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  #1 (permalink)  
Old 08-05-2012, 08:41 AM
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Default Change to shared custody at 14?

Hello, I am the non-custodial dad of a 14 year old daughter. I've posted my situation before, but the conditions have changed dramatically. A quick background: My ex wife is wealthy and earns three times my income through a trust fund. This was an accidental though happy pregnancy, with shot-gun wedding, and separation a year afterwards. My ex wife then tried to push me out completely, denied access, tried everything she could to prevent me from a parental role. After four painful and costly years I got a very generous access deal. There was a judgement. I paid CS. In 2005 I got a job where I work every other week with the ability to live wherever I want. I had been living in the US from before the marriage. I moved to my ex wife's neighborhood in Toronto, bought a house there where I continue to live, 100 meters away from my ex wife's house. I am a dedicated dad. I did this to make things easier for all. From that point on my ex willingly agreed that I care for my daughter every day during my alternating weeks in Toronto, though she did not stay with me every night (we lived so close it was not necessary). She stayed overnight on weekends, and some weekdays. My income increased. Our divorce judgement did not say I had to disclose an increase in income. I advised my ex of my new job, and then a few years later of my promotion, without discussing the financial specifics. She did not ask for an income disclosure. I continued to pay child support according to the divorce judgement and have never missed a payment. I believe the situation was fair: I was caring for our daughter far more than a non-custodial parent would normally do (my records indicate about 46%). She was collecting child support. Had I asked for joint custody, which we were effectively doing, she would have been paying me substantial CS. Then came her new boyfriend in about 2008, a guy who had been a stock broker and got sued by investors for spending all their money and losing it. He's having his wages garnished etc. My problems began then. At age twelve my daughter got very rebellious and we were both having a lot of trouble with her. My ex asked me to take a firm disciplinary role with her. I did this and it back-fired on me. My daughter said she did not want to spend time with me any more. My ex and her boyfriend, in my opinion, seized their opportunity to end our de facto shared custody arrangement. For a year and a half they very carefully thwarted access and generated conflict between my daughter and me. They continued to have trouble with my daughter, but covered it up. I started a mediation/family therapy process, and gradually my daughter drifted back to spending time with me. She admits now that she was fed false information about me, etc. In December 2011 they came after me for retroactive support going back three years. I feel it is unfair because it cuts into the period when I was de facto sharing custody. The alienation continued until I got a lawyer. Through a very costly process we have been able to make them scared to discuss the case with my daughter and feed her false information again. In the absence of alienating behavior gradually my relationship with my daughter has returned to normal. She has apologized to me for what happened and admits she'd been given false information. This process took two very painful and costly years for me. Our neighborhood is very expensive and I have to rent two units out in my house to keep up with a high mortgage. I have 1200 sq feet and my daughter has her own room but we all share a bathroom and it's cramped and awkward for a girl at age 14. And now that I'm paying substantial CS to my wealthy ex wife, the income disparity is very apparent to my daughter. It has been a long term plan for me to take over one of these apartments to provide extra space for my daughter, to give her her own bathroom, backyard etc, a place to hang with friends (where dad can keep an eye on them...) Now that she is 14 she has a space issue at her mother's house also. She is asking me when I am going to take over this apartment as I had promised for many years. I have already agreed to pay her mother a substantial increase in CS, as per the guidelines. I told my daughter the truth: I cannot afford to take over the space for her and pay her mother this much CS. I said I am willing to do it but she has to live with me as a joint custody parent, every other week (basically to go back to what we were doing before she was twelve). I think it may sound as though I am bribing her with this apartment because I don't want to pay CS. However I'll lose more in rental income than I'd gain in not paying CS, plus I'll be providing for her more. Overall this plan is a money loss for me which I'm willing to take because it's what my daughter wants and I think it's right for her. Right now I am defending my case against retro support (they want 29K), and responding to the motion to change with a request for joint custody. My lawyer is asking for a court appointed lawyer to interview my daughter to ascertain her wishes, if necessary. What are my chances of winning shared custody? Will the courts decide based upon my daughter's wishes, now that she's 14 (she'll be 15 in March)? How about defending the retro support claim? Thank you in advance.
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Old 08-05-2012, 08:50 AM
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Could you please break down your message into at minimum, paragraphs and at if possible the key relevant matters you are asking about? It is difficult to break apart a stream of consciousness posting of a single paragraph.
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Old 08-05-2012, 09:06 AM
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Hopefully you kept careful track of your access time with your daughter over the years.

