Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Closed Thread
 
LinkBack Thread Tools
  #11 (permalink)  
Old 01-04-2006, 10:13 PM
Senior Member
 
Join Date: Oct 2005
Posts: 860
Grace has a spectacular aura aboutGrace has a spectacular aura about
Default

Hubby,

From what I understand of your situation, you and your spouse are separated but still in the matrimonial home, so status quo for custody has not set in. Hopefully you will have a separation agreement in place before one of you leaves the home defining the custody/access, parallel parenting, prime caregiver, shared custody whatever words you choice.

I happened to be talking to my lawyer today and asked her about the wording. She said in most cases she avoids the "custody" & "access" but the parents do have to get along to some degree. Although in high conflict cases she prefers to use the terms "custody" & "access" as these words are well settled in law and understood by the courts and police.
  #12 (permalink)  
Old 01-04-2006, 11:24 PM
Moderator
 
Join Date: Oct 2005
Location: Ontario
Posts: 3,943
logicalvelocity has a spectacular aura aboutlogicalvelocity has a spectacular aura aboutlogicalvelocity has a spectacular aura about
Send a message via Yahoo to logicalvelocity
Default

Quote:
Originally Posted by hubby
Logicalvelocity,

Am I to understand this right, the courts favor status quo, with my wife wanting the the current dwelling where we live with the kids, they would award her sole custody based on this?

I'm having a difficult time understanding why I would want to START the seperation proceeding by asking for the current dwelling and sole custody?

Someone help me out here ...

Hubby
Hubby,

Either parent could bring forth a request through the courts for exclusive possession of the matrimonial home, and may be awarded if it was deemed to be in the children's best interest.

This is generally an INTERIM measure as eventually the matrimonial home property would have to be divided or sold etc. One spouse would have to buy out the other party etc.

Most families cannot afford this scenario as there isn't enough money to go around after paying child support, spousal support if applicable and maintaining a suitable 2nd dwelling etc.

I am not clear why your ex spouse is so set in an alternate weekend regime.
To be so set, and this is based on speculation only is that it has to do with the 40% of time threshold that comes into play in regards to child support.

Have you asked your ex spouse that you would like to be primarily custodian of the children and that she would be more than welcome to exercise an alternate weekend regime? She could also pay you child support for the children.

Incidents of custody and access are determined on the best interest test. From what you have stated, it is apparent that she is trying to limit your time under 40%.

Per say if she moved out with the children and you accepted the situation, the children lived primarily with her and this situation went on for a few months before you brought an application, the courts would see this as acquired consent because you failed to act delayed in bringing forth an application to alter the current situation.

Courts generally do not like to change a status quo living arrangement if its being working out for the children. Reason being is that it is too disruptive emotionally and physically to the children. If this scenario was to occur, and you disapprove of it highly, you have to act fast immediately and bring forth an application through the courts to protect the rights of the children (primarily) and your rights as a parent (secondary). The court process is slow but it clearly shows to the courts that you have not given acquired consent of the situation. This is your only recourse.
  #13 (permalink)  
Old 01-05-2006, 12:26 AM
Senior Member
 
Join Date: Oct 2005
Posts: 860
Grace has a spectacular aura aboutGrace has a spectacular aura about
Default

I thought that getting exclusive possession of the matrimonial home was difficult, unless it is a situation of domestic violence. Aren't Judges reluctant to order a spouse out of their own home? How would the "best interest of the child" relate to one spouse leaving, if both spouses were acting in their children's best interest?
  #14 (permalink)  
Old 01-05-2006, 01:09 AM
Moderator
 
Join Date: Oct 2005
Location: Ontario
Posts: 3,943
logicalvelocity has a spectacular aura aboutlogicalvelocity has a spectacular aura aboutlogicalvelocity has a spectacular aura about
Send a message via Yahoo to logicalvelocity
Default

Grace,

It is very difficult to exclusive possession of the matrimonial home.

Generally most families can not afford to maintain the current lifestyle for the children and an alternate residence also. Something has to give.

Most times people want a quick resolution to the issue and want the matrimonial property sold to use the money to purchase another residence and get on with there lives.

I think from what I have read is yes Judges are reluctant even in the interim measure to order this as eventually the children will most likely have to move at some point.

It would have to be all Dependant on the facts
  #15 (permalink)  
Old 01-05-2006, 10:09 AM
hubby's Avatar
Senior Member
 
Join Date: Nov 2005
Posts: 522
hubby will become famous soon enough
Default

How would the "best interest of the child" relate to one spouse leaving, if both spouses were acting in their children's best interest? This is an EXCELLENT question.

