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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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  #21 (permalink)  
Old 01-27-2017, 10:44 AM
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Originally Posted by Ange71727 View Post
I DO have a Final Order. The other thing that may be different for me as compared to Trinton is that I also have 8 years of this being the status quo arrangement that he was content with. Even in his "Application" document he is setting the stage to be misleading....he states that since the signing of the agreement he has established a family home; however, he bought that house BEFORE the agreement was signed and the kids have been living in it ever since. Also, Trinton, there is ZERO change to his shift work schedule. Everything is the same as it always was.
8 years is quite an aweful long time.

Quote:
Second, there has been a significant passage of time since the original order was propounded. That passage of time can, in and of itself, constitute a material change in circumstances. See for example, Brown v. Lloyd, 2015 ONCA 46 (CanLII).
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Old 01-27-2017, 11:04 AM
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And another case:

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[21] Secondly, the children are of an older age now, being both in school, both in a regular routine, the children being 8 and 6 as opposed to what they were at time of trial, namely 4 and 2.
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Old 01-27-2017, 04:45 PM
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Originally Posted by trinton View Post
8 years is quite an aweful long time.


Correct me if I'm wrong but the father in this case lost the motion to vary because his material change was not sufficient. Unless I am reading something incorrectly?


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Old 01-27-2017, 05:56 PM
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The below case is a lot like yours .. have a peek.

In Gill v. Chiang, 2011 ONSC 6803

Quote:
“The original Award gave 65% of the access time to the Mother, together with custody, and 35% to the Father. This percentage has now been reduced to 60% to her and 40% to him. They cannot, says the Mother, seem to be able to make decisions together”.
Interestingly, much like your situation, the mom wrote in the affidavit:

Quote:
James stopped paying child support entirely and abruptly in April, 2010 and I believe that was for the sole purpose of putting pressure on me to agree to the parenting change that he was requesting, namely, that the residence schedule in the Arbitration Award of Linda Chodos be changed to a 50/50 or week on week off arrangement”

Much like your case Ange....

Quote:
The Mother’s position is that there has not been a material change in circumstances, which would lead to a variation of the Arbitration Award with respect to custody and access”.
Very similar situation. I think she had status quo for 7 years. Here's what the judge had to say:

Quote:
The Mother sees no material change in circumstances, which would lead to a variation. She says that the Father is unable to set aside his own feelings about her and does nothing to foster her relationship with her. I have set out examples in these Reasons, which support the Mother’s position about the Father’s behaviour. That, in my view, does not mean that there has not been a material change in circumstances. While the Mother relies upon the Court’s findings in Reeves v. Reeves, 2001 CarswellOnt 277 (O.S.C.J.), I do not find it applicable in the circumstances of this case
Dad got his 50/50:

Quote:
1. The Order of Madam Justice Allen made July 2, 2009 shall be varied so that the child access provision under the Arbitration Award is changed from what is currently a 60:40 split between the Mother and the Father, to a week on/ week off commencing January 1, 2012.”
Before you go and spend thousands of your child's future education money over a few extra days .. I hope you know what you're walking in to.
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Old 01-27-2017, 07:14 PM
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My understanding (based on Gordon v Goertz) was that a material change had to be something which

a) significantly affected the needs of the child or the parent's ability to meet those needs
b) could not have been foreseen at the time the final order was made
c) if it had been known at the time the order was made, would have resulted in a substantially different custody or access arrangement

So just the passage of time is not a material change because everyone knows that time passes and the passage of time was foreseeable when the order was signed. A parent's new job/home/boyfriend/baby is not a material change unless it significantly affects the ability of the parent to meet the needs of the child in question. And so on.

But of course I am a random person on the internet and could be wrong.
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Old 01-27-2017, 10:01 PM
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Originally Posted by Ange71727 View Post
Correct me if I'm wrong but the father in this case lost the motion to vary because his material change was not sufficient. Unless I am reading something incorrectly?


