Help: Custody question

[davidm]

As my other threads have shown my ex is throwing everything at me right now.

Now her and her lawyer are threating our joint custody arrangement. As mentioned I have a signed mediated separation agreement and have never not had the kids less then 40% of the nights.

They said they are filing an emergency motion? any chance a judge would overturn our joint custody?

Thanks

[blinkandimgone]

An emergency motion based on what grounds?

[davidm]

Sorry I miss spoke. They threatened to file a motion this week stating that our communication is not cunductive to joint custody.
I had to call the police on her last week as she threatened blocking custody and I have it all recorded where she says she doesnt care what is in the best interest of the children.

[Mess]

You haven't had a case conference? This would actually be an emergency motion? It is garbage. I hope you have this in writing. Among other things, copy it and attach it to the back of your case conference brief.

Don't answer them, but if they actually go to court of course attend.

[Mess]

BTW David I understand the need you felt to call police, but if it is possible to do exchanges in a neutral way, you should. For example one parent drops of at school/daycare and the other picks up.

At this point I would strongly suggest you consult with a lawyer. Again, they have no grounds and it is laughable, but you need to have your i's dotted and t's crossed, and you need to watch your own behaviour.

It strongly seems like she is baiting you to lose your temper and then she will have some actual ammunition.

Meanwhile, if all of the aggression is coming from her side, she is actually giving you reason to have full legal custody.

The way to protect yourself is to take the high ground. Have factual records that show that you are the co-operative, friendly parent.

The court's choice will be which parent has custody. They will give it to the parent that most strongly displays that they will respect the other parent's rights to a good continuing relationship with the child and that they will respect the custody order. Show that you are that parent, have ways to prove it.

[davidm]

Thanks. I have now retained a lawyer. I am not sure why they are threatening such things.
They also want all communication thru the lawyers. Even regarding the children.
What a waste.

[Tayken]

Just send this in a letter to the other lawyer:

[72] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the ability of the parents to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[21]

[73] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.[22]

[74] The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[23] The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”[24]

[75] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order.[25] In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.[26]

[76] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.[27]

CanLII - 2011 ONSC 4305 (CanLII)

Generally, this silences the BS about "not being able to communicate".

Good Luck!
Tayken

[davidm]

Nice thanks