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**logicalvelocity** · 11-16-2006, 12:20 PM

Jlalex,

as you mentioned,

A quick review - we served my common law husbands exwife with papers asking for divorce, primary residence of the child with her, reasonable visitation and access for child and father, set out the amount of child support and that spousal support not be granted. As well, father would pay all section 7 expenses so long as its discussed with him beforehand. And the usual array of stipulations regarding access to childs records etc. They have been seperated over 8 years now. Basically the idea was to just formalize what they have been doing all along on paper work and finally get the divorce over with.

That appears to be a reasonable position depict by you. Status quo is maintained and appears initially as an amicable stance.

She initially said she didn't care about any of it but it would seem she has had a change of heart.

Thats irrelevant. What is important is what their stance is now and on paper.

She now wants sole custody, spousal support, and has big time issues with visitation.

For custody, best interest test will apply with consideration to the status quo living arrangement. Spousal Support means of one party and needs of the other. Mind you 8 years post separation makes it a very weak claim for same. Visitation/access/Contact/ parenting time etc is also subject to the best interest test as it is the right of the child not the parent's.

She seems to be on a rampage of sorts with threats and accusations..going on and on about what a lousy father he is and how the son was traumatized for the year he spent with us ( the only time he had structure and support and discipline when required - he never had any problems here at all, he was just a wonderful sweet funny kid) and is now in counselling, 3 years after living with us.

A typical stance by them to support a sole custody regime of the child is to attack the parent requesting joint custody. Deny the allegations and keep your cool. Smile and be pleasant and do not stoop to their level. At some point or another, they will have to prove the allegations and if they are unable to, their credibility goes out the window. There is a presumption that a starting point for custody adjudications are joint and the onus is on the party contesting same to prove that it is unworkable ie: no communication, no-co-operation etc.

In regards to the visitation it would seem she wants to be able to dictate when father can see son.

General rule of thumb is alternate weekends, shared holidays etc. Anything less then the relationship will perhaps be severed. Is this really the child's best interest for this to occur? I don't think it is.

We have had some concerns about the child living there, but as his mother was ill for most of his first 9 years of life and he expressed a desire to live with her and get to know her ( he basically just visited her on a somewhat regular basis) father decided to let child live there so long as he was being taken care of properly. There have been some issues of late that have surfaced that concerns us greatly and wonder if we shouldn't try for joint custody primary residence with us. Here is a list of a few things..

I see where you are coming from but, you have already brought forth a claim of joint custody with primary residence of the child with the other party. In essence, you have basically endorsed the child to be in her care on a full time basis with your claim and as such you have no concerns on her parenting ability. The Judge will see this as I have picked it out already. Unless new events and circumstances have occurred since the date of your application, and previous events are somewhat irrelevant.

If the other side has yet to file an Answer, you could also amend your pleadings (Application) and re-serve and file to accommodate your subsequents thoughts. See Rule 11 of the Family Law Rules

http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm

RULE 11: AMENDING AN APPLICATION, ANSWER OR REPLY

AMENDING APPLICATION WITHOUT COURT’S PERMISSION

11. (1) An applicant may amend the application without the court’s permission as follows:

1. If no answer has been filed, by serving and filing an amended application in the manner set out in rule 8 (starting a case).

2. If an answer has been filed, by serving and filing an amended application in the manner set out in rule 8 and also filing the consent of all parties to the amendment. O. Reg. 114/99, r. 11 (1).

If the other side has served and filed an answer and will not consent to a amendment, you will have to bring forth a motion for same if this is a direction you would like to go.

AMENDING APPLICATION OR ANSWER WITH COURT’S PERMISSION

(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. O. Reg. 114/99, r. 11 (3).

A recent authority of this rule comes to mind

Stefureak V. Chambers
before the honorable Quin J.
http://www.canlii.org/on/cas/onsc/20...onsc13850.html

summary

CIVIL PROCEDURE — Pleadings — Amendment — Grounds for allowing or refusing amendment — Amendment as last-ditch tactic — Court dismissed objection that proposed amendment was desperate measure, intended solely to shore up failing defence — Litigation equivalent of “Hail Mary” pass in football that might turn certain loss into unexpected win is perfectly legitimate objective of amendment to pleading.

CIVIL PROCEDURE — Pleadings — Amendment — Grounds for allowing or refusing amendment — General — By themselves, following factors are irrelevant in exercise of court’s discretion:

whether amendment is prompted by change in case or is mere afterthought, so long as requirements of subrule 11(3) of Family Law Rules are met;

that request for amendment comes as surprise to other party unless surprise creates disadvantage that cannot be offset by costs or adjournment or both;

that amendment raises new issue;

that granting amendment would be unfair to party unless costs or an adjournment or both could not cure that unfairness;

truth of alleged facts in proposed amendment (unless clearly absurd), so long as possibility exists that allegations can be proven.

On other hand, following factors are legitimate considerations:

whether proposed amendment is motivated by bad faith;

whether proposed amendment might add to length or expense of trial.

