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  • Two daycares

    Long time lurker, first time poster.

    Background: Ex and I have 50/50 joint custody of D4 with a judge-signed custody agreement. D4 has been attending the same daycare/preschool since turning 1. Shortly after split, Ex moved less than 2km away from my home. Both Ex and I work 3 km away from the neighbourhood.

    Last year, Ex moved without notice to suburb, 24 km away from my home, in a different municipal district than is in the custody agreement for D4's agreed residence. I had no complaints at the time as the preschool and transition arrangements were not changing, thus D4 still would mostly be in her habitual residence. Ex still works in the same location near the current daycare.

    Ex now insists that preschool be changed to a preschool near their new residence. Ex also strongly suggests school should be there too.

    Ex also says that if we don't agree, they will just split to the new preschool for their parenting time while I retain the old preschool, which not only would be a disruption to D4's routine (two daycares) but would increase our costs by $500 monthly each. Once Ex claimed they would do this unilaterally, I involved my lawyer.

    I am getting inconsistent reasons justifying this proposed change to the status quo. Originally it was due to the daycare facility being "older", and that the teachers at the current daycare were in many cases "ESL" (not kidding) where Ex would prefer native English speakers. Now, after a couple months of back and forth, the Ex is claiming the current preschool is negligent and D4 is being emotionally and/or physically harmed by attending. There is no such evidence to my knowledge. Daycare has notified us about the odd shoving match when arguing over a toy, or tantrums during class transitions. Ex is trying to turn these relatively minor incidents into a case against the preschool. Ex has been combative with the daycare administrators over this subject, even threatening legal action if they tried to provide counselling or evaluation services for D4.

    Lawyers have now exchanged two letters over the disagreement, and Ex's lawyer is insisting on mediation "immediately", "or else" they will unilaterally move to new preschool on Ex's parenting time.

    I'm not sure what is there to mediate: this feels like an ultimatum in the guise of "you're not communicating". We are communicating, Ex just doesn't seem to like the message, or that I insist on email communication and not face-to-face.

    Thoughts? Is this a losing battle because it is on Ex's time (subject to Section 7 adjustments)? Or if Ex unilaterally moves D4 to the new daycare, should I file an emergency motion to block the disruption that I feel is not in D4's interests? Just looking for other opinions to compare to my counsel's.

  • #2
    1. You should be careful with your lawyers exchanging letters; this could drag on forever with no resolution and you are paying $100-$200 per letter.
    2. You have Shared Parenting and Joint Custody; the other parent cannot "unilaterally" do anything. You would "unilaterally" move the children back.
    3. You should immediately have an appointment with your present daycare provider to advise them of the situation. Make sure administration is aware that you have joint custody and the other parent may not "unilaterally" pull the child out of the daycare.
    4. Absolutely save the complaints the other parent made of the staff being "ESL." I hope you have it in writing. This will be part of your court affidavit.
    5. The other party has no case for moving the children; you are in a 50/50 situation and you have just as much case for keeping them in the area; the other party needs the "extra" argument to tip the scales and they don't have it.
    6. No ethical lawyer would be encouraging a client that they have a clase to move the children based on the arguments you say your ex using. However a lawyer within reason has to go with a client is asking for. So keep in mind that this lawyer is following the client's instructions; that doesn't mean she has a case.
    7. The various "issues" she is fabricating over the daycare strengthen your case and clear show that she is simply trying to fabricate a case to get custody of the children.
    8. Your case should be positive: The children are thriving (give factual examples), it was the other party's choice to move, the other party normally commutes to the local area anyway for work, there is no reason to disrupt the children's lives.
    9. Meanwhile your rebuttle is to refute each of her claims and point out that the children will suffer by being removed from their established area. You will point out their various friends and activities they have in the local area.

