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Nationcaps · #1 10-11-2011, 12:48 PM

I was wondering how I could go about researching previous court rulings regarding grandparents' rights over a parent's when it comes to a parent having to work.

I separated from my ex in 2006 and we have joint custody, with my ex having "primary custody".

After several attempts to discuss a move to 50-50 custody, I finally decided to get a lawyer. My ex is now in receipt of my lawyer's letter to her.

Here is where I, and my lawyer, believe we have a strong case. My ex works nights (her choice for the night shift premium) and therefore has her parents look after my child. The nights that her parents are away (they travel alot), she needs me to care of the child.

Back in 2008, my girlfriend convinced me to track where my child sleeps every night. For one of the years, the child spend over 140 days with my ex's parents, about 120 days with me and just over 100 nights with her. This pattern continues to date. Grandparents have the child more than either his mom or dad combined.

I still continue to pay her full support even though my child is not with her. Unfortunately, my first lawyer did not recommend a right of first refusal clause.

Do you know if any past cases where a court sided with the grandparents rights of keep the child, in the case of employment, over a parent?

Any guidance would be helpful. Thank you.

neil50 · #2 10-27-2011, 08:13 AM

My younger daughter had a joint custody arrangement with her ex. They both travelled with work and were flexible about which weeks the boys were with which parent. As to grandparents, both sets interacted. So apart from their parents being divorced, things were pretty much as they would have been had they stayed together.

Looking back now - it worked very well - the boys now in their 20s have told me they hated the divorce but regarded the grandparent 'thing' as something stable in their lives.

I tell you this so you can add it as a consideration to what you decide to do. It would seem kids of divorce welcome stability of any kind.

Tayken · #3 10-28-2011, 07:28 AM

Quote:

Originally Posted by Nationcaps

I was wondering how I could go about researching previous court rulings regarding grandparents' rights over a parent's when it comes to a parent having to work.

I separated from my ex in 2006 and we have joint custody, with my ex having "primary custody".

After several attempts to discuss a move to 50-50 custody, I finally decided to get a lawyer. My ex is now in receipt of my lawyer's letter to her.

Here is where I, and my lawyer, believe we have a strong case. My ex works nights (her choice for the night shift premium) and therefore has her parents look after my child. The nights that her parents are away (they travel alot), she needs me to care of the child.

Back in 2008, my girlfriend convinced me to track where my child sleeps every night. For one of the years, the child spend over 140 days with my ex's parents, about 120 days with me and just over 100 nights with her. This pattern continues to date. Grandparents have the child more than either his mom or dad combined.

I still continue to pay her full support even though my child is not with her. Unfortunately, my first lawyer did not recommend a right of first refusal clause.

Do you know if any past cases where a court sided with the grandparents rights of keep the child, in the case of employment, over a parent?

Any guidance would be helpful. Thank you.

You could take the matter on motion but, depending on the grandparents, and the status quo you may be facing grandparents filing for custodial rights to your children. Especially based on the evidence you have gathered.

Good Luck!
Tayken

WorkingDAD · #4 10-28-2011, 11:19 AM

Quote:

Originally Posted by Nationcaps

I was wondering how I could go about researching previous court rulings regarding grandparents' rights over a parent's when it comes to a parent having to work.

I separated from my ex in 2006 and we have joint custody, with my ex having "primary custody".

After several attempts to discuss a move to 50-50 custody, I finally decided to get a lawyer. My ex is now in receipt of my lawyer's letter to her.

Here is where I, and my lawyer, believe we have a strong case. My ex works nights (her choice for the night shift premium) and therefore has her parents look after my child. The nights that her parents are away (they travel alot), she needs me to care of the child.

Back in 2008, my girlfriend convinced me to track where my child sleeps every night. For one of the years, the child spend over 140 days with my ex's parents, about 120 days with me and just over 100 nights with her. This pattern continues to date. Grandparents have the child more than either his mom or dad combined.

