new here & need advice Please???

[momofnl]

Great forum, thank God I found it!!

Long, long story, and I'll make it slightly short!!

Married 15 years, two kids 9 and 7. Was diagnosed with breast cancer 5 years ago, last year it came back in my lungs (found early), did treatment, but an infection landed me near death in the hospital for 10 weeks.

Marital Status was, we have had our ups and downs, I had thought about leaving a few years before, his verbal/anger problems nearly did me in mentally, but somehow we managed to stick it out, and I had no intentions of leaving. Then I got ill and we were hanging in together, then I was in the hospital. Lots of friends visiting etc.....He met one of my church friends and she was going through a separation. They "connected" as friends and by the time I came home from the hospital (still in a wheelchair and on IV), they had sparked a flame between them......I watched alot of this from the sidelines and put 2 and 2 together. Finally, after continually arguing, awful behaviour patterns on his part, I asked him to leave our home for a break. He complied and continued to pay all the expenses of our house/kids/cars. After the break time, I knew the relationship hadn't ended so I asked that we continue to be separated. Fast forward to now. Almost 6 months later-- He recently admitted fully to the affair and has moved in with her (wow, they move fast), and just recently bought a house with her out of town (10 mins). I was a bit shocked with all this. We decided to sell our house and I rented a nice 3 bdrm apartment, haven't moved yet, the closing date hasn't happened yet. I am trying to start up separation agreements. I have written down all the basics. I verballized this to him the other day, and he hasn't done his homework on the laws etc. I think I have a fair grasp on things.

The kids have been in my care with him visiting at our home, full access, phone calls, encouragement on my part for full participation, which he does. However, considering, that he is living with this girl with another couple, he can't take them overnight at this point, until they move into their house. (the relationship is rocky already from what he has told me). I honestly at this point know that I cannot control who he lives with, but with all the stuff my children have faced in the past year, I have provided the stable side of things. He has chosen to not even stay in a familiar city where they are schooled, play sports etc. I encourage when he moves that he has visits and overnights, but I really don't feel that a 50/50 split is going to work well for the kids. I think shared access is acceptable and I don't have issues with time spent as long as the kids aren't being driven all over the place (tiring them out) to activities, school etc. I am also on CPP (disability). So, here is what I assume:

I have custody de facto. Giving the other parent full access.
I should receive child custody according to the table (law).
I should receive some sort of spousal support since I do not make alot of money per month, but need to continue to provide on my end for the children and myself.
I believe my offer of settlement per month is very reasonable, however, he said, "I only have to pay you for half the cost of the children if I have them half." I said, you don't have them half. I have kept a time table of how much time he's spent and granted, he hasn't had the place to do more time with them, but in reality he works 7am -3:30 daily, how does he think he can manage them 50 percent of the time, out of town? He can't expect his girlfriend to do pick ups, she works full time as well. (rambling)

I just need to see if I am on the right track? I know I need to get to a lawyer to get this right, but I am taking the advice of this forum and asking here as well!

Lots of tiny details not included, but this is the just of this.
Thank you for your replies or comments.

[logicalvelocity]

momofnl,

welcome to the forum. There is a wealth of information and experience with the members. Collaborative effort at its best.

I commend you for what appears to be the child centered approach considering the circumstances.

as you mentioned:

I have custody de facto. Giving the other parent full access.

I presume you are in Ontario and are married, Therefore, both federal and provincial statutes can apply to your situation. For the sake of simplicity I will apply the Ontario provincial statute known as:

Children’s Law Reform Act R.S.O. 1990 c. C12.

A electronic copy of same can be found here:

http://www.e-laws.gov.on.ca/DBLaws/S...sh/90c12_e.htm


Until an order from the court or separation agreement provides otherwise, Both parents have coextensive custody of the children.

see section 20(1) of the Children's Law Reform Act:

Custody and Access

Father and mother entitled to custody

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

When parents separate and when the children remain with one parent with the consent, implied consent or acquiescence of the other parent; The authority to act is suspended but not ended. Both parents still have coextensive custody of the child.

See 20(4) of the act:

Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

The child's access remains intact which includes the right to visit and be visited with their other parent and additionally both parent's maintain an equal right to information bearing on the health, welfare and education of the child.

See section 20(5) of the Act:

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

It appears that you have the other parent's acquired consent to act in the ongoing care and responsibilities of the children establishing a Status Quo living arrangement for the children.

The longer a Status Quo living regime goes on; the more difficult it is to change. Stability is a significant factor to consider for the child's best interest. Courts generally maintain the Status Quo living arrangement if everything is working out for the children giving you a significant advantage in a custody adjudication of the child.

I should receive child custody according to the table (law).

In a custody adjudication, the court must apply equal consideration to each section of the best interest test as listed in determining the final custody of the child. Bond, stability and primary care are also critical factors for consideration.