    Comment


    • #3
      Originally posted by Mess View Post
      1. You should be careful with your lawyers exchanging letters; this could drag on forever with no resolution and you are paying $100-$200 per letter.
      2. You have Shared Parenting and Joint Custody; the other parent cannot "unilaterally" do anything. You would "unilaterally" move the children back.
      3. You should immediately have an appointment with your present daycare provider to advise them of the situation. Make sure administration is aware that you have joint custody and the other parent may not "unilaterally" pull the child out of the daycare.
      4. Absolutely save the complaints the other parent made of the staff being "ESL." I hope you have it in writing. This will be part of your court affidavit.
      5. The other party has no case for moving the children; you are in a 50/50 situation and you have just as much case for keeping them in the area; the other party needs the "extra" argument to tip the scales and they don't have it.
      6. No ethical lawyer would be encouraging a client that they have a clase to move the children based on the arguments you say your ex using. However a lawyer within reason has to go with a client is asking for. So keep in mind that this lawyer is following the client's instructions; that doesn't mean she has a case.
      7. The various "issues" she is fabricating over the daycare strengthen your case and clear show that she is simply trying to fabricate a case to get custody of the children.
      8. Your case should be positive: The children are thriving (give factual examples), it was the other party's choice to move, the other party normally commutes to the local area anyway for work, there is no reason to disrupt the children's lives.
      9. Meanwhile your rebuttle is to refute each of her claims and point out that the children will suffer by being removed from their established area. You will point out their various friends and activities they have in the local area.
      What Mess said.

      I would not send another letter, and be ready for an emergency motion should it be required.

      Comment


      • #4
        Originally posted by LearningToFly View Post
        Long time lurker, first time poster.

        Background: Ex and I have 50/50 joint custody of D4 with a judge-signed custody agreement. D4 has been attending the same daycare/preschool since turning 1. Shortly after split, Ex moved less than 2km away from my home. Both Ex and I work 3 km away from the neighbourhood.
        Habitual residential location has been setup. Remember though, the argument commonly used to establish habitual location of a child is their relationship to the neighborhood. For 4 years the child has grown and developed friendships and a safe understanding of this area etc...

        Originally posted by LearningToFly View Post
        Last year, Ex moved without notice to suburb, 24 km away from my home, in a different municipal district than is in the custody agreement for D4's agreed residence.
        Don't worry too much about the 24KM move away. The other parent is free to move but, the children's service providers, school (even if not enrolled yet) and all other activities should be in the habitual location which is where the parent moved from.

        24KM commute is going to suck hard core for that parent to drive the child to school and pick the child up. Eventually the parent will figure it out and move closer to the school.

        To quote the Honourable Madame Justice Mossip in a recent hearing: "You should move closer to the school. That is what a good parent would do."

        Suffice to say, what you are experiencing is VERY common in southern Ontario but, usually it is parents moving from the "suburbs" to "the city" not the other way around. Nothing better than watching a Toronto hipster parent trying to explain to a Brampton justice why the child should live in Toronto now... There really just isn't a good argument other than to satisfy your own personal needs and it has nothing to do with the "best interests" of the child.

        Originally posted by LearningToFly View Post
        I had no complaints at the time as the preschool and transition arrangements were not changing, thus D4 still would mostly be in her habitual residence. Ex still works in the same location near the current daycare.
        Your biggest mistake was not raising a concern when the move happened. Just to warn you...

        The other parent has an EVEN worse reason to change school or daycare if they moved. LOL. I have seen this nonsense too many times on motions in various court houses in southern Ontario. 24KM is not enough of a distance for a justice to care and they will order based on the rules defined in the FLR and CLRA that the child should continue the status quo of where they are already attending daycare and school.

        The other parent simply cannot meet the threshold to demonstrate that the move is material and for the order to be changed. They better like the commute... They are already doing it for work so why are they even bothering to try to change things.

        Originally posted by LearningToFly View Post
        Ex now insists that preschool be changed to a preschool near their new residence. Ex also strongly suggests school should be there too.
        Sure, they would... It benefits them. But, what they fail to recognize is that the habitual residential location of the child for the purposes of daycare and school registration is exactly where they were. Not where other parent moved to.

        24KM is not material enough for a court to consider. Commute like everyone else. You may need the order clarified to determine the location for school.

        You can accidently dual enrol the child in school in Ontario. OSR is set by the enrolling school. So she can go in and have the child enrolled and you can at the other school. They won't find out until the records are consolidated later in the year!

        So in addition to what Mess recommended, send the school closest to her new residence the court order and advise them that enrolment requires your consent or a court order. In fact, I would contact the school boards to see what the best way to notify all the institutes of the joint custodial situation and the requirement for consent from both parents or a court order.

