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  • Motion for change

    Well it's official, I submitted my motion for change in access. 1st apperence on Feb 1st. I'll also be asking to go directly to a SC on that Day.

    I'm in the process of completing my brief, I'm looking for case law on a parent who claims to be the primary caregiver, however their work schedule doesn't allow for this.

    Ie; they work shifts and during these can't' care for the children.

    Also the OP has now hired a nanny for the nights she can't be with the children.

    It's in my opinion that it's in the children's best interests to be care for by me (father) rather, than a stranger.

  • #2
    Originally posted by otttawa_dad View Post
    It's in my opinion that it's in the children's best interests to be care for by me (father) rather, than a stranger.
    welcome aboard. we're on the same ship. 2 years and I'm still going at it.

    What is your current schedule like?

    Comment


    • #3
      I currently have A5 and A2.5

      Week 1.
      Monday 4:00 - 7:30
      Wednesday 4:00 - 7:30

      Week 2
      Monday 4:00 - 7:30
      Wednesday 4:00 - 7:30
      Friday - Saturday Sunday until 7:00

      My proposed schedule rotates around her work shift in order to limit the amount of time the children are with 3rd parties.

      Also referenced these following cases in my case brief.

      Similar to the OCL’s recommendations in Izyuk v. Bilousov, 2011 ONSC*6451 (see Tab B at paras. 483-487), the OCL focused on the “status quo” without addressing the unacceptable manner in which it was created.
      The OCL failed to consider the Respondent’s strengths, the Applicant’s weaknesses and the quality of the children’s relationship with each parent.


      Schmidt v. Haley, 2004 CarswellOnt 1149, a copy of which is attached at Tab J, Justice Matheson said:
      I believe that it is in the best interests of the child, whatever the age, that the child has as much access as possible to each parent, as long as there is a fixed routine.* I accept the comments made by Joan B. Kelly and Michael E. Lamb in their article “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children”.* This is found in Family and Conciliation Courts Review, Vol. 38 No. 3, July 2000 297-311 at page 300:

      “The empirical literature also shows that infants and toddlers need regular interaction with both of their parents to foster and maintain their attachments.* Extended separations from either parent are undesirable because they unduly stress developing attachment relationships.* In addition, it is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened.”

      Comment


      • #4
        and at what times are the children with a nanny?

        Comment


        • #5
          So I made a HUGE Mistake

          I completed all the F17C when I should have in fact completed the F17A.

          Luckily not all my work is lost

          Here's my questions... I'm headed to a "Case Conference"

          I'll convert over all my info to the appropriate form 17A.

          Now according to the The Law Society of Upper Canada here's the process

          1 - Review Rule 17 of the Family Law Rules
          CHECK

          2 - Set the date for the case conference
          CHECK

          3- Prepare the documents for the case conference
          • Case Conference brief (Form 17A)(three copies)

          CHECK
          • Include the most up to date Financial Statement (Form 13 or 13.1) or Affidavit (Form 14A)

          DO I NEED THIS? Last time my lawyer filed the CC, there was no Financial
          • StatementAffidavit of Service (Form 6B)

          CHECK

          4 - Serve and file the forms
          Once I figure out if i need the financial....

          5- File a Confirmation form
          Will do on the day I file the Form 17A & Form 6B and maybe the Form 13 or 13.1
          6- Attend at the case conference

          CAN'T WAIT

          Comment


          • #6
            Please note that my motion to change doesn't involve Child Support simply access, based on this; I don't think I need to complete the Financial Statement (Form 13 or 13.1)

            Comment


            • #7
              Originally posted by otttawa_dad View Post
              Please note that my motion to change doesn't involve Child Support simply access, based on this; I don't think I need to complete the Financial Statement (Form 13 or 13.1)
              It's not bad practice to give a financial statement. You've got nothing to hide.

              I would take 3 copies with you just in case. Attach a recent paystub to them.

              Approach the lawyer when you see her in court and mention you weren't sure it was needed but you're giving her a copy just in case.

              Be prepared to tell the judge what you want.

              Sent from my SM-G935F using Tapatalk

              Comment


              • #8
                I was at the courthouse today to make sure i have all the angles covered for next week.

                Turns out I don't have to file the Form 17 Conference Notice - Ontario Court Services, as i'll be requesting the Case conference on the 1st appearance.

                Also I don't have to complete form 13 financial statement as i'm not requesting a motion to change child support.

                I'll have it ready in the event it's requested at the Case Conference.

                I'll keep this thread up to date, Febuary 1st couldn't come quick enough

                Comment


                • #9
                  Good luck!

                  My husband started a motion over 2 years ago. Still going strong. Trial set for June. Going to full trial over asking to start access on Friday evening rather than Saturday afternoon (a very temporary thing written into SA with clear terms of when it was to be changed).

