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Old 07-10-2006, 08:22 PM
logicalvelocity logicalvelocity is offline
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Have you asked for some for of custody in your current court action. I suspect you have ie Joint custody. It is to your ex's advantage if there is no co-operation and very little effective communication.

Did the Judge give an order for the access regime or a recommendation. Have you looked after the child at all on your own prior to separation. Have you lived together as a family prior to separation.

Some case law that you want you lawyer to take a look at to support your stance.

1. Huffman v. Kuffner, 2003 SKQB 208

Child in the heart of this case was 19 months old. In paragraph 3 of this interim motion, the honorable SMITH J. states

[3] It should be noted that Aza is 19 months old. The child’s tender years are a significant factor in determining parenting times. It is important that the child have an opportunity to bond with each parent, however, at the same time disruption to a toddler’s schedule should be kept to a minimum.

as a result,

i) every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., commencing Friday, May 9, 2003, said overnight access to be exercised at the petitioner’s parents’ home;

(ii) in those weeks where there is no weekend access, starting the week of May 11, 2003, the petitioner shall have parenting time with Aza two nights per week (Monday to Thursday), the precise two nights to be determined in the petitioner’s discretion from 6:00 p.m. to 8:00 p.m.

2. Baird v. Webb, 2002 SKQB 518 Child was 12 months old

The honorable Dickson J. states in paragraph 8-10

"[8] The father dismisses the mother's fear that the child will be distressed by change of his overnight caregiver. He presented an article by Joan B. Kelly and Michael E. Lamb published in Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, Family and Conciliation Courts Review, Vol. 38, No. 3, July 2002, 297-311 at pages 308-309:

The extent to which infants and toddlers can tolerate separation from significant attachment figures is related to their age, temperament, cognitive development, social experience, and the presence of older siblings. Aside from their very immature cognitive capacities, infants have no sense of time to help them understand separations, although their ability to tolerate longer separations from attachment figures increases with age. The goal of any access schedule should be to avoid long separations from both parents to minimize separation anxiety and to have sufficiently frequent and broad contact with each parent to keep the infant secure, trusting, and comfortable in each relationship.

Preschool children can tolerate lengthier separations than toddlers can, and many are comfortable with extended weekends in each parent's home as well as overnights during the week. In general, however, most preschool children become stressed and unnecessarily overburdened by separations from either parent that last more than 3 or 4 days. The exception might be planned vacations, in which parents and siblings are fully available to engage preschool children in novel, stimulating, and pleasurable activities. Even so, most parents would be advised to limit vacations at this age to 7 days and to schedule several vacations rather than one single lengthy vacation.

This quotation was cited and approved by McIntyre J. in Cooper v. Cooper, [2002] S.J. No. 226 (QL)(Q.B.) when he granted a father weekend access to a one-year old.

[9] I am concerned about the impact on a one-year old child of an access order that subjects him to six hours of highway travel every time he is delivered into the care of his father. Unfortunately, it cannot be avoided. If the access is to be meaningful and beneficial to the child, it must be exercised as the father sees fit. It must take place in a surrounding that is comfortable for both father and son; a place where the father can behave in a spontaneous and relaxed manner. Only then can the child know his father. That will not happen if contact with the father is limited to a few hours in a Wal-Mart mall.

[10] I am satisfied that alternate weekend access is appropriate in this case, although not for the length of time suggested by the father. To begin, his access should be from Saturday morning to Sunday evening twice a month. The mother should share the transportation burden by delivering the child to the father in Regina and picking him up there when he is returned. It would, therefore, be convenient to her if Daniel's access weekends coincided with the weekends the mother takes her older child to Regina for visits with his father. Time of delivery to the father and return to the mother will have to be worked out by the parties to their mutual convenience. There will be an order accordingly. If the visits go well, Daniel's time with his father should be extended, perhaps commencing on Friday. Hopefully, the parties can work this out themselves, together with such things as holiday and special events access."

3. D.D. v. A.S.S., 2004 BCPC 0056,

The child in this case was 18 months old. The court held that the mother appeared to be proceeding on the assumption that she had exclusive proprietary interests in the child, definitely to the exclusion of the father, and for the father to have access to the child he must qualify by meeting the mother’s standards and conditions for access. In paragraph 26, ROMILLY J. states:

"Counsel for the applicant referred me to Mr. Justice McQuaid's 1993 decision of Sherry v. Sherry, D.R.S. 94-05914 where Mr. Justice McQuaid referred to a leading Supreme Court of Canada decision of Young v. Young, quoting from Mr. Justice Sopinka's judgment as follows:

“The long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child.”

as a result,

[28] I therefore order that A.S.S. shall have Interim Unsupervised Access to his son specified as follows:

1. On alternate weekends from Friday at 5:00 p.m. until Sunday at 6:00 p.m. with access extending to Monday at 9:00 a.m. on long weekends.

2. When A.S.S. has no access weekend he shall have mid-week access on Tuesday and Wednesday from 3:00 p.m. to 8:00 p.m., when D.D. presumably will be working.

3. The child shall spend Mother's day with his mother and Father's day with his father whether or not those days fall on an access day, and there shall be no "make-up" day if it falls on an access day.

4. The child shall spend Easter Sunday with his mother and Easter Monday with his father whether or not those days fall on an access day, and there shall be no "make-up" day if it falls on an access day.

5. The child shall spend half of his birthday with his mother and half with his father, unless the parents could put aside their differences and get together to spend at least the child's birthday together with the child.

6. D.D. shall be responsible for drop offs of the child promptly at the scheduled times of access and A.S.S. shall be responsible for returning the child promptly at the end of his access periods.

4. Schmidt v. Haley, 2004 WL 530212 (Ont. S.C.J.),

The child was 21 months old. The honorable Matheson J. accepted the comments made by Joan B. Kelly and Micheal E. Lamb; in their article "Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children". This is found in Family and Conciliation Courts Review, Vol. 38 No. 3, July 2000 297-311 at page 300:

“The empirical literature also shows that infants and toddlers need regular interaction with both of their parents to foster and maintain their attachments. Extended separations from either parent are undesirable because they unduly stress developing attachment relationships. In addition, it is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened.”

In the result, the court held that it is in the best interests of the child, whatever the age, that the child has as much contact as possible to each parent, as long as there is a fixed routine. In the result, the court ordered alternate weekends and each Wednesday overnight.

5. Szczecina v. Szczecina ,[2003] O.J. No. 1249 (Ont. S.C.J.),

The issue centered on the custody of a nine-month-old child. The court rejected the "tender years" doctrine, awarded temporary custody to the father and access to the mother on alternate weekends from Fridays at noon to Mondays at noon.

These are just some cases that you could cite to support your stance.

If you desire and have a claim for Joint custody of your child, remember this, Until a court orders otherwise and or an agreement is in place Both parent's have coextensive custody of the child.

Don't let your ex push your buttons. Be pleasant,communicative and co-operative.