First Post - Wished it was better circumstances

[MAC-JMJ]

Hi all,

I have been searching this forum for some time now and have found it very helpful especially in educating myself for what needs to be finalized. I am the type if guy who keeps most everything locked inside as I don't want to be a burden of problems to my friends or family. I wish to share my situation and want to thank anyone who may respond ahead of time for taking time out of your day to pass on any advice or suggestions.

I have been seperated from my common law spouse now for approximately 1 year and four months and my mind is now cleared and I know what I have to do. We have both made mistakes, but any advice you can share would be appreciated. We started dating in the year 2000 and offically moved in together in 2003. She had a child from her previous marriage and although she was not offically divorced until 2009, her & I lived together and built three homes together. She & I had three beautiful kids of our own and she is a wonderful mom. I guess just over time and the amount of work with the kids it started to wear on us. She stayed home with the kids, not worth paying for daycare, and opened her own home daycare when we built our second home. By the time our third home was built our relationship was in trouble and to simply hold a conversation usually ended up in a fight. She would wake up and say how unhappy she was and through arguing, why wouldn't I leave etc, so late in 2009, I did just that. She lives in the home we built which I still pay the mortgage for + utilities. We have debt together which still gets paid and between her daycare and increase with CTC she also helps pay a portion of the debt. I want to do what is best for the kids and for us to move on we need to have the home sold but to date nothing has been done and for myself to get my own place, with the kids, I need to have this done. My ex and I are joint on title of our home and most debt, although single debt we accumulated together. She has the truck & I the car and I have been staying with another women. I know what it can cost if things go the court/lawyer route and although I accept my responsibility to my kids etc, I feel now she is out for blood and I am looking for ways to protect myself in some sense, as I will need to create a new life for my 3 kids as well. To me it should be straight forward of sell the home, pay-off split debts, and I pay support for my angels, which I have no problem with. The problem is she is at the home, will not let me come there at all, only let's me see my kids when she see's fit, only picks up the phone once in awhile when I call and has all these people encouraging her for her entitlement. She e-mails me saying let's try mediation and then e-mails me saying that she heard something from someone (????) and that it will not work (???). She carrys on like she is in full control, maybe she is, but I am also worried about starting legal proceedings because for the most part, without sounding like an a$$, what I have read usually doesn't always favor the father of the relationship.

So given what I have wrote, what am I looking at here? She is also on her employeer's payroll and can gain employment again, making more $$ than before. What I am truly worried about is myself not having the means to have some sort of life with my kids without having to depend on someone else or living in a one bdrm apt. I want to fully cooperate and make things fair but incase she does not see it that way is there anything else I can do?

Thanks again,

[Pharah]

Correct me if I am wrong but as long as your name is on the deed, you have the right to go there, unless you have been told by the police/court to stay away? I would give her 24 hours notice of any visit but I would not allow her to continue this.

You need to request regular access with your children. Start with every other weekend and one over night visit during the week. If you are not setup for visitation at your new place, maybe make arrangements to spend time with them at your parents home.

You need to workout what your guideline child support payments would be. Pay that amount and make your ex responsible for her own bills. Since you are no longer living in the home, you need to inform the utility company etc of the change.

Mortgage, you will need legal advice on how to handle this. If she is unwilling to sell the house, you may need to take this to court.

Good luck.

[HammerDad]

Simple point first - she is in full control because you've allowed her to be. Unless there is a restraining order or a court order for exclusive possession of the home, you are entitled to live there. You made the single greatest mistake any parent could make by leaving the house without a court order or agreement providing for parenting time with your children.

With no agreement or court order in place, you both would have defacto custody. There is absolutely nothing stopping you from picking up your children and taking them for an activity by yourself. Unfortunately, you've screwed yourself a bit by leaving the house where the children generally reside, and effectively made yourself a part-time parent. You can move back in (and I generally recommend you do) unless there is an order preventing it. Yes, it could cause WWXXIV, but that is why you protect yourself by always wearing and having on a digital voice recorder and limit all conversations to matters relating to the children, but I digress and understand that you moving back in is unlikely.

I would email her and state that you are looking for regular parenting time with the children and that every other weekend and 1 night a week is standard. Personally, if your schedule permits it, and if you hadn't left the house, you should be requesting 50/50 shared parenting. But again, you've put yourself at a disadvantage by leaving the house and in doing so your actions have deemed her the primary parent.

But send a formal request stating you are looking for regular parenting time with the children. Should she refuse or offer something that is less than the minimum standards, file a motion in court for access.

You can try mediation, the Family Law Information Centres located throughout Ontario do offer subsidized mediation, which you can take advantage of. But you need to start pushing for time with your kids, separating assets and moving along. Because, right now, all you are doing is enabling her and making feel like she is in control.

[Pharah]

Hammerdad is right. You should consider moving back home. That is your best bet when it comes to this type of thing.

[MAC-JMJ]

Originally Posted by HammerDad

Simple point first - she is in full control because you've allowed her to be. Unless there is a restraining order or a court order for exclusive possession of the home, you are entitled to live there. You made the single greatest mistake any parent could make by leaving the house without a court order or agreement providing for parenting time with your children.

