I am a child centered individual. I admit up until last month I did pay an offset cs amount, however due to no fault of her own, my son's mother recently became unemployed. In my eyes, it is very important that she is able to provide a similar equivalent home for our child. I am paying the full cs now, no questions asked. I also know that if I was in the same predicament, my son's mother would do the same. I do care about my child very much, and if his mother doesn't do well, then it is going to effect him.


Motives for a shared custodial regime

Both parents are able to retain a strong positive parenting role in their children's lives, with the children actually spending substantial amounts of time living with each parent. It keeps children on the same footing as with intact families. Moreover, it allows the child through their respective parent to maintain a strong positive relationship with the particular parent's extended family.

Many children decline to 'choose' which parent to live with after family breakdown, and express dissatisfaction with the artificiality of traditional contact arrangements which often relegate one parent to the role of a distant and infrequent visitor.

Shared parenting offers the children the opportunity to build up and maintain meaningful relationships with both their parents.

It ensures continuation of family life for the child, with the advantage of nurture and meaningful and lasting relationships with both parents rather than just one.

It reassures children that they have two parents, and although they live in separate places, the children definitely have a home with each of them.

It ensures that one parent is not unfairly burdened with the responsibility of discipline while the other becomes merely the fun or contact parent.

It dispels the notion that only one parent is "caring" and that the other is "errant" or "absent".

It places both parents on an equal footing with schools, doctors and the world at large - who might otherwise only want to deal with the residential parent.

It confirms that no matter what, each parent wants to, and is able to, provide a home for their child.

It reassures the child that in the event of one parent dying they still has a home and another parent to go to.

It reassures the child that they have two parents, and although they live in separate places, they definitely have a home with both of them.

It affirms the parents in their belief that they both have an ongoing role in their child's life. (Physiological advantage)

It dispels the "win" lose "model" language that often that is associated with "sole custody" and "access."

I don't buy the stance, "as a motive to obtaining a reduction in child support." The same could be said to a parent that wants sole custody, they only want custody to receive full child support. If a child is spending equal amounts of time with both parent's, both parent's are going to incur significant costs.

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Old 05-16-2006, 10:22 PM
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Default Why sole custody?

What are the advantages of a sole custody regime?

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Old 05-16-2006, 10:29 PM
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This so true, at the same time creates a serious disadvantage to most children who should have the father remain in thier life in a proper manner. I don't think anyone could disagree that every second week-end with your child allows one to be a parent, I call that a frequent visitor.

So it's easy to see why the term is disliked by some, it's a matter of interpretation.
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Old 05-16-2006, 11:10 PM
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In Mol v. Mol, 40 O.T.C. 1, [1997] O.J. No. 4060,

an early pioneer case since kruger on parallel parenting 1997

before Kruzick J.

Paragraph 24

24 It is indeed unfortunate that the legislation, our case law and even our popular language is couched with traditional custody terms which imply possession and restraint. After separation and divorce, parents need to get on with their lives and the business of continuing to parent. As a result, within the submissions before me, I have made an effort in this decision to maintain their roles as parents to the extent possible given the facts of this case.

Paragraph 30

30 The court is also obliged to give effect to the principle that a child of a marriage should have as much contact with each parent as is consistent with the best interests of the child and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Divorce Act, R.S.C. 1985, c.3 (2nd suppl) section 16(10). These children are fortunate to have a loving mother and a loving father. My order must, therefore, sustain the children's contact with each of them.

Paragraph 31

31 In a strong dissent in Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.), Wilson J.A. (as she then was) reviewed various forms of custody/access orders which might be characterized as joint custody orders and said at p. 72:

The appropriate option in any given case will be the one which best serves the needs of the child or children. Our courts have traditionally awarded sole custody to one parent and access to the other ... however, custody may be awarded to one parent with care and control in the other and access to the custodial parent: see Huber v. Huber (1975), 18 R.F.L. 378 (Sask. Q.B.). This form is sometimes used where custody to the father seems to best serve the long-term interests of the child but its shorter term interests requires that it be with its mother because of its age. Another option is an award of joint custody to the parents with care and control in one of them and access in the other: see Parker v. Parker (1975), 20 R.F.L. 232 (Man. C.A.); Field v. Field (1978), 6 R.F.L. 278 (Ont. H.C.).

