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ifeelold 02-28-2017 10:53 AM

Questions regarding ex moving with kids
 
Sorry I realize there are some threads on this topic but I don't want to hijack them with my own question(s).
Recently been approached by my ex that they want to move approximately 5hrs away with the kids. Of course I oppose this as I have a steady job where I am and have no issue staying where I am now. I also personally believe that moving them to where they are suggesting is actually not what's best for them long term. It is a place where unemployment is quite high. There are no good post secondary schools there. There is just no opportunity there.

There is a clause in our court order stating that the children shall not be moved from the region which we are located now.

Apparently my ex is preparing paperwork in order to bring this in front of a judge. Is there something I could or should be doing myself? I don't have shared custody but I do have joint custody. I already told my ex to just stay where they are now instead of moving again (this would be 3rd time now). If this goes to a judge I will of course be suggesting the children stay here and that my ex is free to move as they wish.

Janus 02-28-2017 11:49 AM

How old are the kids?
How long have you been separated?
How long have you been a non-custodial parent?
How often do you currently see the kids?
How often do you missed scheduled access times?
Do the children want to move? If not, are they willing to live with you?

The clause in your court order just means that she actually has to go to court to move. It won't stop the court from allowing her to move.

Joint custody is nice, but you sound non-custodial so it won't carry much weight.

I'm not sure why "post secondary" schools would be a major factor.

Temporary advice:
1) See the kids as much as possible, be prepared to suck up to them. They might be old enough that their view will carry the day.
2) Start saving cash

Tayken 02-28-2017 11:52 AM

Quote:

Originally Posted by ifeelold (Post 218249)
Sorry I realize there are some threads on this topic but I don't want to hijack them with my own question(s).

Click on my name then read all the main thread posts I have made. I specifically post a significant amount of case law and information regarding "mobility" matters.

What you are discussing is a "mobility" matter.

You need to do a lot of reading:

Start with this google search:

https://www.google.ca/webhp?sourceid...lity+ontario&*

Quote:

Originally Posted by ifeelold (Post 218249)
Recently been approached by my ex that they want to move approximately 5hrs away with the kids.

This is what is called a "mobility matter". These are the most complex matters in family law.

To quote one very wise judge about mobility matters:

Quote:

[1] There is no other area of family law litigation in which the idea of “winner” and “loser” is less applicable than that of mobility cases. It is also true, that even with the very best parents, it is the area where “win-win” solutions can rarely, if ever, be fashioned. Parents involved in a mobility dispute often have to resort to the courts, because even with the best of intentions, and with both parties doing their best to put their child’s interest before their own, they cannot find a solution to the desire of one parent to move with the child, and the other parent vehemently resisting that move.

Source: Van Rassel v. Van Rassel, 2008 CanLII 37217 (ON SC), par. 1, CanLII - 2008 CanLII 37217 (ON SC)
Quote:

Originally Posted by ifeelold (Post 218249)
Of course, I oppose this as I have a steady job where I am and have no issue staying where I am now.

How long have the children resided in their current "habitual residential location / jurisdiction"? How old are the children? What is your access schedule with the children?

These are all VERY important questions.

You should vehemently resist the move. In fact, I would recommend that you retain a lawyer and have the lawyer send a very strong letter to the other parent to this very fact. You should explicitly state that if the children are removed from their habitual residential location / jurisdiction without your consent or an order of the court you will move immediately with an emergency motion for their immediate return.

Quote:

Originally Posted by ifeelold (Post 218249)
I also personally believe that moving them to where they are suggesting is actually not what's best for them long term.

Again, this is based on a lot of factors and not your personal opinion. Sorry to say. It is based on the time the children have resided in their current habitual residential location/jurisdiction, their access to both parents and their best interests.

The main case law that drives this determination is Gordon v. Goertz which states that the move must be in the children's best interests.