        Originally posted by LearningToFly View Post
        Ex also says that if we don't agree, they will just split to the new preschool for their parenting time while I retain the old preschool, which not only would be a disruption to D4's routine (two daycares) but would increase our costs by $500 monthly each. Once Ex claimed they would do this unilaterally, I involved my lawyer.
        No court will order two daycares. No access evaluator would either. The child requires stability in their daycare and schooling environment at minimum. So, they can go and try all they want but, they will be BLASTED for doing so by a judge.

        Originally posted by LearningToFly View Post
        I am getting inconsistent reasons justifying this proposed change to the status quo. Originally it was due to the daycare facility being "older", and that the teachers at the current daycare were in many cases "ESL" (not kidding) where Ex would prefer native English speakers.
        I hope you got this in writing.

        Originally posted by LearningToFly View Post
        Now, after a couple months of back and forth, the Ex is claiming the current preschool is negligent and D4 is being emotionally and/or physically harmed by attending.
        That is a matter for the CAS to determine... Not a family law proceeding. This sounds like they are just rattling sabres and being stupid.

        Originally posted by LearningToFly View Post
        There is no such evidence to my knowledge. Daycare has notified us about the odd shoving match when arguing over a toy, or tantrums during class transitions.
        Sounds like you are dealing with a possibly "over anxious" parent... They are commonly seen before the court. If they try to argue this as 'abuse' they will be called "delusional" by the judge. (Seen this first hand too!)

        Originally posted by LearningToFly View Post
        Ex is trying to turn these relatively minor incidents into a case against the preschool. Ex has been combative with the daycare administrators over this subject, even threatening legal action if they tried to provide counselling or evaluation services for D4.
        This is what defines a High Conflict Person... I hope daycare workers are willing to testify to these facts. From your lips it is just hearsay...

        Originally posted by LearningToFly View Post
        Lawyers have now exchanged two letters over the disagreement, and Ex's lawyer is insisting on mediation "immediately", "or else" they will unilaterally move to new preschool on Ex's parenting time.
        Bring a motion forward would be my advise to your lawyer. Search my threads on this forum OP. You will find all the case law on parental moves you can provide to your lawyer on here...

        Originally posted by LearningToFly View Post
        I'm not sure what is there to mediate: this feels like an ultimatum in the guise of "you're not communicating". We are communicating, Ex just doesn't seem to like the message, or that I insist on email communication and not face-to-face.
        Recommend back Arbitration, provide the name of three arbitrators (if in Toronto I recommend Hillary Linton & Dr. Barbra Landau as two of the names) and that the arbitration to be conducted in accordance with the Family Law Rules and the CHildren's Law Reform Act.

        Originally posted by LearningToFly View Post
        Thoughts? Is this a losing battle because it is on Ex's time (subject to Section 7 adjustments)? Or if Ex unilaterally moves D4 to the new daycare, should I file an emergency motion to block the disruption that I feel is not in D4's interests? Just looking for other opinions to compare to my counsel's.
        Actually you have a strong case if what you present is factual. Again, read my threads on "habitual residence" and "parental moves". I would recommend you share the case law with your lawyer too fire back an offer to settle for arbitration and name 3 candidates and ask the other party to pick one. For the costs of arbitration to be split equally and for the arbitrator to be given the responsibility to determine costs on who is being unreasonable.

        Arbitration = faster private trial basically...

        Don't bother with mediation. You need a party to arbitrate... Either bring a motion or go to binding arbitration. Mediation is just not a good idea for a matter like this.

        And... everything Mess said too...

        Good Luck!
        Tayken

        Comment


        • #5
          Thank you all for your responses, this has been a stressful time and you are confirming what I've suspected was the case, so I'm relieved. I'll post an update when I know more.

          Comment


          • #6
            Originally posted by LearningToFly View Post
            Ex and I have 50/50 joint custody of D4 with a judge-signed custody agreement. D4 has been attending the same daycare/preschool since turning 1. Shortly after split, Ex moved less than 2km away from my home. Both Ex and I work 3 km away from the neighbourhood.

