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What's in the wording "shall" or "may"

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  • What's in the wording "shall" or "may"

    Looking at the definition of some wording on the agreement in place.

    Interpretation of

    The applicant shall be in direct care of S5 for the duration of each visit unless agreed otherwise.

  • #2
    Shall means MUST. No ifs ands or buts.

    May means they don't have to, but could if they feel like it, and can change their mind at any time.

    S5 MUST (no ifs ands or buts) be under direct care of applicant for the duration of each visit unless the applicants agrees with respondent differently.

    Applicant can't leave child with aunt uncle or babysitter without agreement from respondent. if applicant does then respondent will have to prove. If respondent proves such case then applicant is in contempt.

    why do you have such clause to begin with? Is it a caution or control thing?
    Last edited by trinton; 05-08-2017, 12:31 PM.

    Comment


    • #3
      ^^ What he said. Shall means must.

      However, that clause is likely unenforceable as I would think a judge would find it onerous and unreasonable. What happens when the party goes to the bathroom and leaves the kid with anyone else? They'd technically be in default of the clause.

      Comment


      • #4
        It's a clause that has been in the agreement since day one, never really thought about it until now.

        This year however, applicant wants summer visitation but will actually not be there as the applicant works away from home and screwed up their vacation dates. Informed the respondant after the agreed upon date of April 30 that they had to have certain dates. The Respondant had already made plans for those dates.

        The agreement states that in odd year the Respondant shall have preference and in Even years the Applicant shall have preference.

        This year the Applicant is demanding dates which do not work for the respondant and again " scream contempt". It's a usual rant so we will just ignore that! It's the respondents year to have preference so has offered alternate dates that work this summer. There was some discussion about switching years of preference but past experience has shown that this,is,not a good idea as the applicant usually reneges on any promises

        Applicant has said they are not available except these particular 3 weeks which clash with the plans of the Respondant. So the question was who wouldlook after S5 if you are not there but away for work.

        When asked the reply was. "myob".

        The applicant has a bit of a history of trying to bully their way into getting what they want.

        So just checking on the wording. The dates the Respondant suggest gives the same amount of time.

        So to answer your comment. It's not control it's trying to follow an agreement which The respondent feels that after all the time and effort and money spent on the agreement they should abide by all it's details and not pick and choose. No one is truly completely happy with agreements but you do what you can and do the best you can. Then you live with it.

        Comment


        • #5
          Originally posted by HammerDad View Post
          ^^ What he said. Shall means must.

          However, that clause is likely unenforceable as I would think a judge would find it onerous and unreasonable. What happens when the party goes to the bathroom and leaves the kid with anyone else? They'd technically be in default of the clause.
          Good point. But it's more that the parent will be out of town so is it reasonable to ask who will the child actually spend the 3 weeks with? And also what is the point if the parent is not going to be there?
          Last edited by Beachnana; 05-08-2017, 01:27 PM. Reason: Spelling

          Comment


          • #6
            Originally posted by Beachnana View Post
            So the question was who wouldlook after S5 if you are not there but away for work.

            When asked the reply was. "myob".
            I have to admit, I agree with the reply. During parenting time, the parent with the child makes child care arrangements, and the other parent needs to mind their own business.

            It's not control it's trying to follow an agreement which The respondent feels that after all the time and effort and money spent on the agreement they should abide by all it's details and not pick and choose.
            In other words, it is about control.

            Anyhow, you lose this one. Unless the father leaves the kid alone or with some coked-out meth heads, no judge is going to care about the particular child care arrangements.

            If the arrangements bother you (or your daughter) so much, then let him have his weeks. Of course you are totally in the right, and this was your year to choose first, and he's an unorganized idiot. It is also true that your daughter has made plans.

            Can the plans be changed?

            Legally, you have nothing. However, if you can be flexible, then you can save the day for the child.

            Comment


            • #7
              The child is 5 years old so of course there is concern that he would be left with strangers. Also why have your child visit if you are not going to be there. That's a control thing. - it's my time so I am going to deprive you of that time despite the fact I will not see the child.

              So in this unfortunate stalemate they need to follow the agreement. Hence asking what certain wording meant.

              FYI

              The applicant actually put the original phrase in to prevent the Respondant from going on a work related training course that could have improved career. Over the last 2 rounds of changes the lawyers metophorized it into this vague clause.

              I believe tha Respondant was actually pushing for the applicant to actually take 3 weeks vacation while S5 visits and not palm the child off to strangers as that is more convenient.

              Parenting means the parent needs to physically and mentally be with the child not just have them located in your house like a book you own.

              Comment


              • #8
                I think that clause needs to be deleted and amended. It's going to reach that point sooner or later. These "as the parties can agree" or "unless the parties agree otherwise" clauses are nothing but asking for trouble for separated parents. Judges should know better. I have one in my order and don't even get me started on it - the other parent is in contempt on 4 counts now. Basically what happens is one parent wants A and the other parent wants Z and the parents can't agree on any other letter in the alphabet.

                If respondent get's to pick this year then the applicant is screwed. The applicant could however just hire a nanny and respondent will never know - unless the child says something.
                Last edited by trinton; 05-08-2017, 02:16 PM.

                Comment


                • #9
                  Originally posted by Beachnana View Post
                  The child is 5 years old so of course there is concern that he would be left with strangers.
                  To be clear: You are concerned that a school aged child might be in the care of an adult who is not the parent? Seriously?

