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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 10-26-2009, 06:07 PM
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Default Offer to Settle Transportation - What Are Our Chances?

Transportation has been an issue in court for my husband since the very first court date. My husband is planning on serving his child's mother with an offer to settle this issue (even though, in her mind, there is nothing to settle).

Here are some important facts:
  • Child's Father and Mother have ALWAYS resided a minimum of 55km (45min) from one another.
  • According to a Family Court Judge, it is the "norm" to order shared transportation to parties who reside more than 30 minutes apart.
  • Child's Birth to 2 Years of Age: Father provides all transportation because Mother does not have driver's license.
  • 2 Years to 3 Years of Age: Father continues to provide all transportation because Mother "not confident" in her driving ability.
  • 3 Years to 4 Years of Age: Mother moves an additional 20km further away. Father ordered by court to continue to provide all transportation because Father is employed full-time and Mother is not, therefore Father can afford the transportation costs while Mother cannot.
  • 5 Years to 6 Years of Age: Father ordered by court to continue to provide all transportation because there is no change in circumstance (residence) despite Mother being employed full-time and Father having lost his job.
  • 6 Years of Age to Current: Father moves 30km further away as he cannot afford living in Toronto, and moves West to be closer to better employment opportunities and more affordable houseing. Father ordered by court to continue to provide all transportation despite unemployment because he moved further away.

My husband is proposing the following to his child's mother:

Option A: Father picks the child up from Mother at the beginning of his visit, with Mother to pick the child up from Father at the end of Father's visit; or

Option B: Arrange pick-ups and drop-offs at a mutually agreed-to location midway between Father and Mother's homes.

Based on the facts listed above, do you think this offer to settle is fair?
If not, what would make it "fairer" in the eyes of a judge?
Should the facts (as listed above) be included in the offer?

Any advice/suggestions are greatly appreciated. Thank you.
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Old 10-26-2009, 11:58 PM
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This one is trickier than the offer for the CS.

As your husband has provided the transportation for all these years, he may not get that 'status quo' changed... but it is definitely worth a shot!!!

I think it is best that you chose to offer to pick up the child, otherwise that gives her the ability to claim a number of different reasons 'why' she can't bring him to you...(car problems, weather, no gas $, etc, etc, etc).

Either offer is entirely "fair", as transportation should be a shared responsibility/cost.

Otherwise, you are being subjected to high costs for maintaining the access schedule and should be entitled to a reduction in CS, as a result, (but we all know the likelihood of that happening).

If you wanted to make it "fairer" you could consider a clause for special occasions.....

Maybe when considering extra access for YOUR personal family celebrations, (weddings, birthday parties, etc), you could 'offer' to provide transportation both ways...

However, transportation for any regularily scheduled access would be shared, as per the chosen arrangement.

I don't think such is necessary, but just a thought..

Alas, this will all depend on the Judge at the time of trial... but as I said before, as long as you are being reasonable, you stand a better chance at getting the order you want!

Again.... best of luck!
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Old 10-27-2009, 08:01 AM
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Thanks for the reply, Representing.

We wanted to have two transportation options, to show that we're trying to be reasonable and accommodating. As long as transportation is shared, it shouldn't matter whether each party drives one-full-way, or half-way twice.

My husband also wants to add a third option. This is one for transportation costs, should she not want to drive at all.

It reads:

Alternatively, the Respondent is prepared to provide all transportation provided that he receives adequate travel compensation in an amount of $25.00 per visit (or $62.50 per month).

This calculation is based on fuel costs and fuel consumption per visit. (We pay on average $50/visit to provide all transportation (more than 3/4 tank of gas).

Should the "facts" - as outlined in my original post - be included in the offer?

With regard to special occasions... we usually switch entire weekend visits to accommodate such events, so a "special occasion" clause is not necessary. Very rarely do we get "extra" time outside the regular access schedule.

Is there anything else we may have missed?
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Old 10-29-2009, 01:01 PM
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Stepmom, i have been in your husbands situation for years .... solely responsible for transporting the kids to the Ex (who lived about 2.5 hours away), even though i had legal custody and the kids lived with me. Why, because i had been doing the transportation for years, and she claimed she could did not have a car and could not drive because of illness, etc. So, it would be difficult to change the status quo.

but I like the first option -- you picking up the children from their Mom, and she driving the other way for the return trip. i would also urge you to include a clause to cover occassions where she simply refuses/is unable to pick up the children from your house (and believe me -- it does happen). A clause that asks for reimbursement of transportation for that single occassion would be appropriate. such a clause could be mutually binding so that she can also claim reimbursement if you guys cannot pick up the kids for any reason. of couse, you have to determine the method of reimbursement to avoid tussles.

I do not particularly like the mid-way point (option B). it is particularly impractical if you don't know anyone around such midway point. I was once stuck in Coburg for hours because of a traffic/snow.

alternatively, the third option could be that your husband is reponsible for total transportation, provided the ex is able to reimburse the expenses ... which should be reviewed twice year (given fluctuations in gas prices).

HTH -- Punda
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Old 10-29-2009, 01:38 PM
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Thanks for your input Punda. I like some of your suggestions and will revisit our Offer to Settle. It really is a shame that the status quo has so much power, especially when the status quo only came to be due to one of the parties being unreasonable and refusing access if the other party doesn't provide all transportation (or calling the police if the access parent refused to provide all transportation - yes, this has happened to my husband!)
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Old 10-30-2009, 05:09 PM
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May I ask again...

Should the "facts" - as outlined in my original post - be included in the offer?

Your response/experience is appreciated.

Thank you.
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Old 10-30-2009, 05:27 PM
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I would definitely leave out any 'facts' of the case as they are currently up for debate, (otherwise you wouldn't be going to court, right?).

I would outline the terms you are offering and nothing more.

An Offer to Settle is normally sent from one Lawyer to the other, there is no "official" format. They are usually prepared as a standard letter.

What you include are the 'terms' that you are willing to agree to. The more you stick to the family law act, support arrears and enforcement act, and the family law rules... the better your offer will be, (it will appear "reasonable" to the Judge).

Up until the Offer is accepted/rejected or time lapsed, you are bound to what you have offered. However, the specific details of the offer cannot be stated in any other documents in the Continuing Record.

The responding party can agree to some or all of the Offer, (unless you stipulate that it is an all or nothing offer). Or you can issue a "partial offer to settle", which focuses on specific aspects of the case, and leaves the rest to be determined at the trial.

Only at the very end of the trial will the Judge want to know the details of your offer(s). They use it to determine a cost award, (if any).

If you offer something, and it is rejected, the responding party cannot then try to use it against you...

Did that help?
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