            Last year, Ex moved without notice to suburb, 24 km away from my home, in a different municipal district than is in the custody agreement for D4's agreed residence.

            Ex now insists that preschool be changed to a preschool near their new residence. Ex also strongly suggests school should be there too.
            Here is the important part to focus on. Your ex has chosen to move her residence away from the child's familiar area. She now wants, for her own convenience, to move the child closer to her. The rest is all excuses.

            Do what you have to do to keep the child in her established daycare, and going to school in the current neighbourhood when the time comes. Failure to act will be seen as approval of your ex's antics. It is in the best interests of the child to remain in her stable area, as was envisioned when the court order was made.

            Send your ex a letter indicating that you do not agree with her moving the child from the established daycare and neighbourhood, and you will not consent to this, nor will you approve of the child going to school so far away. Should she want to deviate from the court order, she needs to go back to court and convince a judge this is in the best interests of the child.

            Comment


            • #7
              Just a quick update for those interested in this from several months ago.

              tl;dr D4 was ordered back to their status quo daycare; special chambers hearing will be later in Summer 2014 to finalize the case.

              Details:

              Ex unilaterally took D4 to the new daycare as expected, and then subsequently applied to court.

              We offered to settle if ex payed the full cost of the new daycare (continuing to pay their share of the current daycare) and D4 only attended 4 days every two weeks. Our lawyer felt this offer was appropriate because they weren't as confident in our case as the folks on this board seem to be - not sure if it's Alberta vs. Ontario, but mainly the issue is the 20 minute limit on morning chambers leading to limited information judgements.

              Ex rejected the settlement. Our lawyer made the better oral argument on the case, and unsurprisingly, the ex's request was denied in morning chambers. The judge moved D4 back to the original daycare, as there wasn't enough evidence or time for him to issue a final judgement on the case. The case was adjourned to special chambers later in 2014.

              Ex agreed to jointly retain a parental/child councillor to assess D4's emotional state. The psychologist quickly realized this was more of about us as parents, and our effects on D4, than D4’s challenges herself. After the morning chambers decision, D4's emotional challenges seemed to vanish - she was happy at the daycare, played with her friends, but interestingly would randomly still say things like "I don't like my daycare friends, I like my other friends by (ex's) house", or things like "kids hit me at daycare!". But she wouldn’t say those things with negative emotion, it was more like repetition or matter-of-fact. No judgement here on whether ex is coaching D4 or if this is just kids saying what kids will say, but it gives me pause.

              The daycare providers think there's a very child-creative definition of "hit" being used, as there haven’t been any incidents, but ex is taking D4’s words literally. D4 is a somewhat tomboyish, physical player and gets scrapes and bruises from all the activity both at home and daycare, but Ex is taking pictures of said bruises and suggesting that she is in "great danger" at the daycare from the other kids, and that "doctors I've visited to agree with me”… If she was in great danger, why haven't you called CAS? Which doctor, as it certainly wasn't D4's family doctor?

              The last few weeks, have been joint meetings with between ex, myself and our parenting councillor. They've turned into impromptu mediation/settlement meetings and have been difficult, with a lot of mud slinging. D4 is picking up on our mutual unhappiness again, I believe, and has exhibited more emotionally fragile behaviour at daycare lately (though not quite as pronounced as in the Fall).

              Psychologist had an interesting point of view, speaking candidly to me, that there potentially was more harm being done to D4 from ex's negative behaviour towards the current daycare and that it almost would be worth giving into to them for the sake of D4, if they were to cover costs and button up other pending disputes. This sounds like rewarding bad behaviour, which I’m loathe to do… but it was worth considering. My lawyer and I foresaw a decade-long set of court dates on future disputes (vaccines is already brewing -- "no flu shots!", school applications, travel, holidays, etc.) if we don't agree to resolve our problems through Med-Arb, we'll be giving half our pay to lawyers for years.

              …. But the ex refuses arbitration, just wanting (endless) mediation. Ex won’t negotiate any counter-proposal to their settlement offer, nor will they modify their settlement offer, I’m not sure what point there is in further mediation.

