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  • #16
    Just like to jump in here.

    In the beginning Primary Caregiver had me upset, in a shared custody 50/50 can the agreement not state that while under the care of said spouse, they are to be considered primary caregiver?

    Why the fuss about a 'title' ... what impact or relevance does it carry?

    Hubby

    Comment


    • #17
      hubby,

      yes indeed. A parallel parenting regime (a form of joint custody) is often held if it is determined to be in the child's best interest. Even in light of no co-operation and communication between the parents.

      In the beginning Primary Caregiver had me upset, in a shared custody 50/50 can the agreement not state that while under the care of said spouse, they are to be considered primary caregiver?
      Kaemmle v. Jewson, 1993, 50 R.F.L. (3d) 70

      Paragraph 3 - 13

      Joint Custody


      3 The concept of joint custody is a recent one. Historically, Ontario courts regarded joint custody as an exceptional disposition, reserved for a limited category of separated parents. Joint custody was not to be awarded unless the parents were able and willing to co-operate with respect to the child: Baker v. Baker (1979), 23 O.R. (2d) 391, 8 R.F.L. (2d) 236, and Kruger v. Kruger (1979), 25 O.R. (2d) 673, 11 R.F.L. (2d) 52, both decisions of the Ontario Court of Appeal. Taken to its logical conclusion, what the Court of Appeal was saying was that unless the parties agreed, there could be no joint custody. If agreement was a condition of joint custody, it logically followed that no court could ever make an order for joint custody in a disputed custody case.

      4 In Lewis v. Lewis (1989), 18 R.F.L. (3d) 97 (Ont. Dist. Ct.), I expressed the view that this view has been implicitly overridden by subsequent legislative enactments. For example, section 16(4) of the Divorce Act provides:

      (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

      5 Section 20(1) and (3) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, in less specific language, provides:

      (1) Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of the child.

      (3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibility of a child on behalf of them in respect of the child.

      6 In Lewis, I viewed these new provisions as instructing the courts to no longer regard joint custody orders as exceptional circumstances which are rarely, if ever, present in cases of disputed custody. I con cluded that if the old law was to prevail, then the new provisions had been enacted in vain.

      7 If I am correct that joint custody is no longer to be limited to exceptional circumstances, then it may be necessary to re-examine the court's understanding of the nature of a joint custody order. Traditionally, the courts have considered that a joint custody order must involve mutual and overlapping rights and duties by the joint custodians. I have some difficulty in understanding why that approach has been considered to be essential to a joint custody regime. There are two aspects to a joint custody order -- one is legal custody, the other is physical custody. Although the courts have recognized that there can be divided custody between the parents when determining the aspect of physical custody, there has persisted the view that legal custody must be undivided in a joint custody order. Surely, the concept of joint custody can be a shifting one. When the child is under the care and control of a particular parent pursuant to the joint custody order, why cannot that parent have exclusive legal as well as physical custody, care, and control of that child for the duration of the period specified in the order?

      8 I see no logical or historical reason for insisting that a joint custody order must mean that the legal rights of both parents must co-exist at the same time. When a sole custody order is made, legal and physical custody, care, and control are awarded to one parent and access to the other. If access is specified, then the access parent is entitled to see the child during the access period. Such access periods are often described as visitation rights -- the parent has the right to see his or her child and no more. The custodial parent has the exclusive legal right to make decisions for the child pertaining to such matters as schooling, religion, medical or dental treatment, etc. The access parent has no rights in these matters and must rely on the co-operation of the custodial parent to provide information about what decisions have been made for the child.

      9 On the other hand, the usual practice in a joint custody order is to define the time when the child will be under the care and control of each custodial parent. Whether the word custody or access is used to describe when the child shall be with one parent or the other is not, in my view, determinative of the legal relationship of the particular joint custodial parent vis-à-vis the child. The legal rights of that parent will depend upon when the child is required to be under his or her care and control. Thus, if the joint custody order specifies that the child is required to reside with the mother during the school week, then the mother has the exclusive legal right to determine what school the child will attend. Similarly, if the order specifies that the child is required to be with his father on weekends, then the father will have the exclusive legal right to make decisions involving events that occur while the child is in his care and control, such as what religious training the child will receive. If the child requires medical treatment, then the parent under whose care and control the child is at the time will have the legal responsibility to ensure that the child receives the appropriate treatment. Although that would give the parent the right to choose the doctor, the courts must assume that he or she will take the child to the usual family doctor who is familiar with the child's history. Deliberately ignoring that common sense approach will demonstrate that he or she is not a suitable parent to have custody.