As far as I'm concerned the 'best interest of the child' is for the parents to remain together and work out their marital issues via coaching or to give ample time for the hurts to heal and reconciliation to take place. For time and hurts to be healed, sometimes it is necessary for one spouse to move out of the residence physically to give the other spouse time to heal.

Unfortunately, currently to do this, requires a seperation agreement be put in place, doing so can destroy the TRUST and HOPE that the marriage can be saved as a result of this action.

It's a double edge sword ... how can the courts rule in the best interest of the child ... when it is the courts that do not give enough room for the spouses to try and work things out which is the best interest of children?

That is my situation. I believe that 'physical seperation' from the dwelling may help my spouse to 'wake up' and give her time to heal and rest. The thought of a seperation agreement and involvement of lawyers indicates to me that the spouse initiating the process has 'given up' and has reached the break point in the relationship. As long as ONE spouse believes the relationship can be saved ... there is hope. Unfortunately, the courts can only go what is written in the law ...

So, anyone have some suggestions on how to give 'physical access' to the troubled spouse, yet retain the rights of as a parent without being penalized for an action deemed to potentially save the relationship ... which in reality, is in the best interests of the children?

Hubby
  #16 (permalink)  
Old 01-05-2006, 05:52 PM
Member
 
Join Date: Nov 2005
Location: London,Ont
Posts: 65
Hanging On is on a distinguished road
Default

Hubby - this is all so true. I personally believe a separation can in fact "wake someone up", because they start to see what living on their own and only seeing their kids part-time is really going to be like. And it is very unfair that there has to be some sort of custody agreement and that whatever it is, tends to stick, if in fact everything leads to divorce later on. If my husband would move out, I would have no problem with him coming over for an hour or two after work to see the kids everyday and then going back to his "home". And maybe coming over for several hours on Saturdays. But if we did this, it would become status quo, he would probably be granted 50% access and this would lead to a whole lot of other problems (he works long hours and my kids would need a LOT of babysitting in the week he would have them). And to be honest, if he did not have to pay child support because of 50% access, I would never be able to afford this house or any other house for that matter. We'd be in a small apartment somewhere and he'd have a nice big house for them (even if he bought a new house). It is sad to admit, but the money thing comes into play in shared custody.
  #17 (permalink)  
Old 01-06-2006, 12:13 PM
Senior Member
 
Join Date: Oct 2005
Posts: 860
Grace has a spectacular aura aboutGrace has a spectacular aura about
Default

I doesn't make sense to me that you are required to have a one year separation, you can reconcile up to 90 days without having it effect the one year required time period, yet if you leave to try and give your spouse some space, it comes back to bit you. re: status quo & leaving the matrimonial home. The system is definitely a double edged sword.
  #18 (permalink)  
Old 01-07-2006, 12:18 AM
Senior Member
 
Join Date: Jan 2006
Posts: 322
today is on a distinguished road
Default

Hubby,

I've noticed you are quite familiar with this forum. In my opinion what I think you really need to understand and everyone else especially men is that our ex's do not automatically have possesion of our children. If I understand correctly (and please any one correct me if i'm wrong) either parent mom or dad can have the as much or little access as they wish with thier children until a "court order" has been issued. i see so many posts and comments from men that my ex will "only allow me every second week-end" and so forth. Please lets be clear with out any incidence of violence both father and mother have equal rights to thier children. ONLY and I repeat ONLY a court order can keep a parent from thier child (children) Please anyone reply as to why we accept the "my ex will only allow me to see my children every.................... Not acceptable. If you as a parent do accept this why should the court not also order as such?
  #19 (permalink)  
Old 01-10-2006, 12:33 PM
hubby's Avatar
Senior Member
 
Join Date: Nov 2005
Posts: 522
hubby will become famous soon enough
Default

Quote:
Originally Posted by today
Hubby,

I've noticed you are quite familiar with this forum. In my opinion what I think you really need to understand and everyone else especially men is that our ex's do not automatically have possesion of our children. If I understand correctly (and please any one correct me if i'm wrong) either parent mom or dad can have the as much or little access as they wish with thier children until a "court order" has been issued. i see so many posts and comments from men that my ex will "only allow me every second week-end" and so forth. Please lets be clear with out any incidence of violence both father and mother have equal rights to thier children. ONLY and I repeat ONLY a court order can keep a parent from thier child (children) Please anyone reply as to why we accept the "my ex will only allow me to see my children every.................... Not acceptable. If you as a parent do accept this why should the court not also order as such?
Excellent point and thanks for reminding us ... humans need that once in a while!

Hubby
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On



All times are GMT -4. The time now is 06:09 AM.