              We'll see how Special Chambers goes this Summer, I think ex just really seems to need to hear a judge's word on this.
              Last edited by LearningToFly; 02-13-2014, 02:02 AM. Reason: clarity

              Comment


              • #8
                The ex sounds a little nutty. Taking pics of bruises on a 4 yr old kid and claiming severe danger. Where are the bruises? My kid in daycare have bruises on shins, knees and once saw her have one on back (said her friend pushed her into a chair). I think lots of kids have bruises. Don't know how that's going to fly as a case. Same with the ESL excuse. What kind of daycare is the new one where there are no ESL people? I fail to see how your lawyer and psych think you won't win. From what you wrote ( providing you have not ommited any details) the move and change is all about convenience for the ex and nothing about the kid. Its supposed to be about what is in best interest of child. There was no problem with daycare for 2 or 3 years and all of a sudden now that the ex moved the daycare is no good and full of immigrants so D has to move? If you lose this one its opening up a can of worms in future. Ex will constantly keep threatening lawyers and action when she doesn't get her way. What happens when D is older and develops stronger friendships is school and neighbors and ex decides to move again? She seems to be going through and causing a lot of shit over a dinky 24k move on her part.


                You mention the words rough, tomboy bruises a bit. Could there be other issues at play? Is she worried the kid isn't developing scholastically enough? I know there are daycares which claim to use a different system which produces brained kids in early age and gives them a head start in elementary school. Also what happens when D goes to JK and SK? Where will she be going? Are you seeing someone at current DC?

                Don't underestimate how much dwelling and preplanning a woman does in her free time. But if all you claim is true and no details left out I say take the bitch to cleaners and make her pay all costs ... Even Save your Tim Horton's receipts and make her pay those as well.

                Comment


                • #9
                  Some points to save for your court date.
                  • There is a separation agreement that states that the child will remain in the same area, attending the same daycare now and the local school at the appropriate time.
                  • The child's friends reside in this area.
                  • The parents both work in this area.
                  • The father and mother both resided in this area.
                  • The child is happy and well-adjusted in the daycare.
                  • The mother chose to move out of the area.
                  • The father remains in the area and intends to continue to do so.
                  • The mother now wants to move the child to a daycare closer to her new residence.
                  • The mother now complains that the daycare is too ethnic, and the child is abused there and experiencing difficulties.
                  • Exposure to other cultures is a benefit, not a drawback.
                  • No action has been taken by the mother to address any supposed abuse to the child at the daycare. There are no doctor's reports or complaints to CAS or daycare licensing authorities.
                  • Any difficulties the child is experiencing are due to the renewed tension between the parents.
                  • All alleged problems with the daycare are expressed only by the mother, and only after her move away from the neighbourhood.
                  • The child is too young to influence any decision about where she goes to daycare. Expressing that she likes her friends at mom's house better is as relevant as her saying she wants to be a lion when she grows up, especially when coaching from the mother may be involved.
                  Therefore, the daycare is fine and the child should remain there as originally agreed, instead of being uprooted solely due to the mother's choice to move her own residence. In absence of any proof of wrongdoing at the daycare, it is in the best interests of the child to have stability in her familiar neighbourhood, where her parents both work and her father still resides. Should there be such evidence, the solution would be to find a new daycare in the same neighbourhood, where it was previously agreed that the child would remain.

                  Remember to keep your case positive. Coming across positively is always better than being negative, because you sound cooperative and forward thinking rather than whiny and complainy. Let your ex be the negative one while you extoll the virtues of the current neighbourhood, and why there is no reason to change.


                  Some tasks for you to do while you wait for your court date:
                  • Gather evidence about the daycare. Have other parent clients ever lodged complaints about the treatment of their child? Has the daycare ever been investigated by licensing authorities?
                  • Get involved at the daycare. Get to know the providers, and ask them for regular reports on how your child is doing. Find out who your child's friends are, and get to know those parents. Have playdates outside of daycare, especially with the children who live near your own home. Enroll your child in activities those other children do. Find out what school those children will be attending.
                  • Do research on the school your child will attend in your area, and the one that your ex proposes she attend in her area. Find out the pros and cons for each one.
                  • And above all, do your best to keep your stress from showing to the child. Shelter her from the tension you may be feeling, encourage her to have fun at daycare and help her choose good local friendships.
                  Status quo is in your favour here. I know it's emotionally draining and probably monetarily as well, but the longer it goes, the stronger your case. If your ex wants to waste time in pointless mediation while not budging, let her (don't waste money bringing your lawyer unless she actually has a counteroffer to propose). I agree with you on not rewarding the ex's bad behaviour, unless you really want this kind of stuff to happen over and over again until your child grows up. Being firm now will set the tone for the rest of your life.

