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Old 01-14-2013, 11:36 AM
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Default Motion to sell home and child custody

Hi all, hoping to get some opinions. Here's some quick background.

1. STBX and I have been living in the same house together for almost a year now
2. Two child 5 and 7 - we have been doing shared custody for the last year i.e. status quo is 50 / 50 hence I won't leave the house
3. STBX and I had discussed settlement i.e. sell the house and continue 50 / 50
4. STBX renegged on shared custody when I didn't agree with paying her $140K off the top of the sale of the home to pay off her rental condo line of credit i.e. this debt is secured against the rental condo. Matrimonial home is mortgage free but she claims this is a debt of the home because I pulled funds from line of credit to pay down mat home mortgage. Mortgage originally was $340K. Truth is I pulled funds from many sources to pay this down over the last 4 years i.e. my bonuses, lump sum payments from salary, my investment account, my sale of a rental property.

So in short, she is holding shared custody as ransome for me to give her the $140K off the top and because I disagreed she renegged on shared custody.

She is now indicating that she will file a motion to sell the house and seek the $140K off the top and rest remain held in trust until equalization can be determined.

My questions.
1. I do want to sell the home and move on too but not on ridiculous terms. What should I do when I am served the motion to sell the home?
a) Offer to settle before date but indicate proceeds are 50 / 50? Show payments to mortgage were made from many sources as part of normal operation of household finances? Seek costs.

2. If the house is sold, what becomes the custody arrangement post sale? Does our 50 / 50 status continue? Or should I be doing something i.e. add a cross motion to their sale of the home motion? Other?

Any help / thoughts, course of action would be greatly appreciated!
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Old 01-14-2013, 01:11 PM
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I'm not a lawyer, but custody and financial issues are two separate issues under the law. A good lawyer on your side would point that out.
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Old 01-14-2013, 01:16 PM
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Thanks, I understand that they are two separate issues but also somewhat intertwined. As we currently live in the same home it's been 50 / 50 status quo with the children.

She isn't willing to budge on wanting sole custody. So if the house gets sold before any agreement is reached on custody - I'm just not sure what happens?

Any insight?
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Old 01-14-2013, 01:28 PM
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Quote:
She isn't willing to budge on wanting sole custody. So if the house gets sold before any agreement is reached on custody - I'm just not sure what happens?
Neither one of you will be able to move without an interim custody agreement...therefore your home disposition motion should/will include a determination for an interim custody order.

If you've been operating under a 50/50 agreement, its most likely to continue unless either of you have an expert's opinion or strong evidence on why it should change.

You'll need to have a parenting plan in your affidavit materials. So my suggestion is to suggest a reasonable 50/50 plan showing how the children will be managed between your two separate residences. She'll most likely be coming up with reasons that they should only stay with her...so you'll need to counter that by showing that you can manage the children half the time.

Hopefully, you've been documenting your equalled shared time with the children so unless there's some very compelling reason to change the custody order...its likely to stay the same pending a formal custody evaluation.
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Old 01-14-2013, 01:43 PM
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Thank you Pursuinghappiness - can you clarify a couple things.

When you say "Neither one of you will be able to move without an interim custody agreement...therefore your home disposition motion should/will include a determination for an interim custody order."

How will that occur i.e. interim custody agreement? Meaning the judge will add / decide as part of her motion to sell the home? Or I have to file a separate motion for custody or add to her motion as a cross-motion? Sorry just want to understand the logistics better of how custody will be addressed now that she's pushing to sell the home.

"You'll need to have a parenting plan in your affidavit materials. So my suggestion is to suggest a reasonable 50/50 plan showing how the children will be managed between your two separate residences. She'll most likely be coming up with reasons that they should only stay with her...so you'll need to counter that by showing that you can manage the children half the time."

Very good suggestion - Yes have been documenting and I can use my daily log with them and the current 2 - 2- 5 schedule for affidavit support. I have drafted up a parenting plan including holidays, etc.
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Old 01-14-2013, 01:50 PM
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Quote:
Originally Posted by Dee1973 View Post
Thank you Pursuinghappiness - can you clarify a couple things.

When you say "Neither one of you will be able to move without an interim custody agreement...therefore your home disposition motion should/will include a determination for an interim custody order."
1. You should really get a lawyer.

2. You can cross-motion for custody and access on any motion brought forward against the Application. But, the first thing is someone has to Apply to court.

3. No motion will be heard until a Case Conference (unless a truly urgent matter) so you both may be in a position of a long wait depending on what jurisdiction you are in.

Quote:
Originally Posted by Dee1973 View Post
How will that occur i.e. interim custody agreement? Meaning the judge will add / decide as part of her motion to sell the home? Or I have to file a separate motion for custody or add to her motion as a cross-motion? Sorry just want to understand the logistics better of how custody will be addressed now that she's pushing to sell the home.
Unless an Application was made by either party in the matter you have to go to a Case Conference prior to any motion being heard. You have to go to MIP and a whole bunch of other things.