Although the data in this report is old it may provide you more insight into mobility matters: Analysis of Reported Canadian Cases - A Study of Post-Separation/Divorce Parental Relocation

Statistically speaking the other parent has roughly a 50% chance of success if you use the information in the above-provided report. But, the real differentiator is how you argue your matter.

Quote:

Originally Posted by ifeelold (Post 218249)
It is a place where unemployment is quite high. There are no good post secondary schools there. There is just no opportunity there.

Again, it isn't about the overall opportunity or your perception of it. It is real evidence that matters.

Does the other parent have family there to help support them?
Does the other parent have a real job opportunity there?
Are you an equal access parent or an every-other-weekend parent?
Do the children participate in extracurriculars?
Do the children have special needs?
etc.. ???

Quote:

Originally Posted by ifeelold (Post 218249)
There is a clause in our court order stating that the children shall not be moved from the region which we are located now.

In reality, that clause forces the other parent to bring the matter to court for determination prior to moving and to give you proper notice for the court proceedings. It doesn't "stop" a parent per-say from moving. What stops a parent is a court order that doesn't permit it.

For example something like this: http://www.ottawadivorce.com/forum/f...ou-move-20734/

Again, don't think that what I have reviewed and provided case law will happen in your specific case. I am providing this as it is a recent case and outlines how a judge considers a parent's move. The moving parent in this matter did EVERYTHING wrong and the staying parent did everything (for the most part) correctly. The key thing to focus on is how you litigate the matter.

Retain a really good lawyer that has case law under their belt that demonstrates that they have successfully argued against a move.

Quote:

Originally Posted by ifeelold (Post 218249)
Apparently my ex is preparing paperwork in order to bring this in front of a judge.

The other parent needs to bring an Application and demonstrate a material change. Their desire alone to move is not "material". They have to demonstrate that they have employment opportunity and how it is in the children's best interests. They will have to meet the criteria set forth in Gortez.

If what I am writing doesn't make ANY SENSE to you and you then you need to hire a good lawyer and now.

Quote:

Originally Posted by ifeelold (Post 218249)
Is there something I could or should be doing myself?

Retaining a very very very very good and qualified lawyer who has SIGNIFICANT experience with mobility matters.

Quote:

Originally Posted by ifeelold (Post 218249)
I don't have shared custody but I do have joint custody.

Joint custody (equal decision making regarding the children) is "shared custodial responsibility". Don't mix up the silly term "shared parenting" which is a term used in the Federal Child Support Guidelines for calculating off-set child support when there is "equal access".

I am going to assume you do not have "equal access" to the children. That being they don't spend 50% of their time with you. That makes your argument harder but, it doesn't mean that a judge will automagically move the children.

Joint custody means a lot and is in your favour. Parents that have "no custody" whereby the other parent is the "sole custodial parent" have a harder time with Mobility Matters. The weight given is towards "sole custodial" parents generally.

Quote:

Originally Posted by ifeelold (Post 218249)
I already told my ex to just stay where they are now instead of moving again (this would be 3rd time now). If this goes to a judge I will, of course, be suggesting the children stay here and that my ex is free to move as they wish.

That is a general idea. The parent is free to move but, the children are not. There is joint responsibility for the custodial decisions already in your matter and a clause that forces the matter into court. Where children reside should be jointly made. It impacts all the decisions regarding the children - their doctor, their schooling, their extracurricular activities, etc...

Most important is their access to you. If they have regular and consistent access to you and they benefit from this access then it even gets harder (not impossible) for the other parent to move the children's habitual residential location.

Other things to consider if your position is weak in blocking a move:

1. Increased access to the children. For example, they spend 6 weeks with you every summer. 3 months of July and 3 months of August. They spend 1 week each of those months with the other parent. Or some variation of this.

2. The children spend every long weekend and holiday with you. Or some variation of this.

3. The other parent reduce child support to cover the cost of the travel to accommodate the distance the chidlren will have to travel for access with you.

Ultimately, the best way to put an end to any mobility matters is to have joint custody and equal 50-50 access of the children up front. To anyone reading this thread if you do not have 50-50 access of your children then you are going to have a significantly more difficulty blocking the moving of the children. I have not seen a judge disrupt a 50-50 access arrangement in recent years.