                  Comment


                  • #10
                    Originally posted by lostinspace View Post
                    I fail to see how your lawyer and psych think you won't win.
                    The lawyer was worried about the ability to explain the case in the allotted time in morning chambers. But she did a good job in the end, and now is more confident in our case when it goes to special chambers.

                    Afterwards the psych told Ex basically that I would likely win. The psych is just concerned that D4 is affected by an unhappy Ex that will get unhappier as they light tens of thousands of dollars on fire.

                    To which I say, "duh", but the solution there, barring Ex going to therapy, or throwing Ex a settlement bone, would require changing 50/50 to 70/30 or something... which would be a mountain too high, I think.

                    Originally posted by lostinspace View Post
                    From what you wrote ( providing you have not ommited any details) the move and change is all about convenience for the ex and nothing about the kid.
                    This is ALL in D4's best interests in Ex's view. Ex claims the new location in the country side allows for "fresher air" and "wider fields to run and play" than the downtown core, which is the only reason they moved there.

                    More likely, in my opinion, is that Ex has a vision of them and D4 living happily in the new location with me on the periphery.

                    Originally posted by lostinspace View Post
                    You mention the words rough, tomboy bruises a bit. Could there be other issues at play? Is she worried the kid isn't developing scholastically enough? I know there are daycares which claim to use a different system which produces brained kids in early age and gives them a head start in elementary school. Also what happens when D goes to JK and SK? Where will she be going? Are you seeing someone at current DC?
                    Schools are to be chosen. Ex is determined to have D4 at their new catchment area. Their definition of compromise is that I come around to their way of thinking and agree to their plan

                    I have offered schools in our catchment area, and a couple compromise schools in neutral areas - a school in the core that they've previously said they thought was high quality, and a private school that's pretty much equi-distant.

                    But... I have seen no give on this issue in the past year, so this almost guaranteed will need to be arbitrated or court ordered - though I am curious if a judge would just pick a parent to have education decision authority rather than determine the school.

                    As for your other questions, no not seeing anyone at the DC, the scholastic concern might be there but hasn't come up. D4 is verbally quite expressive, can count to 100, can read numbers, can recognize letters, but can't read words or sentences yet. The reading thing might be concerning to Ex if they are trying to keep up with their sister (whose kids were reading at 3 years old).

                    Originally posted by lostinspace View Post
                    Don't underestimate how much dwelling and preplanning a woman does in her free time. But if all you claim is true and no details left out I say take the bitch to cleaners and make her pay all costs ... Even Save your Tim Horton's receipts and make her pay those as well.
                    Don't presume Ex is a woman But yes, going after costs, and likely double costs since they rejected a very generous settlement. In Alberta, however, awarded costs are usually far less than actual costs.

                    Comment


                    • #11
                      Originally posted by Rioe View Post
                      Status quo is in your favour here. I know it's emotionally draining and probably monetarily as well, but the longer it goes, the stronger your case. If your ex wants to waste time in pointless mediation while not budging, let her (don't waste money bringing your lawyer unless she actually has a counteroffer to propose). I agree with you on not rewarding the ex's bad behaviour, unless you really want this kind of stuff to happen over and over again until your child grows up. Being firm now will set the tone for the rest of your life.
                      Thank you for the advice, Rioe. The affidavit responses we filed mostly cover your points. And I intend to be firm on this one.

                      There was a hope to save some cash for both of us if we could reasonably agree to arbitration for this and future disputes, but Ex doesn't see arbitration as anything different from a judge.

                      Comment


                      • #12
                        Originally posted by LearningToFly View Post
                        The lawyer was worried about the ability to explain the case in the allotted time in morning chambers. But she did a good job in the end, and now is more confident in our case when it goes to special chambers.
                        The lawyer was "worried" because it is a rarely argued situation. Most people don't do stupid things like what you are dealing with so only the top tier lawyers ever see such arguments before the courts.

