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Old 01-26-2007, 12:09 AM
logicalvelocity logicalvelocity is offline
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smadax,

I see where you coming from on the contradictions.

I have a tendency to feel the the children's law prevails

The Children’s Law Act, 1997, S.S. 1997, c. C-8.2:


2(1) In this Act:

...

“custody” means personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child’s age and maturity;
...

“guardian of the property of a child” means the person constituted or appointed as a guardian pursuant to section 30;

...

“legal custodian” means a person having lawful custody of a child;
...

(2) Unless a contrary intention appears in any Act, regulation, instrument or law, a reference to the guardian of a child is deemed to be a reference to the legal custodian of the child.

With that said, it appears both parents still have coextensive custody of their child as this statement of law appears to overide any other act. If your sister was married to the individual the Divorce Act could apply and unless there is an order from the court or an agreement the provides otherwise, both parents have coextensive custody of the child.

3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of a child are joint legal custodians of the child with equal rights, powers and duties.

(2) Where the parents of a child have never cohabited after the birth of the child, the parent with whom the child resides is sole legal custodian of the child.

...

6(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the opinion of the court, a sufficient interest, the court may, by order:

(a) grant custody of or access to a child to one or more persons;

(b) determine any aspect of the incidents of the right to custody or access; and

(c) make any additional order that the court considers necessary and proper in the circumstances.

...

(5) When making an order pursuant to subsection (1), the court shall;

(a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact ....

This is what you sister has to build her case on the lack of willingness of the other parent to foster the relationship

(7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for:

(a) the division and sharing of parental responsibilities; and

(b) the granting of access.

...

8 In making, varying or rescinding an order for custody of a child, the court shall:

(a) have regard only for the best interests of the child and for that purpose shall take into account:

(i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child;

(ii) the personality, character and emotional needs of the child;

(iii) the physical, psychological, social and economic needs of the child;

(iv) the capacity of the person who is seeking custody to act as legal custodian of the child;

If the other parent refuses the child's access, their "capacity" to parent the child is in question.

(v) the home environment proposed to be provided for the child;

(vi) the plans that the person who is seeking custody has for the future of the child; and

(vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child;

(b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child; and

(c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother.

9(1) In making, varying or rescinding an order for access to a child, the court shall:

(a) have regard only for the best interests of the child and for that purpose shall take into account:

(i) the quality of the relationship that the child has with the person who is seeking access;

(ii) the personality, character and emotional needs of the child;

(iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and

(iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and

(b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care.

(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child.

By default of the law, your sister has the same right to make inquiries and to be given information concerning the health, education and welfare of the child.

(3) The right of a parent who is granted access described in subsection (2) is not, unless the court orders otherwise, a right to be consulted about or to participate in the making of decisions by the custodial parent.

...

30(1) Unless otherwise ordered by the court and subject to the provisions of this Act, the parents of a child are joint guardians of the property of the child with equal rights, powers and duties.

lv

Last edited by logicalvelocity; 01-26-2007 at 12:33 AM.