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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 02-27-2006, 12:44 AM
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Default What happens if..

I just leave the province? I'm in Alberta, relying on a family member to support us (me and two kids), he hasn't paid any support for two monthes.

We're currently in the court system, but it doesn't seem to be going anywhere. I filed initially (not divorce; we were common-law) to sue for custody, CS, spousal, excl. poss. of mat home, etc., and he's stalled and stalled on the matter. We initially agreed to settlement terms (verbally) in May '05, he blew it in June; I served him with a Notice of Motion in July, and two 'interim interim' orders followed, which 'expired' by the end of Oct. He got a fourth impaired driving charge late in Oct., and I told him shortly thereafter, no more unsupervised visitation. He initially agreed, and we began talking settlement out of court. Within a week of coming to agreement on some of the terms, he renegged. Within two weeks of that, he agreed to put the home in my name, and again renegged. It's now been almost 3 monthes since he's seen his kids, because he flat-out refuses to see them unless he (or his parents, now that he's lost his license) can pick the kids up and take them for the weekend. I don't trust him to be responsible for the children, and will not allow him to take them unless a court forces me, or he's had some treatment and rehab for his drinking issues and can be trusted. It's been over 2 monthes since I've even spoken to him directly or since he's paid any support. He failed to appear in court in January to enter a plea on his impaired driving charges, and a warrant for his arrest was issued; to the best of my knowledge, it's still outstanding.

My lawyer told me recently that my ex's lawyer is continually sending 'demand letters' to enable my ex to pick up the children for a three-day period, but I won't let them go without supervision or a court forcing me to. Aside from not trusting the children to his care, they had some very serious insecurity issues after the last visit with him, which was for 3 days, back in early Oct '05; it wasn't until January that those issues began to really subside. My lawyer has been extremely busy (for once, I'm grateful for that), and my ex has a habit of dealing with these things last minute, so often, my lawyer doesn't even receive the 'demands' until the weekend has passed.

A financial disclosure was asked of my ex back in July '05, and he continually fails to comply; I've held off forcing the issue with a motion because I felt I knew most of his financial circumstances that were relevant, and couldn't afford to keep my attourney running back and forth to court if it was unneccessary (I really thought my ex would settle by now). My ex made a settlement offer back in Sept '05, but I rejected it (absolutely ridiculous offer). Since then, we've continually said we're prepared to counter-offer, but that he must disclose his financials first, and they continually ignore that and ask for a counter. Meanwhile, the mortgage on the home where the children and I are living is likely in default and forclosure proceedings.. the home is in his name alone, I put up the down payment on the purchase, and one of the issues between us is that I feel the home should be mine, and he should transfer the title to me. At that point, I will take over the mortgage and payments. He continually agrees that the home should be mine, continually promises to transfer the title, but continually renegs. The last payment I have knowledge of was in Dec '05. I instructed my lawyer in January that I wanted this to go to a judge or settlement ASAP, because I don't want the home to be lost, my ex had already defaulted on the mortgage at least two other times in the previous six monthes, and is likely going to jail soon on his criminal charges. However, I've heard very little from my lawer.

The kids and I are getting by with the generosity of a family member, and selling whatever I can. That family member is working in another city (about an hour away), but has an opportunity for a job in another province. I have considered renting out the house I'm in (or at least a portion of it) to put that money onto the mortgage, in an effort to keep the bank from foreclosing, and moving with my family to the city of employment. Thoughts on that? Is it legal, considering my name is not on the title? Also, with this new job opportunity in the other province, what are the legalities and consequences if I just go with my family? I know it's my right to move anywhere I like based on the Canadian Charter, but not necessarily my right to move my children.. so what if I did? What are the steps he'd have to take to make me return? What would be the fallout from leaving the residence, in terms of ownership? What if I rented out part of the home, and put that money on the mortgage, in an effort to keep the bank from taking it, until such time as a judge can hear this issue or a settlement reached?