This type of order preserves the participation of both parents in the important decisions affecting the child. Another type of order is the order for divided custody where one parent has custody for some period of the year with access to the other during that period and the positions of the parents with respect to custody/access reversed for the balance of the years: see Buchko v. Buchko (1973), 11 R.F.L. 252 (Sask. Q.B.). This type of order is sometimes used where the parents are residing in different jurisdictions.

These developments and the approach of the courts to custody matters all reflect a new awareness that in the mind of a child, authority and love are inter-related and that the transformation of the mother or father into a 'visitor' is a traumatic experience for the child frequently attended by feelings of rejection and guilt. In many cases it is wholly unnecessary ... It is in this social media that more imaginative, and if I may say so, more humane custody orders find their place. And what if occasional resort has to be made to the courts when the parents cannot agree on the major matter affecting the child? It seems to me to be a modest price to pay in order to preserve a child's confidence and the love of his parents and with it, his own sense of security and self-esteem.

In my view, it is the responsibility of the court on a custody matter to assess, preferably with professional assistance, the ability of the parents to co-operate in the upbringing of their children and in the light of that assessment, to choose from a range of options open to it, the one which will best serve the children's short and long-term interests. This is of paramount importance in a case where the trial judge finds that both parents exhibit sterling qualities and that the relationship between the parents and children discloses a high degree of love and affection on both sides.

Paragraph 32

32 The view of the Ontario Court of Appeal in the Kruger decision against extensive involvement of both parents has been accepted in some cases. However, there is significant support in the case law for the granting of joint custodial orders. When it comes to custody, each case must be assessed on its own unique facts and circumstances. In my assessment of these parents, if the children's best interests are to be truly served. I must make an order of joint custody.

Paragraph 33

33 In this case, I am satisfied that a joint custodial arrangement is workable. On my review of the facts before me, I find support for this approach in my review of the following cases where joint custody was ordered:

Silver v. Silver (1979), 35 N.S.R. (2d) 88 (N.S. T.D.); Groom v. Groom (1979), 10 R.F.L. (2d) 257 (P.E.I. S.C.); Berard v. Berard (1979), 10 R.F.L. (2d) 371 (B.C. S.C.); McCabe v. McCabe (1979), 11 R.F.L. (2d) 260 (P.E.I. S.C.); Gee v. Gee (1979), 13 R.F.L. (2d) 31 (Ont. H.C.); Charlton v. Charlton (1980), 15 R.F.L. (2d) 220 (B.C. S.C.); Parsons v. Parsons (1985), 55 Nfld. & P.E.I.R. 226 (Nfld. T.D.); Kamimura v. Squibb (1988), 13 R.F.L. (3d) 31 (B.C. S.C.): Nurmi v. Nurmi (1988), 16 R.F.L. (3d) 201 (Ont. U.F.C.); Heyman v. Heyman (1990), 24 R.F.L. (3d) 402 (B.C. S.C.); Hines v. Hines (1992), 40 R.F.L. (3d) 274 (N.S. T.D.); Miller v. Miller (1974), 17 R.F.L. 92 (Man. C.A.); Parker v. Parker (1975), 20 R.F.L. 232 (Man. C.A.); Fontaine v. Fontaine (1980), 18 R.F.L. (2d) 235 (Man. C.A.); Sichmann v. Sichmann (1988), 15 R.F.L. (3d) 307 (Alta. Q.B.).

Paragraph 34

34 In the case before me, Susan expressed unwillingness to consider a joint custody arrangement. Notwithstanding what I can only describe as her hostility toward Ian. I must consider the best interests of these children. On the facts before me. I find that Susan's attitude and resistance is not justified. For the sake of her children and her relationship with them, she must be less rigid.