                  Comment


                  • #10
                    Time for a quick update.

                    This week I filled my case conference brief (form 17a), affidavit of service (form 6b) and confirmed my attendance (form 14c).

                    I received an email from the OP lawyer, she was speaking with the trial coordinator to set a date for a combine CC/SC. The proposed dates were far down the road...I think this was a stall tactic.

                    I informed the OP lawyer that I would be requesting to have the matter heard in a CC after the 1st appearance.

                    Couple of quick questions:

                    - can i use my laptop to take notes?
                    - if I have more documentation and information I could use and isn't in my CC should I bring it?
                    - should I refer to the OP as the applicant when speaking? Is it wrong to use her name?
                    - when referring to the children, should I use their names or the children?

                    I intend on taking a quasi "speech" with me to stay on track.

                    Any input/suggestions would be appreciated.

                    Officially 1 week away

                    Comment


                    • #11
                      I think it would be highly inappropriate (and likely not permissible by presiding judge) to use a laptop to take notes. You have to be prepared to discuss your manner in a frank and open manner and "props" won't help you evade direct discussion or questioning. I visualize your face in the laptop, not making eye contact or, worse, you telling everyone to "hang on" while you slowly type things into your computer.... this just wouldn't be conducive to effective problem-solving.

                      I would think that trying to set a CC at the same time as a SC would mean they want to come to a resolution but failing that they want to proceed to discuss trial arrangements. In other words, they have concerns that it is you that would be the one to stall things and they want to move on (to trial if need be).

                      You could perhaps use your brief as an outline for specific topics you would like to focus on. Preparation of a simple outline of the major points in your brief would be helpful? I think it would be useful to remember that the judge will be conducting and directing the conference and you should be prepared (know your material).

                      Go with the attitude that you want to resolve issues and that you are reasonable.

                      Comment


                      • #12
                        Totally agree, thanks for the input

                        Originally posted by arabian View Post
                        I think it would be highly inappropriate (and likely not permissible by presiding judge) to use a laptop to take notes. You have to be prepared to discuss your manner in a frank and open manner and "props" won't help you evade direct discussion or questioning. I visualize your face in the laptop, not making eye contact or, worse, you telling everyone to "hang on" while you slowly type things into your computer.... this just wouldn't be conducive to effective problem-solving.

                        Comment


                        • #13
                          Here's a brief outline of what I want to discuss...

                          Access
                          • The current access schedule is not in the best interest of the children
                          • The applicant is willing to amending the Access schedule on her terms only
                          • Offer to extend Mondays and Wednesday until 8pm
                          • Offer to extend Mondays and Wednesday until 8pm only on days the respondent has access and the applicant works
                          • The current access schedule was based on a recommendation by the (OCL)
                          • The OCL report was drafted when the Application was on Maternity leave
                          • The fact the applicant claimed to be the primary caregiver
                          • A2 was less than 1yr old
                          • False allegations and collaborated efforts (neighbours)
                          • Failed to see the result of the current schedule when the applicant returns to work
                          • Prior to the separation
                          • The respondent and applicant jointly cared for the children
                          • The respondent would care for the children during the application work rotation.
                          • The applicants parents rarely cared for A5 (1 occasion)
                          • The respondent parents would care for the children if needed.
                          • Since the Separation
                          • The applicant, her parents, the respondent, school/daycare and NOW the 3rd party caregiver
                          • Talk about CALENDAR
                          • The current schedule offers no routine for the children and who cares for them
                          • The children are constantly asking the respondent who’s picking them up at the end of the respondent access.
                          • When the applicant is picking up the children the children constantly ask if the grandparents are there.
                          • The school teacher suggested we provided the children with a visual calendar
                          • The applicant schedule is based on shift work 4 x12hrs shifts 2Day Shifts and 2 Night Shifts
                          • The morning of her 1st shift the applicant can no longer care for the children
                          • The children’s routine is from 6:00am (awake) until 7:30-8:00 bed
                          • During these times the applicant is either going to work , at work or coming back
                          • The children are not in her care.
                          • If the respondent has access; parents or caregiver pickup children
                          • This is true for the 1st two day shifts in her rotation
                          • The 3rd day a night shift, the applicant must rest during the day
                          • The children are not in her care.
                          • If the respondent has access; parents or caregiver pickup children


