Supporting Case Law

[Serene]

Hoping to get some help on this as we are headed to trial this week and spinning our wheels given the timelines. We need to find some case law that will help support our case. I will give you some context for those who are willing to assist us:

The parents have joint custody. Mom tried to change to sole custody but has recently agreed to maintain joint custody. However, we still need to dispense with her consent on many things as she has not respected the joint custody provision on the SA (note you cannot hold someone in contempt of court for not following a SA) as she has refused (directed physicians specifically to not provide dad medical information about the children) to allow dad information about the children. So in a nutshell, the parents have joint custody but mom is interferring with dad's ability to fully participate in the children's lives.

We also need case law that supports best interests of the children as it pertains to changing access provisions. The current access in the SA is:

• EOW (Friday until Sunday night)
• Every week one overnight (after school to school the next morning)
• Every week one "dinner visit" (after school to 8:00 p.m)
• All holidays, stats, civics are supposed to be shared equally

The issue is mom is planning our time with the children and then shows up at the events that she plans. Mom is an HCP and has been abusive verbally and in written communications. There is conflict whenever mom is around, she takes pics of dad and his family, says rude and abusive things, and causes anxiety in all who are present including the children.

We are merely looking to extend the Sunday night to the Monday morning to school and the "dinner visit" to the next morning at school. We believe this is in the best interests of the children as it reduces their exposure to conflict and makes for more natural time with father. Natural meaning, they can get settled into dad's home and participate fully in family traditions and routines as opposed to getting dressed only to go back to mom's to go to bed. There simply is too much back and forth and every transition back to mom's is a potential for conflict (and has been for many years).

Can anyone help by providing links for case law? We are self rep'd.

[arabian]

Hi Serene

I did some checking through CanLII and what it seems to me (my uninformed and certainly inexperienced view) was that you are requesting to go to 4 nights and the mother 3 nights and it would be construed that you are therefore requesting an increase which would put you over 50%.

(Edit that - I see you are EOW so you are simply requesting change/increase in access?)

I have read that depending upon the ages of the children, their views could be considered via independent psychologist report.

[Serene]

The children are not witnesses at trial. Nor would it be appropriate given the conflict in the case (meaning we already have CAS and other reports that state that the conflict is affecting the children).

Basically the change we are seeking is to extend the EOW access from 8 pm until morning and the shorter "dinner visit" from 8:00 pm to next morning. This would make for 50/50 access for each parent (Mom would have EOW and two school nights each week, as would dad).

To note: We are already over the 40% access threshold but pay full (and substantial) guideline CS.

I think what we need to show is WHY this IS in the best interests of the children. So we need case law to this affect.

[arabian]

Jajal v. Agrawal, 2013 ONSC 2505 (CanLII)

^one of the first ones I've come across for Ontario. I'll keep looking as I believe this request is likely quite common.

CanLii, Ontario, Superior Court of Justice

Simply type in "change of access best interest of child" at the top and many cases come up. "extending uninterrupted access best interest of child" brings up many cases. Do not limit your search to just Ontario. B.C. have many cases.

I believe there are some "nuggets" in this case:

PCP v LCP, 2013 ONSC 2564 (CanLII)

[Rioe]

The ex no doubt perceives it as moving from low access and paying full CS to equal access and using offset CS, hence the court battle. Even though you don't view it that way, I would also search for cases which are about moving from table to offset CS. This is where you will find arguments to counter hers as well as supporting yours.

[FWB]

@Serene......

So refresh memory here...you are the new spouse to the dad of the kids?

Anyway.....here is the direction and stance you should be taking and make sure this is part of your argument:

<!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning/> <w:ValidateAgainstSchemas/> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables/> <w:SnapToGridInCell/> <w:WrapTextWithPunct/> <w:UseAsianBreakRules/> <wontGrowAutofit/> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--> The de-facto assumption upon a relationship breakdown is JOINT legal custody and shared 50-50 access. In addition, joint custody will continue to allow both parents to share equal responsibilities in the care of xyz and helps facilitate a proper bond between xyz and both parents. Case Law: Easton V. McAvoy, Supra (Status Quo)


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Ans...... since it is one of the main factors considered in any custody case, parents who more fully understand what "best interests" refer to will go into a child custody or visitation proceeding better prepared.


In general, use of the phrase "best interests of the child" usually refer to:

• A determination used by the court to decide who is the best person to care for a child

• A determination of a child's needs and who is the best person to meet the child's needs

• A determination of how much it may cost to care for a child

• Any extenuating circumstances that can affect a child's welfare and well-being

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Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. Ryan v. Scott (supra)

On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered. Moyer v. Douglas (supra) Hajkova v. Romany 2011 Carswell 3237 (SCJ); Scervino v. Scervino (supra).

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[Serene]

The ex no doubt perceives it as moving from low access and paying full CS to equal access and using offset CS, hence the court battle. Even though you don't view it that way, I would also search for cases which are about moving from table to offset CS. This is where you will find arguments to counter hers as well as supporting yours.

Not sure how it could be construed as low access to begin with. Moreover, our offers to settle, and there are many, have us paying MORE than guideline amount between CS and all the additional costs we pay for (which would never be construed as extraordinary given the amount of CS paid)...

...but you are likely right lol

[Serene]

So refresh memory here...you are the new spouse to the dad of the kids?

Yes I am new spouse of dad.

Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. Ryan v. Scott (supra)

We have never sought sole custody, we really want both parents to participate fully in the children's lives. In layman's terms, if mom plays fairly, then this should not be an issue. They have always had joint custody. Dad just doesn't get to play his joint custodial role because mom creates obstacles that prevent him from doing so.

Any extenuating circumstances that can affect a child's welfare and well-being

The conflict created by the mother is an extenuating circumstance that affect the children's welfare.

On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered. Moyer v. Douglas (supra) Hajkova v. Romany 2011 Carswell 3237 (SCJ); Scervino v. Scervino (supra).

This would not be appropriate as information isn't even shared from mom to dad. And further, we do not feel she can be selfless in her decision making abilities. But this is moot, joint custody is no longer an issue on the table.

Thank you for your post. We are anxious with trial to start in 3 days and us being self rep'd.

[arabian]

You might have addressed this in previous posts, but regarding the mother's uncooperative nature, have you considered requesting a parenting coordinator? I've read in cases where the parents can't get along that the judge requests this.

[Links17]

First, you need to show a material change in circumstance to reopen a custody issue.

What is that change?

Can you prove it? Specific incident notes showing the mother is causing tension and sabotaging the relation ship.

Once you succeed on that level then you go to level 2.

What is it you want? Then the age-old quest is it in the best interests of the kids. Since you have a status quo you can compare to what you already have.

[Serene]

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First, you need to show a material change in circumstance to reopen a custody issue.

Many material change in circumstances: one child began school full time, moving of both mom and dad into new homes and with new partners, birth of (step) children in each home, needs of children have changed, mom started working (no longer can take kids to appointments etc., which isn't a problem at all as we do all apps now, but it is a material change in circumstance).

What is that change?

See above

Can you prove it? Specific incident notes showing the mother is causing tension and sabotaging the relation ship.

Ah yes we can! Mom puts EVERYTHING into emails! Evan CAS has cited these emails and mom's conduct in reports.

Once you succeed on that level then you go to level 2.

What is it you want? Then the age-old quest is it in the best interests of the kids. Since you have a status quo you can compare to what you already have.

We want unfettered access that provides a normal family dynamic. Going home to go to bed at mom's house only to get back up and come back to dad's the very next day (sometimes morning) doesn't make a whole lot of sense....

[Serene]

You might have addressed this in previous posts, but regarding the mother's uncooperative nature, have you considered requesting a parenting coordinator? I've read in cases where the parents can't get along that the judge requests this.

FYI is a form of mediation and arbitration. If the PC cannot get the parties to mediate they will arbitrate. However, they will only work on very small/minor issues. Furthermore, there are intake processes for this type of service to determine if there are any power imbalances or abuse. If so, the PC will not accept you.

Having already been through mediation and the intake processes we know this: we are not good candidates for mediation and were actually told because of the abuse and power imbalance we could not do mediation (abuse and power imbalance from mom towards us). We pleaded with the mediator to be allowed to attempt mediation, we thought it couldn't get any worse. Mediation proved to be unsuccessful. That is all I can say about that.

A PC is a wonderful idea, but we have already attempted mediation and I would think the issues at hand are too big for a PC to work through (per their mandate). Of course, there is always the issue of mom's availability, which is nil or next to nil - she simply can't find the time in her schedule to do most things, like attend doctor's appointments, etc.

All that to say, WE are cooperative and are solution oriented. It took mom 6 months to even find the time to call the children's counsellor to introduce herself... we aren't willing to wait 6 or more months for a PC to work with mom, if she even agreed. Trial is this week, it will have to do

[arabian]

Thank you for expanding on parenting coordinators. Your situation must be extremely frustrating and hopefully the court will provide some improvement to current situation.

Abuse and power imbalance is interesting. Power being her being the custodial parent and not cooperating by providing medical information in a timely manner?

How specifically would you show abuse? I'd be very careful about throwing this expression around as "abuse" in the legal sense means depriving children of necessities of life would it not? Or are your referring to 'abuse' as the manner in which she treats you?

I'm not trying to be difficult, but rather attempting to help by making sure you walk through your argument carefully.

[Serene]

Thank you for expanding on parenting coordinators. Your situation must be extremely frustrating and hopefully the court will provide some improvement to current situation.

We have exhausted all other avenues.

Abuse and power imbalance is interesting. Power being her being the custodial parent and not cooperating by providing medical information in a timely manner?

Both parents are custodial parents under the definition of the law by virtue of joint custody. Mom does not cooperate in most any way. The issue of medical information is that she intentionally denied the release of medical information about a child despite a SA that clearly states both parents are to have access to medical info...we had to write to the Privacy Commission for them to advise the physician that he was obligated to release the information. It took 7 months for that to happen. Now that we have the medical information, we can easily see why mom didn't want us to have access to it.

Abuse and impower balance were words the mediator used with us after our paper and phone call intake (those two steps took upwards of three hours and the same process was carried out with mom). While every word has a meaning, and words have specific meanings in different places (court for instance) those are the words the mediator used in talking with us and describing our situation with mom.

How specifically would you show abuse? I'd be very careful about throwing this expression around as "abuse" in the legal sense means depriving children of necessities of life would it not? Or are your referring to 'abuse' as the manner in which she treats you?

Mom is abusive in her communications and behaviours towards us. Again, this is fact. Most of her communications are in writing and it is therefore very easy to provide evidence to this affect. We also have written reports from outside and reputable agencies that can assist us in this regard (Children's Aid, etc.).

I'm not trying to be difficult, but rather attempting to help by making sure you walk through your argument carefully.