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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 11-28-2006, 12:33 PM
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Default What next....?

Long story short, common law huband filed an application for divorce, included custody and child support. His ex filed an answer asking for sole custody, spousal and child support..stated that he has not played a significant role in the childs life ever but especially in the last 8+ years of seperation..(not true of course). We filed a reply yesterday, stating what we disagreed with ( which was everything expect the child support) and asked for proof of her expenses as she claims she spends 2x what she brings in, didn't claim the full amount of CS being paid, along with some truly incredulous expenses like $250 on the dog She called today and said she is seeing her lawyer this Thursday...so now what happens? Does she file a 'reply' to our reply?

Does the fact we live 400+kms away affect how this would proceed? I'm quite confident in the idea that neither side is willing to back down. I'm curious as to the different ways this could play out....

Thanks!
Jlalex
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Old 11-28-2006, 01:38 PM
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Default hi jlalex

she has a lot to prove with her allegations (which they are until proven truth in court of law)........word of mouth proves nothing......need tangible evidence for proof........one persons opinion of anothers parenting skills means nothing.......it comes down to the judge and the situation the child/ren face or reside in..........I dont think distance really means anything in regards to the courts........they will give you time to attend but you have to attend in the court where its filed........if you live in Timmins and she lives in Ottawa and she filed it will be heard in Ottawa........you can never judge the way something will go.......however have learned from all the reading I have done for my case that if she has had custody for a while and you havent come forward before now for sole custody then it will be hard for the judge to move the child/ren........again depends on length of time she has had "defacto custody" legal term that may be thrown at you........for CS it is based on non custodial parents income solely........she could make a million dollars a year and your common law spouse still has to pay support......takes two people to make the child then two people are financially responsible for that child........judges dont care about a pet........thats personal decision to get one and no financial burden to the other person at all.........she will need to do an income form which is sworn as legal document.......if she is getting lawyer they will hopefully advise her that lying on her income statement is not a good idea
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Old 11-28-2006, 01:51 PM
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Thanks littleman.....

The amazing thing about it all is that she has a lawyer...how she was able to submit that financial statement is beyond me..you don't need to be a math whiz to figure it out..but oh well.

Although he and ex have had some difficulties over the years he tried to be as co-operative as possible, it is a shame that it has come to this..I just hope their child will be okay through all of this..and that it won't take 'too' long.

The have never had any kind of court order in place, and he has always willingly paid CS and increased it whenever he received a raise, and has visited their son often as possible given the distance and that the mother is unable to help with transportation..

The whole idea behind him filing the application was to tie up some loose ends, now its blown wide open and take no prisoners..amazing how things can turn on a dime isn't it?
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Old 11-28-2006, 02:53 PM
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Smile your welcome

you are very welcome and for it not taking a long time it does........I filed last March after a big to do with my ex.......and finally got sole custody in September.........it was emotionally draining for me as well as for my son......I have said it before and will again......if I had to go back and do it again I defiantely would because my son is worth all the BS I endured.....it is hard on the child as well......mine is 10 and I told him that I had his father in court before his father had the chance to tell him.......I filed so I figured I should tell my son........and I was self represented.......this site helped tremendously.......without the help of people from here I dont think I could have made it.......the best result was getting sole custody of my son and my ex had a lawyer........he also tried to lie in financials but the judge was wise to it as well.......they can usually do base math too......LOL.......things that you feel are wrong or blatantly wrong with statements, financials, or anything you have to dispute in your filings.......you cant add them later......do it all at once.......once you have filed your reply to their answer thats it you cant add anything to it........it will be dismissed/disregarded.......when I was going through it LV gave me great advice (I believe it was her**if I mis quoted my apologies**) just smile and nod!!!!!!!! do not engage in confrontation........as much as it bothers you what they say or do........DONT GET ANGRY******SMILE & NOD!!!!!**they will wonder what you are up to but it will be too late when its figured out
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Old 12-02-2006, 01:57 PM
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Default Tough Corner

If the child has resided with the mother since seperation, I doubt the Judge would change the status quo. However instead of sole custody, maybe try get joint with generous access/visitation.

If there has been difficulty getting access/visitation from the ex... definitely make visitation scheduled, instead of just "reasonable and generous"

As per child support, it is possible to request that amount to be diminished due to high cost of travel expenses for access/visitation. But that's circumstantial, I would suggest further research as it's just my opinion
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Old 12-02-2006, 03:47 PM
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It is my understanding that the costs associated with access are supposed to be split 50/50 between both parties. i.e. gas, airfares, etc.
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Old 12-03-2006, 12:34 PM
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serrona,

I agree, that the cost or the task of providing the CHILDS access should be shared between the respective parent's regardless of what type of custody regime is prevailing.

Afterall, access is the right of the child and as such is determined by applying the best interest test. That being so, it is logical to conclude that BOTH parent's have an obligation to the child to participate or make a monetary contribution to same. This is a child centered approach.


see the case Sabourin Young v. Young, 2002 CanLII 2825 (ON S.C.), after exhausting an appeal http://www.canlii.org/on/cas/onsc/20...onsc10975.html

Paragraph 22 of same

"[22] As a result I find it to be in the best interests of the children to allow the applicant to move to Cornwall with the children to continue her full-time employment as a teacher. The primary residence of the children shall remain with the mother. The respondent shall continue to have liberal and generous access to the children and the applicant shall share the driving with the respondent on an equal basis to facilitate access visits.

lv
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Old 12-05-2006, 08:08 AM
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Default a question LV

In regards to your last post...what if the other parent has no way to provide transportation? In our circumstance she doesn't have a car and has had her license taken away due to her illness.

