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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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Old 09-03-2014, 06:33 PM
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Default Motion to change - 50/50 access

Hi,

I'm starting the process to do a motion to change. I am pursuing to get 50/50 access for my 8 year old son. His mother and I have joint custody, I pay her child support and we do 50% on all his extra curricular activities. My son keeps asking me why he cannot sleep over my house more during the week and see me as much as his mom. She does want to do this.

I moved to Brampton as my son lives there. His mother decided to buy a condo in another city but didn't discuss with me what will happen with our son's school, extra curricular activities, and the access schedule.

What forms do I need other than the 15?

Any other advice would be greatly appreciated.

Thank you!
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Old 09-03-2014, 07:58 PM
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Welcome to the forum, Justin3 - hopefully you'll find the advice here you are looking for.

It would be difficult for any of our posters to give you realistic advice without knowing more about your situation - perhaps consider posting an introduction in the Introductions forum to inform others of where you currently are in your parenting/custody issues. (I see you've posted an identical thread, so just a head's up, I'll delete that one, in order for posters to concentrate on one).

Off the top, I'm not sure you will be successful in a motion to change unless you can prove a material change of circumstance, and I don't believe you moving closer to the child's residence is considered a material change of circumstance. Of course, that is all dependent on what your current agreement dictates.

You should be focusing on the ex' move to another city and the change of the child's residence, with resulting school change, doctor change, access schedule change, etc. - I think that most definitely would count as a material change and would get you in the door to re-open custody.
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Old 09-04-2014, 07:56 AM
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Quote:
Originally Posted by Justin3 View Post
What forms do I need other than the 15?

Any other advice would be greatly appreciated.
More than the "forms" you really need a lawyer to assist you with this. A motion to change requires that you establish (as the moving party) that a material change in circumstance has occurred.

If you don't know what the evidence requirements to establishing a material change in circumstance is then you need to hire a lawyer. Why???

Because, if you are unsuccessful on bringing forward your motion to change you could be ordered to pay the other party's costs for having to respond to your motion. If the other party hires a lawyer the costs can be substantial because you could end up paying for the other party's legal bill.

If the other party has access to funds you could be looking at costs of upwards of 30,000.

Furthermore, remember that something like this will not end on a single motion. Generally speaking a final order cannot be made on motion or conference without the consent of both parties. So, you are looking at a trial and those things are rare (2% of all matters in family law generally) and take 2-3 years to get to. You child could be 11-12 years old by the time it is resolved.

The better path is to send an offer to settle in accordance with Rule 18 of the Family Law Rules prior to bringing a motion and to slowly increase the access. Don't go for broke on the matter because you could end up... BROKE.

Good Luck!
Tayken
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Old 09-10-2014, 10:22 AM
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Thank you for your reply Tayken and mcdreamy. I'm looking for more time with my son. Would a request be possible to achieve this?
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Old 09-10-2014, 10:45 AM
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As mcdreamy stated you need to give more information.... also a failure to show "material change in circumstances" means your dead in the water.... that being said, I always encourage people to go for shared custody because you'd probably regret more that you never did (and its better for the children in general).
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Old 09-10-2014, 10:47 AM
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Quote:
Originally Posted by Justin3 View Post
Thank you for your reply Tayken and mcdreamy. I'm looking for more time with my son. Would a request be possible to achieve this?
The first step you have to prove is that there has been a material change of circumstances. You moved to be closer to the could be a material change in your benefit, but the ex moving further away could be a negative material change for you.

Just wanting something isn't good enough. You will need to first prove there has been a material change in circumstances to re-open the original order/agreement. You will then need to prove that such a change in the child's best interests. That they will benefit from the extra time with you, as you have a stable household in an area familiar to them with lots of friends and family etc.

You can request the change, but your chances of success hinge on the evidence you can provide that it is in kids best interests.
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Old 09-11-2014, 03:24 PM
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Here is a summary of the situation.

My sons mother and I have been separated since he was about 8 months old. We were never married. We have been through 2 agreements as we went to mediation for both. As per the current agreement I see my son every Tuesday after school until 8. Every 1st and 3rd weekend of the month I have him from Friday after School to Sunday until 8pm. Every 2nd weekend I pick him up from school on Friday and drop him off to his mom by noon on Saturday the next day.

Since last year we changed the agreement through our own communication, never submitted a motion to change. With this change I picked up my our son from school Monday, take him to karate, have dinner with him and then drop him off to his mom and Wednesdays picked him up from school and drop him off to his moms by 8pm. The weekend schedule stayed the same.

I moved to Brampton from Mississauga to be closer to him. Before the move I advised his mom that I was moving to Brampton this year and that our son can sleep over my house during the week and I will be able to take him to school more. She agreed. As it got closer to my closing date I brought the subject up again and she changed her mind.

When she gets angry she changes the schedule back to our current agreement which is every Tuesday instead of Mondays and Wednesdays.

Before our son started school this year. We agreed that I would see my son Mondays and Wednesday but we had an argument and she changed it back to every Tuesday.

My son tells me all the time that he wants to be with me more and asks me why he can't.

We have joint custody
We split on our sons extra activities 50/50
He is 8 years old
I started to work form home Aug 1 of this year which gives me flexibility with his school schedule
I have been involved in my sons life since he was born

My son and I just want more time together.


If there is any other information you need to help with my case please let me know.


Thank you!
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Old 09-11-2014, 03:52 PM
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I've seen cases where the changing age of a child is considered a change in circumstances - i've seen judges say "A boy needs his father" or something to that effect......

Changes?
1. You work from home (so you are more available)
2. You live in the area
3. He is now 8yrs old a needs a positive male role model

Are these material? I think so but somebody more experienced will answer you better

How much child support are you paying?
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Old 09-11-2014, 04:17 PM
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Thank you Links17. I've been paying the table amount every year.

If anyone can add to Links17's post and if the listed changes are valid that would be great.


Thank you!
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Old 09-11-2014, 04:25 PM
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I personally would try to maintain the status quo that was created when you got the Monday and Wed and EOW going... build on that.

What are her reasons for not letting you see the child when you used to see him on those days.

My husband went through courts for two years. No one ever said "a son needs his father" and that never made any sense to me. No one ever talked about a material change in circumstance either. All that to say, he got more access to his children even though mom was strongly opposed.

Its the maximum contact principle... if you work from home, I'm willing to bet you can use that to your advantage.
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