Frustrated

[frustrated]

Any advice anyone can give me would be a "god-send".

Brief -

I'm 33(the woman) - spouse 25(male). I work, he doesn't. I have always worked, he has never worked even before our son was born. So, I work and support the family financially, he semi-takes care of our son and doing a very poor job which has prompted my decision. I want out - me and my son only. How do I remove my spouse from the residence? I am listed as the leaser - he is listed only as an occupant. How can I get him to leave legally? I want him out of the house so I know my son is being taken care of properly.

Please, please someone respond!!!!!!!!!!!!!!!!!

[logicalvelocity]

Frustrated,

Believe it or not, your partner would be considered the primary caregiver.
Both mother and father are equally entitled to custody of the child and incident's of custody and access are subject to the best interest test. Great weight is given to whom is and was the primary caregiver of the child during the relationship.

Since you are employed, you are considered the breadwinner and you might be obligated to provide your partner spousal support and perhaps child support if the other party claimed custody in an application and courts awarded same.

As far as the residence, it best to come to terms between yourself on who remains in the residence as it is a rental unit.

[sasha1]

Have you asked him to leave and he won't? Or are you just trying to be prepared in case he doesn't want to go? I think you're best to find out what your options are if he refuses, but before doing anything, talk to your spouse and ask him to leave. He might be as unhappy as you are, and will go quietly.

ETA: I was typing a response while LV posted, so I'll take out redundant stuff now. LV is right on the money, telling you the realities of ending this relationship. I was wondering, how old your child is, how long your spouse has been the primary caregiver, and what exactly are your complaints about his caregiving? If he has been neglectful or abusive, do you have evidence of that? If it's a matter of he's simply not parenting the way you would like, but is not harming the child in doing so, the courts won't want to hear about it.

[frustrated]

Thanks for your replies, logicalvelocity and sasha1. This is truly not fair. My son is 21/2 years old. I have been keeping a journal since the beginning of this thread of each day I phone home and my spouse is still not up with our son. The earliest he gets up with him might by 10:30 AM. He never takes him anywhere. I am constantly abused verbally, will this make any difference in the courts?

Thanks for your responses!

[logicalvelocity]

Frustrated,

Keep a journal is a good idea. In custody adjudications the best interest test is the paramount consideration. This can be found in the Children's Law Reform Act R.S.O 1990 Section 24(2).

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK28

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).



Past conduct as listed in 3

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

and violence and abuse can be considered as listed in (4)

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).


LV

[frustrated]

Thanks LV - you have given me a lot of information. Can spousal support still be granted or even considered for him if he abused me(verbally or physically)? I would be paying the support, I am the breadwinner - I think that is what you called it. Would I still need to pay him support even though he constantly verbally abused me all the time?

[logicalvelocity]

frustrated,

It is difficult to answer your question without knowing the facts of your situation etc,

However as a broad interpretation, I will give it my best. This is just an opinion by the way

spousal support is somewhat no fault. It is not a given and is conditional upon NEEDS and MEANS, meaning that they have needs and you have means and the ability to pay.

The support of children would be given first priority. A lot of times after one supports a child there isn't enough left over.

If you income is way above 30K per year, this somewhat suggests that you have means. The court will want to know what steps the other individual has taken to secure employment etc especially if ones health is good. It would all be Dependant on the stance they took and the facts.

Worst case scenario, If spousal support was awarded, I suspect it would be for a brief period, as the relationship is short term. You really can't worry about "what if" scenarios. You pretty much have to deal with it when and if they make the claim. With other more important issues are on the line such as custody of your child on the line, Focus on this issue.

[frustrated]

Thanks again logicalvelocity,

I appreciate all your advice in a big way. You are right, concentrate on the child custody issue first. It's my birthday today, and he hasn't even wished me a happy birthday - kinda sad today but not surprised. thanks again!

[logicalvelocity]

Happy Birthday

LV