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-   -   inability to agree on holiday schedule as material change (http://www.ottawadivorce.com/forum/f3/inability-agree-holiday-schedule-material-change-21071/)

trinton 05-28-2017 05:15 PM

inability to agree on holiday schedule as material change
 
there is a final consent custody order in place silent on holiday schedule. it says any further time as the parties can agree in writing..

initially denied any holiday schedule.. reasonable offers refused..

now.. reasonable requests still denied and terms are dictated by other parent . I must agree or I get no holiday time

there is no interim holiday schedule in any court order.

I think for me this is one of my material changes and am wondering if it's best to stick to my position or agree whatever is offered outside of court (i.e. by email or through lawyers)

I ask as

1. it seems material change must exist at time of final hearing/trial and not when when application was filed or throughout duration of proceeding - correct me if I'm wrong.

2. if I come to an agreement as the case continues then the judge could say we've been able to agree on holiday schedule no need for court to decide (although I've only agreed as it is her offer or nothing. ) - this is referring to email or counsel interim agreements - I have not and do not plan on agreeing to any terms in interim court orders unless they are reasonable.

what do you all think ?

Berner_Faith 05-28-2017 07:18 PM

Personally no I don't think this is a material change... the agreement stated as agreed upon... you two don't agree and therefore no extended time. I think this is very poor on her part but as for a material change no I don't think you can use this as a material change.

I would still seek an order for holiday schedules but I wouldn't rely on a material change to make that happen.


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Beachnana 05-28-2017 07:59 PM

You and your ex are never going to agree so
Never let a phrase as agreed upon be in any agreement. It's the
Best phrase if You Never want it to happen.

Rioe 05-28-2017 11:28 PM

To me, the material change would be that the ex is not being reasonable about sharing time on holidays, as was expected when the order was made.

arabian 05-28-2017 11:41 PM

I think that if one should examine the reason why 50/50 custody was not granted in the first place. Then you look at what has changed since that time... has parent overcome the problem? Then that might be the change of circumstances.

Tayken 05-29-2017 12:28 PM

Quote:

Originally Posted by Rioe (Post 221124)
To me, the material change would be that the ex is not being reasonable about sharing time on holidays, as was expected when the order was made.

Bingo. This is the correct way to argue the matter. It is material that the children are not getting holiday access with both parents. Therefore it is something that is material that needs to change.

Surprised a judge would sign a final consent order without a holiday access schedule set out.

stripes 05-29-2017 01:33 PM

Really? I thought a material change was something which could not have reasonably been foreseen at the time the order was made (had it been foreseen, a different order would have been made). Given the long-term bickering between Mom and Dad in this instance, I think it would have been quite predictable that they wouldn't be able to agree on things. This is not something which unexpectedly came up that no one could have predicted, like Dad getting hit by a bus or Mom's house burning down. Has Mom suddenly become unreasonable since the order was written?

(See Changing Custody Orders | Ylaw Group for details)

I would be hesitant to argue that this is a material change. If not agreeing on a holiday schedule constitutes a material change, then every time divorced parents disagree, does it become a material change (because Dad wants to put the kids in hockey, because Mom wants to visit her new boyfriend over Christmas, because parents can't agree on S7 expenses, etc), and the idea of a significant material change becomes meaningless.

Rioe 05-29-2017 03:06 PM

Quote:

Originally Posted by stripes (Post 221135)
Really? I thought a material change was something which could not have reasonably been foreseen at the time the order was made (had it been foreseen, a different order would have been made). Given the long-term bickering between Mom and Dad in this instance, I think it would have been quite predictable that they wouldn't be able to agree on things. This is not something which unexpectedly came up that no one could have predicted, like Dad getting hit by a bus or Mom's house burning down. Has Mom suddenly become unreasonable since the order was written?

(See Changing Custody Orders | Ylaw Group for details)

I would be hesitant to argue that this is a material change. If not agreeing on a holiday schedule constitutes a material change, then every time divorced parents disagree, does it become a material change (because Dad wants to put the kids in hockey, because Mom wants to visit her new boyfriend over Christmas, because parents can't agree on S7 expenses, etc), and the idea of a significant material change becomes meaningless.

If an agreement or court order was made with clauses that rely on the parents to be reasonable and agree, I'd guess that they both came across to the judge as relatively reasonable and willing to work together. I think judges are optimistic, and want to believe what people tell them in court. Or they are na´ve, and assume everyone is being truthful.

"Yes, your honour, of course I'll discuss sharing holidays with Trinton. We'll work something out ourselves and be flexible to the child and the circumstances. You don't need to dictate a schedule for us."

So the material change is that it turns out that the mother is not reasonable, and uses the 'agree' clause to mean 'only if I want to, which I never will.' Her contrariness was unforeseen by the judge, and now it's clearly necessary to have holiday access be spelled out instead of relying on her 'agreement' because that will never happen.

arabian 05-29-2017 05:13 PM

Is this not why people apply to have custody changed - to ensure the "maximum contact principal", particularly when one parent denies child his/her equitable access to other parent?


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