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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 11-05-2017, 05:49 AM
Doctor Martins Doctor Martins is offline
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Default Review my Motion to Change Brief and Give Advice..

This is still a work in progress but open to suggestions.. or your thoughts..

1) The Applicant Mother has on many occasions argued that there is an imbalance of power. The true imbalance of power is our 3 and a half year old daughter _____________ _____________ who has no voice. It is not about father’s rights, or mom’s rights. It’s about _____________’s rights to have BOTH parents in her life. In truth neither father nor mother’s rights actually matter in the situation. _____________ is deprived of rights when she is deprived of both parents equally. Father’s and Mothers are both key to the development of children.

COOPERATION

2) Much like the saying “those who seek power are the ones who should least have it”, it’s concerning that one parent wants sole custody when the other parent wants to be an equal part of the child’s life. It shows an unwillingness to cooperate. Repeatedly I have written the following to the Applicant Mother with absolutely no reply (Exhibit “”):

“I suggest moving forward that:

a) we use ourfamilywizard.com or similar app (there are free ones such as "2 houses") for easier communication
b) exchange parenting plans
c) engage in a shared parenting 50/50 week-about arrangement (week on, week off)
d) that we come to agreement on holidays including summer holidays for both parties as well as how to split PA days and school trips.
e) work to come to a final agreement on the above”

3) I have had to fight for _____________’s rights every step of the way in the face of parental alienation on Applicant Mother’s part. She falsely claimed I had nothing to do with _____________ her first year which is clearly not true as seen by this picture slideshow of _____________ and I during her first year: She used this false allegation as the basis to limit initial access. Since that time I’ve had to fight via motions for initial access, for overnights, for vaccines, of which she also deceived this court stating that _____________ had all of her vaccines when in fact she had not gotten the 18 month vaccines _____________ should have received two years ago, and only after a motion on this did she get _____________ her mandatory Vaccines. I had to fight to get _____________ the flu shot and file a motion on this. I even had to get a copy of _____________’s health card after months of denial. When I booked an appointment with _____________’s doctor the Applicant Mother asked me why I want to meet him. She must feel that she alone should dictate everything about _____________ and I should just pay child support and not be involved in any of her raising.

MATERIAL CHANGE

4) Over the past year things have greatly improved in relations between Applicant Mother and myself and a new status quo has been established.* Because of the nature of my location and our respective schedules Applicant Mother and myself elected to have a schedule that would alternate weeks and be often Wed or Thursday from 11AM* to 6PM or 8PM Sunday.* Additionally Applicant Mother often works weekends with her job as a ______.* As a result she would ask me if I would take our daughter _____________ on her scheduled weekend, giving me additional weekends with our daughter.* I would happily agree and take every bit of time that I could, almost never turning down the opportunity.* At times I would have _____________ for 3 or 4 extended weekends in a row (See Exhibit A), in many cases having _____________ for longer than Applicant Mother.* I kept detailed records and calculated that over the past year I have had _____________ for 46% of the time so we were doing de facto shared parenting.* In September it creeped up to 60% of the time that _____________ was in my custody. The bond with my daughter has continued to deepen.** I have seen a big change in our daughter from when I first had overnight access to her to a year later.* She has opened up and grown into her own and there is no doubt that the shared parenting has resulted in a massive improvement in her disposition. However since I served this motion, the Applicant Mother has cut back my time to the minimum.

PROPOSED FURTHER REDUCTION

6) Rather than encouraging more time, the Applicant Mother is now suggesting that when _____________ starts school that I be cut back from Thursday to Sunday every other weekend to Friday to Sunday every other weekend. She suggest in her reply to motion to change, that I can get make up time on the weekends in the summer. She proposes this because she works most of the weekends in the summer for which time I would already get as a result of my “Right of First Refusal” order imposed by Justice _____________. Once again Applicant Mother is concerned about what is in her best interest rather than what is in _____________’s best interest.

JURISPRUDENCE

7) The overwhelming jurisprudence on Shared Parenting has changed greatly in the past few years where almost exclusively that has been the ruling at trials and appeals courts. A key landmark cases have been attached in Exhibit “” that includes a lot of other case examples which were relied upon for the Justice to come to his conclusion. It is clear that the jurisprudence dictates where this type of case will end up, and as a result it would be best for there to be a proper pathway that would give _____________ the least amount of emotional harm and reasonable transition with the least amount of inconsistency.