                  Also why have your child visit if you are not going to be there.
                  None of your business. This is his parenting time, he can arrange it as he sees fit. Unless he is harming the child, I don't see the problem here. Are the caregivers on drugs? No? Not a problem.

                  That's a control thing. - it's my time so I am going to deprive you of that time despite the fact I will not see the child.
                  I agree, this is a control thing. We disagree slightly on who is being controlling.

                  So in this unfortunate stalemate they need to follow the agreement. Hence asking what certain wording meant.
                  Well, it turns out that the right of first refusal clauses are all almost completely unenforced, therefore you don't need follow the agreement here.

                  Back to my original recommendation: Stop trying to look at the agreement. Find another way to compromise, or accept the fact that his parenting time is his parenting time, and that he is going to parent in a way you don't like.


                  Parenting means the parent needs to physically and mentally be with the child not just have them located in your house like a book you own.
                  Beachana believes that parenting means that a parent needs to be physically and mentally with the child. It does not logically follow that this definition must be accurate.

                  Comment


                  • #10
                    Originally posted by Janus View Post
                    Well, it turns out that the right of first refusal clauses are all almost completely unenforced, therefore you don't need follow the agreement here.
                    Isn't the clause in this order basically the same thing as a first of refusal against the applicant but with a different wording?

                    Comment


                    • #11
                      Originally posted by Beachnana View Post
                      It's a clause that has been in the agreement since day one, never really thought about it until now.



                      This year however, applicant wants summer visitation but will actually not be there as the applicant works away from home and screwed up their vacation dates. Informed the respondant after the agreed upon date of April 30 that they had to have certain dates. The Respondant had already made plans for those dates.



                      The agreement states that in odd year the Respondant shall have preference and in Even years the Applicant shall have preference.



                      This year the Applicant is demanding dates which do not work for the respondant and again " scream contempt". It's a usual rant so we will just ignore that! It's the respondents year to have preference so has offered alternate dates that work this summer. There was some discussion about switching years of preference but past experience has shown that this,is,not a good idea as the applicant usually reneges on any promises



                      Applicant has said they are not available except these particular 3 weeks which clash with the plans of the Respondant. So the question was who wouldlook after S5 if you are not there but away for work.



                      When asked the reply was. "myob".



                      The applicant has a bit of a history of trying to bully their way into getting what they want.



                      So just checking on the wording. The dates the Respondant suggest gives the same amount of time.



                      So to answer your comment. It's not control it's trying to follow an agreement which The respondent feels that after all the time and effort and money spent on the agreement they should abide by all it's details and not pick and choose. No one is truly completely happy with agreements but you do what you can and do the best you can. Then you live with it.


                      So let me get this right... its the Respondents year to pick vacation time first, they have done so but those weeks are the only weeks the applicant has holidays from work so the other times the applicant picked they must work so now the respondent doesn't want the applicant to have any summer vacation time? That seems backwards. A parent doesn't have to be there 100% of the time to parent. What if the respondent made arrangements to be able to see the child? What if they made arrangements for extended family to spend some time with the child? It appears the respondent is trying to suck and blow at the same time. Picked access first but now doesn't want the other parent to have any vacation time?

                      One of two options...

                      1- the applicant gives up some of the vacation time so the respondent can spend some summer time with the child and the applicant picks a different week out of the three chosen

                      2- the applicant keeps the weeks chosen and stops trying to control the respondents parenting time

                      I am sure there are many times the applicant has he child and is not 100% available... school? Sleepovers at friends/family? To me this seems like an unenforceable clause and if it went to court would be removed from the agreement.


                      Sent from my iPhone using Tapatalk

                      Comment


                      • #12
                        I would advise to carefully consider Janus' posts. Janus is bang-on.

                        Comment


                        • #13
                          Everyone's comments are useful and well taken. There is some truth to what Janus said.

                          So update

                          Respondant stood firm on the terms of the agreement and the Applicant miraculously managed to change their vacation!

                          Background.

                          Every time the applicant has made their visitation arrangements which are based on the agreement in place they seemed to want change elements of the agreement,. Time - place - dates - period of time etc. The were the party who actually drew up the terms they wanted and for the most part the Respondant agreed to the arrangement. The Applicants would never entertain a accommodation to the Respondant saying "Unfortunately that's not what the agreement says". So it was time to draw a line in the sand and say " this is the agreement and at this time we are not at a point where we can sway from it in mutually agreement so it is what it is".

                          I think the point has been made. The Respondant is not a push over and demands mutual respect of their home life.

                          And by saying a parent needs to be mentally and physically with their child means the child needs to be in their mind 24/7. A child exists in both worlds in a separated environment. Denying the existence of one location is not having your child in your mind mentally and physically 24/7.

                          Not sure if I am explaining myself very well. I am sure others can word this better.

                          Comment


                          • #14
                            Originally posted by Beachnana View Post
                            The applicant shall be in direct care of S5 for the duration of each visit unless agreed otherwise.
                            What if you change the word "direct" with "ensure"?

                            Comment


                            • #15
                              Originally posted by Canadaguy View Post
                              What if you change the word "direct" with "ensure"?
                              Not making any changes to the agreement. In the end you have to make the best agreement as you can and then live with it.

                              it is what it is.

                              Comment

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