                          Temporary Day Care:
                          • The applicant claims there’s no material change
                          • The applicants parents are no longer a viable resources for care
                          • The applicant hired a temporary caregiver as her parents could no longer provide care
                          • Since being served with the motion Dec 12/2016
                          • The applicant parents are now available to provide care
                          • This is not a feasible solution; the applicant will eventually need help caring for the children again
                          • The temporary caregiver services are still being used
                          • On Jan 1st the applicant asked the respondent to drop off the boys at the end of his access. The applicant was working and the 3rd party caregiver.
                          • On Jan 13th the application called the respondent to inform him A2 has a candy stuck in his nose and was going to CHEO. During the phone conversation the Respondent spoke with A5 who said the 3rd party caregiver was at home
                          • The applicant is now further creating a change by mixing her parents and the 3rd party caregiver
                          • The respondents proposed schedule is in the best interest of the children; allowing them maximum contact with both parents
                          • The proposed schedule is the a viable solution to eliminate the need for 3rd party caregivers
                          • The proposed schedule was in effect prior to the separation
                          • The proposed schedule would benefit the children, the applicant and respondent
                          • The proposed schedule would allow the applicant to spend more “quality” time with the children


                          Denying Access:
                          • The applicant claims value the importance of the respondant in the children's life however;
                          • The applicant fails to acknowledge the respondents request for more access and his abilities to care for the children.
                          • The applicant unilaterally choose to allow 3rd parties to care for the children when she works
                          • The applicant has denied access on multiple occasions; More recently
                          • Jan 20th the repondant finished work early, he contacted the applicant to pick up the children early 3:30 as oppsed to 4:00. The applicant informed the respondent that A2 was sleeping. However the applicant was at work and her parents were caring for the children.
                          • During the Christmas holidays, the respondent asked the applicant if A2 could stay overnight as opposed to the current access schedule which would have been A2 was to return to the applicant at 7:30. Regardless of the fact that the children have not been separated for months. The applicant denied this request. Furthermore on the 2 day of the Xmas schedule
                          • The applicant denies access to the paternal grandparents and limits it to the time the respondent has access.

                          Comment


                          • #14
                            I like your format - not sure about the content though. If this outline is for your own personal use I guess that's ok. However, if you want something that you can slide across the the table to others participating in the discussion you should look to edit it to be less accusatory and more positive.

                            For example, think "child-focused" when you write.

                            Your statement:

                            During the Christmas holidays, the respondent asked the applicant if A2 could stay overnight as opposed to the current access schedule which would have been A2 was to return to the applicant at 7:30. Regardless of the fact that the children have not been separated for months. The applicant denied this request. Furthermore on the 2 day of the Xmas schedule

                            I think you have to keep the accusatory stuff at bay. After all, is this not a settlement conference where the two of you are supposed to find some common ground?

                            Try to find less-combative points which show you are all for resolving problems: "...the following is put forward as a suggestion for resolving issues of access schedule: .........." and so on. I'm not sure if I'm getting my point across. What I'm trying to say is that you might try to at least appear to be trying to be offering SOLUTIONS to issues. From what I've read in child custody litigation, this is a very important thing that judges look to: ability to work out problems... reasonableness of individual parties.

                            Others will have much more relevant input than me I'm sure.
                            Last edited by arabian; 01-27-2017, 11:37 PM.

                            Comment


                            • #15
                              Motion for change

                              Thanks. Was lots of work to format on this site. Thank god im a geek

                              These are my personal notes to make sure I keep on track. They are high level items I pulled from my case brief.

                              Originally posted by arabian View Post
                              I like your format - not sure about the content though. If this outline is for your own personal use I guess that's ok. However, if you want something that you can slide across the the table to others participating in the discussion you should look to edit it to be less accusatory and more positive.
                              I totally agree and this is my concern.

                              I want to be focused on the best interest of the children and resolving in order to help them and her have more time. Currently most of her time is spent working and not caring for the children. Furthermore on days where's she's off. I typically have access.

                              Originally posted by arabian View Post
                              For example, think "child-focused" when you write.

                              Your statement:

                              During the Christmas holidays, the respondent asked the applicant if A2 could stay overnight as opposed to the current access schedule which would have been A2 was to return to the applicant at 7:30. Regardless of the fact that the children have not been separated for months. The applicant denied this request. Furthermore on the 2 day of the Xmas schedule

                              I think you have to keep the accusatory stuff at bay. After all, is this not a settlement conference where the two of you are supposed to find some common ground?

                              Try to find less-combative points which show you are all for resolving problems: "...the following is put forward as a suggestion for resolving issues of access schedule: .........." and so on. I'm not sure if I'm getting my point across. What I'm trying to say is that you might try to at least appear to be trying to be offering SOLUTIONS to issues. From what I've read in child custody litigation, this is a very important thing that judges look to: ability to work out problems... reasonableness of individual parties.

                              That's what I'm shooting for . Keep them coming.
                              Originally posted by arabian View Post
                              Others will have much more relevant input than me I'm sure.





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                              Comment

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