      10 In the Lewis case, I expressed my views as to the advantages of a joint custody order. One of the common complaints of the access parent in a sole custody regime is that the custodial parent will announce at the last minute that a particular access visit conflicts with other plans made for the child, such as a family visit or a sport activity, and unilaterally decide that the access parent must accept another time "to visit" under the threat of not seeing the child at all. Another is that the access parent will be told that if the child is not returned exactly on time after an access visit, future access will be "cut off." The threat of being "cut off" access is occasionally levelled at the parent who may be late in making support payments. In such instance, access parents often feel frustrated in their attempts to develop a relationship with their own child. They regard themselves as strangers, on the outside looking in. Resentment may be directed at the courts, which they may feel are the accomplices of the custodial parent, telling them when and where they can see their own child. Often an access parent will give up in frustration, taking on a more limited role in the life of his or her child, with the resulting loss to the child of the opportunity of developing a relationship with that parent. It is perfectly understandable that a parent, who may have played an important role in the rearing of his or her child, will feel frustrated if the custodial parent is now dictating the terms of access under the constant threat of a contempt application if a term is breached.

      11 A joint custody order, on the other hand, has the psychological advantage of allowing parents to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future. Joint custodial parents may be prepared to accept that they cannot determine what school their child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues, such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church, and visiting the doctor.

      12 I cannot agree with the suggestion that a sole custody order which entrusts all legal decision making in the hands of one parent will necessarily minimize the conflict between them. Parents who declare war on one another will continue to battle whatever order the court makes. I view the role of the court in custody matters as one of attempting to balance the competing interests of suitable parents, remembering that, above all, the best interests of the child are paramount. But it must be remembered that often what is in the best interests of the child is to know that both parents are interested in playing an important and possibly equal role in his or her life.

      13 This is not to suggest that there may not be conflicting legal duties and responsibilities in a joint custody regime that will have to be resolved occasionally by the courts. In my experience, these problems are far outweighed by the frequent applications that are made to the court in those instances where sole custody has been granted. Joint custody orders are more apt to encourage the parents to co-operate than sole custody orders. In my view, the philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operate fully in every aspect of child rearing only encourages parents to refuse to co-operate so that they can pursue a sole custody order.

      LV
      Attached Files

      Comment


      • #18
        this works only in rare cases In my opinon. I was wondering why my ex was all of a sudden not cancelling and taking our child places - this was a problem during the marriage. Let's face it people frequently don't put others before themselves and the children usually suffer because they have no voice. My ex is using our child, this has always been his behaviour to get something from myself or my family. All I see is a long road of conflict with joint custody in my case, which has already begun - how can I parent in this environment because it goes against my nature to see my child hurt, confused, low confidence? Children are not as adaptable as people think and shouldn't be considered "theirs". I've been told time and time again that I would be awarded full custody (which is basically what it was all these years) but if joint custody comes into it - it wouldn't be good for my darling - which is why I'm considering giving up custody - perhaps the less conflict would be best because right now my child is hurting. not saying it's breaking me but I'm suppose to be the adult and my needs are not as important.

        does this make any sense?

        Comment


        • #19
          Hi 2hopefull:

          How would you resolve these issues if they existed in a functional marriage?

          Comment


          • #20
            how would you describe functional marriage? I wasn't in one

            Comment


            • #21
              A marriage where both parents love each other and are supportive of each other.

              Comment


              • #22
                but that isn't the case or I wouldn't be on this forum. That was my hope for a marriage and it wasn't and therefore not during this time. If I honestly felt and I'm using his past behaviour that things could work without it messing her up - great - but if I do one thing, he has a problem with it, if I reverse positions, he'll have a problem with that and my child suffers the most.

                Comment


                • #23
                  My point is that while your relationship with your ex is broken, is it possible to try and address the parenting concerns in the same way that parents would in a functional marriage?

                  So, for example, in a functional marriage if there is parental conflict - often one parent will offer methods of resolving the conflict. Do this in a way that can be brought up in court now that you are divorced. Offer to see a psychologist to discuss parenting issues. Offer a parenting coordinator if the communication simply isn't there. Offer to mediate the issues - but do it in a way that can be brought up in court.

                  If your former spouse refuses them all, it will be hard for him to blame you for being the source of conflict.

                  Comment


                  • #24
                    he'll blame me regardless - he's number one no one else - in fact he's stated that he doesn't make the visition schedule via my daughter but then he turns around and does it again - in fact this time writing that I should ask my daughter what she wants in regards to the schedule - it's a mess

                    Comment


                    • #25
                      not always good intentions

                      My ex offered me a substancial lower amount in child support and a bigger cut of the house (for him) or else he would take me court for shared custody so that he wouldn't have to pay any support. He has never been a full time dad, never takes them or calls them consistantly. I have always been the one to do everything for my girls and I think the kids would suffer from being in his care for a week or months at a time. He doesn't do homework or attend meetings, do doctors appointments. He works long hours and mentioned getting a nanny to care for them.. All to avoid child support.