Based on cases I have read, a judge would look at the last couple of years and see that you owe some retro since you had a higher income than the original agreement, however the judge would also look at the years when you were at shared custody level (40-60%) and see that you overpaid during those years. There are no guarentees here, and it depends on how meticulous you detail the facts that support your arguments.

The fact that the child resides a great deal of time with you greatly mitigates the idea of retro support payments. If you were to pay a lump sum and suffer financial hardship, the child would suffer during the time she stays with you. DON'T ASSUME A JUDGE WILL NOTICE THIS. You shoud prepare meticulous budgets detailing your own expenses, housing costs, and child expenses you incure. If you are able to show that the net disposable income in your home is substantially less than the ndi in your ex's home, this is not a strict formula, but it is a persuasive argument.

You must prepare a sound argument that your ex was not paying the setoff child support that she was required to by law. You have to show her as a deadbeat. You were a "nice guy" for years, but that doesn't automatically give you credit. You have to show it in your arguments.

The time you spend with your child should be all about the child's bests interests, not about money. But it is fair and it is necessary to show the court that the child's best interests require an equitable child support arrangement.

You have to be thorough here if you want to succeed. Don't assume anything, make a logical, fact supported argument for everything. You are a nice guy, we all see that, this isn't about being nice, it is about explaining the situation in detail for the court. If it is relevant, it belongs in your application.

At the age of 14, the court won't force the child to live in a particular schedule, she has a lot of choice. You do NOT want to come across as coercing her. However it is fair to set boundaries, and as you did, be clear that she has to choose a minimum schedule with you if she is to have the additional living space.

I would not overly stress the "freedom" of having her own apartment, especially not in court documents. But also not with her, she will mention this argument to her mother. She needs to be under parental control, and the freedom of having an apartment shouldn't be seen as a bribe. She can see the advantages for herself, don't use it to talk her into this, it will come back and bite you on the ass.
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Old 08-05-2012, 09:43 AM
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Thanks for this. Yea, I'm worried it looks like I'm giving a kid an apartment to bride her into agreeing to live with me half the time. The plan is to knock down a wall and rejoin she space, so not her own pad, but still she'll have more independence than she has now. My only defense is that the plan was discussed long before the conflict began. My ex knew about it, saw it coming, and broke off our de facto shared custody to keep the income disparity most apparent to my daughter so she won't want to spend time with me. My daughter would verify these facts. Anyway, it will be interesting to see what happens. Thanks for the advice.
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Old 08-05-2012, 11:10 AM
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Originally Posted by guitarguy View Post
My daughter would verify these facts. Anyway, it will be interesting to see what happens. Thanks for the advice.
Do not use your child as a witness to the "facts" you are stating here. If the matter proceeds before the court I can tell you that if you present "evidence" from your daughter to the "facts" it won't work in your favour at all.

If you want your daughter to have a voice in the situation you should request that the Office of the Children's Lawyer and/or a independent mediator provide a report to the court specifically to determine what your daughter wants.

At the age of 14 the court will hear what a child has to say but, presenting it as evidence, affidavits, letter from the child, in support of one parent will not bold well in any matter before the court.

Keep your daughter, and her opinions out of your materials. Seek a non-biased 3rd party like a mediator and/or the OCL to assist the court in ascertaining your daughter's wishes.

The court will listen to her wishes, especially at 14 but, do it the right way and not the wrong way. A court can't order her what to do at 14 and which parent to live with.

Many people state this fact but, here is the reasoning behind it.

1. You can't abduct a child at age 14 as a parent. The Criminal Code of Canada specifically states explicitly in 283.(1) and 282.(1) the age as 14.

2. The court won't order a police enforcement clause for the return of a child for access visits as a result of the legislation in the CCC. The police won't and can't force a child to go to the other parent's house.

3. It would be highly unlikely that a judge in the Family Law courts would order a 14 year old child for access visits if they don't want to go.