With no agreement or court order in place, you both would have defacto custody. There is absolutely nothing stopping you from picking up your children and taking them for an activity by yourself. Unfortunately, you've screwed yourself a bit by leaving the house where the children generally reside, and effectively made yourself a part-time parent. You can move back in (and I generally recommend you do) unless there is an order preventing it. Yes, it could cause WWXXIV, but that is why you protect yourself by always wearing and having on a digital voice recorder and limit all conversations to matters relating to the children, but I digress and understand that you moving back in is unlikely.

I would email her and state that you are looking for regular parenting time with the children and that every other weekend and 1 night a week is standard. Personally, if your schedule permits it, and if you hadn't left the house, you should be requesting 50/50 shared parenting. But again, you've put yourself at a disadvantage by leaving the house and in doing so your actions have deemed her the primary parent.

But send a formal request stating you are looking for regular parenting time with the children. Should she refuse or offer something that is less than the minimum standards, file a motion in court for access.

You can try mediation, the Family Law Information Centres located throughout Ontario do offer subsidized mediation, which you can take advantage of. But you need to start pushing for time with your kids, separating assets and moving along. Because, right now, all you are doing is enabling her and making feel like she is in control.

Thanks for the responses, so I did move back for two months back in September/October of last year but it just wasn't working out and I left again because a) it was non-stop fighting in front of my kids b) I did not want to get accused of a domestic violence charge. I knew she was speaking with some sort of legal representative and was trying for the exclusive possession document. When I heard this, I rushed home and she called her lawyer who told her to call the police and have me charged. Needless to say, I have nor would I ever lift a finger to her but the police told me it was better for me not to be there but they were not the court system. They told me if she ever called and said that I lifted even one finger, I would automatically be taken into custody. And I am sure this would look much worse on me in the long run. In all honesty, we cannot afford lawyers etc but her anger gets in the way of looking at things rationally. More like I am trying to pull a fast one on her. what sucks right now is that my vehicle cannot fit three car seats or drive well in the winter, I left her the 4x4 but now she says I should have sold it, which I tried with fail, and only started dropping off the kids to me on her time. I have seen them in the last 4 weeks,one semi-full weekend and two other Sat days. I call almost everyday and document when I call. Goes to vm most of the time and I am told that their life does not revolve around waiting for me to call. My kids are too young to use themselves. Anyway, I keep trying to say look I will pay you X, even lump sum, sell the home closing around when you and the kids found a suitable place and use the money to pay off half our debt + leave you what you need for rent etc. Then split the remaining debt so I can afford my own place and get a suitable vehicle for the kids to pick them up and spend time. I want to start pushing the envelope more but also worried she will force us into bankruptcy etc from not being rational about this and seeign what is best for the kids.

[HammerDad]

I have a term I use when you have a hostile envirnoment, radio silence. The only time you would speak to her would be in instances relating to the kids and you would always speak to her in a calm manner.

As for the false accusation and restraining order, that is what the digital voice recorder is for. You record for the ENTIRE TIME you are in the house (do not leave any holes). Should she try to call the cops, you tell them you have recorded the entire day and are willing to play it back for them. Should they refuse and just take you into custody, once you get to the station, you tell them about the recorder and/or recording. While the recordings may not be usable in court to prove parenting etc. they are 100% usable to prove a false complaint. Also, should you prove the complaint as fabricated, her credibility is now shot and looks like a hostile parent who is trying to eliminate the other parent from the children's lives.

If you can move back in, get a room that is not her room and put your stuff there. Get a lock on the door. If she should become aggressive or confrontational, you advise her that you do not wish to discuss these matters at this point and that you are retiring to your room. Then, once the day is complete, you DL the recordings to your computer which I will assume is secured with password protection etc.

Yes, if you don't protect yourself the cops are helpless against the false DV claim. But you must be prepared, and be prepared from the earliest possible moment.

Should you reserve yourself to living outside the house, you need to start taking back some control and advising her that you are intending on exercising parenting time with the children on X, Y and Z dates. Politely state that you will be at the house to pick up the children (lets say Friday at 6pm) for the weekend. Should she deny access, journal it. Email her requesting time with the kids and save her responses. If she continues to deny you any parenting time, you take your journal and the emails where you've requested parenting time, and file a motion in court for scheduled parenting time.

Also, if you end up in court do not fall for the "liberal parenting time upon reasonable notice" BS. That nice and unclear statement leaves you again at the mercy of the CP (custodial parent). It isn't clear what "liberal" is and what is "reasonable notice" to you will most likely not be to her. You want clear and concise times:

Every Wednesday night from X to Y.
Every other weekend from Friday at like 5pm to Sunday at 5pm.
Every other March Break
Every other long weekend (have them defined as been 5pm the day the children are let out from school to 5pm the day before the children's return to school)
Have Christmas break defined, who gets Christmas morning on odd years vs even years.
Get 2-3 weeks in the summer, with notice having to be provided by May 1 each year.

