Announcement

Collapse
No announcement yet.

Threatened with sole custody application

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Threatened with sole custody application

    My stbx has just threatened seek full custody of my 5 and 6 year old girls claiming that I am being uncooperative and unwilling to work together. Last week I had to attend a case conference where no decision was made when she attempted to reduce my access to my daughters to EOW and alternating Wednesdays. We currently have joint shared custody. Without boring everyone with details, I don't feel that I am being uncooperative; I am just not giving in to her demands.
    How should I respond to her most recent threat?

  • #2
    Stick to the letter of your order. Pay your support on time and in full. Focus on being the best parent you can be and document document document.

    Unless something involves the children's medical, educational or religious issues, ignore the ex's crap.

    Keep all communication to a minimum, written format is best (ie email)

    How long has the joint/shared custody thing been in effect? What are her demands?

    You can't coparent with stupid. You can't force someone to coparent with you.
    There is such a thing as PARALLEL PARENTING, it may be applicable in your situation.

    Comment


    • #3
      To quote Thomas Paine:

      "To continue to argue with a person who has renounced the use of reason is like administering medicine to the dead."

      I'm in a similar, but different situation.

      I had 50/50, even had a signed document saying we would have shared legal and physical custody of our three kids, but no in writing custody agreement. After she found out I was seeing someone else, 8 days later I was suddenly threatening and abusive, and my kids were gone to women's shelter with my ex. I had to fight to get a crappy EOW arrangement in a temporary order, and am now waiting on the OCL clinical investigator to do her thing. I have asked through my lawyer to negotiate more time, but she has staunchly refused and continues to play the victim.

      The key is that unless she can substantiate why it's in the children's best interest for her to have sole custody, there is no reason the court to grant it. Be reasonable with your ex to a fault, and document everything she throws back at you. Try to do most of your communication over email so words can't be twisted.

      Comment


      • #4
        Originally posted by NBDad View Post
        Stick to the letter of your order. Pay your support on time and in full. Focus on being the best parent you can be and document document document.

        Unless something involves the children's medical, educational or religious issues, ignore the ex's crap.

        Keep all communication to a minimum, written format is best (ie email)

        How long has the joint/shared custody thing been in effect? What are her demands?

        You can't coparent with stupid. You can't force someone to coparent with you.
        There is such a thing as PARALLEL PARENTING, it may be applicable in your situation.
        The joint/shared custody has been in effect approximately 1 year. Her demands are many and seemingly endless: Her most recent demand has been to take the girls to a child psychologist, which I do not agree with. I have set up an appointment with the girls' pediatrician to discuss when it is appropriate, based on the advice of my lawyer. I have told her I would not consent until after I speak to a doctor. Since I have not consented to the child psychologist she has claimed I am unwilling to cooperate. She has refused to allow the girls to participate in extracurricular activities because of this. The girls are happy, doing very well in school, recent report cards are great etc. It is my belief she is attempting this in an effort to build a case against me. Her other demand is to reduce my access to the girls because she does not agree with our current arrangement (I have better weekend access) and because she plans to begin working soon.

        Comment


        • #5
          Her most recent demand has been to take the girls to a child psychologist
          Why does she feel this is necessary? and good move getting the doc on board. Definitely stand up logic. If the Doc sees no need, you simply document the hell out of it.

          Comment


          • #6
            Originally posted by NBDad View Post
            Why does she feel this is necessary? and good move getting the doc on board. Definitely stand up logic. If the Doc sees no need, you simply document the hell out of it.
            She claims the girls are not coping well with the separation. without sounding vindictive, in my view it is her, not the children, who is not coping well.
            How do I go about documenting what a doctor mentions verbally?

            Comment


            • #7
              You shell out the extra couple of bucks for him to write it down.

              Comment


              • #8
                Originally posted by nogoingback View Post
                My stbx has just threatened seek full custody of my 5 and 6 year old girls claiming that I am being uncooperative and unwilling to work together. Last week I had to attend a case conference where no decision was made when she attempted to reduce my access to my daughters to EOW and alternating Wednesdays. We currently have joint shared custody. Without boring everyone with details, I don't feel that I am being uncooperative; I am just not giving in to her demands.
                How should I respond to her most recent threat?
                You can sight case law on the matter to the following:

                Date: 2011-09-09
                Docket: DF 2217/09
                URL: CanLII - 2011 ONSC 4305 (CanLII)
                Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII), <http://canlii.ca/t/fn2r2>

                Here are the specific paragraphs to thwart an ill advised parent against trying to claim joint custody won't work... The alternative is Parallel Parenting.

                [71] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger v. Kruger[18] and Baker v. Baker[19], the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with each other.[20] The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

                [72] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the ability of the parents to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[21]

                [73] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.[22]

                [74] The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[23] The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”[24]

                [75] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order.

                [25] In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.[26]

                [76] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.[27]

                It is a useless argument even solicitors try to make even today considering the stacks of case law in contravention of the "belief" that one party can claim sole custody and EOW based on "communications challenges".

                Good Luck!
                Tayken
                Last edited by Tayken; 03-28-2012, 02:25 PM.

