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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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  #1 (permalink)  
Old 10-05-2017, 09:30 AM
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Default Case law request for court

Hello,

Well I'm back after taking the summer off, was very relaxing and enjoyable. My trial date is coming up for November.

Issues at trial; custody and visitation.

Custody as been shared and visitation has been 50/50 on a week about basis. This has been ongoing for three years this December.

The ex is the applicant and wanting to change visitation to 2 of 3 weekend and every wed evening no overnights. In august of this year I made a counter offer of 2 out of 3 weekends and every Wednesday overnight. This was to prevent going to court. Which was rejected, in favor of going to trial. No formal reasons provided, just her lawyer stating she has 'several concerns'.

She is relying on the OCL report that is over a year old. There is no CAS involvement, no charges against me.

At the moment I am preparing for trial. Does anyone have any case law examples that I can refer to? Any other documents that could be useful to include?

Both children (S12.5 and D11) have expressed to me, the ex and OCL that they want things to stay the same. I believe that they will be at my home more and more as they grow up, regardless of any court order.

Thank you in advance,
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Old 10-05-2017, 10:17 AM
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I am confused as to how her proposal and yours are different?

Even if the kids dont want to be there, you should be encouraging a positive and full relationship with their other parent. Why are you against her having additional time?
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Old 10-05-2017, 10:51 AM
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Sorry if I caused confusion. I am not against her or anything of the sort.

I am trying to maintain the already established 50/50 and not have my time with the kids reduced to 2 out of 3 weekends and a 4 hours on Wednesday.

The last offer I made was a final attempt at settlement and to avoid trial.




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Old 10-05-2017, 11:00 AM
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Ah ok. Well if she isnt going to be reasonable then trial may be the best thing.

I cant help with the case law.
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Old 10-05-2017, 11:25 AM
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Yes, it's unfortunate. To clarify, i'm looking for caselaw that support already established visitation and custody. As well as coparenting.

Also any suggestions as any other document that I can include.


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Old 10-05-2017, 02:53 PM
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I don't have any case law off the top of my head, but I do have one suggestion:

Stop calling it visitation.

Neither you nor their mother are a visitor in your children's lives. You are both parents. You have 50-50 parenting. What your ex is trying to do is reduce you to the status of visitor. Visiting makes the contact sound optional.

Language can be very powerful, and if you go around calling it visitation to a judge, they'll start thinking of you as a visitor. You want to make sure they always have the impression you are an equal parent, that way it will be harder to take away time from you.

It sounds like you may have to wait for court to find out what your ex's reasons for wanting to reduce your time are, but if you have any inkling what they may be, start researching against them.

But your whole case is going to be based around:
  • 50-50 has been established and working well for almost three years
  • the children have responded well to it and do not want any changes
  • if your ex would like to change to a different 50-50 schedule rather than week about, you would be open to that if there were valid reasons
Make some offer of other 50-50 schedules you would be open to switching to, and see how receptive she is. If she continues to trial, you have those offers (and your other one) to use to get costs when she loses.

But there has to be something she wants to get out of this reduction. Is she broke and wants more CS? Did she come into some money and can now afford a legal fight she couldn't before? Is this step one of her wanting to eventually move away? Has some change in your life (new spouse?) triggered her desire to keep the kids away from you? You need to figure out her ultimate goal before you can counter it effectively.
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Old 10-05-2017, 04:17 PM
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I went back and looked at some of your other posts. It looks like your ex is trying to make unilateral decisions on medical and educational aspects and probably thinks having full custody will allow her to do that.

When you research case law, look for maximum exposure or contact principle; equal time with parents and also custody changes.

Your kids are getting old enough to decide where they want to be so keep that in mind as you continue.

Also take note of some of LF32's previous appearances. He speaks a lot about maximum contact. Follow what Rioe said too. The bottom line is your ex needs to demonstrate WHY she feels changing from 50/50 will be good. You have demonstrated that the current system works.

Language is the key!!!
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Old 10-06-2017, 01:28 AM
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What OCL report says? What is children's opinion?
They are old enough for court to consider their wishes. Can you request new report?
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Old 10-06-2017, 09:55 AM
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Quote:
Originally Posted by Rioe View Post
Stop calling it visitation... Visiting makes the contact sound optional....Language can be very powerful, and if you go around calling it visitation to a judge, they'll start thinking of you as a visitor.
Thank you, that is wonderful advice.

Quote:
Originally Posted by Rioe View Post

But there has to be something she wants to get out of this reduction. Is she broke and wants more CS? Did she come into some money and can now afford a legal fight she couldn't before? Is this step one of her wanting to eventually move away? Has some change in your life (new spouse?) triggered her desire to keep the kids away from you? You need to figure out her ultimate goal before you can counter it effectively.
To be honest, it is hard to know what she wants. I think deep down she wants all the benefits of being married with none of the responsibilities. She doesn't want a divorce, just separation. She wants more CS because SS is deducted from her ODSP.

You are correct she wants unilateral decision making for medical. Again control on the children. That is caused by her own untreated mental disorder (diagnosed). She has always exaggerated, ie: low blood iron = S facing life or death without iron supplements.

I think the other big problem is her LOA lawyer that seems to encourage her not to budge or compromise.
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Old 10-06-2017, 10:05 AM
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Quote:
Originally Posted by foreverhome View Post
What OCL report says? What is children's opinion?
They are old enough for court to consider their wishes. Can you request new report?
OCL recommends that I get 2 out of 3 weekends and maybe every second Wednesday. Children have told OCL that they want things to stay the same, that they are happy and well cared for. It's actually in the report.

My lawyer recommended that we avoid requesting a new report, as the same case worker would be re-assigned. So we will let the judge request it
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