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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 10-22-2016, 10:20 AM
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Default Access - Where to go from here?

Hello,

My Ex and I have a signed separation agreement from 2012 (we separated in 2011). It was created during a time of great stress and financial restriction for me as I had gone back to school and was only working a very low paying part time job at the time.
I agreed to it because my Ex father in law stated he would always remain as a neutral 3rd party and would temper my Ex's predisposition to screaming first and asking questions later. This unfortunately only worked for a while before he was forced to renege on his deal. Luckily the agreement wasn't devoid of some substance as I found myself on my own.

Access:

Since I was in school (campus was 3 hrs away) at the time (3 years) and then on probation for 1 year with a part time professional job related to my why I went back to school but it forced me to live 45 mins away from the kids and then another 1 year with an even better full time job in the city that allowed me to move back to within walking distance to my children...I have up until now not been able to provide a set schedule.

So, it was originally written that:

1) we would share Joint Custody of our two children
2) the primary residence would be with my Ex
3) the father would have access as agreed upon from time to time between the parties because I was away a lot (every second weekend and more some times)
4) the mother would facilitate access that would take priorities over other activities and include weekends when possible provided adequate notice was given

This it the big one

5) A more regular regime of access will be implemented as soon as the Husband's timetable facilitates same.

During school my program did not have a "set" schedule and it changed on short notice every 3-4 months (sometimes more frequently). Then when I graduated I managed to land a full time job in my field in Toronto but turned it down for a part time "on call" position with no guarantee of hours because it was closer (then TO) to my kids but still 45 mins away. In order to get a full time contract with this employer (which not only had benefits but a REGULAR schedule) I needed to work as much as possible to build seniority but after a year I realized it was not going to happen soon enough and kept applying to a position in the city (closer to my kids) which I secured March 30th, 2015. This new full time job has a 1 year probationary period that involved a rotation around the city in different locations so again I was unable to set up a regular schedule but still managed to see my kids for minimum one weekend and a few other days every month as I had done in the past but now I was working towards that end state of a set schedule.
So, as my probation neared completion I started negotiating more time with my Ex and on April 6th following a face to face sit down we came up with a 5 day block within my rotating schedule every month and since I get my schedule a year in advance it was easy to set aside those days on a calendar for the kids (and my Ex).
This 5 day period (additional days are added as my schedule allows) has been working for the past 5 months and the children are doing well with it.

Now here is the kicker, I have always wanted more time but given my circumstances when we separated and then right after I have been unable to but that was why that last clause was written into the agreement, I always wanted equal time but had to work towards it.

So, at the beginning of this month (October, 2016) I bought a home (I'm not sure I can afford with the support payments but that isn't my issue right now) within walking distance to my children's school and my Ex's place. Since I am actually off during the 5 days the children do not have to go to daycare and I am able to take them and pick them up directly from school (gives me more time with them and is great).
Over the Thanksgiving Weekend I sent my Ex my schedule for 2017 and requested that in addition to the 5 days I am free every month and now have the kids I wanted them on the 7 days every month I'm free as well.
I would also continue to add in additional days on top of the 5 and 7 day blocks as became available.

Well....she said NO. Actually she said: "I am willing to agree to more access after a reasonable time where you have demonstrated parental responsibility. You have to understand that after 5 years of showing only choices that serve you, I am not confident in your ability to care for the children. This past 5 day visit, only the third so far, demonstrated a lack of responsibility or care for the children. I am willing to agree to more weekend access."

Not only was her math wrong (I've had the kids 5 days for 5 months not 3) but my "demonstrated lack of responsibility or care" was left over cheese in my son's lunch bag....

Outside of written communication her immediate reaction to me pursuing more access has been "you just don't want to pay support, the time you want would put you close to or at 40% so I can't agree." I have never made it about support payments but I have to admit I can't afford bed frames for my kids right now and the added time will mean more food, etc. so it would be great to keep some of that support to actually support the kids when they are with me more now. However, I understand that I can't ever mention that no matter how much it makes sense. Oh and for now she makes $30000 more then me.