                        Originally posted by LearningToFly View Post
                        Afterwards the psych told Ex basically that I would likely win. The psych is just concerned that D4 is affected by an unhappy Ex that will get unhappier as they light tens of thousands of dollars on fire.
                        Then the psychologist should be making a recommendation to change custody to you in the matter and not recommending things that are compromises that a court would never enforce.

                        Originally posted by LearningToFly View Post
                        To which I say, "duh", but the solution there, barring Ex going to therapy, or throwing Ex a settlement bone, would require changing 50/50 to 70/30 or something... which would be a mountain too high, I think.
                        There is an existing agreement. There are no bones to throw. The person who made the applciation needs to establish that their moving was a "material change in circumstance" and why it is in the child's best interests to change. Establishing this is not a walk in the park. The other parent is at fault for making a bad decision and the courts will respect the existing agreement more than likely. IF the other party presses to hard on nonsense issues... they face losing custodial responsibility.

                        Originally posted by LearningToFly View Post
                        This is ALL in D4's best interests in Ex's view. Ex claims the new location in the country side allows for "fresher air" and "wider fields to run and play" than the downtown core, which is the only reason they moved there.
                        All crappy arguments. They are "feel good" arguments based on "emotional reasoning" but, the courts work on facts... not how one "feels" about something. I guess all the other parents living in your area should have CAS on them to move? Remember, justices don't buy into emotional reasoning or crappy arguments.

                        Originally posted by LearningToFly View Post
                        More likely, in my opinion, is that Ex has a vision of them and D4 living happily in the new location with me on the periphery.
                        Don't wallow in such nonsense. This is self pitty nonsense and I don't sink to these levels. Even if that is their objective... It won't happen.

                        Originally posted by LearningToFly View Post
                        Schools are to be chosen. Ex is determined to have D4 at their new catchment area. Their definition of compromise is that I come around to their way of thinking and agree to their plan
                        That is how most high conflict situations happen. No compromises.

                        You are in the City vs Suburbs argument that is quite common. The benefit on your side is the other parent left the habitual residential location and you remained. All the bittern nonsense about what is better... The justice has to rely upon the Rules to make an order... Rules that are in your favour.

                        Originally posted by LearningToFly View Post
                        I have offered schools in our catchment area, and a couple compromise schools in neutral areas - a school in the core that they've previously said they thought was high quality, and a private school that's pretty much equi-distant.
                        Then you have good costs coverage once the justice makes an order possibly in your favour and should seek full costs on a substantial basis.

                        Originally posted by LearningToFly View Post
                        But... I have seen no give on this issue in the past year, so this almost guaranteed will need to be arbitrated or court ordered - though I am curious if a judge would just pick a parent to have education decision authority rather than determine the school.
                        This is how a justice would order it typically. In fact, depending on the level of conflict the justice may simply just order sole custody to one of the parents and keep the access situation at 50-50. (I would suggest that a parent that does not want to have children vaccinated would be the parent that would LOSE custody.)

                        Originally posted by LearningToFly View Post
                        As for your other questions, no not seeing anyone at the DC, the scholastic concern might be there but hasn't come up.
                        If the child doesn't have any developmental issues then scholastic concerns won't come up because a smart kid is a smart kid... In any learning environment. Generally smart kids have parents who are involved and help them with their education.

                        Originally posted by LearningToFly View Post
                        D4 is verbally quite expressive, can count to 100, can read numbers, can recognize letters, but can't read words or sentences yet. The reading thing might be concerning to Ex if they are trying to keep up with their sister (whose kids were reading at 3 years old).
                        It doesn't really matter at this age. Kids all develop at different rates. Again, if the child doesn't suffer from some developmental disability the child will be fine.

                        Originally posted by LearningToFly View Post
                        Don't presume Ex is a woman But yes, going after costs, and likely double costs since they rejected a very generous settlement. In Alberta, however, awarded costs are usually far less than actual costs.
                        That is the cost of going to court...

                        I would end the mediation and make an offer in accordance with the Rules of AB to arbitrate the matter. Mediation is a good way for people like this to waste your money.