They key case I wish to focus on is which I feel is very similar to my case: Izyuk v. Bilousov, 2011 ONSC 7476

https://www.canlii.org/en/on/onsc/do...1onsc7476.html
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Old 11-05-2017, 05:49 AM
Doctor Martins Doctor Martins is offline
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SUCCESS
*
5.** ** The Respondent was overwhelmingly successful.* When the trial started in June 2011, the Applicant had temporary residency of the now almost three year old child, and the Respondent had very limited non-overnight access.* The Applicant sought a sole custody order in her favour, with modestly liberalized access to the Respondent.* Her position was supported by a s.112 report prepared by the Office of the Children’s Lawyer (OCL).*
6.** ** At the commencement of the trial the Respondent submitted a comprehensive parallel parenting plan which would have quickly evolved into equal time sharing, with mechanisms to deal with parental decisions and dispute resolution on an out of court basis.* In the alternative – if parallel parenting was not viable – the Respondent sought sole custody in his favour, again with an equal time sharing arrangement.
7.** ** In my judgment I concluded the Respondent father had exemplary parenting skills; the Applicant unilaterally terminated a viable co-parenting arrangement when the child was 9 months old; she lied at the motions stage to marginalize the Respondent and create a self-serving status quo; she misled the OCL investigator (who in turn did a superficial investigation which simply rubber stamped the status quo); she engaged in alienating behaviours to shut the Respondent out of the child’s life; she demonstrated questionable decision making in vitally important areas such as the child’s health and education; and she clearly demonstrated that she was unprepared to promote meaningful and beneficial contact between father and son.
8.** ** As a result, the Respondent’s alternate position prevailed at trial:* sole custody to the father, with gradually evolving equal time-sharing. *Child support was not in issue at trial, but may need to be further addressed to reflect the evolving shared parenting arrangements.

*
THE CUSTODY AGREEMENT IS INSUFFICIENT

8) The Applicant Mother admits that changes need to be made to this agreement, she lists among other things changes that regarding holidays, regarding schooling, regarding trips, all of which show that indeed this agreement requires amendment. There are several details that will need to be addressed prior to _____________ going away to school next fall, and the sooner they are addressed, the smoother the transition for her.

9) The Applicant Mother states that at upcoming settlement conferences that only custody and child support are to be dealt with, thus showing that this is the proper forum for shared parenting vs. sole parenting to be addressed.

PROPOSED COMPROMISE

10) I suggest that since my location has been brought up as an issue for week-about shared parenting, that a reasonable middle ground would be that shared parenting in a week-about manner be conditional on myself moving to _____________ Region. Additionally since the OCL could take several months that it is reasonable that the parties transition to Shared Parenting upon my move to _____________ region subject to the parties are able to examine the parenting plan before this court upon the conclusion of the OCL findings. Since only a judge can made decisions whereas the OCL can make recommendations I feel that it is reasonable that a judge can revaluate the parenting situation at that time and make any necessary changes at that time to an order.

JURISPRUDENCE PART 2

11) Again referring to Izyuk v. Bilousov, 2011 ONSC 7476 Exhibit “” There is extensive jurisprudence on these matters: https://www.canlii.org/en/on/onsc/do...1onsc6451.html

Including a detailed breakdown of Joint Custody, Parallel Parenting, Custody and Time Share, all broken down detailed jurisprudence with a comprehensive order resulting from extensive case law assumptions.


12) I find this case similar to ours. The applicant mother currently has physical custody, I am seeking joint custody and shared parenting. The child is the same age and there is high conflict which requires a detailed outline. Additionally I find Justice A. Pazaratz ruling to be well thought out, based on case law in Ontario and Canada, up to date, fair and applicable. Based on this, I suggest a parenting plan almost identical when it comes to parenting and custody. Specifically with regards to the following parts: 566-567, 568 (as it currently stands in our interim order), 569 (the Wizard app proposed or free alternative), 570-
585, 588-589, 591-595, 598. Using this order as a case study, I propose the following:


a) By the time _____________ becomes involved in full-day attendance in school (anticipated to be September 2018), the parties shall have equal time with the child.* There shall be a presumption that this shall be on an alternating week basis, with a mid-week visit with the opposite parent.* **However, the exact timesharing schedule – and the exact percentages of time with each parent – may need to be adjusted depending on the ability of each party to accommodate the child’s school schedule.** In making future residential arrangements, both parties should be mindful of the benefit of residing in fairly close proximity to one another, to facilitate the desired 50-50 timesharing.** In any event, the child’s ordinary residence shall not be relocated outside of _____________ Region (including its suburbs within the municipal boundary) without the written consent of both parties or further order of the court.