Paragraph 35

35 I am supported in my approach by the decision in Abbott v. Taylor (1986), 2 R.F.L. (3d) 163 (Man. C.A.) where Twaddle J.A. makes the following comments (at p. 171):

I would add, also as a matter of common sense, that the mere expression by one or both parents of an unwillingness to share custody should not preclude an order of joint custody if the court considers such unwillingness to be the manifestation of temporary personal hostility engendered by the trauma of a recent separation.

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Old 05-16-2006, 11:49 PM
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Just like to jump in here.

In the beginning Primary Caregiver had me upset, in a shared custody 50/50 can the agreement not state that while under the care of said spouse, they are to be considered primary caregiver?

Why the fuss about a 'title' ... what impact or relevance does it carry?

Hubby
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Old 05-17-2006, 12:25 AM
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hubby,

yes indeed. A parallel parenting regime (a form of joint custody) is often held if it is determined to be in the child's best interest. Even in light of no co-operation and communication between the parents.

Quote:
In the beginning Primary Caregiver had me upset, in a shared custody 50/50 can the agreement not state that while under the care of said spouse, they are to be considered primary caregiver?
Kaemmle v. Jewson, 1993, 50 R.F.L. (3d) 70

Paragraph 3 - 13

Joint Custody


3 The concept of joint custody is a recent one. Historically, Ontario courts regarded joint custody as an exceptional disposition, reserved for a limited category of separated parents. Joint custody was not to be awarded unless the parents were able and willing to co-operate with respect to the child: Baker v. Baker (1979), 23 O.R. (2d) 391, 8 R.F.L. (2d) 236, and Kruger v. Kruger (1979), 25 O.R. (2d) 673, 11 R.F.L. (2d) 52, both decisions of the Ontario Court of Appeal. Taken to its logical conclusion, what the Court of Appeal was saying was that unless the parties agreed, there could be no joint custody. If agreement was a condition of joint custody, it logically followed that no court could ever make an order for joint custody in a disputed custody case.

4 In Lewis v. Lewis (1989), 18 R.F.L. (3d) 97 (Ont. Dist. Ct.), I expressed the view that this view has been implicitly overridden by subsequent legislative enactments. For example, section 16(4) of the Divorce Act provides:

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

5 Section 20(1) and (3) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, in less specific language, provides:

(1) Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of the child.

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibility of a child on behalf of them in respect of the child.

6 In Lewis, I viewed these new provisions as instructing the courts to no longer regard joint custody orders as exceptional circumstances which are rarely, if ever, present in cases of disputed custody. I con cluded that if the old law was to prevail, then the new provisions had been enacted in vain.

7 If I am correct that joint custody is no longer to be limited to exceptional circumstances, then it may be necessary to re-examine the court's understanding of the nature of a joint custody order. Traditionally, the courts have considered that a joint custody order must involve mutual and overlapping rights and duties by the joint custodians. I have some difficulty in understanding why that approach has been considered to be essential to a joint custody regime. There are two aspects to a joint custody order -- one is legal custody, the other is physical custody. Although the courts have recognized that there can be divided custody between the parents when determining the aspect of physical custody, there has persisted the view that legal custody must be undivided in a joint custody order. Surely, the concept of joint custody can be a shifting one. When the child is under the care and control of a particular parent pursuant to the joint custody order, why cannot that parent have exclusive legal as well as physical custody, care, and control of that child for the duration of the period specified in the order?

8 I see no logical or historical reason for insisting that a joint custody order must mean that the legal rights of both parents must co-exist at the same time. When a sole custody order is made, legal and physical custody, care, and control are awarded to one parent and access to the other. If access is specified, then the access parent is entitled to see the child during the access period. Such access periods are often described as visitation rights -- the parent has the right to see his or her child and no more. The custodial parent has the exclusive legal right to make decisions for the child pertaining to such matters as schooling, religion, medical or dental treatment, etc. The access parent has no rights in these matters and must rely on the co-operation of the custodial parent to provide information about what decisions have been made for the child.

