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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 03-30-2010, 11:04 AM
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Default Shared parenting, Status quo, Imputing income, Court costs & Protection form ex lies

Hello Everybody,
I’m new to this forum and to the separation/divorce world. Reading some of your correspondence, I must say I’m very glad that we live in an age when such websites are available.

My wife and I were married for 10 years. she started pushing for us to have a baby and went off the pill. She told me that she is getting older and want to have a baby of her own before it was too late (she was 32 years old), even though she never showed much interest in babies or affection towards them in the 10 years I was married to her. I love kids, so I agreed.
In May 2009, we had a beautiful baby girl and soon after that things started going wrong. My ex became more irritable and dissatisfied with our marriage. I thought (and also was told) that this is normal after child birth. However, her disgruntlement continued to intensify and we had to go to marriage counselling.
My ex’s parents became more involved in our life, and on numerous occasions trying to push me out of the picture. (Her parents have very little savings and are getting closer to retirement. They took one look at the situation and saw an opportunity, so they started encouraging her to leave me and come to live with them. By having my ex live with them they will have a care giver - free of charge - and benefit from the Child and Spousal support that she will be getting out of our divorce to share their expenses in retirement )
In Aug 2009, I lost my well paying job, and been of EI since and having a very hard time getting a job in my very slow industry.
She left in Nov 2009. 4 days after I received my last severance cheque from my ex-employer.
Our daughter was breastfeeding, so I couldn’t stop her from taking the baby with her.
Mediation didn’t go so well. We spent 3 months just convincing my ex to stop supervising my visits which she had no reasons for, as I am a good father.

It seems that we will be going to court where I will be asking for Shared Parenting 50/50 - The status quo was 2 visits a week (3 hours per visit) for the last 4 months, but the only reason I went along with this arrangement is because of our daughter was breastfeeding.

Questions:

1. Shared Parenting: I will tell the judge that I never agreed to the status quo in the medium to long term and now that my ex weaned our 11 month old off breast milk (to formula), I can’t think of one thing that she does in caring for our baby that I can’t do. What do you think of the chances of this argument succeeding and getting a favourable ruling on shared parenting? What do I do to improve my odds ?


2. Spousal & Mobility: My ex has a good job in the GTA, however, she wants to quit her job after mat leave (ends in May 2010) and stay with her parents (that live 2 hours away) to start a new life up north. This move will most likely cut her salary in half, that’s if she finds a job up there. This move will also make it very difficult for me to visit my daughter or manage a successful shared parenting arrangement. What do you think I should do to discourage her from making that move ? Should I sue her for Spousal Support based on her imputed income ?


3. Self Rep with means: Because both my wife and I had good jobs, we managed to save a bit of money. I’m planning to protect my share (around $100,000) by representing myself in court. The way I look at it, this money my daughter safety net which will guarantee her better living standard. I’m also living of my savings since EI doesn’t cover all my living expenses. Will the judge look unfavourably on a self rep. person with means ?


4. Awarding Court Costs: Does the fact that I have good amount of savings increase the likelihood of the judge awarding court costs to my wife and her sleazy lawyer, when losing motions?


5. Temp Advice: What parts of the court process you recommend I get a temporary legal advice for, seeing that I’m hoping to self rep most of it?

6. Ex's Lies: How do I defend myself when my ex lies about my behaviour or parenting skills in court? Somebody said that I should take a parenting course to show that I’m a proactive father and interested in providing my daughter with the best care possible.


Thank you very much in advance... Your help is much appreciated.
And to those who are having a hard time of it – My parents went through the great war and survived it due to their unwavering belief that the status quo is temporary, and one day, if they keep trying, things will change and life will be better.
Hang in there and remember, when the going gets tough, the tough gets going.
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Old 03-30-2010, 04:41 PM
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If you self rep doesnt give you disadvantage......stick to the facts and dont sway from truth and dont give half truths......this site is great for help when going through it.....best thing for child is 50/50 custody however with distance could be challenge (not for you two but on child).....by reading my profile you will see I half sole custody fo my child however my circumstances were different and I did not do that for spite of my ex or for the money.......just gives me travel mobility with my child without those annoying letters I would require otherwise......yes I receive child support but only table amount.......you have already given into notion that your ex will be awarded spousal......not so fast......not all are given it.....I never asked and wasnt interested so I dont know.....as far as status quo custody that hasnt been long enough to establish......usually takes over a year to establish such a thing.......do you take your child for vacation (I dont mean away) but to your home for a week or so.....make sure you utilize your visitation liberally (every chance you get)...every weekend, day off, etc........dont let her establish cause then its hard to disprove.....judges see through lies and they really dont care about petty things......they are looking out for the betterment of the child and the least amount of stress they would be under.....sometimes divorce brings out bitterness and disgust.......best advice I ever got when I was going through my situation is smile & nod......never engage in verbal altercation with your ex and you can avoid alot......and what ever you do keep accurate notes and detailed times you visit your child and what you did.......keep all communication between you and her via emails (this avoids confrontation and the he said she said in court)
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Old 03-30-2010, 06:42 PM
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Thank you Littleman for your great advice. Your situation might be different but I'm experiencing all what you have touched on. Its definitely a complex issue but it is best to keep the best interest of the children in mind, and keep a cool head. Like you said: "smile & nod......never engage in verbal altercation with your ex and you can avoid a lot"... So far I kept my cool, and the mediator took note of that... I will continue to do so.
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Old 03-30-2010, 07:14 PM
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1. Shared Parenting: I don't know what your odds are, I would like to eventually read how you do. You should certainly take parenting courses. You should find some activity centres near you where you can take the baby to play and socialize with other kids. These are parenting centres, like indoor playgrounds really, where the parents can sit and chat and the kids play. The thing is to know about places like these, know about resources in your area, and make plans in advance so that when a judge asks you, you can have a good answer.