So where do I go from here? There is a dispute clause in our agreement that we utilize a mediator when we can't agree. I was told by my lawyer to pursue that route since there is no way I can afford court right now...but how do I word it? Do I hold out that maybe she will change her mind? In the meantime I'm finally available to see my kids more and can't, its frustrating!

Thanks
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Old 10-22-2016, 11:00 AM
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Default Access - Where to go from here?

Oh man that response looks like something the other parent of my child would write. Are you sure you're not dealing with my child's other parent? Are we dealing with the same other parent? I kid I kid

She doesn't want to pay any child support and so is bashing you as a parent so you don't get 40%.

What's wrong with your parental responsibility? If she's got no good reason and nothing to use against you (I'm talking hard evidence because her words will be dead flys in court) she's walking on thin ice.

You're going to have to talk to Tayken on how to respond to this. I'm sure he'll respond to this post soon.


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Old 10-22-2016, 11:20 AM
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What about a plan for gradually increasing access? If I'm reading right, between 2012 and 2016 you saw the kids irregularly. For the last five months you have had the kids with you five days per month. You want to increase to 12 days per month in 2017. Mom wants to wait on the increase until you "have had more time to demonstrate parental responsibility".

I can see both sides. You want more time with the kids now, which is understandable and laudable. From Mom's perspective though, there have been four years in which you prioritized work and moved around frequently and only a few months in which you've had a stable schedule. I can understand being a bit cautious. (I'm leaving the money motivations out for both you and her). It's also a big change for the kids, and from Mom's perspective it may look as though for years you've been doing what you want while she and the kids have to fit into your plans. I'm not saying this is the truth, I'm saying this is how it could ok to Mom.

Could you draw up a schedule which would see your access gradually increasing month by month over the next year until you get to 12 days? That would demonstrate that you are indeed settled in your new position, your living arrangements are stable and the kids are doing fine with the gradual transition. This has the advantage of keeping you out of a legal battle with Mom which would be expensive, and if you do end up in a legal battle it shows you tried to come up with a workable plan.
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Old 10-22-2016, 12:14 PM
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trinton - I guess if it went to 40/60 or 50/50 access she would have to pay support but I'm not interested in that and be happy to just each of us keep our respective incomes and support the kids 50/50.

Stripes - that is a good idea given your logical take on her possible perspective and I will throw that out there before resorting to mediation but I am concerned that she may attempt to move as she has been mentioning to the kids that she is looking to buy a house with her boyfriend of 4 years and he lives in Nepean. I just don't want to take to long building up the time where it is equal time with the kids so I have more of a say in where they live, go to school etc.
Perhaps the mediator would be beneficial to add that err of confirmation even if we only agree to the gradual increase for now to be revisited later.
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Old 10-22-2016, 01:34 PM
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Quote:
Originally Posted by DGES View Post
trinton - I guess if it went to 40/60 or 50/50 access she would have to pay support but I'm not interested in that and be happy to just each of us keep our respective incomes and support the kids 50/50.


That doesn't make any sense. If there is 40/60 or50/50 and she earns more than you than really she has to pay you child support. Or you could both agree on no child support.

As per her moving is that going to interfere with the current access schedule? Is there any restrictions on her moving in your current court order? She shouldn't be allowed to move without your consent or without getting permission from the court to move first.






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Old 10-22-2016, 02:47 PM
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I understand about the support but I just want the kids more now that I'm able but being able to keep just my income would be fine with me so I'd probably agree to no support if I could just see my kids equal time (which for me was always the goal just took a while since we separated suddenly at a time where I wasn't really in a stable position financially etc.).

No court orders only a signed separation agreement but nothing about moving specifically just that we both have to be involved in major medical and educational concerns so a change of schools might be sufficient for that clause to be used.

