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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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  #1  
Old 11-12-2021, 12:03 PM
NewDay NewDay is offline
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Default Custody change

I have read some horror stories on CANLII about parents behaving badly and this mostly has to do with access; that is what makes it to trial.


When access is 50/50 what is needed to change decision making authority.
Is showing the other parent is incompetent, acting unilaterally sometimes and does not participating enough? Married couple have these problems so it is normal I guess.

When access is 100% with one parent I read a CANLII saying it was unnatural for that parent not to have the decision making rights for them.
Anyone have links?
Is 80/20 enough?
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Old 11-12-2021, 12:13 PM
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Quote:
Originally Posted by NewDay View Post
I have read some horror stories on CANLII about parents behaving badly and this mostly has to do with access; that is what makes it to trial.


When access is 50/50 what is needed to change decision making authority.
Is showing the other parent is incompetent, acting unilaterally sometimes and does not participating enough? Married couple have these problems so it is normal I guess.

When access is 100% with one parent I read a CANLII saying it was unnatural for that parent not to have the decision making rights for them.
Anyone have links?
Is 80/20 enough?
You basically need to prove the other parent is:

1. Non responsive; or
2. Incompetent in making or contributing to the decision; or
3. Just disagreeing to create conflict and preventing a decision being made for the child(ren) that will impact their health and/or well being.

You basically have to prove the other parent is impacting the children's best interests.

Also, you have to have a REASON to go to court. 99% of children are healthy, enrolled in school and often the need to wield the "Sword of Sole Custody". Now, if you have a child with special needs (education or medical or both) this is where things get complex.

But, if you are going to court for "power" with no "objective"... Say like to get your child vaccinated by COVID-19 and the other parent has objected to the child being vaccinated then you have a REASON to go to court to get a decision made.

But, often, the court will not remove joint-custody... They will just order that the responsible parent is now responsible for vaccinations and narrow the issue. They don't just throw "sole custody" around these days.

Go to court with no reason other than panic about the "future" and nothing that needs to be determined (like vaccination, surgery or a school change) then, get ready to get burned hard by a judge.

You need a lawyer... They can guide you on things like this. They will ask you these questions and explain in detail why you need to have a REASON to go to court.

Courts deal with decisions that need to be determined NOW... Not hypothetical anxious fears that in the future something may happen. They will order costs against you and say... come back when you have a real dispute that needs resolution.

Get a good lawyer.
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Old 11-12-2021, 12:16 PM
Brampton33 Brampton33 is offline
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Access and decision-making are 2 separate things and should be treated as such. You are referring to custody.

Sole custody means 1 parent makes the decisions as it relates to education, religion and health care. Often, court orders on sole custody still require that parent to inform the other parent when decisions are about to be made. Joint custody means these things are decided together. Most court orders have Dispute Resolution clause for when 2 parents with joint custody disagree on a topic requiring joint decision making.

Decisions that fall under "custody" are few and far between, depending on the kid. What religion will kid be? Where will they go to school? Kids with special needs may require more decisions to be made but generally people follow doctor's orders.

Not getting along with your ex in custody decision realms is not a reason to reduce access.

Remember, access and decision making are 2 entirely different things.

Last edited by Brampton33; 11-12-2021 at 12:18 PM.
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Old 11-12-2021, 12:40 PM
NewDay NewDay is offline
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Not looking to reduce access. It would be welcome but they don't want that.

Looking to be the decision maker for the child 100% with me, yes. Education and activities; medical I cross my fingers and hope not to have the need to go to court.

Looking for final decision making for the other child, even if I got that...I can't think of a way to get the other parent to be responsible when the kids in their care, no burn marks or by chance lost limbs yet. Can't document life in their home for evidence.
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Old 11-12-2021, 12:50 PM
Brampton33 Brampton33 is offline
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Quote:
Originally Posted by NewDay View Post
I can't think of a way to get the other parent to be responsible when the kids in their care, no burn marks or by chance lost limbs yet. Can't document life in their home for evidence.
Going from joint custody to sole custody will have zero impact regarding the care of the kids while at your ex's. Regardless of custody type, it is possible for kids to fall off bikes an break a bone. Custody will not change activities.

I hate to repeat myself, but most court orders and separation agreements have a dispute resolution clause. If you disagree on decision-making, you seek mediation. The court does not want to re-see you after you have litigated. They expect parents to be grown ups and figure things out, rather than constantly running to a judge or trying to remove the other parent from decision-making or access.
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Old 11-12-2021, 01:57 PM
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Quote:
Originally Posted by Brampton33 View Post
I hate to repeat myself, but most court orders and separation agreements have a dispute resolution clause. If you disagree on decision-making, you seek mediation. The court does not want to re-see you after you have litigated. They expect parents to be grown ups and figure things out, rather than constantly running to a judge or trying to remove the other parent from decision-making or access.
Been there, done that. Kumbya didn't work.
Write your MP to tell them how things should be.
Lawyers do want to see you back in court.
Reasonable people don't need a final court order.

Soooo looking at case law to determine if my argument is reasonable.
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Old 11-12-2021, 02:35 PM
rockscan rockscan is offline
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Default Custody change

There was a poster on here years agoDadx5who went through something similar on decision making and change in custody. You want to search him and his posts as he may have touched on this in his case. Basically his ex was preventing his daughter from doing a lot of necessary things and getting necessary care. It was a long process but he finally found success. There may be something in his posts that could help.
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Old 11-12-2021, 04:04 PM
NewDay NewDay is offline
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thanks. I read Dadx5 stuff. His was more severe and he was able to get CAS involved.
All the overtly bad stuff she already did to the one kid during the marriage and during proceeding or to the other kid.

So I have sole access on consent and remember reading a case where the lawyer argued that after time that also meant custody. I don't want to do it to be mean, I want to avoid disagreement.
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