Who Is Responsible for the Child?

[#1StepMom]

I'm wondering if any of you know of any articles or websites (preferably Ontario family law sites) that would provide information on the roles of custodial and non-custodial parents, particularly regarding non-custodial parents' access times.

My husband is a non-custodial parent. My stepson's mom has primary physical custody, with my stepson visiting our home every-other-weekend. Usually, when something comes up and we are unable to accommodate a regularly scheduled visit, we make a switch with my stepson's mom. This has held true, until now... when she has already made tentative plans of her own during her "off-weekend" and is refusing to make a switch and keep the child on "dad's weekend."

My husband and I will be out of the country during one every-other-weekend visit this summer. We have informed my stepson's mom of this 5 months in advance, as soon as we knew we'd be away. We asked for a weekend switch if possible, or other make-up time. She declined, saying that we should still be responsible for providing care for the child on the scheduled court ordered weekends, regardless of whether or not we are available (let alone in the country!)

We reminded her of the court order, which states that as the non-custodial parent, my husband has the right to cancel a visit if he is not available to receive the child, and be provided with a make-up visit if agreeable to her. We reminded her that we have made many swaps and accommodations in the past, and that this is not different. She came back saying that because we didn't first confirm with her if it would be okay with her for us to be away during that particular time and didn't get her "permission," a switch should not be accommodated. She doesn't think it's fair that my husband may have the option of "forfeiting" his scheduled access visits, and so she doesn't agree with the weekend visit cancellation as it interferes with her tentative plans.

Any ideas on how to approach this? Are there any family law articles that you may have come across that provide information in this regard?

Any information is greatly appreciated.

Thanks!

[dadtotheend]

You can't force someone in family law to do what the court order/separation agreement calls for in the same way you can in other civil matters.

Parents have to make compromises and concessions to allow for changing circumstances during a child's upbringing. Trying to adhere dogmatically to an access schedule just doesn't work all the time. There are exceptions and they have to be dealt with.

It boils down to there has to be some level of cooperation to accomodate the inevtiable departures from the access schedule, whether on account of the Mom, the Dad, the custodial parent, the non-custodial parent, the doctor, the school, the child, the child's friends, whatever.

Trying to rely on the courts to do it for you will get you nowhere, except maybe the poorhouse. Some cooperation between parents and caregivers is a must, end of story.

[#1StepMom]

You can't force someone in family law to do what the court order/separation agreement calls for in the same way you can in other civil matters.

Parents have to make compromises and concessions to allow for changing circumstances during a child's upbringing. Trying to adhere dogmatically to an access schedule just doesn't work all the time. There are exceptions and they have to be dealt with.

It boils down to there has to be some level of cooperation to accomodate the inevtiable departures from the access schedule, whether on account of the Mom, the Dad, the custodial parent, the non-custodial parent, the doctor, the school, the child, the child's friends, whatever.

Trying to rely on the courts to do it for you will get you nowhere, except maybe the poorhouse. Some cooperation between parents and caregivers is a must, end of story.

Yes, with that I, nor my hubby, will disagree.

We have always been very accommodating to my stepson's life events, whether they be birthday parties, family reunions, illnesses, etc. We have also been very accommodating by taking the child for extra time when his mom wanted an additional "free-weekend" or by swapping weekends if she had plans or vice versa.

This has never been an issue. We are not even considering taking this to court. We do not feel we should waste the court's time with such pettiness.

The problem is that, until now, every necessary accommodation was made. However, with this one particular weekend, we have hit a wall because: (a) my husband and I will be out of the country and have informed the bio-mom of this, advising her that my husband will not be able to exercise his regular access on that one weekend and requesting make-up time on another weekend agreeable to her; (b) the bio-mom has made plans of her own already on this particular weekend and doesn't want to cancel or reschedule her weekend plans to be with the child on "dad's access weekend" as stated in the court order, should my husband require to cancel a visit.

So, I ask once again... are there any Ontario family law articles or websites where I could find some sort of information with regards to such an issue?

[standing on the sidelines]

not sure of where you can get the information you want. Thw CP is making such a big deal of a little thing. It is not like you told her 24hrs in advance. 5 months is more then enough time. I am thinking that she is being petty because you and he are going out of the country (pleasure trip?) and she is jealous.

[independentgal]

Hmm. I think that she is just jealous. Big time. It sounds like she is trying to control your ex by controlling the situation.

Here is what I have learned about non-custodial parental access;

She can't force you to take the children on that period. You have given notice you will not be exercising that time period. It is not like you have informed her at the last minute. Now, if you have been wavering at all in your position, you need to do it in writing AGAIN to solidify your position. At that time list three weekends that you want to use as makeup visitation for her to choose by a certain date(i.e. 6 weeks from date of letter).

End of story.

I have done alot of research about this as my ex totallly refused to even see our son for more than a year and a half yet was fighting me for access in court that he wasn't even exercising. Your situation is totally different than mine, you guys are actively parenting the child. She cannot come after you for her increased costs(I asked my lawyer this). The only option she could have if you continually refused access and did not "make up your time" would be punitive damages from contempt of court. This is only awarded in extreme circumstances and she would have to bring a motion. Your case doesn't even remotely come close to this situation.

Bottom line, she has no case for increased costs as you are going to make up the equal amount of time at another date. Therefore, over the year, your access days are going to be equal to what they would be if you adhered 100% to the order. Therefore, there are no additional costs to her. No case.

Don't you wish you could just tell her to get a life and think of the kids instead of herself.

[billm]

You both have plans but it is your weekend with the child. Your told her months ago, but she never agreed. She has accomidated you in the past many times, but for whatever reason this one time she does not want to, either because of her plans, or to be unkind to you (perhaps she feels this is payback for the way you treat her - justified or not).

It is your weekend with the child, sounds like you should take him. For you to refuse does not sit right with me. He is the father, it is his schedule time, not hers, so if you can't agree, by default the father should take him.

Flexibility is very important, and you have agreed before, just this time both of you won't budge so you should cancel your plans - if you can't agree, that is what the schedule is for!

[#1StepMom]

I guess I should add the following information to clarify... or at least reiterate it from my original post...

The court order specifically states:
- The Father shall give at least 24 hour prior notice to the Mother if he desires to cancel an access visit;
- If the Father does not arrive to pick the child up within 30min of the pick up time (unless he has given the Mother prior notice of a further time extension) the Mother may assume that he is not attending and may make alternate plans;
- Make-up visits shall only occur if the make-up time requested is agreeable to the Mother

When the bio-mom inquired about the above clauses in the order, the judge explained that access time is for the Father to spend with the child, and that given the limited time the Father has, it only makes sense that he be available during that time. If he is not available, then the access visit should be cancelled and a make-up time when he is available should be scheduled. This made perfect sense to both parties at the time of the order. And it has pretty much been how things have worked all along.

As for the particular weekend in question...
- We have CONFIRMED travel plans when we will be out of the country for personal reasons which require specific dates of attendance;
- The bio-mom has TENTATIVE plans on that one weekend (yes, she did specify that they are "tentative");
- We have provided her with over 5 months of advance notice

In addition, my stepson's mother also indicated in her emails that she has no problem spending extra time with the child if his dad wishes to cancel a visit, and that she and her family "welcome the extra time."

Yet, what she is 'asking for' is that regardless of whether the child's dad is available or not (let alone in the country), he should be responsible for providing care for the child during ALL his regular access and vacation times.

The contradictions are blinding... and having to find ways to reason with her is beyond frustrating. That is why I was wondering if there were any articles or information out there that speak to such situations.