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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 01-25-2012, 01:57 PM
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Default Permanently moving with kids during separation?

I have discovered that my husband has been having an on going affair with multiple people. We have two young children together. I moved to Toronto a few years ago when we got married to be closer to his family. Officially we live in his parents' home. Given that I no longer want to share a bed or home with this man, what are my options to begin with? I have no other immediate family where I could go. I have not discussed anything with his parents yet as I don't know how they would react. All of my family still lives in Kingston where I am from.

I assume I cannot kick him out of the house given that it is his parents house, and there would still be the issue of his parents being there. I'm not sure if this house we share with his parents (in their name) even counts as a matrimonial home. Am I better off leaving the house and staying in a hotel or going to Kingston for a while with our kids until I figure out what to do.

Also, seeing as I know no one else in Toronto, if I am able to get a job in Kingston what kind of restrictions are there if I wanted to move back there permanently?

Thank you for all the help!
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Old 01-25-2012, 02:12 PM
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You should do a bit of research on the site. Search "mobility" it is likely going to give you a fair amount of info.

But for starts:

1. even if the house wasn't his parents, you cannot kick him out of the matrimonial home. You are both entitled to live there.

2. In your case, you are likely going to be deemed a tenent. But even as a tenent, the "apartment" will be deemed the matrominial home for the purposes of jurisdiction. Meaning, the child's residence is in Toronto.

3. There are no restrictions on whether or not you can move. You can move where ever you choose.

4. However, No parent has the authority to unilaterally remove the children from the matrimonial home without a court order or the other parents consent. Should either parent remove the children, the other spouse can file a motion in court to have the children returned to the matrimonial home. Simply put, you can more, the kids however are a different story.

In order to move you would need one of two things. First, your STBX to consent. Or, secondly, a court order.

In order to receive a court order, you will have to provide sufficient evidence as to why the move is in the best interests of the children. Your evidence will then have to be weighed against what implications it will have to your now ex. It is in the children's best interests to maintain the relationship with both parents. So part of your evidence will also need to be how you are going to facilitate your ex's relationship with the kids should you move.

It is a tough spot. See, I know you are upset with your ex. He betrayed you. But the situation has more then just 2 parties (you and him) to consider, there is also the children. Are they registered in school in TO? Have they established roots in the community etc.? These are all arguments that will be put forward by your ex.
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Old 01-25-2012, 02:14 PM
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You can go wherever you want to. You cannot, however, arbitrarily decide to move the children from their home. Before you do leave, it's in your best interest to get a seperation agreement done up and signed detailing what your access and visitation schedule with the children will be.
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Old 01-25-2012, 02:34 PM
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Given that the kids are 3 and 1, I do not want to leave them especially with his elderly parents while he is out at work. If our residence is considered a matrimonial home but as tenants only, am I better off staying in the house until we figure out some details? I just feel that is something really hard to do. I am angry and don't feel like seeing him or even feel ready to talk about it right away. I would also feel secluded from him and his parents if I didn't speak to anyone for a couple of days while I think things through.

Since I technically have no stake in the home I assume I will have to start all over again from nothing? How long would I be entitled to continue living in the 'matrimonial' home? What if he or his parents do not want me to stay there?
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Old 01-25-2012, 02:44 PM
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Quote:
Originally Posted by jenni989 View Post
Given that the kids are 3 and 1, I do not want to leave them especially with his elderly parents while he is out at work. If our residence is considered a matrimonial home but as tenants only, am I better off staying in the house until we figure out some details? I just feel that is something really hard to do. I am angry and don't feel like seeing him or even feel ready to talk about it right away. I would also feel secluded from him and his parents if I didn't speak to anyone for a couple of days while I think things through.
You are going to have to put your emotions in check. This is now a business transaction. Limit your communication to him to matters relating only about the children and in email as much as possible Write your emails as if you were writing a judge themselve. No emotion, no accusations, strictly facts.

You have decided you want a divorce. Now you should get a lawyer to help draft up some paper work. The sooner you are able to work out custody, the sooner you will be able to determine where you go from here. A lot will depend on whether your ex fights you for 50/50 parenting (which is substantially more common nowadays, and generally deemed in the children's best interests) or if he is willing to let you go to Kingston and take every-other-weekend.

Quote:
Since I technically have no stake in the home I assume I will have to start all over again from nothing?
Unfortunately for you, your position is no different then anyone else who was renting. Unless you have some agreement that provides you had some interest in the house above and beyond tenancy, you will need to move out eventually.

Quote:
How long would I be entitled to continue living in the 'matrimonial' home? What if he or his parents do not want me to stay there?
You are entitled to live there until his parents move to evict you in accordance with the rules under the Landlord Tenant Act. They cannot simply boot you out. You have rights. They must give reasonable notice (2 months minimum normally). Their reasoning will be easy, they want to use the rooms for their personal use (which is legal under the Act). But they need to go through the proper motions to do so.

For you, you need to focus on the kids. Don't create or get caught up in any drama with your ex. Don't engage in any arguments, don't confront him in an aggressive manner...hell, just don't confront him. Take the children out of the house for time with them. Find places to go (libraries the Y etc) to have fun.

Until the court orders otherwise (or you guys agree....in writing) you both have defacto shared custody. You are both entitled to parent. How you parent will be up to you. You can go to the mall and do stuff with the kids, and so can he. Just keep life civil and you will be better in the long run.
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Old 01-25-2012, 02:49 PM
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Hi jenni989:

You have my sympathies...really difficult spot to be in. I hope you have some friends or someone in Toronto that you can talk to since your family isn't there. You need to have some support going through what you're dealing with...particularly living with his family. That's just rough all around.

Unfortunately, you have to separate out your marital issues from the child custody ones. His extra curricular activities won't have any bearing on the custody decision that a court would make with regard to your children. I know you are probably traumatized right now but be careful to concentrate on your children and being a mom before all else.

Is it over for sure or is there any chance that some therapy could save your marriage?

Again, I'm very sorry for the situation with you and your children. Hang in there.
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