Parents need to think about this stuff up-front when they agree to the every-other-weekend access schedule. No one should ever agree to it. Even if it means you need to find new employment. Children should always come before career in a family law matter.

Good Luck!
Tayken

Tayken 02-28-2017 12:04 PM

Quote:

Originally Posted by Janus (Post 218250)
Temporary advice:

1) See the kids as much as possible, be prepared to suck up to them. They might be old enough that their view will carry the day.

2) Start saving cash

To Janus' points... Specifically #1. Depending on the children's ages (over 12) their views and opinions will matter and will need to be provided to the court by an independent assessor. Specifically the OCL, guardian ad litem, Section 30 assessor or another independent person the court appoints to obtain and represent the children's views.

To Janus' points... Specifically #2. This is no joke. A mobility matter does not end on a motion. They go to TRIAL. The road is long, hard, and expensive to trial.

Most mobility cases are 8 days scheduled trial generally. For every day in court you can increase the prep time by a lawyer by generally 3 days for a mobility case.

That means you need to have cash to support 8 * 3 = 24 days of legal billing at minimum.

A good mobility lawyer generally (in GTA) costs about 500+ an hour. There are 7.5 hours in a billable day generally. So we are talking about 180 * 500 + tax = $101,700 in legal to have a EXCEPTIONAL lawyer do all the work on this matter. That doesn't cover the incidentals like disbursements etc... Which is about 3% of total costs.

So you are looking at possibly spending 104,751 with maybe at best a 50% chance of success depending on how good your position is. Even if you are successful the costs order on the other party will be very low and generally only about 10% of your total cost... As generally mobility matters are complex and as I quoted above... Require court intervention and are not easily settled between parents. So they don't punish parents for trying to move if their request is genuine.

So if we account for the 10% you would get maybe 10,475 back on costs... (MAYBE!) and you still would have 94,275 you have to cover in your own legal bills.

Now, considering the numbers quoted here... Truly evaluate if the other parent in this matter has the money to bring a proper mobility application. The success factor in mobility factor drops to about 3% when the moving parent is unrepresented. This is because mobility matters are the most complex of any family law matter and it is very hard for lay people to argue them. Very hard!

Good Luck!
Tayken

arabian 02-28-2017 12:26 PM

100k goes a fair way for university or can nicely purchase some awesome family vacations.

ifeelold 02-28-2017 05:26 PM

Quote:

Originally Posted by Janus (Post 218250)
How old are the kids?
How long have you been separated?
How long have you been a non-custodial parent?
How often do you currently see the kids?
How often do you missed scheduled access times?
Do the children want to move? If not, are they willing to live with you?

Kids are 11 and 8 at the moment.
Separated for 6.5yrs now
I've been non custodial since beginning
I currently see kids 1 weekday, every other weekend and 1 sunday/mo
Never once missed scheduled access and will always accept more if offered.
The children have expressed in the past the refuse to move as this was/has been a topic before.

There is a lengthy past of manipulation of my children by my ex. Them being put at the door for pickup and telling me they don't want to come. Them calling me telling me they don't want to come. I am now sensing this is another case of manipulation. My ex's place is not a nice place to live. My children have told me many times they do not like it there. My ex and their partner are constantly put me down in front of children. Call me names. My oldest was even told by my ex's partner that if at any point I took the children away, that I would get hurt. My car has been damaged. Tires slashed. Threatened. Assaulted.
I personally don't want my children to have to make this decision. To me its not fair essentially having to choose one parent over the other. I also believe my children are terrified to state how they truly feel. They can't tell me they want to stay because they know that it will get back to my ex. The other day they were telling me that they are unsure what they want to do. My ex is now saying that they want to leave.
I have stated to my ex that staying here is what is best for children. They've already moved 2 times in 4yr. This right now is my oldest's 3rd school. So if moved again it will be the 4th.

