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-   -   What to do? Served papers change 2 years after signed agreement (http://www.ottawadivorce.com/forum/f3/what-do-served-papers-change-2-years-after-signed-agreement-20904/)

SuzieSunshine 04-02-2017 08:03 AM

What to do? Served papers change 2 years after signed agreement
 
After being separated for 3 years, kids now D3 and D5 with divorce finalized I have been served with court papers to change my signed agreement of 2 years running. The changes requested are:

1. That I no longer spend PD Days with the kids. Now he does.

2. That I no longer spend every other Friday with the kids from 8am to 5pm. I do not work on Fridays and he does. Instead, he will take vacation days and work from home on Fridays in the summer instead of doing this on Mon, Tue or Wed when I do work.

3. That I cannot change and he must sign off on changes to school, medical providers, counselling or personal services (I assume this means changing their hairdresser?

4. That every other Friday he picks up the kids at school instead of my residence (increasing the time kids are apart from 4 days to 5 days every other week).

5. That their current 50/50 schedule change from a 1/1/1/3 to a 2/2/5/5 even though I work evenings until 8pm the two days the kids are with him. So I would hire a sitter 1 day a week every week at my cost and only see the kids 1 day a week instead of the current 2 days. He would then ask to have the kids that day increasing his days from 2 to 3 per week and decreasing my threshold below 40% thus requiring me to pay full child support to him.

6. That we change the agreed 2 non-consecutive weeks’ vacation each year to consecutive because a 3 and 5 year old are old enough to be apart for 18 days a week from either parent.

7. That we define set vacation weeks each year. Mine to be first two weeks in July (when it is cold) and his first two weeks in August (when it is warm). My work seniority is low and vacation selection is often not granted due to coverage purposes.

8. That the court enforce I answer all emails (even if they are inappropriate, harassing, rude or not kid related) within 48 hours of him sending them.

9. That he change from paying full child support to offset child support even though he has met the 40% threshold for two years now.

10. That I attend one-on-one meetings with him instead of with a mediator so he can bully, harass, and pressure me to do things he wants because mediators are not best for the kids and lack progress to give him what he wants.

11. That I pay all costs for these changes because I have refused to agree with him.

My lawyer is set to represent me. Any thoughts on how I should handle his request for changes since there is no material change in circumstance to change anything? Is there a set method to make an offer to settle?<O:p</O:p

trinton 04-03-2017 05:40 PM

What is he claiming has changed since the making of the initial order other than that the kids are not toddlers anymore and entering their pre-school / school- stages ?

SuzieSunshine 04-04-2017 02:34 PM

He is claiming:

1. PD Days were never defined in the agreement so he should get the kids on Friday's at 8:30 am instead of the 5:00 pm pickup time because its not a school day even though the agreement say he picks up the kids at 5pm.

2. He is claiming since signing the agreement in July 2015, when the kids were 4 and 2 are now old enough at the ages of 5.5 and 3.5 years old to spend more time away from their mother so changing to a week on/off schedule would be better for them.

3. G3.5 does not breastfeed anymore.

4. That by having the D3.5 enter school in September my time decreases less than 60% threshold and that the time she is in school now automatically goes to him so he crosses 40% threshold. His time with kids does not change now that they are both in school. Matter of fact, D5.5 time with him has not changed since signing the agreement.

5. He wants all day Friday with the kids to increase his time to 41% of the threshold.

6. He is claiming that the agreement says we are to be flexible with the schedule for early pickups and I must agree every time he wants to pickup the kids early. So if on a Friday he wants to pickup the kids at 4:30 pm I must agree. If he wants to pick them up at school at 2:30 I must agree. If he wants to pick them up at 8:00 am because they don't have school I must agree otherwise I am not following the agreement.

Ange71727 04-04-2017 04:17 PM

Quote:

Originally Posted by SuzieSunshine (Post 219187)
He is claiming:

1. PD Days were never defined in the agreement so he should get the kids on Friday's at 8:30 am instead of the 5:00 pm pickup time because its not a school day even though the agreement say he picks up the kids at 5pm.

2. He is claiming since signing the agreement in July 2015, when the kids were 4 and 2 are now old enough at the ages of 5.5 and 3.5 years old to spend more time away from their mother so changing to a week on/off schedule would be better for them.

3. G3.5 does not breastfeed anymore.

4. That by having the D3.5 enter school in September my time decreases less than 60% threshold and that the time she is in school now automatically goes to him so he crosses 40% threshold. His time with kids does not change now that they are both in school. Matter of fact, D5.5 time with him has not changed since signing the agreement.

5. He wants all day Friday with the kids to increase his time to 41% of the threshold.

6. He is claiming that the agreement says we are to be flexible with the schedule for early pickups and I must agree every time he wants to pickup the kids early. So if on a Friday he wants to pickup the kids at 4:30 pm I must agree. If he wants to pick them up at school at 2:30 I must agree. If he wants to pick them up at 8:00 am because they don't have school I must agree otherwise I am not following the agreement.