                      Comment


                      • #26
                        Info request

                        Originally posted by logicalvelocity
                        With my own first hand experience;

                        I have a shared 50-50 custody regime in place for a number of years. "Our" child is thriving having BOTH parents equally involved in their life in a meaningful way.LV
                        Hi LV.
                        I have a question for you about your custody arrangement. Does your child move back and forth between residences weekly, or do one of you have "primary" residence? And you get "access" often.
                        My current arrangement (until we sell the custodial home) is to have the kids in the home and my ex and I move in and out each week. I would like to maintain something like that after the home is sold and we both get our own places but can see that this would be difficult for the children, essentially they would not have a home.
                        Thank you

                        Comment


                        • #27
                          Originally posted by goingthruit
                          Hi LV.
                          I have a question for you about your custody arrangement. Does your child move back and forth between residences weekly, or do one of you have "primary" residence? And you get "access" often.
                          My current arrangement (until we sell the custodial home) is to have the kids in the home and my ex and I move in and out each week. I would like to maintain something like that after the home is sold and we both get our own places but can see that this would be difficult for the children, essentially they would not have a home.
                          Thank you
                          Hi going,

                          that is a good question you have. Our child spends for the most part a split week schedule between the homes 4/3 days and 3/4 days and travels between the homes. We have a joint custodial regime in place for our child. Either parent can make decisions in regards to the child as we worked out the significant decisions such as school in advance. IE: if wither parent moves away from the school jurisdiction, regardless the child would still go to the same school. If both parent's moved away then we would cross that bridge when it occurred. We agreed to this arrangement as we wanted stability for our child. It is somewhat irrelevant now as our changed schools by default this year due to the grade advancement.

                          We are and were able to accommodate this regime with success as we live relatively close to one another. Communication is abundant.

                          As far as primary residence that is a good question also and would depend on the week that our child is spending more time. We look at it as our child has two homes.

                          Your plan is sometimes referred as "nesting" where the parent's move in and out. Once your matrimonial home is sold, you can still be successful if the children rotate each parent's home as long as both parent's co-operate, communicate and are on the same page. In my own situation, my sons mother and I communicate often so nothing falls through the cracks such as homework assignments etc.

                          Neither one of us are power struggling for control; it does not matter what parent brings our child to the Dr., Dentist, etc as long as our child gets there.

                          When my sons mother makes a decision on the fly , she keeps me informed and usually explains the ration behind same.

                          I guess I can only say that if you want a joint regime to work, both parents have to be child focused and put their differences aside. There are benefits to this arrangement as it is less stress for all.

                          lv

                          Comment


                          • #28
                            More questions for LV

                            LV

                            Thank you for the response, great information.

                            I would like to maintain the 50:50 but to be honest am nervous of the outcome of passing the children (ages 6 and 7) back and forth on a weekly basis. I think it would work well the same as it does not. My ex has stated that she thinks they would begin to dislike us for doing it to them over time. I think some of what she says comes from her "doctor" who is assisting her with another issue that led us down this path in the first place.
                            Have you found any behavioural issues with your child? Any backlash as a result of the living arrangements? Is your child of an age that they understand?
                            Experts claim that kids are resilient, but everyone has their breaking point. I know that given any situation the child/ren will eventually tell the parents when they want to stop and whom they would rather stay with, as long as everything is kept positive and open they will not be afraid to express their emotions.
                            We have tried to keep everything positive all the way along to ensure that they know that no matter what mommy and daddy love them and will never stop. They will spend lots of time with both of us. We spend every special occassion (birthdays etc) together as a family (for the kids sake). These were things we told them when we separated and as long as we follow through with our promises, all should be ok.
                            Sorry for the long winded message. In short, my concern is how the kids will fare at the end of day, and if you have seen or know first hand of negative results of child/ren moving back and forth.

                            Cheers

                            Comment


                            • #29
                              going,

                              Have you found any behavioural issues with your child? Any backlash as a result of the living arrangements? Is your child of an age that they understand?
                              With me the regime has been going on for over 6 years. I seem to recall that it took about a month for adjustment, ie: new schedule and lots of communication between mom and dad and our child. I never noticed any behavioral issues and historically never really had any problems.

                              We have tried to keep everything positive all the way along to ensure that they know that no matter what mommy and daddy love them and will never stop. They will spend lots of time with both of us. We spend every special occasion (birthdays etc) together as a family (for the kids sake). These were things we told them when we separated and as long as we follow through with our promises, all should be ok.
                              I think that is a fantastic idea and I have practiced the same for our child's birthdays and recently grade 8 graduation.

                              Sorry for the long winded message. In short, my concern is how the kids will fare at the end of day, and if you have seen or know first hand of negative results of child/ren moving back and forth.
                              I can speak of nothing negative about the arrangement that I have. The only thing a few times our son hit both parents up for an allowance at same time - so we communicate on this as well.

                              One thing we realized that we are not out to compete against one another as parents. If I purchase anything for our child on my own, I will usually advise his mother so that both parents don't go out and buy same.

                              I believe the pros outweigh the cons in this arrangement, as our child has had the same benefit as intact families - having both parents that desired to be involved in their life.

                              The cons are would your child be happy only seeing one parent perhaps 4 - days a month.

                              lv

                              Comment


                              • #30
                                I believe that shared custody works, how could it be detrimental to the child if both parents are actually looking out for the best interests of the children.

                                Comment

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