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That was from a different case, to prove to you that the father could argue the 8 years that have passed by as a material change. But I don't need to justify myself any more, LF32 has given you a good right up of a case that very closely mimics yours.

Come on, we all know what you're trying to do. We're not stupid. Nobody is stupid. Except for your ex ( if he gives in to your case against him. )
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Old 01-28-2017, 07:52 AM
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Quote:
Originally Posted by stripes View Post
My understanding (based on Gordon v Goertz) was that a material change had to be something which



a) significantly affected the needs of the child or the parent's ability to meet those needs

b) could not have been foreseen at the time the final order was made

c) if it had been known at the time the order was made, would have resulted in a substantially different custody or access arrangement



So just the passage of time is not a material change because everyone knows that time passes and the passage of time was foreseeable when the order was signed. A parent's new job/home/boyfriend/baby is not a material change unless it significantly affects the ability of the parent to meet the needs of the child in question. And so on.



But of course I am a random person on the internet and could be wrong.


Agreed. In my case he has changed nothing significant and 8 years has passed. Kids are happy and thriving. Kids like the arrangement we have. It should be less about evening up the percentages and more about the personalities and needs of my children.



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Old 01-28-2017, 08:09 AM
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Quote:
Originally Posted by trinton View Post
That was from a different case, to prove to you that the father could argue the 8 years that have passed by as a material change. But I don't need to justify myself any more, LF32 has given you a good right up of a case that very closely mimics yours.

Come on, we all know what you're trying to do. We're not stupid. Nobody is stupid. Except for your ex ( if he gives in to your case against him. )


https://www.canlii.org/en/on/onca/do...ocompletePos=2

Read this case you actually referenced Trinton. It bears STRIKING resemblance to my own case and dad fails to argue successfully that "passage of time" is a material change because it hasn't adversely affected the child. What I am "trying to do" is look out for the best interests of my child. If it is "only a few days" change to their schedule then I could flip the argument right back onto you and LF32 - so why battle it out if kids are thriving and like the status quo and may be adversely affected by their parents continuing litigation - over "a few extra days"? If 50/50 had happened at the onset of my divorce I probably wouldn't be talking to you right now. It would likely be the best arrangement for them after all this time. It didn't though....and 8 years has passed for everyone to be pretty established with this arrangement. 8 years is an "awfully long time" as you state.


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  #29 (permalink)  
Old 01-28-2017, 08:49 AM
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Quote:
Originally Posted by Ange71727 View Post
https://www.canlii.org/en/on/onca/do...ocompletePos=2

Read this case you actually referenced Trinton. It bears STRIKING resemblance to my own case and dad fails to argue successfully that "passage of time" is a material change because it hasn't adversely affected the child. What I am "trying to do" is look out for the best interests of my child. If it is "only a few days" change to their schedule then I could flip the argument right back onto you and LF32 - so why battle it out if kids are thriving and like the status quo and may be adversely affected by their parents continuing litigation - over "a few extra days"? If 50/50 had happened at the onset of my divorce I probably wouldn't be talking to you right now. It would likely be the best arrangement for them after all this time. It didn't though....and 8 years has passed for everyone to be pretty established with this arrangement. 8 years is an "awfully long time" as you state.


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I'm sorry but didn't you mention all that stuff about ADHD? Don't you feel that things have changed through the passage of time? The child's needs?

Again, I posted the case law from a different case, not this case. Not sure why you keep referencing this case. The passage of time in this case was only 2-3 years.

Last edited by trinton; 01-28-2017 at 09:02 AM.
  #30 (permalink)  
Old 01-28-2017, 09:01 AM
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I'm sorry but didn't you mention all that stuff about ADHD? Don't you feel that things have changed through the passage of time? The child's needs?


The learning difficulties are exactly why my child's best interests are consistency in schedule and maintaining status quo with arrangement that best suits his needs. The child in this case above also has learning issues.


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