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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 08-30-2006, 10:35 PM
brokendad brokendad is offline
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Default Custody for failure to communicate

Hello again
It seems to me that somewhere early 2005, there was a case where a father was denied custody because of his outright refusal to communicate with the mother. Does anyone know of the case , or where I can get information about this case?
Thankyou
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Old 08-31-2006, 01:06 AM
logicalvelocity logicalvelocity is offline
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would it be this case

Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620; (2005), 194 O.A.C. 106

http://www.canlii.org/on/cas/onca/20...onca10071.html


paragraph 2

[2] For the reasons that follow, I would agree with the mother that the order of joint custody should be set aside on the grounds that the trial judge erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties. I would also agree that the trial judge exceeded her jurisdiction by making an order that the parties attend counseling and by imposing on them a requirement that, in the event they could not agree, the unnamed counselor was to decide the matter for them. Inasmuch as an order for joint custody is not appropriate, and the father did not seek sole custody of the child, I would order that the mother be awarded sole custody of the child. I would further order the trial of an issue with respect to the terms of the father’s access. Pursuant to s. 112 of the Courts of Justice Act, I would request the Children’s Lawyer to cause an investigation to be made and to report and make recommendations to the court on all matters concerning access to the child and the father’s involvement with the child.

[6] The mother resisted the father’s application on the basis that the parties could not communicate without screaming at each other. In addition to the evidence of the screaming incident in the marriage counselor’s office she led evidence about a screaming incident that was witnessed by a neighbour when the father came to pick up the child at his in-laws’ home in which the mother had returned to live.


It struck me that it is not in the wife’s interests to try to communicate and cooperate with the facilitation of access. She would see this as weakening her claim for sole custody, because of the emphasis she puts on their inability to communicate as a justification for a sole custody order. In my view, considerations of the best interests of Victoria in the context of her extended familial relationships, must not preclude joint custody, merely because the parties, fresh from the wounds of their failed marriage, find it difficult to be civil to each other. See Dagg v. Pereira 12 R.F.L. (5th) and the decisions Bellamy J. referred to in paragraphs [39] to [46].

[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.


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Old 08-31-2006, 05:45 PM
brokendad brokendad is offline
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Default re kaplanis vs kaplanis

thankyou logicalvelocity

brokendad
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