The best way to ensure shared parenting after separation is to have shared parenting when you are together. Spend as much time with the child as possible, involve yourself in the care, learn all about taking care of the baby. This is easier to do when they are older, you have your work cut out for you.

The one advantage you have over a child that is, say, 3 or older, is that the baby at this point isn't aware of any "status quo". This should be a main part of your argument. The baby right now will barely notice the difference of the mom ending maternity leave, and a switch to a shared parenting schedule. But you need act on this fast.

2. Spousal & Mobility: You need to be careful about suing her. You both could end up with imputed income. You are better off negotiating this. Also, if your plan is to threaten a lawsuit to stop her from moving, I can see why you would do this, but that is duress, and those things never end well. I would say to you, separate the two. If you think you have a case for spousal, make the case and then if it flies, offer to reduce or give up spousal in exchange for xyz.

For mobility, two hours away is long and far. You would have a better case if the child was older and had some connection to the neighbourhood, friends, school, etc. Even so, she is moving to another town, you have a good argument to stop her. This is really hard to advise you on, it could go either way. You need to stress that she is moving away from a good job, and will at best get a poor job and she has an obligation (as do you) to do her best to maintain her existing income level.

3. Self Rep with means: Self rep is extremely difficult, especially if you are fighting for custody. Your means won't enter into it. Judges don't really "like" anyone who self reps, as I hear, it makes their job harder, but they are trained and have an oblgation to be fair. I would say that your decision to self rep should be based on what kind of lawyer your ex comes up with. At this point in your travels, don't have your heart set on self rep, it is not a solution, it is a possibility.

4. Awarding Court Costs: Court costs are awarded if you have made a "fair" offer, she turns it down, the court awards something equal or higher, and then it is obvious she made the two of you go through court for nothing. If you self rep, I believe you can ask for some costs but they will be little. You cannot charge for your own time. If you have a lawyer then you can seek a portion of your legal fees. You have so many variables in your case, I wouldn't count on costs. You may or may not get custody. You have no idea what Child support will be, since you don't know the custodial result. You don't know if either of you can claim spousal. You may win some of these issues and lose others.

5. Temp Advice: The Law Society of Upper Canada as a lawyer referral service (see their web page) it is $5 or so on your phone bill and you get a half hour consultation with a lawyer, qualified in family law. Use this to speak with several lawyers. Have a list of questions and copy out some pages with your basic personal data and financial details (your income tax assessment for last 3 years, hers for last 3 years, or estimates, net worth of both of you before marriage, net worth at separation, how long together, etc.) Triple space the paragraphs so you/the lawyer can write notes on each section.

Find a lawyer that is first of all willing to work as a consultant for your self rep. Learn your rights, obligations and possibilities right off the top and then ask the lawyer what steps they can best help you with.

Family Law Rules Read this over thoroughly and decide if you feel up to self rep.

6. Ex's Lies: What lies? Neither of you have any previous parenting experience. She has no direct observation of you with the child. Judge's aren't stupid and don't put a lot of weight on he said/she said. Take parenting courses, find out about all resources in your area. Be prepared to explain to the judge how you will care for your child.

Parenting Plans Read about parenting plans and then write up one, as detailed as you possibly can. Be prepared, know your stuff. If you are knowledgeable and she tries to say you are not, the truth will speak for itself.
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Old 03-31-2010, 11:33 AM
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Thank you Mess,
Wonderful insight into how all these issues dovetail and great links.

Was wondering if you can expand on your point of why you think self representing in custody cases is extremely difficult. Is it because it gets too emotional and one can't do a good job in that situation. Or is it the complex laws governing that issue that are best left to professionals ?