9 On the other hand, the usual practice in a joint custody order is to define the time when the child will be under the care and control of each custodial parent. Whether the word custody or access is used to describe when the child shall be with one parent or the other is not, in my view, determinative of the legal relationship of the particular joint custodial parent vis-├â┬*-vis the child. The legal rights of that parent will depend upon when the child is required to be under his or her care and control. Thus, if the joint custody order specifies that the child is required to reside with the mother during the school week, then the mother has the exclusive legal right to determine what school the child will attend. Similarly, if the order specifies that the child is required to be with his father on weekends, then the father will have the exclusive legal right to make decisions involving events that occur while the child is in his care and control, such as what religious training the child will receive. If the child requires medical treatment, then the parent under whose care and control the child is at the time will have the legal responsibility to ensure that the child receives the appropriate treatment. Although that would give the parent the right to choose the doctor, the courts must assume that he or she will take the child to the usual family doctor who is familiar with the child's history. Deliberately ignoring that common sense approach will demonstrate that he or she is not a suitable parent to have custody.

10 In the Lewis case, I expressed my views as to the advantages of a joint custody order. One of the common complaints of the access parent in a sole custody regime is that the custodial parent will announce at the last minute that a particular access visit conflicts with other plans made for the child, such as a family visit or a sport activity, and unilaterally decide that the access parent must accept another time "to visit" under the threat of not seeing the child at all. Another is that the access parent will be told that if the child is not returned exactly on time after an access visit, future access will be "cut off." The threat of being "cut off" access is occasionally levelled at the parent who may be late in making support payments. In such instance, access parents often feel frustrated in their attempts to develop a relationship with their own child. They regard themselves as strangers, on the outside looking in. Resentment may be directed at the courts, which they may feel are the accomplices of the custodial parent, telling them when and where they can see their own child. Often an access parent will give up in frustration, taking on a more limited role in the life of his or her child, with the resulting loss to the child of the opportunity of developing a relationship with that parent. It is perfectly understandable that a parent, who may have played an important role in the rearing of his or her child, will feel frustrated if the custodial parent is now dictating the terms of access under the constant threat of a contempt application if a term is breached.

11 A joint custody order, on the other hand, has the psychological advantage of allowing parents to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future. Joint custodial parents may be prepared to accept that they cannot determine what school their child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues, such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church, and visiting the doctor.

12 I cannot agree with the suggestion that a sole custody order which entrusts all legal decision making in the hands of one parent will necessarily minimize the conflict between them. Parents who declare war on one another will continue to battle whatever order the court makes. I view the role of the court in custody matters as one of attempting to balance the competing interests of suitable parents, remembering that, above all, the best interests of the child are paramount. But it must be remembered that often what is in the best interests of the child is to know that both parents are interested in playing an important and possibly equal role in his or her life.

13 This is not to suggest that there may not be conflicting legal duties and responsibilities in a joint custody regime that will have to be resolved occasionally by the courts. In my experience, these problems are far outweighed by the frequent applications that are made to the court in those instances where sole custody has been granted. Joint custody orders are more apt to encourage the parents to co-operate than sole custody orders. In my view, the philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operate fully in every aspect of child rearing only encourages parents to refuse to co-operate so that they can pursue a sole custody order.

LV
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Old 05-17-2006, 11:44 AM
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this works only in rare cases In my opinon. I was wondering why my ex was all of a sudden not cancelling and taking our child places - this was a problem during the marriage. Let's face it people frequently don't put others before themselves and the children usually suffer because they have no voice. My ex is using our child, this has always been his behaviour to get something from myself or my family. All I see is a long road of conflict with joint custody in my case, which has already begun - how can I parent in this environment because it goes against my nature to see my child hurt, confused, low confidence? Children are not as adaptable as people think and shouldn't be considered "theirs". I've been told time and time again that I would be awarded full custody (which is basically what it was all these years) but if joint custody comes into it - it wouldn't be good for my darling - which is why I'm considering giving up custody - perhaps the less conflict would be best because right now my child is hurting. not saying it's breaking me but I'm suppose to be the adult and my needs are not as important.

does this make any sense?
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Old 05-17-2006, 12:11 PM
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Hi 2hopefull:

How would you resolve these issues if they existed in a functional marriage?
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Old 05-17-2006, 01:35 PM
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how would you describe functional marriage? I wasn't in one
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