Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Introductions

Introductions If you're new to the forums, drop by and introduce yourself.

Closed Thread
 
LinkBack Thread Tools
  #1 (permalink)  
Old 08-29-2012, 03:03 PM
Junior Member
 
Join Date: Aug 2012
Posts: 4
Mominlaw is on a distinguished road
Default moving out of jurisdiction

If you have 50/50 and you move out of the jurisdiction then sign a piece of paper he typed up stating:
1: that your ex now has custody of the child and you only get him on the weekends
2: He doesn't have to pay support except for the summer months that she has the younglad during the week and he takes him on the weekend.
3: you are responsible for picking him up and dropping off (even though she has no drivers license and can't get one).

Now she has decided to move back to the city and wants to go back to the original agreement 50/50 and he pays support plus is responsible for picking the young lad up. Is the document she signed legal? I know she should have thought it through first
  #2 (permalink)  
Old 08-29-2012, 03:50 PM
NBDad's Avatar
Senior Member
 
Join Date: Dec 2009
Location: New Brunswick
Posts: 2,734
NBDad is on a distinguished road
Default

Was there independent legal advice or was a lawyer involved in the creation/signing of the document?

Is there a legal agreement in effect? Was there a motion put into place to ratify the existing agreement with the new arrangements?

How long was she moved out of the city for? More than 6 months?
  #3 (permalink)  
Old 08-29-2012, 03:54 PM
Senior Member
 
Join Date: Mar 2011
Posts: 1,656
WorkingDAD is on a distinguished road
Default

I would suggest to agree to 50/50 with Joint custody. Sign with ILA. file with a court. Be part of the young lad life and thank god she did not ask CS retroactive for that time ...

I have difficulty to understand why would anyone sign it (that document you said that he did sign)...

when you say custody are you talking decision making or only time sharing?

WD
  #4 (permalink)  
Old 08-29-2012, 09:33 PM
Junior Member
 
Join Date: Aug 2012
Posts: 4
Mominlaw is on a distinguished road
Default

NB and Working dad
There was no legal advice for the paper that the father drew up. He just handed it to her and said she had to sign it, so is it still legal?

There is a legal agreement in the courts stating that they have 50/50 and that they have to stay in the jurisdiction. He pays CS and never misses in fact because she had the boy during the week days the last two months he paid double the support. Both make the decision about the child

She moved out of jurisdiction in June so 2 months
  #5 (permalink)  
Old 08-29-2012, 09:44 PM
Tayken's Avatar
Senior Member
 
Join Date: May 2011
Posts: 6,486
Tayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant future
Default

Quote:
Originally Posted by Mominlaw View Post
If you have 50/50 and you move out of the jurisdiction then sign a piece of paper he typed up stating:
1: that your ex now has custody of the child and you only get him on the weekends
2: He doesn't have to pay support except for the summer months that she has the younglad during the week and he takes him on the weekend.
3: you are responsible for picking him up and dropping off (even though she has no drivers license and can't get one).

Now she has decided to move back to the city and wants to go back to the original agreement 50/50 and he pays support plus is responsible for picking the young lad up. Is the document she signed legal? I know she should have thought it through first
Some questions:

1. Mominlaw are you the mother of the father or mother in this situation?

2. Why didn't both parties to the agreement seek independent legal advice int he matter until now?

3. Who is the party (mom or dad) that has vacated the jurisdiction for which the child in question habitually resides?

The story is a bit confusing.

Parents originally had 50-50 access and full joint custody? One of the parents left the jurisdiction for which is the habitual residence of the children? Do the children still reside in this jurisdiction?

What will come into question by the court is why one of the parents would leave the jurisdiction for which the children habitually resided in the first place?

Good Luck!
Tayken
  #6 (permalink)  
Old 08-29-2012, 09:53 PM
Tayken's Avatar
Senior Member
 
Join Date: May 2011
Posts: 6,486
Tayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant future
Default

Quote:
Originally Posted by Mominlaw View Post
There is a legal agreement in the courts stating that they have 50/50 and that they have to stay in the jurisdiction.
So the moving parent moved in contravention of a court order? How is the father responsible for the mother's decision to act in contravention of an order of the court and possibly in contempt of that order?

Quote:
Originally Posted by Mominlaw View Post
She moved out of jurisdiction in June so 2 months
The mother in the matter you are describing is probably lucky that the father didn't bring matters forward on a material change in circustance due to the mother's move in contravention of a court order. Often, the moving parent, unless done with significant reason and in the children's "best interests" has to argue a "mobility" case to retain full joint custody and 50-50 access.

If they have a court ordered 50-50 access and full joint custody the onus would fall on the moving parent to demonstrate that the move is in the child's best interests to change their habitual residence.

In my opinion, considering that the father has retained residence in the court ordered jurisdiction and based on the limited information provided in your messages, the agreement signed is very similar to what a court might order in the matter possibly.

The habitual residence of a child is of tremendous importance and weight when applying the "best interest of the child" test from the Children's Law Reform Act. For a moving parent, especially when court ordered to reside in a specific jurisdiction, full joint custody and 50-50 access, to argue that the move should be in their benefit and/or continue to be the same.

It all depends on how far from the school and other important aspects of the child's life are impacted by the move when residing with the moving parent. Courts don't automatically judge who is the better parent based on gender. The parent that demonstrates that they can put the children's needs before their own is one of the most important factors considered by a justice when determining "best interests" on the balance of probabilities.