If there is a final order, he has to prove a material change in circumstances. Meaning something has to have changed in his or your life (or with the kids) that would make the proposed changes necessary and in the kids' best interests. I don't think claiming something wasn't defined properly in the agreement necessarily warrants changing things. Not a lot of time has passed here. Are the kids happy, healthy and thriving in the current regime?


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trinton 04-04-2017 05:25 PM

Quote:

Originally Posted by SuzieSunshine (Post 219187)
He is claiming:

1. PD Days were never defined in the agreement so he should get the kids on Friday's at 8:30 am instead of the 5:00 pm pickup time because its not a school day even though the agreement say he picks up the kids at 5pm.

Very reasonable request. It's not uncommon for weekends to be extended to include PD days, etc. The kids were not in school when the order was made and PA days were obviously NOT taken into consideration as a result. If you guys had anticipated the children entering school, you guys would have set something for PD days. They are in school now and PD days are relevant, and you guys aren't able to come to an agreement, so then the court must decide. Especially if your agreement says you must be flexible and you are not being so.

Quote:

Originally Posted by SuzieSunshine (Post 219187)
2. He is claiming since signing the agreement in July 2015, when the kids were 4 and 2 are now old enough at the ages of 5.5 and 3.5 years old to spend more time away from their mother so changing to a week on/off schedule would be better for them.

Reasonable. The one is school age now and the other is soon to be.

Quote:

Originally Posted by SuzieSunshine (Post 219187)

3. G3.5 does not breastfeed anymore.

The children were in their tender years when the order was made, likely a relevant passage of time.


Quote:

Originally Posted by SuzieSunshine (Post 219187)
4. That by having the D3.5 enter school in September my time decreases less than 60% threshold and that the time she is in school now automatically goes to him so he crosses 40% threshold. His time with kids does not change now that they are both in school. Matter of fact, D5.5 time with him has not changed since signing the agreement.

If the kids are in school, then they are not with the other parent. Kids are in school and the schedule needs to be tweaked, especially regarding PA days.

Quote:

Originally Posted by SuzieSunshine (Post 219187)
5. He wants all day Friday with the kids to increase his time to 41% of the threshold.

Is that what he says or is that what you are alleging ? The first one to bring up the whole "he just wants more time to reduce child support" or "she just wants to oppose this to maximize child support" is likely the one that is after the money.

Quote:

Originally Posted by SuzieSunshine (Post 219187)
6. He is claiming that the agreement says we are to be flexible with the schedule for early pickups and I must agree every time he wants to pickup the kids early. So if on a Friday he wants to pickup the kids at 4:30 pm I must agree. If he wants to pick them up at school at 2:30 I must agree. If he wants to pick them up at 8:00 am because they don't have school I must agree otherwise I am not following the agreement.

What is the exact wording of this flexible clause in your agreement?

PeacefulMoments 04-04-2017 05:37 PM

Quote:

Originally Posted by SuzieSunshine (Post 219187)
He is claiming:


6. He is claiming that the agreement says we are to be flexible with the schedule for early pickups and I must agree every time he wants to pickup the kids early. So if on a Friday he wants to pickup the kids at 4:30 pm I must agree. If he wants to pick them up at school at 2:30 I must agree. If he wants to pick them up at 8:00 am because they don't have school I must agree otherwise I am not following the agreement.

I would say the very definition of flexible means that while you should not say no to all requests, you are also not bound to accommodate all requests. Say yes as often as possible when reasonable but IMO you are not in violation of the agreement by saying no sometimes.

SuzieSunshine 04-04-2017 06:24 PM

Quote:

Originally Posted by Ange71727 (Post 219190)
If there is a final order, he has to prove a material change in circumstances. Meaning something has to have changed in his or your life (or with the kids) that would make the proposed changes necessary and in the kids' best interests. I don't think claiming something wasn't defined properly in the agreement necessarily warrants changing things. Not a lot of time has passed here. Are the kids happy, healthy and thriving in the current regime? Sent from my iPhone using Tapatalk

Yes, they are happy and healthy. He will try and prove they are not and unsettled because the schedule is a 1/1/1/1/2.

Nothing has changed in our lives to warrant a MCIC. I agree, claiming it was left out of the agreement means the default applies, aka the regular schedule where Friday's they girls are with myself.

Ange71727 04-04-2017 06:36 PM

Quote:

Originally Posted by SuzieSunshine (Post 219195)
Yes, they are happy and healthy. He will try and prove they are not and unsettled because the schedule is a 1/1/1/1/2.

