scared to death

[estella]

My ex and I have been seperated for five months after I found out that he was having an affair. I moved out in Sept with our two children and one coming...(we had been living common law for 12 years) He has been fighting me on the sale of the house and child support. He hasn't gotten a lawyer yet but wants to decide what to pay and what percentage of the house he should get. I won't agree to his offer.

He has never argued over custody and rarely takes the children. Money is the only thing that he has been worried about in this battle. He had no problem leaving the kids with me. He has always been an out of town dad anyway and has not a clue how to be a full time father.

But now he has threathened to take me to court for custody if I don't lower child support payments and give him more than half of the the house. It's the only reason he is bringing up custody. (I haven't asked for full child support, any spousal support or pension might I add), but he still wants it lower and he makes three times my income.

He believes that if he has the kids half the time then he won't have to pay any support. He also mentioned getting married and taking the kids permanently (even though right now he has no girlfriend or a stable home for the kids). He leaves for work at five am and gets home after six and has mentioned getting a nanny or whatever it took to make sure he didn't have to pay child support. I work within walking distance of my kids school, home and daycare and am here for them.

I have no clue if he would be sucessful in a custody battle but the thought scares me to death. I can count how many times he has done their homework and taken them to the doctors. He is a heavy drinker and has a horrible mouth. He is nasty and the kids would only learn bad habits from him. I am so glad that my children are out of that atmosphere and I am sitting here sick to my stomache thinking that he could end up with shared custody. I would rather raise them on my own without anything from him. They would suffer for it dearly and it scares me.

Can someone please fill me in a little on custody battles and reassure me that this isn't going to happen to me. I have a baby coming in two weeks (a sick child at that) and the stress that this man is putting me through is really killing me.

[logicalvelocity]

estella,

He has been fighting me on the sale of the house and child support. He hasn't gotten a lawyer yet but wants to decide what to pay and what percentage of the house he should get. I won't agree to his offer.

The law is quite clear. If the house is mutually owned, then any equity would be equalized amongst the parties along with the liability against same.

Child support is calculated by taking the payors, previous years line 150 of the individuals tax return and comparing it against the child support guidelines of the respective province. If the parties income fluctuates from year to year, a rule of thumb is to take the previous three years line 150 amounts add them together and divide by three to determine an average amount to compare against the guidelines. Right now you have two children hence the two children table would apply. Once your third child is born then take the same method as above and apply the table with for three children.

The child support guidelines and tables for Ontario can be found here

http://www.e-laws.gov.on.ca/DBLaws/R...h/970391_e.htm

He has never argued over custody and rarely takes the children.

Under Ontario Law, The Children's law Reform Act applies to Custody adjudications. Currently at law, both parents have coextensive custody of the children until a separation agreement or court orders provides otherwise.

However, he has pretty much given you his acquired consent to act on a sole capacity and you have developed a status quo living arrangement. The courts seldom interrupt a status quo living arrangement if everything is working out well for the children.

With that backdrop, access is the right of the child and as such, access to information in regards to the children's health and welfare survives by default of the law. A non-custodial parent has the same right as a custodial parent in regards to information bearing on the child's health and welfare. No professional, physician, hospital, school, agency, and parent etc. should ever withhold information bearing on the health and welfare of the children unless there is a court order regulating otherwise.

for visitation access, It is the child's right to visit and be visited by the non-custodial parent. It is sad to say, but there is no law to compel this individual to be a parent to the children.

But now he has threathened to take me to court for custody if I don't lower child support payments and give him more than half of the the house. It's the only reason he is bringing up custody. (I haven't asked for full child support, any spousal support or pension might I add), but he still wants it lower and he makes three times my income.

Call his bluff and don't be intimidated. Child support is a separate issue and is calculated with respect to the guidelines and as such child support is the right of the child. His only hope of reduction is perhaps a hardship claim, ie: number of persons in his household compared to yours in respect to each households income. As it appears you currently have three persons in your household counting yourself and a forth is on the way compared to his. I suspect he will not qualify for a hardship claim.

Custody adjudications are determined by applying the best interest test as listed in the Children's law Reform Act. You have an advantage over him so to say, that being you have been the one caring for the children(status quo). Perhaps taking the children to medical appointments, dentist etc.
Bond and stability are critical factors along with whom was the primary caregiver. I believe you have an advantage over him and the most he could ever hope for is a joint custody regime. Generally, for a joint custody regime to work, there has to be communication and co-operation in regards to the children's best interest. If he is arguing in regards to the amount of child support he should be paying, this somewhat suggests that he isn't very co-operative on the face of it. By not exercising any of the children's access, this somewhat suggests further that he isn't committed to the children. I suspect a joint custodial regime would not be ordered by the courts. In cases of alienation and a vindictive custodial parent, courts do order a joint custody regime, to prevent one parent from being marginalized from the children's lives. It is ironic to say, What he does not realize is that currently at law without an order or a separation agreement in place he already has co-extensive custody of the children, and as such he does not seem to be too co-operative in the children's best interest!

In regards to the home, the equity and liability would be would be equalized by default.

You may be entitled to spousal support, the main criteria being that he has means and you have need with first consideration given to support of the children.

Moreover the children are entitled to reasonable section 7 of the guidelines extra ordinary expenses. Each parent is expected to contribute to these expenses in a pro-rated fashion with respect to each parent's income. Such expenses would be day-care, music lessons, sports, orthodontics etc.

He believes that if he has the kids half the time then he won't have to pay any support.

He has to have the ability to care and be willing to care for the children and it appears that he has yet to demonstrate same. Remember that custody is determined by applying the best interest test with consideration to the status quo living arrangement of the children.

Even if he did have the children in his care for 50% of the time, generally child support is calculated by taking each parents respective income and applying what each parent would pay the other to determine the offset amount. If each parent earned the same amount, then perhaps no child support would be payable.

Ultimately put your children first, offer reasonable access to him. Be nice bite your tongue and smile. He will wonder what you are smiling about! If he exercises the children's access then great, if not it sure makes him look bad. Don't be coerced or intimated by his threats. As you mentioned, he has made threats but call his bluff. It appears that money is his main consideration in all this and as such if the matter is litigated, he will still have to put out a substantial amount of money for legal representation. The end result for him I suspect will be similar to what I mentioned. Just relax and take each day in stride. Once you have a significant status quo living arrangement , and you are getting no where, you could always start an application against him for child support and your other claims of custody, spousal support, equalization of the home and also perhaps unjust enrichment.

lv

[estella]

I have never denied him access to the kids since the day I moved. I had no problem with every second weekend and even liberal visits during the week if he wanted to do something like take them out for an hour or so. I do have a problem however, when it comes to 'shared custody' as I know he has never been there to parent the kids and provide stability for them. Right now he is the one not taking advantage of that.

I know deep down that he shouldn't be able to get the kids on a six month basis (which is what he wants) but it's frightening to think it could happen. Surely they should recognize that the only reason he is doing it is to get out of paying child support.

Thank you for the advise. It was reassuring.