I sent an email today proposing a gradual increase over the next 3 months to the already established 5 days to 12 in total. We have already had a transition period for the kids over the last 5 months where they have become used to the increased set time so I don't think an entire additional year will be necessary to add 7 more days. Hopefully, she agrees to the 2, 4 and then 6 additional days leading up to 7 more from February on next year. If not then I will insist on a 3rd party mediation since there really isn't any reason to deny me the additional time.
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Old 10-22-2016, 03:04 PM
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Quote:
Originally Posted by DGES View Post
I understand about the support but I just want the kids more now that I'm able but being able to keep just my income would be fine with me so I'd probably agree to no support if I could just see my kids equal time (which for me was always the goal just took a while since we separated suddenly at a time where I wasn't really in a stable position financially etc.).

No court orders only a signed separation agreement but nothing about moving specifically just that we both have to be involved in major medical and educational concerns so a change of schools might be sufficient for that clause to be used.

I sent an email today proposing a gradual increase over the next 3 months to the already established 5 days to 12 in total. We have already had a transition period for the kids over the last 5 months where they have become used to the increased set time so I don't think an entire additional year will be necessary to add 7 more days. Hopefully, she agrees to the 2, 4 and then 6 additional days leading up to 7 more from February on next year. If not then I will insist on a 3rd party mediation since there really isn't any reason to deny me the additional time.

just keep in mind that the longer this takes for you to accomplish (i.e, mediation,etc) the longer she can keep the access schedule the same and argue status quo, and by the time you get to the courts and if need be, to a trial, 2 years could have passed by ..

I never understood how the judges could use court delays against you and your case...
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Old 10-22-2016, 08:09 PM
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What you want to do is file a motion in court and begin the full legal process all negotiations can happen while you wait till you get to final trial.
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Old 12-10-2016, 05:44 PM
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Well I had hoped that we could actually work this out but my Ex seems hell bent on denying me not only an increase in access (I even suggested an incremental increase towards the 40/60, 50/50 that I proposed) but she has actually started to try and take back access agreed to 8 months ago!

After a face to face meeting that unfortunately I had to walk away from due to verbally abusive and by default non-constructive language I wrote an email requesting we seek mediation (as set out in our separation agreement). Unfortunately that was at the end of Oct and her only response was to agree but only if mediation took place on weekends or nights....one of the mediators I suggested is actually willing to meet late afternoons but is booking for January so sent that back over and she responded that she is only available the first week in January....basically I think she is stalling mediation so I have decided to take Links17's suggestion above and go ahead with a motion and if she comes back to the mediation idea then I'll suspend proceedings in hopes mediation can take place but I agree that I need to do something sooner then later!

Now the trouble is I don't have a lot of finances to work with so I'm hoping to do as much as I can to help reduce my lawyer's fees but I have no idea where to start.
The only issue I am contesting is custody / access, everything else from our divorce was finalized in our separation agreement (which favored her in my effort to make it as easy on the kids as possible and because I was in school at the time of our separation).

Now correct me if I'm wrong but I should then be working on:
- a "Motion to change"?
- an "affidavit for child custody"?
- a "Parenting Plan"?
Are the above correct? If so, any and all references, links, etc. that anyone could provide or point me towards would be greatly appreciated!

I would very much like to get something completed and dated before the new year as she has just recently stated she "no longer agrees" to my time this month just before Christmas with the children that was agreed to and set up back in April (at that time we agreed to a 5 day block of time every month in my rotating schedule which we have been doing since May and I'm now concerned because she has been hinting at possible changes in the new year ever since I requested those 5 days become 15).
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Old 12-12-2016, 12:20 AM
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Motion to change (FORM 15)
change information form (FORM 15A)

outline what has changed and what order you are seeking from the courts

I would start the court process as you continue to negotiate .

Be sure to have your papers reviewed by a lawyer or duty counsel before you file them.
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