Nothing has changed in our lives to warrant a MCIC. I agree, claiming it was left out of the agreement means the default applies, aka the regular schedule where Friday's they girls are with myself.



I agree with Peaceful that flexible means sometimes there's give and sometimes there's take. On both sides. As long as you aren't always shooting down his requests and agree once in a while to extend times, delay pickups, etc you are not being inflexible. I have this clause in my agreement too and the ex is also claiming the same stuff about me which my lawyer doesn't seem to be worried about.
Do you have a lawyer yet?


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Berner_Faith 04-04-2017 06:44 PM

Usually if there is a PD Day it is extended to the parents who weekend it is. Why shouldn't he get some PD Days? I'm assuming you alternate weekends and in the grand scheme of things there are not THAT many PD Days that is going to create a big shift in parenting time.

I don't necessarily agree with the 1/1/1/1/2 schedule, it is a lot of exchanges, maybe a 2/2/3 would be better... less exchanges for the children. It seems there have been a few changes (kids starting school, no longer breastfeeding), while the changes may not be extreme, I don't see why you both couldn't work this out.

He certainly can't take time from you and even requesting PD Days isn't taking time from you as the child is usually in school Fridays. I agree being flexible doesn't mean you have to say yes all the time but I also think you need to consider his request do PD Days because it is not out of the ordinary.


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SuzieSunshine 04-04-2017 06:51 PM

Quote:

Originally Posted by trinton (Post 219192)
Very reasonable request. It's not uncommon for weekends to be extended to include PD days, etc. The kids were not in school when the order was made and PA days were obviously NOT taken into consideration as a result. If you guys had anticipated the children entering school, you guys would have set something for PD days. They are in school now and PD days are relevant, and you guys aren't able to come to an agreement, so then the court must decide. Especially if your agreement says you must be flexible and you are not being so.

True, but the kids were 2 months away from school. We both knew they were heading to school and we both knew he has to work Fridays. Now that it is after the fact he is saying opps, I forgot. Not only do I want PD Days (and every PD Day for that matter) I want every other Friday at 8:30 am, even the summers. If I could go back and ask for more in the Agreement then great! Let's change everything then.

In mediation I offered as a solution to share the PD Days. Since all PD Days land on weekends the kids are to be with him, I offered to share them 50/50. He declined my offer demanding 100% of PD Days.

Quote:

Originally Posted by trinton (Post 219192)
Reasonable. The one is school age now and the other is soon to be.

I agree a 2/2/3/3 schedule is reasonable but so is a 1/1/1/2 schedule. We live within walking distance of each other and the school. Many divorced people do a 1/1/1/2 schedule. The problem is I work until 8pm 2 nights a week (the nights the kids are with him). If we switch to a 2/2/3/3 schedule I would lose a night with the kids and my threshold would drop form 61% to 35%. That is his reason for the change.

Quote:

Originally Posted by trinton (Post 219192)
The children were in their tender years when the order was made, likely a relevant passage of time.

2 years later the children are still young. Judges will not grant 2 consecutive vacation weeks to kids under 7. However, I have agreed to consecutive weeks as long as they aren't over a weekend the kids are scheduled with me and he has rejected that offer. He wants any two weeks of his choice in the summer for an 18 day stretch and would not accept a 14 day stretch offer from myself.

Quote:

Originally Posted by trinton (Post 219192)
If the kids are in school, then they are not with the other parent. Kids are in school and the schedule needs to be tweaked, especially regarding PA days.

Yes that is true, but for calculating the 40% threshold you have to count school hours to determine which parent is responsible for the kids. He is trying to say that his time will increase because on Friday's he is now responsible for the kids during the 6 hours a day they are in school when I drop them off and pick them up 3 of the 5 school days.

Quote:

Originally Posted by trinton (Post 219192)
Is that what he says or is that what you are alleging ? The first one to bring up the whole "he just wants more time to reduce child support" or "she just wants to oppose this to maximize child support" is likely the one that is after the money.

This is what he says. He is a mathematician so numbers and equations are god to him. He struggles that the equation does not equal 50/50. Realistically I don't care what the equation is, if it is 41% fine, let's do offset and move on. What I care about is changing the girls schedule for no reason but to equal the equation by reducing time with me to increase time with him. Plus why fight over Friday when he gets every Monday, Tue and Wed during the day with the kids while I am at work? Instead he choses to book vacation days on Friday when I don't work and take time the girls have away from me.

Quote:

Originally Posted by trinton (Post 219192)
What is the exact wording of this flexible clause in your agreement?

The exact wording is I pickup the girls every day from school. On his days, if he gets off work earlier than 5pm he can notify me and I am to be flexible and work with him. I have done such every request and offered 4:30 or 4:00 pm or 3:30 pm pickups. He has refuted my flexibility for not doing exactly what he wants, 8 am pickups or school pickups at 2:30 pm.


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