But be clear and ask for want you want, because the court isn't there to provide remedies for issues that you don't bring before them.

[Pharah]

In addition to HD comments, you need to make your own arrangement for transportation, whether it's to have your parents meet you for pick-up or take a taxi. As long as you are relying on her to transport the kids, you will not get the access time you NEED to have with your kids.

You seriously need to think about moving back in with the above recommended terms. I would also suggest picking up a babysitter camera or web cam. You can normally program the software to record any movement in the room.

[MAC-JMJ]

Hammerdad & Pharah thank you for your advice and responses with this. I have been searching for months on the internet but you really do not get this sort of concrete advice from a google search. There are forums on here, with similar situations but some of the answers are unclear so maybe you can provide your input as well.

1) Does the length of my common law marriage include the years we were dating but not living together? We dated from 2000-2009 but moved in together in late 2003.

2) Does her not being legally divorced change or impact my situation differently? I will still pay my required CS but wondering if this changes any potential SS/Pension matters etc.

As much as I recognize going back to the home and again living in the den I do not think that is the best move for me. I know I am on title, as is she, and I did put down 95% of the large down payment but any and all equity will be going to our debt. For us both to move on this is what needs to happen from an affordibility standpoint but she has her home business out of the home and if this goes to court I am assuming I would need to show cooperation and best for the kids interest, versus I can do this because in the end I am not 100% sure she would agree to shared custody and what not. I am looking to have the immediate matters resolved and then when I am back on my feet explore the shared custody route. Maybe I am looking at this the wrong way but I also feel like I need to tiptoe to avoid her from taking this matter to the court system. Honestly, and please let me know if I am wrong here, I would walk into mediation and say keep all items in the home, say a few things of mine, we sell the house and split the equity to go to all debt, vehicles stay the same, split remaining debt, and ask for joint custody with her being the CP right now and pay her support. I would not agree to any SS or pension because she can come back to her previous job, as I made it so she remained on the payroll and can go back to work making more $$ than before. Where she is making things difficult is saying that if a for sale goes up she may loose people from her daycare and her current (written off) $10k a year income. I told her that she could look first and see if anything comes available in the area and then put up the sign, or if needed start a new ad as they is plenty of people needing daycare if she doesn't go back to work right away. I can show though that of right now today she has that option but whether she wants too or not, I need to get my stuff in order. This way I can get my parenting time and then hopefully go back and revisit the shared custody arrangement.

[blinkandimgone]

Originally Posted by MAC-JMJ

1) Does the length of my common law marriage include the years we were dating but not living together? We dated from 2000-2009 but moved in together in late 2003.

Nope, just cohabitting.

[NBDad]

1. Freeze ALL jointly held accounts.

2. If you still have "jointly held" car insurance, get that separated ASAP. Cancel it and go with a new provider if you must, but get your name the hell off it by any means necessary.

3. Any utilities in YOUR name for the home needs to be stopped. Be reasonable, ie. give her 30 days notice that you are removing the utilities from your name so she can get them into her own.

Kill luxury items like cable, internet, long distance, etc. immediately. The phone company can make it so you cannot make long distance calls at all if necessary. Items such as power, oil, and basic phone you will need to give her time to make arrangements for.

Thing is to force her hand without giving her ammunition. Don't be the guy who cut off the power to the home in the middle of winter without warning. THAT will screw you. Giving her sufficient notice to make arrangements and redirecting funds to her in the form of child support is both reasonable and proper.

4. Start paying her OFFSET table amounts of CS IMMEDIATELY. (bank the difference between OFFSET and full table into a separate account, just in case you get nailed for arrears)

5. Indicate to her that you'll contribute 50% of the mortgage payment, but she'll have to contribute the other 50% until the home is sold. If she refuses, then pay her OFFSET support - 50% of the mortgage payment until you get a court order. (and use the MEMO field to indicate such (ie. XXX CS for DATE less XXX mortgage for date).

Give her a month or two to NOT pay her share so you can show reasonable justification for doing it that way. Save ALL payment receipts.

6. Work out transportation for the kids. Hell trade in your car and buy/finance a van if you need to. That or look into available transport companies in the area that you can pay to do the exchanges for you.

7. Moving out was a DUMB move, you've immediately put yourself at a huge disadvantage.

8. You are likely going to need to go to court to force the sale of the home. Doesn't sound like she's going to leave willingly. Start getting into that mindset.

9. If she isn't making the equivalent of full time hours @ min wage, then you need to push for her to be imputed that for her income. If she can still return to her former employer, then push to have her income imputed at what she is capable of earning with them.

10. If your schedule permits, you need to make arrangements for having the kids 50%. If you are ok with receiving the EOW screwjob, then make arrangements for that. (and change the OFFSET table amounts referenced above to FULL table amounts accordingly).

The trick with all this is to force her into a corner. You've been playing the nice guy up until now, and the time for that is over. You want to move on, then you need to motivate her to work with you. If she refuses, push for a court motion to force the sale of the home. If she is unable or unwilling to buy you out of the home, then it must be sold.