b) *** Summers: Commencing the summer of 2018, the parties shall have alternate weeks during the summer..*

c)** ** Christmas: in even numbered years the child shall be with the Applicant from December 24 1:00 p.m. to December 25 3:00 p.m. and with the Respondent December 25 3:00 p.m. to December 26 1:00 p.m.* In odd years this shall be reversed.* Whichever parent did not have Christmas Eve overnight with the child, shall have December 31 1:00 p.m. to January 1st 3:00 p.m.

d)** ** ** March Break:* Once _____________ has commenced even part-time school, if his March break is two weeks long the ordinary access schedule shall prevail.** If it is only one week, then the total number of days (including weekends) shall be divided equally.*

e)** ** Easter Weekend:* The child shall be with the Applicant Thursday 5:00 p.m. to Saturday 7:00 p.m. in even numbered years, and with the Respondent Saturday 7:00 p.m. to Monday 7:00 p.m.** In odd numbered years, this shall be reversed.*

f)* ** Father’s Day/Mother’s Day:* Irrespective of any other scheduling, the child shall always be with the Applicant on Mother’s Day from 10:00 a.m. to 8:00 p.m. and with the Respondent on Father’s Day from 10:00 a.m. to 8:00 p.m.
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Old 11-05-2017, 05:51 AM
Doctor Martins Doctor Martins is offline
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g)* ** ** Child’s Birthday:* If the ordinary schedule would result in the child being with one party during the entire day on his birthday, the other party shall have the option of having the child on their choice of either the previous day or the following day from 5:00 p.m. to 8:00 p.m.

h)** ** ** Telephone Access:* If one of the parties will have _____________ for two or more overnights in a row, on the second, forth, and sixth overnight, that party shall initiate _____________ having telephone access to the other party at approximately 8:00 p.m., for at least five minutes.

I) Right of First Refusal:* As written in existing order.

J) Regular Communications:* Unless both parties agree otherwise in writing, all ordinary communications shall be in writing using the Our Family Wizard website (or similar application such as various free versions).** If that website is no longer available, the parties shall use e-mail.*

K)* Urgent Communications:* For anything of a truly time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication.*

L) Responding to Communications:* The parties shall check for text or e-mails at least once a day.* The parties shall respond to written inquiries within 24 hours.* If a reply to a question and/or a request for a change requires more time than the agreed to response time, an email shall be sent advising that the requested information cannot reasonably be ascertained by then and advising when a response can be expected.
M)* Positive Communications: Written communications shall not be shown or read to the child.* All communications, written or otherwise, shall be cordial, brief, and child-focussed.* The parties shall refrain from making personal or negative comments about one another, or extended family members or partners.

N)** ** ** ** The child shall not be used to relay messages between the parents.*

O) ** ** ** The parents shall not communicate about issues or non-emergency arrangements when _____________ is present or nearby.

P)** ** ** The parties shall not question _____________ (or comment to the child) about the other parent’s personal life and activities.

Q) * ** Dealing with Third Parties:* Both parties shall be equally entitled to communicate with all educational, medical, dental, recreational and social service providers for the child.* Each party shall keep the other fully informed of any communications they have with such services providers, and the particulars of any new providers.* Both parties shall be entitled to attend all meetings with such providers.* Both parties shall execute consents or authorizations which any professionals or service providers may require, to facilitate equal communication and access to information by both parents.

R) ** ** ** ** Consultation:* The parties shall confer with one another in relation to non-emergency decisions in the child’s life.* However, after a reasonable opportunity for such discussion, and in the absence of any determination by a parenting co-ordinator or further resort to the courts, the Respondent shall have final decision-making authority in relation to all issues.