Quote:
Originally Posted by Dee1973 View Post
"You'll need to have a parenting plan in your affidavit materials. So my suggestion is to suggest a reasonable 50/50 plan showing how the children will be managed between your two separate residences. She'll most likely be coming up with reasons that they should only stay with her...so you'll need to counter that by showing that you can manage the children half the time."
If you are in Ontario the Form 35.1 (Affidavit) which is in accordance with Rule 35.1 of the Children's Law Reform Act will have to be submitted by both parties into the continuing record. This is where all this stuff goes.

Quote:
Originally Posted by Dee1973 View Post
Very good suggestion - Yes have been documenting and I can use my daily log with them and the current 2 - 2- 5 schedule for affidavit support. I have drafted up a parenting plan including holidays, etc.
That all goes into the 35.1.

http://www.ontariocourtforms.on.ca/f...p-Guide-EN.pdf

But, heed my point #1 - seek legal counsel. You are possibly dealing with carts before horses here.

Good Luck!
Tayken
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Old 01-14-2013, 01:59 PM
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Hi and thank you Tayken.

Sorry I should have clarified - we did go to case conference in December and resolved nothing, it was a big waste of time and money.

So now she is threatening to file a motion to sell the house unless I give into her ransome demands i.e. extra proceeds from house and she'll agree to shared custody continuing.

So I expect to be served with motion shortly and want to pre-prep what I might want to do.

So once served with the sale of home motion are you suggesting- "You can cross-motion for custody and access on any motion brought forward against the Application."

Sorry - just a little confused right now.
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Old 01-14-2013, 02:03 PM
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Quote:
She is now indicating that she will file a motion to sell the house and seek the $140K off the top and rest remain held in trust until equalization can be determined
Based on this, I was assuming that they're past the CC stage. Maybe not.

OP can you clarify what stage you're in and whether or not you have a lawyer or you're self-repping.

If neither one of you have filed...or had a CC...she won't be filing a motion for the disposition of the home for a while.

Quote:
How will that occur i.e. interim custody agreement? Meaning the judge will add / decide as part of her motion to sell the home? Or I have to file a separate motion for custody or add to her motion as a cross-motion?
You or you & your lawyer will be responding to her motion. If she doesn't already have the interim custody issue addressed, its something that you should definitely include in your response.

How this worked in my case was that there was a motion to sell the home, however, another motion was filed prior to the move-out date since interim custody has to be established before you both leave the home.

Again, I'm making the assumption that either in her original motion or the subsquent affidavit response to your response, she'll be stating why she should have interim sole custody and/or access for the children. You'll need to counter her argument. You have two things that should aid in your seeking an interim 50/50 order:

1. The existing status quo of shared custody. Hopefully, you've documented that.
2. It sounds like you have no expert evidence (ie OCL, Private Evaluator) to show why one of you should have a sole custody/non-shared access order.
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Old 01-14-2013, 02:10 PM
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Quote:
Originally Posted by Pursuinghappiness View Post
Based on this, I was assuming that they're past the CC stage. Maybe not.

OP can you clarify what stage you're in and whether or not you have a lawyer or you're self-repping.

If neither one of you have filed...or had a CC...she won't be filing a motion for the disposition of the home for a while.



You or you & your lawyer will be responding to her motion. If she doesn't already have the interim custody issue addressed, its something that you should definitely include in your response.

How this worked in my case was that there was a motion to sell the home, however, another motion was filed prior to the move-out date since interim custody has to be established before you both leave the home.

Again, I'm making the assumption that either in her original motion or the subsquent affidavit response to your response, she'll be stating why she should have interim sole custody and/or access for the children. You'll need to counter her argument. You have two things that should aid in your seeking an interim 50/50 order:

1. The existing status quo of shared custody. Hopefully, you've documented that.
2. It sounds like you have no expert evidence (ie OCL, Private Evaluator) to show why one of you should have a sole custody/non-shared access order.
Also, to add to this great advice.

Have your lawyer draft up a full Offer to Settle in accordance with Rule 18 of the FLR for specifically the only issue of "selling the matrimonial home". Have it ready to serve on the other party in accordance with the Rules for the next day after you are served the motion materials you are talking about. Or if they don't come soon, just serve it.

You can "cross-motion" any motion brought forward by either party. Google the term:

http://www.myontariodivorce.com/PDF/...ust%20Know.pdf
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Old 01-14-2013, 02:15 PM
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Yes we did our CC in December and we both have legal representation.

Ok I think I've got it - if her motion is silent on interim custody and access then I and my lawyer add in our motion response. Is this called a cross-motion? Also I assume sending a Offer to Settle on both sale and custody is a good strategy?

In your case - you filed a separate motion for interim custody prior to close if I understand correctly? Why did you not add to your sale of the home motion or if other party filed that motion then in your response?

Your assumption is probably a very good one! I expect her motion or response to my response she'll be stating why she should have interim sole.

So what I have on my side is:
1. One year status quo shared custody
2. Daily journal documenting such
3. Emails i send her with the weekly 2 - 2 - 5 schedule (from early on)
4. Correct no expert witness although at CC judge remmended OCL. We submitted documentation and are awaiting response.
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