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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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  #11 (permalink)  
Old 01-09-2017, 12:23 PM
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Originally Posted by rockscan View Post
Angie, your ex is only using this clause to try to get up to 50/50 time and reduce cs. Your lawyer should be able to argue this one successfully. Especially if this ROFR will impact the kids care options. Some care providers wont work with wonky schedules or will charge more.

Everyone is responsible for the care of the children on their own time, period.
If he is available to look after the child in the times that the custodial parent is placing the child in daycare, he can and will argue that daycare is not needed. The onus is then on her to prove that it's in the best interests of the child to be in care of a stranger as opposed to the child's other parent - you can never trust strangers with your kids.

To say he just want's more time to get 50/50 and reduce child support will backfire on you, he can just drop his claims for offset in child support, continue to pay the full amount and seek 50/50 - what will your argument be then? Are you sure you're not opposing 50/50 in order to have maximum control over the child and other parent as well as to maximize your child support benefits?
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Old 01-09-2017, 12:29 PM
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I am in the same boat, but I will be using the right of first refusal as a way to eliminate the need of a full time daycare provider, i.e., if the mother needs more than 10 hours of care during the week then the time should go to the father, as opposed to the daycare creating unnecessary costs to the family.
ROFR can't be used that way. Judge won't enforce it. It isn't a mechanism to control the other parent. You have a lot of learning still to do.

Read the articles I linked above...
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Old 01-09-2017, 12:33 PM
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I think it's best that Dad's time is Dad's time and Mom's is Mom's, and the other parent stays out of the way (unless of course there's abuse or neglect going on).
^^^^^ This!
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Old 01-09-2017, 01:11 PM
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Trinton, the other poster has stated care is provided before school. The other parent cant provide this care on a regular basis which would create difficult for the parent on days dad cant take the kids. Plus he IS using this one unenforceable clause as a way to bolster his case without having the parenting plan to prove he could do it.

Try to separate your situation from others.
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Old 01-09-2017, 01:56 PM
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Originally Posted by rockscan View Post
Trinton, the other poster has stated care is provided before school. The other parent cant provide this care on a regular basis which would create difficult for the parent on days dad cant take the kids. Plus he IS using this one unenforceable clause as a way to bolster his case without having the parenting plan to prove he could do it.

Try to separate your situation from others.
Most schools have before and after school care programs for $10/day. You could leave the child at the school before school on days father is not available, but still give him the opportunity to have the extra time when you are not available. That would give the father more time and a chance to have more time when possible without taking any time away from you.

He would just give you his week schedule one week in advance and so you know ahead of time which days he will be taking her and which days not. If he doesn't show up by a certain time to pick the kid up then you assume he is not showing up and you take them to the before school care. simple.
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Old 01-09-2017, 02:04 PM
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Originally Posted by Tayken View Post
ROFR is a waste of time!

https://garydirenfeld.wordpress.com/...-pandoras-box/

Your Social Worker - Gary Direnfeld, MSW, RSW

Read those two articles from a well-known Section 30 evaluator. They are what are known as "good will" statements that can't be enforced by the court.

When you say "no" send copies of the two above articles with the "no" too. That way you can attach your "no" to a future affidavit with the articles.
The article is meaningless, it's just some one's opinion. Every family law case should be considered case by case. No two (2) family law cases are the same. 2 judges could agree with the article and 6 judges could disagree with the aricle - if it's even admissible evidence. It's to my understanding that an OCL or section 30 recommendation should be tailored to a family based on it's own facts, not on some random person's opinion on the internet.

You shouldn't be placing the child in daycare when the other parent is available and eagerly looking forward to having that time. Not only that, daycare is a S7 expense that you should consult with the other parent prior to making that decision. Not, I'm putting the child in daycare here is the receipt. S7 should be discussed and agreed upon. Why would you create unncessary cost to the family by putting the child in daycare fulltime and sanctioning the other parent's time?
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Old 01-09-2017, 02:32 PM
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The article is meaningless, it's just some one's opinion.
Actually, it is guidance from a well-known Custody and Access Evaluator. Had you bothered to input his name into CanLII you would have seen this and you would have read the complements he gets from various justices.

It is a professional opinion and one you should seriously consider. His professional opinion is echoed in a number of cases and is a prime source that lawyers and other professionals send their clients for research information.

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Every family law case should be considered case by case. No two (2) family law cases are the same. 2 judges could agree with the article and 6 judges could disagree with the aricle - if it's even admissible evidence.
See the problem is that the opinion is a common one that is not ordered by judges. It would save you considerable time and money to consider Gary's wise words.

Lahey v. Gauthier, 2016 ONCJ 417 (CanLII)
Date: 2016-07-07
Docket: Halton 338/13
Citation: Lahey v. Gauthier, 2016 ONCJ 417 (CanLII),
http://canlii.ca/t/gsdqh

Case on point:

Quote:
[32] Mr. Gauthier seeks maximum contact with Alexandre. Although I already refused to grant him a right of first refusal, he still challenges that ruling. He feels that the child should be with him any time that he is not in school or with his mother. He feels that the child would benefit from the education and coaching he could offer. That would be far superior to the mere “colouring”, which he alleges to be the child’s primary activity in after-school daycare.