I still continue to pay her full support even though my child is not with her. Unfortunately, my first lawyer did not recommend a right of first refusal clause.

Do you know if any past cases where a court sided with the grandparents rights of keep the child, in the case of employment, over a parent?

Any guidance would be helpful. Thank you.

I did not have a lot of research done on that part as I did not have to deal with it yet but walking thou all available decisions what our Judge made in past I came across one case what I think you can use as some starting point ...

MacDonald v. MacDonald, 2009 CanLII 15444 (ON SC)

In this case Justice endorsement has whole section GRANDPARENT ACCESS – ANALYSIS

Quote:

GRANDPARENT ACCESS – ANALYSIS

[70] In a 2003 article in Canadian Family Law Quarterly (21 CFQL 437) entitled “To Grandmother’s House We Go? An Examination of Grandparent Access”, Martha Shaffer extensively reviewed the state of the law, in Canada and elsewhere, on the issue of grandparent access. In her introduction she stated:

“Grandparent access claims raise difficult and controversial issues about the nature of family and the scope of parental decision making power over their children's upbringing. Proponents of grandparent access frequently point to the important role grandparents can play in children's lives and the harm to children — and to the grandparents — that may result if they are denied the opportunity to form a relationship with their forebears. Opponents of court-imposed grandparent access see the issue differently, pointing instead to the harm that grandparent access poses to parental authority by allowing courts to substitute their view of the merits of maintaining a relationship between the child and the grandparent for those of the parents.

At essence, grandparent access revolves around a question of decision making authority — who, as between the child's parents or the courts, should have the power to decide with whom the child will have contact? All Canadian jurisdictions now permit grandparents to apply to a court for access and these applications are to be decided based on the best interests of the child. This statutory regime gives rise to the following question: how should the court apply the best interest test in making this decision? Should the courts adopt a deferential approach to parental decisions on the assumption that absent a finding of unfitness, parents are entitled to decide what is in their child's best interests where contact with third parties, including grandparents, is concerned? In other words, should the courts come close to recognizing a parental "right" to determine with whom children can associate? Conversely, should the courts approach the analysis with the assumption that contact with grandparents is generally in a child's best interests and should be ordered unless the parents can show specific reasons why access would be harmful to the child? Should the courts effectively recognize a presumption in favour of grandparent access?”
. . . .

The debate over grandparent access is part of a larger debate about the boundaries of parental decision making and the range of adult/child relationships the law will protect. Historically third parties — including grandparents — had no legal right to claim access to children. Legal rights to seek access to children were reserved for parents, who, as long as they were fit, also had the right to decide who could have contact with their children. Embedded within this approach were views about the primacy of the traditional nuclear family and of the appropriate role of state intervention within the family. By providing that parents were the only persons to have a legally enforceable claim to contact with children, the traditional approach to access assumed that the parent/child relationship was the only relationship worthy of protection against disruption. Other relationships, no matter how strong, how healthy, or how important they might be to the child, did not merit legal protection. It also assumed that parents, rather than the state, were the proper arbiters of who should have contact with their children. On the traditional model, to allow courts to override parental decisions and to force parents to permit contact with grandparents or other third parties would be to undermine parental autonomy and would constitute impermissible state intervention in the family.
As a result of legislative reform at both the provincial and federal level, Canadian law has departed from the traditional approach to third-party access. Grandparents can now make access claims under the Divorce Act or under the statutes governing custody and access in all of the provinces and territories. Although there are differences in how the various provisions are drafted, all provide that access may be granted to grandparents if it is in the child's best interests to do so.

....

[74] The Court quoted Chief Justice McLachlin who stated in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), that when assessing the best interests of the child, "each case turns on its own unique circumstances." The Court of Appeal in Chapman concluded that courts should only override a parent’s decisions about the individuals with whom their children can associate if it has been established that the parent is unable to act in the children’s best interests.

