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Old 04-05-2006, 01:25 AM
logicalvelocity logicalvelocity is offline
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brokendad,

from what you have mentioned it does appear to be that your ex is somewhat manipulating the child.

Please read this case. Your statement reminded me of this case


Cox v. Stephen

Ronald Henry Cox, Applicant / Respondent in Appeal and Holly Lynne Down,
Respondent / Appellant in Appeal

Ontario Superior Court of Justice

Templeton J.

Heard: September 3-5, November 28, 2001
Judgment: May 21, 2002
Docket: 841/97

Proceedings: reversing (2001),
Counsel: Kenneth A. Cole, for Applicant/Respondent in Appeal

Jeffery Wilson, for Respondent/Appellant in Appeal

Subject: Family

Family law --- Children born outside marriage -- Custody and access -- Custody

Custody of son was changed to father -- Mother appealed -- Appeal allowed -- Trial judge had erred in law -- Joint custody was awarded on "parallel parenting" model -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2).

Family law --- Children born outside marriage -- Custody and access -- Access

Custody of son was changed to father and father was given control over mother's access to son -- Mother appealed -- Appeal allowed -- Trial judge had erred in law -- Terms of access were to be based on son's best interests alone -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2).

Family law --- Custody and access -- Joint custody -- General

Custody of son was changed to father -- Mother appealed -- Appeal allowed -- Trial judge had erred in law -- Joint custody was awarded on "parallel parenting" model -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2).

The mother of two children had a son while in a relationship. After the son's birth, an order was made on consent, granting custody to the mother and generous and liberal access to the father. The father applied for a variation of the custody order, seeking sole custody of his son, on the basis that the mother had wilfully and repeatedly defied the terms of the settlement by preventing the son from having access to his father and had refused to answer numerous requests for access. The mother subsequently married and had a fourth child. From birth, the son had lived with the mother, her other children and her husband. An order granted in 1998 continued access and two years later an order was made fixing access to the father and specifying a location for transfer of the son. In 2001, the trial judge granted the father's application, changing custody to the father. The mother filed a notice of appeal and a stay of the judgment was granted. The mother appealed the judgment.

Held: The appeal was allowed.

The evidence at trial was clear that the conduct of the parents, particularly the mother, had a detrimental effect on the son. The trial judge was correct in finding that there had been a material change in circumstances such that the application for variation ought to be considered. The trial judge isolated two questions to be answered: Who should have sole custody, and where should the son live and for what periods of time? The trial judge erred in framing the issues in this way. In basing the analysis on "who should have sole custody" rather than on "what is in the son's best interests", the trial judge created a framework in which the parents became the object of the court's attention and concern rather than the son. Using this approach, the parents' efforts to compete with one another were sanctioned. An analysis under s. 24(2) of the Children's Law Reform Act requires a thorough and detailed consideration of the conduct of each parent and what each parent has to offer the child, but always with the centre of attention focused on the child. No law or precedent provided that a court may give more weight to one factor enunciated in s. 24 than the others. To change custody on four factors alone, as enunciated by the trial judge, and give less than equal weight to the love, affection and emotional ties the son had for and to his mother, her husband and her other children amounted to an error in law. The trial judge's criticism of the mother's conduct was well founded. On the other hand, to remove the son completely from the only home environment he had ever known and leave the nature and extent of all contact with the mother in the discretion of the father was to override the mandate outlined in the legislation. The trial judge's response to the mother's conduct completely ignored the effect, if any, the removal of the son from the only home he had ever known, placement into a nanny's care when he had been primarily cared for by his mother his whole life and termination of daily intimate contact with his siblings, would have on the son.

The trial judge erred in law in recommending terms of access that the father could decide not to implement if he deemed them deleterious to the son. Whether or not access was deleterious to a child was not the test, and to delegate responsibility of defining access on that basis was an error in law. Terms of access were to be based on the son's best interests alone.

Joint custody requires a high degree of cooperation between parents and is usually awarded only when parents have demonstrated the ability to co-operate. "Parallel parenting" orders have become a form of joint custody which does not depend on cooperative working relationships or even good communication between the parents. The concept is that parents have equal status but exercise the rights and responsibilities associated with custody independent of one another. It was in the son's best interests, taking into account all factors outlined in s. 24(2) and giving each factor equal weight, that the mother's struggle for control and efforts to minimize the presence or significance of the father in her son's life be removed from the equation. The concept of "parallel parenting" is intended to remove the power struggle between parents for control over their child. This was an appropriate case for a joint custody order using the "parallel parenting" model. Joint custody was ordered, with the parties exercising their rights and responsibilities as set out and in the best interests of their son.

Cases considered by Templeton J.:


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