[33] Mr. Gauthier rejects the notion that his request would be disruptive to the child. He insists that it is always in the child’s best interests to be with a parent rather than a daycare provider or another relative. He is critical of Ms. Lahey for placing her needs before those of the child in her campaign to keep him from his father.

(h) Rejected the father’s request for a right of first refusal to care for the children when their mother is not available. The trial judge offered four reasons for this refusal. First, far from supporting his children’s mother, there is a risk that Mr. Gauthier would use his added time to alienate them from her. Second, it would disrupt their routine. Third, it would create added opportunities for conflict between the parents. Fourth, Mr. Gauthier was inconsistent and unreliable in regard to pick-ups and returns of the children. He frequently and unilaterally changed those times to suit himself.
Reads similar to the reasons Gary gives... Interesting eh? Why are they similar? Because as Gary points out ROFR does NOT WORK when parents are conflicted! This is common knowledge stuff Triton. You can either reject it with nonsense or accept that fact.

I can post a few hundred cases if you would like. That was just the most recent one on CanLII out of about 1000+ that popped up out of my search.

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Originally Posted by trinton View Post
It's to my understanding that an OCL or section 30 recommendation should be tailored to a family based on it's own facts, not on some random person's opinion on the internet.
Have you ever heard of the common rules? Like: "Don't eat yellow snow?" Granting FROR is a common rule... You don't grant it to parents in conflict. It is like letting them eat yellow snow!

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Originally Posted by trinton View Post
You shouldn't be placing the child in daycare when the other parent is available and eagerly looking forward to having that time.
This is actually a random person on the internet's opinion. Case law and professionals all follow the common rule... Don't give conflicted parents FRoR they will just use it to fight.

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Originally Posted by trinton View Post
Not only that, daycare is a S7 expense that you should consult with the other parent prior to making that decision.
Daycare is one of the "granted" S7 expenses. It is commonly ordered and children will be placed in the neutral environment of a daycare over the other parent's care when there is conflict between the parents. Daycare is a positive thing and a place children can be free from parental conflict so judges and assessors commonly see it as a "safe place" for children to escape from parental conflict.

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Originally Posted by trinton View Post
Not, I'm putting the child in daycare here is the receipt. S7 should be discussed and agreed upon.
I don't disagree but, daycare is one of those few things that are positive for children that will be automatically ordered. Especially in a conflicted situation like yours. It is seen by assessors and judges as a neutral safe zone free from parental conflict.

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Originally Posted by trinton View Post
Why would you create unncessary cost to the family by putting the child in daycare fulltime and sanctioning the other parent's time?
To free the child from parental conflict. To provide them a safe and neutral zone. To provide them a safe place to be when they can't be cared for by a parent. Hundreds of other reasons...

Good Luck!
Tayken
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  #18 (permalink)  
Old 01-09-2017, 02:39 PM
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Most schools have before and after school care programs for $10/day. You could leave the child at the school before school on days father is not available, but still give him the opportunity to have the extra time when you are not available. That would give the father more time and a chance to have more time when possible without taking any time away from you.

He would just give you his week schedule one week in advance and so you know ahead of time which days he will be taking her and which days not. If he doesn't show up by a certain time to pick the kid up then you assume he is not showing up and you take them to the before school care. simple.

You have obviously never had to worry about getting kids ready and out the door for daycare while also getting yourself to work on time. Sitting waiting for a parent and then making alternate plans with limited time doesn't work. Especially when you have to REGISTER your kids for this before school care. Also, spoiler alert, you still have to pay for this care whether you use it or not.

P.S. Daycare is a dedicated s7 expense so if its necessary for work, its not "we have to agree" expense.
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Old 01-09-2017, 04:28 PM
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You have obviously never had to worry about getting kids ready and out the door for daycare while also getting yourself to work on time. Sitting waiting for a parent and then making alternate plans with limited time doesn't work. Especially when you have to REGISTER your kids for this before school care. Also, spoiler alert, you still have to pay for this care whether you use it or not.

P.S. Daycare is a dedicated s7 expense so if its necessary for work, its not "we have to agree" expense.


^^^^YES!!!

If you can find me a daycare that will allow you to pick and choose the days you pay for then I'll sign up tomorrow. Even a teacher who gets all holidays off with kids still has to pay throughout these times to "hold the spot". If it was necessary when we were together it is necessary still now.


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  #20 (permalink)  
Old 01-09-2017, 06:07 PM
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You have obviously never had to worry about getting kids ready and out the door for daycare while also getting yourself to work on time. Sitting waiting for a parent and then making alternate plans with limited time doesn't work. Especially when you have to REGISTER your kids for this before school care. Also, spoiler alert, you still have to pay for this care whether you use it or not.

P.S. Daycare is a dedicated s7 expense so if its necessary for work, its not "we have to agree" expense.
Its simple. You get up early and have everything ready before the kid gets up. It's called not being lazy and punishing the other parent for your own laziness. Get your lazy ass out of bed half an hour earlier. Ask the other parent to confirm their schedule one or two weeks before.

We may not have the greatest child care program in Canada - nor do we have the greatest family legal system - but that is no excuse to use daycare to feed your own selfish needs and to use daycare to control and sanction the other parents time with their child.

There are plenty of daycare providers where you only put your child for 2-3 days a week. Not everyone needs day care 5 days a week. There are other care providers as opposed to subsidiary. Keep in mind these subsidiary daycare things are designed to make money and always cause problems for separating parents and children in Canada.

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