[75] There have been many cases grappling with this issue over the years. One of the most recent reported decisions is G. (G.) v. W. (J.) [2008] W.D.F.L. 5313, an October 2008 decision of the New Brunswick Court of Queen’s Bench, which reviewed a lengthy series of cases and adopted the position: “There is no automatic right of access to third parties. Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents' inherent right to determine the course of their child's upbringing.”

I will not copy whole section here... Just go and read...

BeenThereTwice · #5 10-28-2011, 10:50 PM

You don't mention how old the child is.

You separated in 2006, and in 2008 you tracked where your child slept and realized then that the child slept over 140 days with ex's parents, about 120 days with you and just over 100 nights with ex. And I hear that you are upset about this, and want the child with you more. So.. why the 3 year wait? If this change is in the child's best interest, then it should have been done 3 years ago. As it is, making the change now would upset a routine to which the child is now well accustomed.

Seems to me that you want to make this change now primarily so that you can hit the 40% threshhold for shared residential custody. Convince me I'm wrong. Keep in mind that the 3 year wait now makes it difficult to believe that you are doing this purely for the child's best interest.

As for "first right of refusal". Forget it at this point.

WorkingDAD · #6 10-28-2011, 11:26 PM

Quote:

Originally Posted by BeenThereTwice

You don't mention how old the child is.

You separated in 2006, and in 2008 you tracked where your child slept and realized then that the child slept over 140 days with ex's parents, about 120 days with you and just over 100 nights with ex. And I hear that you are upset about this, and want the child with you more. So.. why the 3 year wait? If this change is in the child's best interest, then it should have been done 3 years ago. As it is, making the change now would upset a routine to which the child is now well accustomed.

Seems to me that you want to make this change now primarily so that you can hit the 40% threshhold for shared residential custody. Convince me I'm wrong. Keep in mind that the 3 year wait now makes it difficult to believe that you are doing this purely for the child's best interest.

As for "first right of refusal". Forget it at this point.

I am getting more and more irritated about this 40%. Even my ex' lawyer tried that bullshit with me....

I just do not understand what is wrong with the fact that if child spend more time with other parent he/she has to pay less of CS to other parent as he OBVIOUSLY need more for the child with him.

People who has something against it are the one who is using child and child support for their own needs IMHO...

Prove me wrong ...

BeenThereTwice · #7 10-28-2011, 11:32 PM

Now I'm convinced that your goal is to pass the 40% threshhold, and that "best interest of child" is not a part of your equation.

If I was the judge.. you just lost your case.
is that what you want?

Learn from it buddy.

WorkingDAD · #8 10-28-2011, 11:54 PM

Quote:

Originally Posted by BeenThereTwice

Now I'm convinced that your goal is to pass the 40% threshhold, and that "best interest of child" is not a part of your equation.

If I was the judge.. you just lost your case.
is that what you want?

Learn from it buddy.

I am not the one who asked the original question ...
But you still did not answer my question...

What is wrong with it?

standing on the sidelines · #9 10-29-2011, 08:07 AM

Quote:

Originally Posted by WorkingDAD

I am getting more and more irritated about this 40%. Even my ex' lawyer tried that bullshit with me....

I just do not understand what is wrong with the fact that if child spend more time with other parent he/she has to pay less of CS to other parent as he OBVIOUSLY need more for the child with him.

People who has something against it are the one who is using child and child support for their own needs IMHO...

Prove me wrong ...

I think it was because the OP waited so long to do it and only did it because his gf told him to keep track of where the child slept at night. Before it was all fine and dandy.

With your case your are asking for 50/50 right from the start so that is different.

BeenThereTwice · #10 10-29-2011, 08:39 AM

WorkingDad is far more concerned with the money aspects than with the BEST INTERESTS OF CHILDREN. His prioritries are backwards. Judge will see through that in an instant, but WorkingDad is too angry and self-righteous to see that even when pointed out. As a result, a motion to give him more time at expense of time with grandparents is doomed to fail. After 3 years of IN-action, any such motion MUST be based on "best interests" arguement to have any chance to win. WorkingDad has more interest in arguing than listening. His choice.

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