S)** ** * Extracurricular Activities:* _____________ may not be registered in more than two regularly scheduled extracurricular activities per week, with each parent being entitled to select one, unless the parties otherwise agree in writing.* The parent selecting the activity shall be responsible to take _____________ to the activity when he is with that parent.* When that activity arises during the other parent’s time, the other parent shall have the option of taking _____________ to the activity, or allowing the parent who selected the activity to take him.* To maximize the benefit of the child’s participation in ongoing extracurricular activities, both parents should make their best efforts to ensure regular attendance.* If a parent has a non-recurring conflicting commitment for the child on their time with _____________, they should provide at least 72 hours advance notice in writing of their alternate plans with the child.

T)** ** * Non-Encroachment on Time:* Apart from the aforementioned provisions regarding extracurricular activities, (and apart from the Respondent’s authority to arrange school, daycare, or medical commitments as _____________’s custodial parent), neither parent shall make plans for the child when he is scheduled to be with the other parent, without first having the written consent of the other parent.* In addition, the parents shall canvas proposed and/or potential changes to the schedule first with the other parent and prior to mentioning anything to _____________ about a change and/or a social activity.

U)* ** ** *No Make-up Time:* There shall be no make-up time for missed parenting time (regular or holiday time) unless both parents agree to this in advance and it is confirmed in writing.

V) ** Attendance at Events:* Each parent may attend any extracurricular activities open to the public, including sports practices, games, competitions, concerts, performances, recitals, etc.* The parents shall remain cordial during these occasions and not use them as an opportunity to discuss child-related arrangements and issues.* The parent who would normally have _____________ at the time shall assume responsibility and control over the child. **The other parent may briefly greet or encourage the child, but shall otherwise observe from a reasonable distance.

W) Scheduling Changes:* If a change in the regular and/or holiday schedule is requested due to a special event, celebration or unforeseen circumstances (e.g. family celebration, work demand or emergency, etc.), a written request shall be provided to the other parent in order to permit that parent to make a reasonable effort to accommodate the request.* A response shall be provided within 48 hours of receiving the request.* The request and change shall be confirmed in writing.

X** ** ** ** ** Ongoing Medical Care:* As custodial parent, the Respondent shall arrange and decide medical issues for _____________.* The Applicant shall be provided advance notice of all medical appointments or procedures as soon as they are arranged.* Both parties shall be permitted to attend all medical appointments and events.

Y) * ** ** Emergency Medical Care:* Each party shall have authority to arrange emergency medical treatment for _____________, but in such event, the party arranging treatment shall make reasonable efforts to notify the other party immediately, to allow the other party to also attend at the emergency treatment facility as quickly as possible.

Z)* ** ** ** **Contact Names:* Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with _____________.

1)** **** ** ** Clothing:* To minimize what Maxeem must travel with, both parents shall have sufficient clothing for him and these items shall not travel back and forth.** However, outer wear such as winter coats and boots shall travel back and forth between households.

2) ** ** ** **Child’s Name:* Neither party shall change the child’s name – either formally or informally – without the written consent of the other party or further court order.*

3) Passport: The passport shall remain in the possession of the Respondent, subject to being released to the Applicant for such travel as may be agreed upon or authorized herein.* Neither party shall obtain any other passport for the child, and neither party shall name the child under their own (or any other person’s) passport.

4) ** ** ** Travel:* Neither party shall be permitted to remove the child from Canada without the written consent of the other party or further court order.* Subject to agreement or court order, international travel involving the child shall not occur until the child is at least eight years old.* Thereafter, the party proposing international travel involving the child shall provide the other party with full particulars at least 60 days prior to the intended travel, including the exact itinerary, destinations, accommodations, and methods of communication.

5)** ** ** ** Local Travel: _____________ may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party.* However, the parents shall notify one another in advance, in writing, whenever _____________ will be sleeping away from that party’s ordinary residence for more than two nights in a row.*

6) ** ** ** If either parent plans a vacation without _____________, that parent will give the other parent a telephone number where he or she can be reached in case of emergency or if _____________ wishes to contact the travelling parent.

7)** ** ** Emergency Contact Persons: Each parent shall designate a contact person of his or her choice should the other parent not be able to be contacted in case of emergency

8)** ** ** *Documents:* The parties shall provide one another with copies of all relevant child related documents such as the OHIP card, birth certificate, SIN documents, etc.* In even numbered years the Applicant shall retain physical possession of the original documents. In odd numbered years the Respondent shall retain physical possession of the original documents.** However, any party travelling out of Canada with the child (as provided for herein) shall be entitled to have the child’s original documents for the duration of the trip.
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