P.S. **DISCLAIMER** For those NCP out there who are cringing, thinking "how could she even consider taking those kids from their father?".. please don't equate my situation with yours. My ex clearly is NOT thinking of the welfare of his kids, or he'd at LEAST be calling to ask about them, dropping off necessities for them (if not paying support), and be dealing with his criminal charges, instead of hiding out from the police. Failing to appear is not a 'serious' warrant, like being wanted for murder or rape, but if he gave a damn about his kids' well-being, he would deal with his mistakes and not hide from them. So please, don't barrage me with, "children need their fathers", because sometimes the fathers are a bigger liability than an asset. I have nothing less than total admiration and respect for dedicated dads who want to be with their children, but total disdain for those who can't be bothered.
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Old 02-27-2006, 09:03 PM
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Sasha,

It appears your reasons for moving are for the well being of the children.

Bring forth an emergency motion ex parte and cite the reasons that you have mentioned already. I believe you would get 100% blessing from the court. At same time, bring forth a motion for child and spousal support. I suspect your ex will not appear. If this occurs, I believe you will get everything you ask for if he has been served according to the rules.


LV
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Old 02-28-2006, 11:54 AM
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Thank you LV! I am seriously considering doing just that! At some point, I think I'm entitled to have control of my life again, and sitting here waiting to see just how much damage will be done before it's all over.. just doesn't make sense. We're getting nowhere and communication has stopped. Time to take the bull by the horns, and start making our own life plans and decisions!
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Old 02-28-2006, 12:12 PM
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Sasha1,

Go where you feel the children would have the best opportunity to have stability in their lives. Your ex seems to not be able to accept responsibility for himself, let alone his children. He is most likely facing a jail sentence anyway and you would not receive child support. Alcoholism is a hard disease to fight. Hopefully, one day he will seek the treatment he desperately needs and become the father that your children deserve. In the meantime, it's up to you to do whats in the children's best interest. Time to move on and put the past behind you.
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Old 02-28-2006, 12:15 PM
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Thank you, Grace! As always, you've summarized the situation exactly right.. something I can clearly use some practice at! LOL!
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Old 02-28-2006, 12:36 PM
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sasha,

To save yourself sometime why not skip the court process in itself. It appears you have his acquired consent on defacto custody of the children already. Keep it simple is what I always say.

Why not send your ex a registered official letter advising him of the circumstance's ie: dire need for child support and spousal support and advise him that if he fails to make assistance to you financially that you will have no other option than to move out of province etc. Advise him of the move. Put the ball in his court and see what he does.

I suspect he will do nothing as he is neglecting his support obligation already. He is running from the law etc on the criminal matter. His only recourse would be to take the matter to court, which is highly unlikely that he won't as he knows the support issues will come forth.
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Old 03-02-2006, 02:48 AM
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LV, you know, one of the best things about this site is that you've got the benefit of others' points of view... which I find to be very valuable, since often the 'logical' thing to do (pun FULLY intended), can be difficult to see, even when staring you right in the face! I'm sure everyone here feels overwhelmed at times with the various things going on in their circumstances, and I'm certainly no exception. I've got a lot to think about now, but this does feel like a 'critical time' to take action one way or the other. Thank you for your wisdom and objectivity!
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Old 03-02-2006, 03:10 AM
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LV, as an after-thought, a couple of questions about your post...

First, when you say that "it appears you have his acquired consent on defacto custody of the children ", do you mean because he has disappeared from their lives for the last few monthes? I ask because he maintains (through his lawyer) that he will fight to have joint custody.

Also, when you said, "His only recourse would be to take the matter to court, which is highly unlikely that he won't as he knows the support issues will come forth", does that still apply, given that I initiated the matter? I mean, I initially filed a Notice of Motion, suing for custody, support, exclusive possesion, etc. So, would he have to initiate some precedings of his own, and would I have to do anything with my action, like withdrawing it? How would that work?

I did mention in my original post that his lawyer continues to send mine demand letters to pick the children up for the weekend, and at one point, stated that if he was able to do so, he would give me a cheque at that time toward support. Isn't that a major 'no-no' in the eyes of the court? "I can pay support and will, but only if..." ? Or can he claim I essentially refused support by not agreeing to his conditions? BTW, I don't know how relevant it is, but I didn't even know about that particular demand for access until the time had passed; not that I would have agreed to his terms, though.
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