At the end of the day, Shared Parenting is the main reason why I'm going to court.
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Old 03-31-2010, 11:58 PM
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1. Shared Parenting:The most important thing is to show the judge how important you BOTH are to this child and that you believe it is in the best interests of your daughter. The status quo right now is from you living together, BUT you need to get more access immediately, so you should be filing a temporary motion for MORE access while your case is moving through the judical process. Get a template off Google for a Parenting Plan. I self represented and it was very beneficial. Judges want to know you have a plan.


2. Spousal & Mobility: For just the custody what she makes doesn't matter right now at all. You are the Payor because your daughter resides with her. Get the Motion for Temporary Access Immediately before she moves.That way you can bring that up after and if needed do an emergency motion. If you get the temporary access (which you can get easily due to her age and not being in school) that will become the status quo, which is why you should move quickly. When she does try make sure you highlight why the move isn't good for your daughter "This move will also make it very difficult for me to visit my daughter or manage a successful shared parenting arrangement."


3. Self Rep with means: Don't do it!!! To cut down on costs do the paperwork yourself etc, do the footwork. But from experience being a man and self representing yourself is BAD!!!! They don't look favorably upon it because they are stuck between a rock and a hard place. If you don't know what your doing and they explain it, then the other side can say they are showing favoritism. If they don't, you could get mad saying they aren't being sympathetic. It is SOOOO much faster with a lawyer especially if the other party has one. If one party is unrepresented and one isn't the one who is represented has more leeway. If you do represent yourself STUDY STUDY STUDY, get advice from a lawyer and KEEP YOUR COOL!!!


4. Awarding Court Costs: This is really based on who wins. If you were fair and "nice" about the matter they don't tend to order them, however it's mostly based on who won the motion period.


5. Temp Advice: Motions, don't go to a motion without ALL your evidence!!! Make sure anything that you think you may want to bring up is in that motion paper or you won't be able to talk about it. Then anything past the settlement conference. Send a lot of offers to settle. It shows you want to work it out. WHat would be great to do if you can a afford it is draw up all the papers and then have a lawyer review it everytime!!! Then in court if your unsure, advise the judge you don't have representation but you did have a lawyer go over your paperwork so if they could read it if they haven't already done so. In my experience Judges don't read the paperwork in detail They skim it and ask questions.

6. Ex's Lies: Letters, Preferably affidavits from EVERYONE you know. That way you don't have to call her a liar. The judge will be able to ascertain it. Try to back up everything you say with evidence. She says you didn't pay her for something, write an affidavit and attach a signed cashed copy of the cheque from your bank, instead of saying you paid it, etc. Document EVERYTHING!!
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Old 04-01-2010, 01:36 PM
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underdog, you must be feeling overwhelmed -- lots of issues, lots of advice. Most of which I agree with. Having been in much the same situation as you, some key points I would add are:

1. Avoid the court process if at all possible (and it may not be possible). It is slow, expensive, confrontational and will serve to increase the hostility between and your ex. And that can have life-long consequences for your little girl. Worse still, custody and access decisions will be made a judge, who never meets the child, will never hear you (unless you spend ~$100K on a trial), and will base his/her decision on a lot of really crappy written evidence. More importantly, judges are former ambitious, hard-working lawyers who (literally) had little time for their own children, little experience in parenting, zero training in child development, and typically hate family law cases. I'm generalizing of course, but it's a valid generalization.

2. You say mediation didn't work. I discovered recently that our local mediation service will provide a mediator to work as a 'coach' where the other refuses to come (back) to the table. This is an excellent service and I wish I had discovered this years ago. I meet weekly with my coach. We review how the parenting process has gone during the previous week, the effects of those actions/decisions/fights on the children, and talk about how I could have dealt with my ex differently. We also plan strategy -- how I can influence my ex to be responsible, mature and cooperative. Since mediators understand the legal process as well, and have great experience with warring parents, they are in a position to provide excellent strategic advice.

My coach tells me it is not infrequent for the other parent to return to the table -- they of course don't like these 'professional' discussions about their kids without also having input. And a 'coach' is not prevented from giving evidence in court -- as a coach, there is no requirement of impartiality. This too worries the other parent and her lawyer.

3. Try very hard not to think of this in terms of winning and losing. This process should be about helping your child get the best childhood she can under the circumstances and helping you and your ex get on with your lives while at the same time maintaining an effective parenting relationship. Try to focus on that. If you lose sight of those goals, it is very easy to get caught up in the battles over property and money, which is what it is all about for so many fans of, and participants in, the legal arena.
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Old 04-03-2010, 07:39 AM
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Thank you all for your help
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