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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 10-29-2013, 04:17 AM
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Default mom is abandoning our son

so the custody battle went on for almost two years, she had temporary sole during this time. in september this year I ended up giving her sole custody

(minutes of settlement signed but her lawyer tried to be sneaky and excluded quite a few clauses that were part of the minutes from the draft order, i disputed the exclusion and eventually the draft order was never submitted to court nor stamped AFAIK)

4 days ago ex suddenly announced that she has remarried some one who lives in japan. today she announced that she is moving away by end of November and will not return for at least two years. she said I should keep our son.

what happens to the "final minutes of settlement?"

also she stated that she is going to be a housewife and will not pay CS. i dont think thats very fair to my son, just two months ago at a SC she wouldnt even agree to the table amount and I had to offer 20% over the table amount to reach a settlement.

Should I bring a motion of some sort to change custody and get CS? i know enforcement will be a problem but at least I will have an order in my hand to begin with.
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Old 10-29-2013, 07:39 AM
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did she write in an email that you could keep the son? If not then send her one stating you wish to clarify her stand on you having custody when she moves. I am thinking that your motion wouldn't be heard before she left so it may be a waste of time and money. I would worry more about the custody then the CS at this time. You already said that getting money from her would be a problem.
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Old 10-29-2013, 09:52 AM
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I think your ex just took the cake on crazy.

I would think you definitely need a new order giving you sole custody and table CS from her (as you said, enforcement may be tricky, but better to have it on paper) before she leaves the country. Otherwise you have this other order hanging over your head that will make it difficult for you to handle decision-making and cross-border travel for years to come.

More court-experienced posters than I can tell you how to get this heard in court before she leaves.

Your poor kid. Do you think she has sneaky plans to take him with her?
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Old 10-29-2013, 09:57 AM
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Quote:
Originally Posted by Rioe View Post
Do you think she has sneaky plans to take him with her?
That flew up a flag for me as well, in reading the OP's post.
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Old 10-29-2013, 05:31 PM
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I simply say that you understand, you are happy to care for the child while she is overseas and wish her the best. Be pleasant and respectful. I know this will likely be hard on your child, so focus on them.

But make it as easy for her to give you the child and leave. Wait 6 months and file motion requesting custody due to the material change of circumstances. Offer her plenty of parenting time in Canada and the odd vacation over there.

If you make it hard on her or guilt her, she may change her mind.

Once you have the child, do your best to help them adjust. Get them into counselling if necessary. Be the best dad you can be and praise your lucky star that your ex was a complete moron.
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Old 10-29-2013, 11:02 PM
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yes, the clauses they excluded from the draft order were
1- childs habitual place of residence is Canada. (they were really fussy to agree with it in the first place at the court)
2- mother cannot change the child's name
3- its in the child's best interest to spend time with the parents instead of another party.
and a few other clauses.

most of the communication took place through SMS, communication regarding alterting of access for the transitional period was done via email. i do have the SMSes backed up in my gmail if she disputes it.

But i am thinking of sending her an email summorizing all our recent communication.

I wonder if i should paste all sms exchanges in an email and ask her to put it in writing that she is leaving custody to me. and that access will be dealt with if she every so chooses to return.

I do want an order for CS even if she dosnt pay, first for the sake of my son so that when he grows up she cant tell him that i didnt ask for his right or that she was never ordered to contribute towards his upbringing

i did see the judge deny ordering CS from a parent who was living in USA because she had no information on his income (i dont know why she didnt impute him income) but i can only bring a motion once the custody is officially transferred right?
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Old 10-29-2013, 11:24 PM
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If you put all of the messages in an email and ask her to sign it, you are pushing her to sign a custody agreement. She will see that. If she is willing to do that much, then just sign a formal custody agreement.

It sounds like she would not agree to that, so doing as you suggest will just push her into a corner and make her even harder to deal with.

There is no existing order, since it hasn't been signed. There is a significant unforseen material change in circumstance, so the previous minutes of settlement would be ridiculous to adhere to.

Hammerdad is basically suggesting to do nothing now, so as not to rock the boat, let her go overseas, and then in six months you have status quo and can file a motion order. This idea will work and you won't run into any conflict right now.

If you start pressuring her to sign an agreement, you have no idea how she will react. That being said, certainly you could present her with an offer to settle giving you custody.

In terms of sending her an email, I think the suggestion was more along the lines of, "OK, it is fine with me to have child live with me. I hope you have a happy relationship in Japan. Exactly when should we move the child's belongings?" The idea is to continue the conversation and confirm the arrangement.
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Old 10-30-2013, 09:54 AM
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Sending her an email outlining everything and copying pasting in text messages is not a good idea. I can't see how that wouldn't come of as hostile. Your ex will likely get defensive and put up road blocks. They may even suggest they will take the child to Japan.