                        Good Luck!
                        Tayken

                        Comment


                        • #13
                          Oh and here is some case law on vaccinations (Ontario):

                          Di Serio v. Di Serio, 2002 CanLII 49568 (ON SC)
                          Date: 2002-03-06
                          Docket: 9092/00
                          Parallel citations: 27 RFL (5th) 38
                          URL: CanLII - 2002 CanLII 49568 (ON SC)
                          Citation: Di Serio v. Di Serio, 2002 CanLII 49568 (ON SC),

                          Conclusions

                          24. From the mother, I have the children’s doctor’s opinion that they “are in need of childhood immunizations”, which are “considered to be the most beneficial of health interventions” (see paragraph [8] above). There is as well the Immunization of School Pupils Act, which declares the public policy of Ontario to be to protect school children from disease by a mandatory immunization program, from which exemption can be obtained only on medical grounds or on grounds of religious or conscientious objection, none of which apply here. As well, I note that the mother has sole custodial authority in every other sphere and that the parents have essentially been at loggerheads over access, support and the immunization issue ever since they agreed to a final order last March 30. Joint decision making on any issue no longer appears possible.

                          25. From the father, I have unsubstantiated personal opinion against immunization and inadmissible and unsubstantiated support for his opinion.

                          26. The result, on the evidence, is obvious. It is in the best interests of the children that they be vaccinated. There will be an order that the mother has sole custodial authority over the issue of immunizations for the two children and in particular that she may have them immunized against all “designated diseases” under the Immunization of School Pupils Act and any other diseases that she desires them to be immunized against.

                          Comment


                          • #14
                            Just a final update. The case was heard by a Queen's Bench justice a couple of weeks ago during special chambers.

                            The justice dismissed the application to move D4 to the different daycare. It was suggested that Ex and I should be in parenting coordination and D4 in behaviour counselling to deal with her outbursts. I was also awarded schedule C costs (probably will work out to around $2k). The justice indicated that if the file were bigger, the cost award would have been as well. I hope Ex received the message, but am not holding my breath.

                            Thanks all for your help. Now we have to decide schools! (joy)

                            Comment


                            • #15
                              Firstly, thank-you for the follow up. So few people do this so it is hard to close the loop. As well, it makes it easier for senior posters to redirect others in similar situation to what the outcome may end up being. This serves well as daycare and school districts are very common issues.

                              Originally posted by LearningToFly View Post
                              The justice dismissed the application to move D4 to the different daycare.
                              As suspected.

                              Originally posted by LearningToFly View Post
                              It was suggested that Ex and I should be in parenting coordination and D4 in behaviour counselling to deal with her outbursts.
                              These are two very different things so make sure that you do not select the same professional to address both issues. In fact, I would suggest that for the other professional assisting the child directly not be contacted by the parental coordinator. The therapeutic needs of the child should not be focal point of parental coordination per-say nor should either parent try to leverage this professional to better their situation.

                              Based on what you have shared on this forum... I think the other parent you are dealing with will not understand the reason and try to leverage that professional to "win favour". Which will just come back to haunt that parent in the long run.

                              Originally posted by LearningToFly View Post
                              I was also awarded schedule C costs (probably will work out to around $2k). The justice indicated that if the file were bigger, the cost award would have been as well. I hope Ex received the message, but am not holding my breath.
                              Hopefully the other parent's lawyer explains the ramifications of a costs award against them. Costs are awarded against the UNREASONABLE party.

                              It will be the first paragraph of any future affidavit you should put forward. That on date X the other party brought motion Y and you were awarded costs of $ABC because the other parent was unreasonable in their conduct.

                              Originally posted by LearningToFly View Post
                              Thanks all for your help. Now we have to decide schools! (joy)
                              Same argument applies. If you do go and use a parental coordinator... Just retain an arbitrator that does some parental coordinator. No need to deal with the "soft" issues of "parenting" per-say... It is generally a waste of time and money. Just find a good arbitrator who will explain the situation once to the other party, seek their consent and when the other party is silly, they just issue an order to the fact and order costs.

                              A good parental coordinator is an arbitrator generally.

                              Good Luck!
                              Tayken

                              Comment

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