In fact in her answer to our application she requested that the court order we spend our access time in the Ottawa area as it was 'unfair' for the child to have to travel so much..is this something a court may find reasonable?

Thanks!
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Old 12-05-2006, 07:18 PM
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Default Need More Information

Quote:
Originally Posted by serrona
It is my understanding that the costs associated with access are supposed to be split 50/50 between both parties. i.e. gas, airfares, etc.
Hm, I have not found any laws/regulations supporting this. But I will continue to look cause it does relate to my own circumstances.

Federal Child Support Guidlines Section 10 states:

Undue hardship
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.


In my situation the ex has never paid a dime of child support, therefore we believe it's reasonable to expect she pay for the full amount of travel expenses for visitation. That being said, we have a lower standard of living than her household - so you have to take that into account too.
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Old 12-05-2006, 10:22 PM
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jlalex,

as you mentioned,

Quote:
what if the other parent has no way to provide transportation? In our circumstance she doesn't have a car and has had her license taken away due to her illness.

In fact in her answer to our application she requested that the court order we spend our access time in the Ottawa area as it was 'unfair' for the child to have to travel so much..is this something a court may find reasonable?
I would have to say that it would be unreasonable for the other parent to physically participate in consideration of her circumstances, ie: no vehicle, no license. However, nothing prevents the individual from providing a monetary contribution to same.

This is my personal argument on the issue -

It is the child's right to have a meaningful relationship with both parent's and to know the parent's for who they are in their own environment unless there is a cogent reason for it not to occur. (Cogent would be defined as harm emotional and or physical)

Which is supported by the law -

Children's Law Reform Act R.S.O. 1990 c. C.12
http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK23

Section 20(2)

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

-and-

Section 20(5)

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

-and-


Divorce Act
R.S., 1985, c. 3 (2nd Supp.)
http://lois.justice.gc.ca/en/D-3.4/text.html


Section 16(10)

Maximum Contact principle

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Case Law

The honorable Dickson J. of the Court of Queen's Bench for Saskatchewan had a concern of the impact of subjecting a one year old child to six hours of highway travel, However, the court held that it could not be avoided if the child’s access to their father was to be meaningful and beneficial; It must be exercised as the father sees fit. It must take place in a surrounding that is comfortable for both father and son; a place where the father can behave in a spontaneous and relaxed manner. Only then can the child know the father. That will not happen if contact with the father is limited to a few hours in a Wal-Mart mall. Baird v Webb, (2002), 228 Sask. R. 40, 2002 SKQB 518 (CanLII), http://www.canlii.org/sk/cas/skqb/2002/2002skqb518.html ,
Paragraph 9 of the judgment

"[9] I am concerned about the impact on a one-year old child of an access order that subjects him to six hours of highway travel every time he is delivered into the care of his father. Unfortunately, it cannot be avoided. If the access is to be meaningful and beneficial to the child, it must be exercised as the father sees fit. It must take place in a surrounding that is comfortable for both father and son; a place where the father can behave in a spontaneous and relaxed manner. Only then can the child know his father. That will not happen if contact with the father is limited to a few hours in a Wal-Mart mall."

In the result - alternate weekends ordered and the one year old access travel shared between the parents.



In a leading Supreme Court of Canada decision, The late Mr. Justice John Sopinka held the view that the long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for who they are. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child. Young v. Young, [1993] 4 S.C.R. 3 http://scc.lexum.umontreal.ca/en/199...993rcs4-3.html

"The long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child."

In the Alberta Court of Queen's Bench, the honorable Trussler J. held that serious questions are raised about the fitness of that person as a parent who refuses a child's access to their other parent. Tremblay v. Tremblay, 54 Alta. L.R. (2d) 283, 10 R.F.L. (3d) 166, [1987] 6 W.W.R. 742, 82 A.R. 24.

Paragraph 9

"9 I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse."


In the Ontario Court of Justice, the honorable Justice Yvon Renaud held that unless there is a strong and cogent reason for doing otherwise, the court should make a interim order that allows children to have meaningful and maximum contact with each parent — Principle of maximum contact is specifically recognized in subsection 16(10) of federal Divorce Act but not mentioned in Children’s Law Reform Act (Ont.) — Nevertheless, this principle can be readily extracted from various “best interest” factors listed in provincial statute and must be considered in court’s evaluation of children’s best interests. Easton v. McAvoy, 2005 ONCJ 319 (CanLII), http://www.canlii.org/on/cas/oncj/2005/2005oncj319.html

Paragraph 24, 25, 26 of the Judgement

"[24] In matters of interim custody, upon the court’s weighing all the evidence, although conflicting, and taking into account the legislated factors mentioned above, the interim order should, unless there is strong and cogent reason for doing otherwise, seek to permit the children to have meaningful and maximum contact with each parent.

[25] Subsection 16(10) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [as amended], gives statutory recognition to this principle:

(10) Maximum contact.— In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[26] Although this principle does not finds its expression in the Children’s Law Reform Act, it stands to reason that this factor must be considered in the court’s analysis of the best interests of the children and moreover, this principle may quite easily be inferred from the factors listed in section 24."



With all that said, I believe the onus is on the other parent to prove on the balance of probabilities that the child will be in harm if allowed to travel to your current location. There is a big difference between the meaning of "HARM" and "UNFAIR"! It would be unfair to the child to not know one parent for who they are and in that parent's environment.

If it was me I would use the above citations by way of factum to support the stance to allow the child to travel to your location.

lv

Last edited by logicalvelocity; 12-06-2006 at 08:47 AM.
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