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Parenting Issues This forum is for discussing any of the parenting issues involved in your divorce, including parenting of step-children.

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  #1  
Old 05-10-2006, 10:33 AM
trueblue trueblue is offline
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Default Move-away access ideas

Does anyone know a website or have any ideas regarding a workable practicable access schedule for me(at least a jumpoff point) that I can live with in order to stay an involved dad. My ex wants to move about an hour away to a different city and is angry and continues to try and push me out to the margins(throwaway). I was for most of their lives the stay at home primary parent but because I wouldn't go back and reclaim the home and change the locks back after being gone for a few days---defacto and status quo kicked in and she was awarded interim sole custody until further order from the court. It has now been 2 years and my current access is just under 40% of the time.
Our children are 6 and 8 years old.

If I consent to the moveaway, I want to be assured of protection to continue to be a parent in some way, not controlled and thwarted and not simply a visitor(interested observer). The access should be specified but allow some degree of flexibility too. I also want at least joint legal guardianship on paper, to allow easier communication between school,medical,government,church etc.
  #2  
Old 05-10-2006, 10:54 AM
Divorcemanagement Divorcemanagement is offline
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I would recommend that you see if your ex would attend mediation to develop/revise a parenting plan to help the kids adjust to the change, I would also suggest that you find a place halfway where they will deliver the kids on change over days - that is the least your ex can do.
  #3  
Old 05-10-2006, 11:19 AM
trueblue trueblue is offline
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Default thanks sean

I agree with the half-way point idea. Do you know of any typical access schedules in use, I can use as a starting point.

My lawyer doesn't agree with any more mediation attempts. She agreed at the onset of seperation to go the collaborative route then she walked away after the 3rd 4way meeting and it has been a scorched earth policy with bulldog lawyers ever since.

I want to limit these ongoing threats of a lengthy trial(IMPASSE) and find some sort of resolution to all the issues of divorce.
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Old 05-10-2006, 11:21 AM
logicalvelocity logicalvelocity is offline
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Trueblue,

Mobilty issues can always be complex.

The leading SCC Citation on this issue gordon v. goertz 1996
http://www.canlii.org/ca/cas/scc/1996/1996scc47.html

The criteria established in gordon v. goertz is often cited for subsequnt cases
as per example,

The case of Terris v. Terris, [2002] O.J. No. 3018 (Ont. S.C.J.) dealt with the mobility of two children, ages one and three years. Linhares De Sousa, J., considered the "maximum contact" principle cited in Gordon v. Goertz (1996), 134 D.L.R. (4th) 321 (S.C.C.), Gordon v. Goertz held, that in deciding whether a parent should be permitted to move away to a different location with a child, a court must look at the desirability of maximizing contact between the child and both parents. Notwithstanding the very young ages of the two children in Terris , the court held that the mother, who was the access parent, was to have "generous and frequent" access to the children.

The Terris case was unique in the sense that one parent wanted to relocate the children to Australia, from Ottawa.



LV
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Old 05-10-2006, 11:29 AM
logicalvelocity logicalvelocity is offline
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"The issue of mobility can be complex"

I just want to elaborate on that further being that it would construe to be a material change of circumstances for the child.

Having said that, the issue of custody may be reviewed.
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Old 05-10-2006, 11:30 AM
Divorcemanagement Divorcemanagement is offline
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What is your current access arrangement? That might give me some ideas... the problem with school age children and moving to a new area is that if you have overnight access during the week, it screws that up considerably. So, don't throw anything at me for saying this because I am just thinking out loud here - but what would happen if you moved to where your former spouse intends to move?
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Old 05-10-2006, 11:54 AM
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In D.B.J. v. L.A.J.

http://www.canlii.org/yk/cas/yksc/2005/2005yksc65.html

""This is a "mobility" case, as the expression goes in the case law, and the global issue is whether it would be in the child's best (21 month old) interests to allow the mother to move to Vancouver from the Yukon, recognizing that such a move will necessarily limit the amount of access available to the father, whether or not he has joint custody.""



Paragraphs 24, 25, 26, 27, 28,29, 31, and 59

[24] The leading case on mobility is Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), [1996] 2 S.C.R. 27, which set out the following principles:

1. The only issue is what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the respective ability of the parents to satisfy them.

2. The rights and interests of the parents, except as they impact the best interests of the child, are irrelevant.

3. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to great respect.

4. Each case turns on its own unique circumstances.

5. The Court should consider, among other things:

a. the existing custody arrangement and the relationship between the child and the custodial parent;

b. the existing access arrangement and the relationship between the child and the access parent;

c. the desirability of maximizing contact between the child and both parents;
d. the views of the child, if applicable;

e. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

f. the disruption to the child if there is a change in custody; and

g. the disruption to the child if there is a move away from the child’s family, schools and community.