Good Luck!
Tayken
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Old 08-05-2012, 11:49 AM
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My simple observation is that from what you have said you find it financially difficult to live in your current home. Have you considered selling and moving to a more affordable home that suits both you and your daughter's needs? At 14 the daughter is old enough to take the bus and get a learner's permit.
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Old 08-05-2012, 02:17 PM
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Quote:
Originally Posted by Tayken View Post
If you want your daughter to have a voice in the situation you should request that the Office of the Children's Lawyer and/or a independent mediator provide a report to the court specifically to determine what your daughter wants.
I do disagree slightly here. A simple factual statement won't have any negative connotations and will express the child's wishes. It is a fine line to walk. You want to be clear you aren't dragging the child into the conflict, however for the child to express their wishes, it should be a simple and straightforward process. I think that if the child is clear and not conflicted at all, bringing the OCL into the mix is going to heighten the child's angst, not minimize it.
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Old 08-05-2012, 09:14 PM
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Thank you both for the advice. Well, I see both sides of the OCL thing. In the current draft my lawyer has already put in the request for an OCL, "if necessary". And I was not aware that age 14 was the specific age. Thank you. The alienation began after my discipline show-down with my daughter when she was 12. My ex jumped on the opportunity to end our de facto shared custody then, but I wasn't sure why she waited a year and a half to request a new income disclosure. I think she wanted the process to proceed as my daughter was approaching 14 thinking she had me good and alienated and my daughter would simply say she doesn't want to see me and that would be that... But as a result I got the family therapy going and got a lawyer and we made progress on stopping the alienation, and now it's come full circle and my daughter positively wants to return to the shared custody access pattern we previously enjoyed, but I have to have the additional space. Currently I have agreed to pay 1100 in CS. I'll lose $1350 in rental income if I take over the space for her, but I'm happy to do it. I'm just a little nervous it will appear that I am 'bribing her' to support my claim for shared custody. But like I said, the plan to reconnect the apartment and provide new space was in the works long before this current conflict began and my ex was well aware of it.

The other thing I worry about is that mom is the default sole custody parent and I have to argue against the system.

Another issue this will create is income disclosure on her end. I have the details of her trust from our marriage contract, but ten years ago she presented an income disclosure where she claimed $45K income (not 300K which was originally disclosed in the marriage contract, plus 7 mil in the bank). She set up a corporation and paid herself this income. I know she still has her trust fund, plus she's set up an investment company. But I'm sure she'll do it again (show a very low income) and try to get me to pay CS regardless, as that's the way it will work if we have shared custody. I've read the guidelines and they seem to leave no stone unturned when it comes to income disclosure. But I am certain it will be very difficult to get the real deal out of her. I'm not even sure how to go about trying to do this.

If I were the mom I would have no hesitation in saying she should pay me CS to equalize our households should I end up with shared custody. Right? But I'm the dude so somehow it doesn't seem right. But this is 2012... When I calculated a ball-park estimation of what she would have paid me in CS during the six years of our de facto shared custody it came out to over $100K. Yet I paid her CS all this time. I was an idiot.
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Old 08-05-2012, 09:33 PM
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If this were me, I wouldn't worry about it looking like a bribe. The daughter has indicated she wants to return to a 50/50 situation, your decision to renovate and make room came after that. That is clear from your explanation, just keep being clear about it.

You have a current, old, order that states a support amount based on your old income? When you state $1100 this is a new calculation? If this were me, I would pay the old amount from the order.

Then either the mother decides to go to court to update your payment and seek arrears, and you have the daughter living with you half time and your ex has her ridiculous income. She will have to explain to the judge why she has not been paying you the setoff amount.

As far as custody goes, if you mean legal decision making, this means less and less at your daughter's age. She will have her own ideas about where to live, what school to attend, she can go to the doctor on her own, she only needs a parent's consent for elective surgery.

As far as whether you have shared custody, this is something you seriously should have dealt with years ago when you were at 43%. You wouldn't be in nearly as bad a situation now. Deal with it now. If the mother holds off on taking you to court over the supposed retroactive CS, then once the daughter settles in to the new routine, you notify the mother that you now have shared custody and you want the court order to reflect that.
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Old 08-05-2012, 10:11 PM
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I don't think you are bribing your daughter. You are making alterations to recognize the fact that she is a young woman and needs some "girl space." Good for you dad!
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