Support their decision. Allow Mr. Wonderful Syndrome to work. Let them screw up. Don't start putting pressure on them to sign stuff or acknowledge this or that. If you do, all it will do is agitate them and likely cause you more stress. Although, from your post history, you will likely send, or have sent, the email anyway as you seem to love inviting unnecessary drama.

Make the ex's move as painless as possible. Then sit back and enjoy your time with your child. If you start making it hard for them to leave the child with you by forcing agreements and other emails under their nose, they will get defensive and it won't be an easy transition for you or your child.
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Old 11-05-2013, 01:44 PM
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update in order here:

I did not send her the email i was "thinking out loud" about, i had thought about it because this was the 5th occasion in past 2 years she had announced that she is leaving, but didnt end up following through.

I have received official offer to settle giving me sole custody.

the offer is asking for every other day skype access, while i dont have any objection to the suggested access in principal, i do not think it will be practical as i dont think its possible to be present at home with internet every other day. would twice a week be reasonable?

The offer does not speak one way or the other about me keeping the passport, being able to apply for it, nor about me traveling with my son with or without her consent. what is reasonable to ask here?

the offer also does not speak to the termination of current child support i am expected to pay, nor about any of the arrears. what is reasonable to ask here given that she is leaving the country. (same goes for arrears on SS) i think the total may be around 2k left or so.

the offer also does not speak to the ex paying any CS, she has already declared she has no intention of paying because she will be a house wife, what is reasonable here? she has a Masters degree and a Post Grad diploma in ECE and also recently went to UofT to get some other sort of diploma in education.

The offer does not include the mother informing me of her future address, is that reasonable?

what other clauses should i add to my counter offer?

Thanks
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Old 11-05-2013, 02:27 PM
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Quote:
Originally Posted by sahibjee View Post
update in order here:

I did not send her the email i was "thinking out loud" about, i had thought about it because this was the 5th occasion in past 2 years she had announced that she is leaving, but didnt end up following through.
Good. In doing so, you likely ended up getting their offer sooner, rather than later.

Quote:
I have received official offer to settle giving me sole custody.
Sweet!

Quote:
the offer is asking for every other day skype access, while i dont have any objection to the suggested access in principal, i do not think it will be practical as i dont think its possible to be present at home with internet every other day. would twice a week be reasonable?
I would agree to this. Frequent and meaningful contact is in the child's best interests. Be sure to set a scheduled time and then be there.

If for whatever reason you can't, put in a clause that the Skype time will be made up at the prescribed time the following day. I would also include a provision that in the event of vacation travel, Skype communication will be limited to one day in seven as long as the location has wifi services. That would give you a buffer.

But do your best to ensure that the child is able to make this.

Quote:
The offer does not speak one way or the other about me keeping the passport, being able to apply for it, nor about me traveling with my son with or without her consent. what is reasonable to ask here?
Once you have sole custody, you can apply on your own. Or you can ask the ex to sign the application. It is a minor issue that can be dealt with once you get custody.

Quote:
the offer also does not speak to the termination of current child support i am expected to pay, nor about any of the arrears. what is reasonable to ask here given that she is leaving the country. (same goes for arrears on SS) i think the total may be around 2k left or so.
Again, once you have custody this is a matter of law. Are you currently registered with FRO? If not, you can simply cease forwarding her c/s as of the date you become the custodial parent. If you are, you can forward her an notice to withdraw from FRO stating that as you are now the custodial parent, you should no longer be obligated to pay ongoing support.

However, any arrears must be paid. Just because you have custody now, doesn't negate accumulated arrears.

Quote:
the offer also does not speak to the ex paying any CS, she has already declared she has no intention of paying because she will be a house wife, what is reasonable here? she has a Masters degree and a Post Grad diploma in ECE and also recently went to UofT to get some other sort of diploma in education.
Once you have custody you file a motion for c/s. If she says she has no income, you request one be imputed to her. But why rock the boat if she could turn around and renege on everything? Wait until you have the kid, then you do all this other stuff. Should you attempt to put the horse before the cart, you risk her changing her mind.

Quote:
The offer does not include the mother informing me of her future address, is that reasonable?
You can request this at any point in a civil email. That she provide you with her contact details so you can ensure the child is able to get a hold of her and any future changes to her address/contact details.

Quote:
what other clauses should i add to my counter offer?

Thanks
The address I would put in there, it is relatively harmless. The buffers for missing a day and vacation for Skype is a good idea.

You can provide that your c/s obligation ceases upon you being the custodial parent. Part of me does want to put in that she has c/s obligations, but that is a matter of law. It would be cheaper to deal with this once you have custody and status quo on your side.
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