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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 09-12-2011, 03:11 PM
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Default Shared Custody?

Hello there. Hoping I can get some help on a tricky situation that has popped up.

I am father of two boys (10 & 8), and have primary residential custody of them. I have lived in Kitchener since the agreement was in place and their mother resides in Mississauga. Agreement states that she has the kids every second weekend and 2 nights per week. For weekday access she is to provide transportation. In the past three years she has not exercised her right to see the kids ONCE during the week claiming she has no one to drive her (she lost her license years ago for DUI and has not bothered to get it back). So essentially she has only seen the kids every second weekend for 3yrs.

We recently moved back to Mississauga so that the kids could be closer to their mother and she has for the past two weeks exercised her right to see them during the week. Problem is, when we created the agreement, we screwed up the wording and no one picked up on it. We have two points that contradict each other:

1) Mother shall have access to the children every 2nd weekend and 2 nights per week.

2) During the week prior to her weekend she shall have access Mon and Wed. The week after her weekend, access will be Tue & Thu.

3) Weekends will run from 5pm Fri to 7pm Sun.

So now, this states that on her Mon/Wed week, she actually has them THREE nights per week. Mon, Wed, Fri. We've gone from me having primary residential custody to SHARED custody. 50/50.

Is there anything I can do here. It's not that I don't want my kids to see their mother, far from it, but they are complaining that they don't want to go there so much and we are concerned that the original issues that resulted in my being awarded custody might resurface. We would rather keep it at two weeknights nights period.

Secondly it is having a serious effect on their two baby siblings (kids from my current marriage).

This is a drastic change and I wanted to know if I have any recourse to get the order changed to reflect 2 nights per week only.

We also have the feeling she will now go after child support as she can't ever hold a job down. I know with shared custody, the higher earner has to pay, but this is a bit of a weird situation.

Court order states "Joint Custody" and also states that "Father will have primary residential custody". The wording for the days is a mistake and an oversight. Can anyone share with me their thoughts on what the outcome would be if I took this to court, taking into account she has not exercised her right to see the kids during her entitled weeknight access for over 3 years?

Appreciate any help.

J
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Old 09-12-2011, 05:58 PM
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I'm not really sure where your issue lies with the wording. unless it has to do with the friday night access which would be considered weekend, as spelled out in your order? I can only guess that you're now implying that the Friday should not, in fact, be considered weekend but week night access, not really sure. If this is the issue then I think it's rather silly that you've accepted Friday night as a weekend night for the last three years as it was convenient for you to do so but now don't want to since you feel it affects your custody split.

As far as her not accessing her time in the past, it's irrelevant. She wants to and is now so good for her, I don't believe you can use it against her to try to get her less time.
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Old 09-12-2011, 06:12 PM
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if you moved back so the boys could be closer to their mother then your logic stumps me. Wasnt part of the whole idea was so they could see their mother???
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Old 09-12-2011, 06:36 PM
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Quote:
Originally Posted by standing on the sidelines View Post
if you moved back so the boys could be closer to their mother then your logic stumps me. Wasnt part of the whole idea was so they could see their mother???
Yes we moved so they could be closer to their mother and be able to see her a little more than every second weekend. They are however a little overwhelmed at the drastic change.

What I'm concerned about is that she's going to play the 40% threshold card as it pertains to shared custody. She rarely paid her court ordered CS and I'm not concerned about it, but I earn considerably more than she does. If a court determines shared custody is in place will I be paying CS? Quite hard after having it the other way around for 3 years.

If you work it out by hours, she's at about 37% access but if you calculate by 'days', as some judges do from what I understand, we're at 50%.

When you calculate the table amounts and you earn over 100k, I cannot fathom how anyone can afford it without severely affecting the children's lives. Just a lot to swallow right now.

I guess I was hoping someone had been through something similar and could share their experiences and outcome.
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Old 09-12-2011, 07:31 PM
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Quote:
Originally Posted by iceberg View Post
If I am correct, you would avoid shared custody because you may be required to pay some CS? That's sad.

If she is a fit mother and willing to be involved, let her. Fuck money do what is best for your kids.
Perhaps I should have been clearer on why I got primary custody and she didn't. Domestic assault, DUI, drug and alcohol abuse and a general lack of giving a f--k about her kids for the last 3 years. Trust me, we moved for them, not her. They wanted to see her and the only way I was comfortable in letting that happen was to move closer. 3 minutes closer to be precise in the unfortunate event that I would have to react to something.

It SEEMS as if she has turned her life around, even if she is continually unemployed, and it is for THAT reason that we've made this arrangement. But how about baby steps? From level 0 to level 9 is a little hectic.

Do we want to pay 1700 per month in CS so she can get back into her old lifestyle and we sit by unable to do much? Been through that.
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Old 09-12-2011, 07:50 PM
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i agree with baby steps but dont let money be the deciding factor about how often she sees the kids. Ever hear of second chances and benefit of the doubt?
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Old 09-12-2011, 08:00 PM
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Quote:
Originally Posted by standing on the sidelines View Post
i agree with baby steps but dont let money be the deciding factor about how often she sees the kids. Ever hear of second chances and benefit of the doubt?
I appreciate your view, Standing On The Sidelines. Everyone deserves a second chance. If we were all perfect it would be a pretty dreary world. But when you're at 6th and 7th chances it gets tricky.

Money has never dictated decisions that I've made for my children. I gave my ex my half of the house, (a substantial sum), and she gave away her custodial rights as if they were candy.

I'm just being guarded and making sure I don't make the wrong decisions. I know that with Ontario family law it's easy to be led down the wrong path. Common sense rarely prevails.
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Old 09-12-2011, 08:29 PM
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Not sure I see your dilemma.

Using the common method of counting overnights,

2 weekday overnights plus EOW (Friday after school to Sunday evening) is 43%
3 weekday overnights plus EOW (Friday after school to Sunday evening) is 57% ... but I have a hard time seeing that this is what is described in your order? Is it the confusion about whether Friday is considered a weeknight?

Both fall within the 40/60 limits of 'shared custody' under which offset method is often used to calculate CS. Bravo to both of you for sharing!
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Old 09-13-2011, 08:40 AM
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Is the mid-week overnight or not? The courts will first look at where the child is sleeping to determine the parenting ratios.
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