                Comment


                • #9
                  this is an empty threat posed by her. Trust me sole custody is not easy to get (I have it however mine was due many circumstances that were not vindictive nor were they detremental to our child.) Seeking it for being unco-operative the court will see through that. That is grasping at straws and pulling your heart strings is all that is doing and wont get her anywhere.

                  Comment


                  • #10
                    Originally posted by nogoingback View Post
                    She claims the girls are not coping well with the separation. without sounding vindictive, in my view it is her, not the children, who is not coping well.
                    How do I go about documenting what a doctor mentions verbally?
                    You don't. You are a joint custodial parent. Ask for all the medical records form the Family Practitioner for every MEDICAL ENCOUNTER in your children's file. If the doctor refuses raise the request to the Ontario College of Physicians and Surgeons. You have every right to all the information regarding your children's health and well being as a joint custodial parent and the doctor is obligated under Policy #5-05 of their clinical standards unless otherwise ordered by the court.

                    If the information you are being provided verbally from the clinician is not in the notes request that it be recorded in accordance with Policy #5-05 immediately.

                    Also ask if they are subjective or objective observations that are being made by the clinician.

                    Good Luck!
                    Tayken

                    Comment


                    • #11
                      Originally posted by littleman View Post
                      this is an empty threat posed by her. Trust me sole custody is not easy to get (I have it however mine was due many circumstances that were not vindictive nor were they detremental to our child.) Seeking it for being unco-operative the court will see through that. That is grasping at straws and pulling your heart strings is all that is doing and wont get her anywhere.
                      In fact, it just creates more conflict on the file where no conflict should exist and you can point that out if necessary to a judge. Hurling allegations does nothing to better the situation for either party and most importantly the children involved.

                      The key element before the court that all judges consider is how REASONABLE a party is throughout the whole litigation. In my opinion it is unreasonable for this allegation to be raised without cogent and relevant evidence to the fact. A lot of evidence would be required from the other party to even get this considered let alone ordered.

                      Unfortunately, like many litigants you may be dealing with another party who is getting "bad advice" from somewhere.

                      Comment


                      • #12
                        Don't get into arguments with the ex, stick with factual explanations or requests for factual descriptions. At this point, ask ONCE, if she doesn't respond, you have shown *(through asking) that you are trying to be reasonable and she is not.

                        She won't get anywhere in court making wild accusations without factual evidence. For example, stating that the children aren't coping. That is just an unsupported opinion. YOU MUST POINT THIS OUT. To support it she has to give factual reasons. For example, are they having nightmares, not sleeping, not eating? She has to give facts, warrents, reasons.

                        You should ask at least once for a description of these facts (in an email) to show you are listening. There, you have shown you are co-operative. She just lost any ammunition she had.

                        Meanwhile, the children's family doctor should be the one to say, yes or no, they need to see a psychologist. The doctor is the gatekeeper to access to specialists. Get the doctor's opinion in writing, state why you need it.

                        Comment


                        • #13
                          Originally posted by Tayken View Post
                          You can sight case law on the matter to the following:

                          Date: 2011-09-09
                          Docket: DF 2217/09
                          URL: CanLII - 2011 ONSC 4305 (CanLII)
                          Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII), <http://canlii.ca/t/fn2r2>

                          Here are the specific paragraphs to thwart an ill advised parent against trying to claim joint custody won't work... The alternative is Parallel Parenting.

                          [71] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger v. Kruger[18] and Baker v. Baker[19], the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with each other.[20] The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

                          [72] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the ability of the parents to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[21]

                          [73] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.[22]

                          [74] The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[23] The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”[24]

                          [75] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order.

                          [25] In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.[26]

                          [76] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.[27]

                          It is a useless argument even solicitors try to make even today considering the stacks of case law in contravention of the "belief" that one party can claim sole custody and EOW based on "communications challenges".

                          Good Luck!
                          Tayken

                          This and all the other comments have been very helpful. Thank you very much.

                          Comment


                          • #14
                            Don't rule out the possibility that your ex hasn't already been to the pediatrician and described "symptoms" that the children are experiencing: nightmares, separation anxiety, etc. You want to be sure that the doctor makes a distinction in her notes between what mom reports and what s/he actually clinically observes. Sounds like a no-brainer but believe me, some doctors don't make that distinction.

                            Comment


                            • #15
                              Originally posted by plky View Post
                              Don't rule out the possibility that your ex hasn't already been to the pediatrician and described "symptoms" that the children are experiencing: nightmares, separation anxiety, etc. You want to be sure that the doctor makes a distinction in her notes between what mom reports and what s/he actually clinically observes. Sounds like a no-brainer but believe me, some doctors don't make that distinction.
                              Exactly correct. If this is the case you can request the doctor update their medical records to reflect Policy #5-05 (Medical Records) to differentiate between subjective (chief complaint of the patient) and the doctors objective evaluation (medical tests, measurements, including parental scale questions), assessment (what they think is actually wrong) and plan (what they plan to do to treat the condition).

                              Most Family Practitioners encounter notes are useless. Make sure you clarify with the doctor that he/she should be recording everything in accordance with policy #5-05 of the College of Physicians and Surgeons of Ontario. (If you are in Ontario).

                              Good Luck!
                              Tayken

                              Comment

                              Our Divorce Forums
                              Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                              Working...
                              X