ANALYSIS



Custody and Access

The Mother's View and Her Reason for Moving

25 I regret to say that the mother's argument in favour of the move sounded more like it focused on her interests and her right to re-locate for the purposes of pursuing employment in her field than it did about the best interests of the child. Admittedly, the mother stands to benefit significantly from her prospective employment, where she expects to earn an annual income of about $65,000. That is contrasted with her current situation where she has no income and is on social assistance. On the other hand, the mother has made virtually no effort to find work in the Yukon.

26 The mother has significant job skills, training and experience. She is fluently bi-lingual. She has a background in business administration and financial planning. She has previous experience in the insurance industry, selling policies to brokers. She has also worked with the Bank of Montreal as a french liaison officer. She has been self-employed as a sales and marketing consultant and a french translator. In fact, she was approached to apply for a french translation government job in the Yukon earlier in 2005 and came second in the competition. She is obviously intelligent and articulate and seems eminently employable.

27 Further, D. is now at an age where the mother feels more comfortable leaving her at a daycare from time to time. Indeed, she is obviously prepared to do so in connection with her prospective employment in Vancouver, which is expected to be full-time, 5 days a week. Thus, I am unable to accept the mother's argument that the only way for her to get out of her current financial difficulties is to move. She is more than capable of finding employment in the Yukon.

28 In Q. (K.K.) v. R. (F.W.), 2003 BCSC 1682 (B.C. S.C.), Halfyard J. said at para. 178:

... a parent's decision to relocate, even if made in good faith (as is the case here) must either conform to the child's best interests, or be disregarded. ...

29 I am only to take into account the custodial parent's reasons for moving in the "exceptional case" where it is relevant to that parent's ability to meet the needs of the child. While the mother's prospective employment is relevant to her ability to meet the needs of the child, she does not present an exceptional or compelling case. While she may prefer to work in her field of corporate sales, her job skills, training and experience should be transferable to other related employment.

Maximum Contact with Both Parents

31 I must also balance the prospective move against the principle of maximum contact between the child and both parents. Clearly, the move would result in less contact between the child and her father. While that is not always a paramount consideration, it is an extremely important one and is codified in s. 16(10) of the Divorce Act.

Conclusion

59 In conclusion, I order the following:


1. The mother shall have interim custody of the child D.J.J., born March 5, 2004.

2. The mother shall not remove the child from the Yukon Territory without the written consent of the father or a further order of this Court.

3. The father is granted interim reasonable unsupervised access to D. as follows:

a. On Tuesday, Wednesday, Thursday, between 9:00 a.m. and 1:00 p.m.

b. Overnight at his residence in Carcross from 4:00 p.m. Friday to 1:00 p.m. Saturday.

c. During his access to the child, the father:

1. will follow proper hygienic practices;

2. will ensure that the child is transported in a properly installed child care safety seat;


3. will ensure the child is not exposed to wood smoke, cigarette smoke or other smoke;

4. will ensure that the child is not exposed to live animals;

5. if transporting dead animals in his vehicle, will ensure that the animals are out of the child's sight;

6. will allow the mother to inspect any place the father proposes for overnight access;

7. will allow the mother to contact the child by telephone during overnight access.

LV
  #8  
Old 05-10-2006, 12:04 PM
Divorcemanagement Divorcemanagement is offline
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I actually won a mobility case - send me a PM if you want some insight.
  #9  
Old 05-10-2006, 12:08 PM
trueblue trueblue is offline
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Default Thanks Sean and LV

I have reviewed Gordon vs Goertz(brutal outcome imo) We used this to allow the otherside to feel free to make an application based on this case law and it prevented a trick quick move last year just 2 weeks before the schoolterm was to start and I was on holidays with our children. It was a surprise entirely even the opposing letterhead showed a bogus date of 30 days prior to me receiving the notice by fax.

I don't want to go on to a lengthy trial, I already am beat up enough.

Sean guessed correctly, my current access is every Wed at 3:00 pm until Thurs at 6:00 pm and every 2nd weekend Friday at 3;00pm until Sunday at 7opm. Early school dismissals and Pd days and stat holidays if they fall before or after my weekend is included in my access time. Summer holidays and Christmas Spring break etc are always a battle to make sure I get an equal time(she usually works it out so I end up with under 40% of these holidays...I assume to make sure it isn't a shared custody regime). I see my kids at their school on my days and also their activities whenever I find out about them. So I actually see them every couple days sometimes daily in some fashion.

Yes I have thought about moving to this other town but I believe it would fan the flames of conflict indefinitely. The home study people asked this as well. I don't have any resources there and would know no one other than our children. I wondered for an overnight with my kids during the week is it worth it to move there and be seen as interfering with her new life. She has dissassosciated herself from the city we live in and spends very little time here. When our kids are with me she lives in the other town. Her Mom has retired and moved into our home to look after the kids and home while she runs her business during the weekdays. the home issue is contentious also, I owned it outright before we married. I would like to move back into it at least for a period of time for the kids sake.
  #10  
Old 05-10-2006, 12:14 PM
trueblue trueblue is offline
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Default Thanks Sean

I would like to hear about your mobility case you are referring to...access to your PM is blocked or unavailable. I see I can email you though
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