See section 24(1), (2), (3), (4) and (5) of the Act:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

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

(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).

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).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

Child Support

In light of the current circumstances, I suspect the individual should be paying a volunteer amount of tabled child support in respect to their income. You can find a child support calculator in MS Excel format available for download here that I authored:

http://download.jupiter.come2store.c...ator2_2007.xls

The Child Support Guidelines and tables can be found here:

Family Law Act, Ontario REGULATION 391/97, Amended to O. Reg. 102/06

CHILD SUPPORT GUIDELINES

http://www.e-laws.gov.on.ca/DBLaws/R...h/970391_e.htm


Spousal Support

In consideration of the facts, I suspect you're entitled to spousal support with means and need being the primary criteria once paramount consideration of support of the child is given. Sometimes, there isn’t sufficient income to go around after support of the children is paid.

Geographic Distance

Many parents have joint custody regimes in place and exercise the children's alternate weekends. 50 - 50 shared parenting times for the children are difficult if not next to impossible if the parents vicinity are not close to one another.

Once the children spend more than 40% of their time with their other parent; as a starting point, Child support is calculated by determining the offset payable amount of child support with respect to each parent’s income and what they would each pay the other.



lv

[momofnl]

Thank you so much for your reply. Very helpful.

I am most willing to follow the custody support law and spousal support laws, and not ask for more, however, I am on CPP disability and not able to work. I have suggested an amount which is reasonable per month. Which I worked out from the table and in lieu of money, he continues to pay the car payment, for the car in which I drive, that is under his name. We had two cars throughout our marriage. I said I would take over the insurance and of course all my debt, take half of my furniture etc... I also want to hammer out a reasonable time share of the kids. What I am asking anyone, is it reasonable to continue to try to mediate between us, or should I just go to a lawyer and get it written down legally/formally and present him? I don't want to assume the law, and I want to try to end this somewhat amicable, but hold on to what I need. I am/trying to let go of bitterness and anger, for the kids sake to promote a healthy relationship between the two of us, so that they can see how situations can be handled. I wonder if just getting this sorted out by the lawyer would just make it easier to work with in the end?

Hope that some one will answer me on this again?? Thanks again.

[momofnl]

oops above should have read, along with child support and in lieu of spousal support he continues to pay my car payment....

[logicalvelocity]

momofnl,

As mentioned earlier, the federal Divorce Act(Canada) can also apply to your situation and it is worthwhile read. A copy of same can be found here:

http://laws.justice.gc.ca/en/ShowTdm/cs/D-3.4

In light of your circumstances, I suspect you have need and perhaps the other individual has means.

If your child is going to be living as demonstrated by the Status Quo; Then definitely tabled child support should prevail PLUS prorated sharing of the child's extra ordinary reasonable expenses such as health, dental, recreation and post secondary education expense.

With regards to spousal support in your circumstance, you should apply the Spousal Support Advisory Guidelines (The recent trend of the courts is to refer to such when determining quantum and duration - Keep in mind this is not law but a just an advisory recommendation.)

In your circumstance, you would want to apply the "With Child Support Formula" as listed in the spousal support Advisory guidelines"

A copy of same can be found here:

http://download.jupiter.come2store.c...idelines_e.pdf


As you see from the spousal support advisory guidelines,

The formula for determining an advisory amount of spousal support with consideration to child support is as follows:

-The Basic With Child Support Formula-

(1) Determine the individual net disposable income (INDI) of each spouse:

• Guidelines Income minus Child Support minus Taxes and Deductions = Payor’s INDI
  
• Guidelines Income minus Notional Child Support* minus Taxes and Deductions plus Government Benefits and Credits = Recipient’s INDI

* Notional child support is a tabled amount of support reflecting your income before spousal support

(2) Add together the individual net disposable incomes. Determine the range of spousal support amounts that would be required to leave the lower income recipient spouse with between 40 and 46 percent of the combined INDI.

You should really do the math to your particular situation to ensure you are not shortchanging yourself on the quantum of spousal support.

Some other things to keep in mind is that periodic spousal support is taxable to the recipient and tax deductible to the payor when under the terms of a court or or separation agreement.

To validate a separation agreement in Ontario, it must be in writing and each party must seek independent legal advice with full and frank financial disclosure has to occur between the parties on all assets and liabilities of the relationship. If this does not occur, the separation agreement on financial issues could be set aside or seen as void.

Family Law Act R.S.O. 1990, C. F.3

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK59

see section 55(1)

Form and capacity

Form of contract

55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).

and see section 56(4)

Setting aside domestic contract

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).

The separation agreement has to be witnessed by third parties when the legal instrument is entered into effect and signed by the spouses.

In all, I would highly recommend that you spend an hour or so with a reputable lawyer to go over all your options and liabilities of your circumstances.



lv