"Bad Faith" in the legal sense is defined here

bad faith
1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. Most states recognize what is called "implied covenant of good faith and fair dealing" which is breached by acts of bad faith, for which a lawsuit may be brought (filed) for the breach (just as one might sue for breach of contract). The question of bad faith may be raised as a defense to a suit on a contract. 2) adj. when there is bad faith then a transaction is called a "bad faith" contract or "bad faith" offer.

http://dictionary.law.com/default2.a...3&submit1.y=11

continued

**logicalvelocity** · 11-16-2006, 12:21 PM

from previous

In regards to your concerns

CAS was called in by paramedics when she was transported to hospital due to the condition of the home ( she has diabetes but often does not manage it very well and has a history of ending up in hospital, though she made great improvements once the son came to live with us and not her parents) CAS did a home visit and by that time the place was tidy so it wnet no further

It appears on the face of it that the CAS has opened and subsequently closed their file. It is somewhat irrelevent at this point in time.

when she was transported to hospital we were not made aware, and after repeated attempts to reach child at his home we found out that he was staying with a friend of the mothers

You should of been made aware of the circumstance when the event occurred. A friend of the mother's is no substitute for a biological parent.

after getting copies of his school records he has missed a ridiculous amount of school..averaging around 30 days absent each year he has resided with the mother..although we asked each term for report cards she kept 'forgetting' and would just tell us his marks over the phone

That is unacceptable. Secrecy festers over time. By default of the law regardless of what custody regime is in place, the law provides that BOTH parents are equally entitled to information bearing on the health, welfare and education of the child. If one parent is impeding or barring this information, their conduct does question their ability to parent the child effectively. 30 days absent from school is a significant amount of time to miss from school. If you factor in PD days and holidays, the child attends 4 out of 5 days a week.

- he has gotten in a lot of trouble at school for fighting, swearing, and even vandalizing the boys bathroom on one occasion
- she has a lot of trouble discipling the son, often calling us and asking advice, which she won't follow or won't follow through with

That is worthwhile to mention. It appears the child may have problems and one has to wonder what steps the other parent has taken to correct same.

- when she gets on the phone with father she starts screaming and yelling accusing him of just about everything, in the presence of the child and has also done this in public on a couple of occasions

That is unacceptable conduct and in my eyes is child abuse in itself. I elaborated further on this in your other post. Record these conversations and intrusive moments.

- when she does get angry and a visitation weekend is upcoming she tries to cancel it and then flips back and forth whether she'll 'let' it happen or not, which is a real pain because we live 400kms away. A long way to go to leave empty handed.

Start making all requests in writing to create a paper trail. If you show up after driving 400 KM's, and have it in writing without proper notice, at the very least you should get reimbursed your travel expenses incurred for such a trip. Moreover, by having everything in writing, documents the events as they occur. If this is happening regularly, it somewhat suggests that they may be vindictive.

She has clearly stated that it 'will never be over' and 'she will get everything she wants'.

They are having a difficult time to come up with 1500 retainer. It costs money to litigate and if one party is acting in bad faith, a court may order costs of unnecessary litigation.

Any advice on how we may want to proceed from this point on? Also we are pretty much unwilling to negotiate on most everything, we might be willing to tweak the visitation but its your standard splitting of major holidays and the rest to be determined by both parents at the beginning of each year. Father is completley unwilling to give on the spousal support..anything she gets will just be taken off her disability payments anyways so she won't be any further ahead financially.

If it was me I would Amend the pleadings to include a claim for sole custody and subsequently failing that joint custody parallel parenting. As in the authority I mentioned, Stefureak v. Chambers the ramifications of Kaplanis may have a significant impact on your stance.

It is somewhat surprising that you mentioned that they are receiving disability payments. If this is ODSP, by default they are automatically covered by legal aid, for legal representation. All income ordered would be deducted from the benefit received from ODSP. If an amount is given without an order, it is considered a gift and won't effect eligibility to continue receiving ODSP.

Are we able to 'fast track' this trial or are we going to have to go through some period of negotiations??

Certain steps have to occur before trial

documents are served and filed by both parties such as Application, Answer, Reply, and Financial Statements. A first case conference is held. Briefs are served and filed. Financial documents are served and filed. A Judge may issue procedural orders such as a request of the office of the children's lawyer involved in the matter, disclosure or may order how the case should proceed, subsequent case conference or motion etc. A settlement/ trail management conference may occur or matters may be somewhat settled by way of motion. It varies on the case and the issues.

lv

**jlalex** · 11-17-2006, 09:07 AM

Thanks LV, today we are 'holding our breath' so to speak. Our lawyer granted conset but the answer was to be filed by no later than end of business day today..and we have yet to hear anything. We are seriously thinking about having the Childrens Lawyer get involved, we want to make sure we do the right thing by their son. For now we just wait and see!

Thanks again, it helps tremendously to have someone sift through the muck and make sense of it all..

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