As for my ex having the money to bring this trial. They do not. Both of them are unemployed and have been for a very long time. Threats of lawyers has begun on their part but no evidence yet. I too have no mean$ to be able to afford a trial with a lawyer. I spent all my savings many years ago to thwart off my ex attempting to flush me from my children's lives.

The location they are suggesting to move is in fact where their family resides which does have me somewhat concerned but that is really their only defence from what I can see. ??

Oh and its sounding like a time sensitive matter from my ex's side. I'm not sure whats behind that. Taking it to court and having a trial I've heard takes up to a year or more..??

ifeelold 05-22-2017 08:48 PM

So, we're off to the races with this. I filed a motion immediately after my ex approached me about moving with kids. The judge at that time slowly started to understand that its sounding like my ex has plans in place to just pickup and leave without any sort of court order saying they're allowed. The judge at that time made ANOTHER court order specifically stating my ex is not to move. Period.
Shortly after that my ex has filed a motion to change. So first appearance has occurred already. Paperwork is in place. We are now 2 weeks away from the case conference. Since the filing of the motion to change I have since found out my ex has given notice where they reside at the moment (rental) and is to be out by July1st. I then found out this weekend that my ex has purchased a home in the town they have proposed to move to.
Does that not seem like a bold move after the judge has signed a specific court order dictating that my ex is not to move until they have obtained a court order? It is pertinent information that I will bring up in the case conference.
The judge had also made a point at the original court appearance that I initiated that if my ex is granted permission to move, who's to say they wont go and file 6mo down the road in this new town and have all of my access removed. This is also a pretty strong argument as my ex has continuously made efforts to pick away at any of my access possible. Also 2 previous motion to changes by my ex to reduce my access (different jurisdiction). This has already been about 7yrs of constant struggle just maintaining regular consistent scheduling.
I made up a spreadsheet to clearly show the judge (which I will include with my 17A) that I see my children about 42% of the time. I dont have overnights on weekdays, but I do see them 156 days out of the yr. My ex moving reduces that to roughly 15%, and even thats just a very generous estimate. I know for a fact there will always be issues with access.

I understand this wont be an easy battle and I'm honestly just hoping that the judge sides with me and lets my children stay here with me. There's soo much more history here that would take me hours to type out in here.

Any further advice would help.

Thanks

And this isn't my first time in court by a long shot. Self represented at this point.

Janus 05-23-2017 12:40 PM

Quote:

Originally Posted by ifeelold (Post 220981)
I made up a spreadsheet to clearly show the judge (which I will include with my 17A) that I see my children about 42% of the time. I dont have overnights on weekdays, but I do see them 156 days out of the yr.

Your math is wrong. I have no idea how you came up with 42% but it has got to be through some sort of magical math voodoo, because it is simply not possible if you don't have overnights on weekdays.

You are not in a shared parenting situation, you are a non-custodial parent.

That said, lots of judges are terrible at math, so you might get away with it, but I'm telling you here and now that you are wrong.

Quote:

And this isn't my first time in court by a long shot. Self represented at this point.
I think it might be fine without a lawyer, just difficult. The problem is that a lawyer for a mobility case is insanely expensive, so probably out of reach for most people. From what you said the other side can't afford a lawyer either so you should be able to pull it off.

Gordon Goertz, go through the factors and be ready to argue why every one of those factors points to it being in the best interests of the kids to stay put.

ifeelold 05-29-2017 06:12 AM

Sorry, I may have explained incorrectly regarding my amount of access time. I have the children full weekends. Just during weekday access they do not stay overnight. My calculation wasn't really based upon exact amount of time or hours spent with children it was more of the frequency I have them as that is what one of my main arguments will be.

One week to go until case conference and my ex, who started this case, failed to file a case conference brief. Definitely an interesting approach.

Oh and found out my ex has already started moving stuff into new home.

ifeelold 05-29-2017 06:14 AM

And thank you for the advice to study Gordon and goertz. Good information in there.


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