Good Luck!
Tayken

Last edited by Tayken; 08-29-2012 at 09:55 PM.
  #7 (permalink)  
Old 08-29-2012, 10:03 PM
Rioe's Avatar
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,217
Rioe will become famous soon enough
Default

Quote:
Originally Posted by Mominlaw View Post
NB and Working dad
There was no legal advice for the paper that the father drew up. He just handed it to her and said she had to sign it, so is it still legal?
I would think not. Sounds like it was signed under duress and independent legal advice was not obtained. However, it also sounds like the father was alarmed at her impending move and wanted to protect himself and the child. The three things he put there are all reasonable under the circumstances, and he's actually gone beyond what many would do by not insisting she pay him CS the other ten months of the year, and by ensuring the child was with her the bulk of the summer when it would not interfere with school.

Quote:
Originally Posted by Mominlaw View Post
There is a legal agreement in the courts stating that they have 50/50 and that they have to stay in the jurisdiction. He pays CS and never misses in fact because she had the boy during the week days the last two months he paid double the support. Both make the decision about the child.

She moved out of jurisdiction in June so 2 months
She should move back ASAP and get the 50-50 thing going again properly, as per their agreement. The extra document doesn't sound like it went to court to become an order, so the original agreement still stands, but if she takes too long and the new arrangement becomes status quo, the father could have a better case for not returning to 50-50.

However, the father sounds actually pretty reasonable to me and focused on the child, from the brief description you provided, and hopefully will not object to returning to the original agreement for 50-50 once the mother returns to the child's town. If he gets court involved, I think she could probably get away with some sort of excuse that moving away was impulsive and poorly thought out and a mistake, and she has returned to town with her head on straight, and that the second document is not legal. A judge goes with the best interests of the child, and that is to have both parents involved equally, in the same town.

But I suspect she won't find her ex nearly as accommodating if she ups and moves again.
  #8 (permalink)  
Old 08-30-2012, 12:31 AM
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

There can't be a court order forbidding an adult to move. There can be a court order forbidding moving the residence of the child.

If the mother moved out of the jurisdiction, that is her right. She does not automatically lose any and all access because she moved; she still has a right to see her child. So she is not in contravention of the order if the child stays with her periodically. The new agreement was not in any way unreasonable and would have been supported by the court if they had sought to change the order. The father has a duty to agree to at least regular access. I believe that is what happened.
Quote:
1: that your ex now has custody of the child and you only get him on the weekends
2: He doesn't have to pay support except for the summer months that she has the younglad during the week and he takes him on the weekend.
3: you are responsible for picking him up and dropping off (even though she has no drivers license and can't get one).
This isn't entirely clear, but it seems that the mother moved and would only get the child on the weekends. This would mean the child's principle residence remained in the original jurisdiction and the mother had reasonable, regular access on weekends. There is nothing unfair about that, or not in the best interest of the child.

Both parents agreed to the new agreement, even though the court order wasn't updated.

The mother moves back to the city, the original court order hasn't been changed. So the question seems to be, would the kitchen table agreement that was in effect while the mother lived out of town for several months still be in effect when she moves back?

If it went to court arguments would have to reflect the best interest of the child. Was the child happy and doing well during the original 50/50 situation? Then why should that change?

The new agreement does not seem to have lasted more than 4 months, and that includes splitting off the summer months with the child spending extra time with the mom. Basically the situation has been in flux, but now it is returning to the old status quo.

Does the father have reason now to seek to reopen the old agreement and have it changed to the full custody situation of the "kitchen table" agreement? I don't see where he has an argument. The child's needs are best served by the 50/50 arrangment if the mother is living in town, what could be the reasons for refusing 50/50? The period of time that passed was not long enough to really challenge the status quo.

While there was a temporary material change that was reflected in the new arrangement, there is now no material change from the original 50/50 court order. So what material change can the father bring forth to reopen the court order?

I think the question is interesting but I don't see how he could make a case here. The child is best off if the parents stay out of court, stay amicable, and work together to raise the child.
  #9 (permalink)  
Old 08-30-2012, 03:10 AM
Tayken's Avatar
Senior Member
 
Join Date: May 2011
Posts: 6,486
Tayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant future
Default

Quote:
Originally Posted by Mess View Post
There can't be a court order forbidding an adult to move. There can be a court order forbidding moving the residence of the child.
Agreed. The residential restrictions of any order of the court would be with regards to the habitual residence of the child in accordance with 22.(1), 22.(2) and 22.(3) of the CLRA and existing case law.

When a parent moves from the jurisdiction from where the child habitually resides that moving parent needs to truly understand the impact it has on their child(ren)'s access to them. If the move is too far, access will be reduced to insure the children's "best interests" are met. If the move is significant, it can easily become a "mobility" issue which is incredibly complex.

Quote:
Originally Posted by Mess View Post
If the mother moved out of the jurisdiction, that is her right.
And personal choice to do so. The reason for which the mother moved has not been outlined so it is difficult to understand if the move was made for good reason (i.e. Employment Opportunity) or personal reason (wanted to live somewhere new because they thought it was more hip and trendy).

Quote:
Originally Posted by Mess View Post
She does not automatically lose any and all access because she moved; she still has a right to see her child.
It all depends on how far the move is. Access in matters like this is often dependent on the distance and most importantly how the move impacts the child's "best interests".

Furthermore, because a parent moves, it does not automatically mean that the other parent, whom the children have 50% access with loses any access. The onus falls on the moving parent to defend that their move does not impact the child's "best interests". (i.e. getting back and forth to their school while residing with them, to other activities, and access to their friends where they habitually resided).

Quote:
Originally Posted by Mess View Post
So she is not in contravention of the order if the child stays with her periodically. The new agreement was not in any way unreasonable and would have been supported by the court if they had sought to change the order. The father has a duty to agree to at least regular access. I believe that is what happened.
But, the mater appears to be somewhat suspicious as it is being implied that the mother was possibly forced to sign the agreement that is currently in place.

Quote:
Originally Posted by Mess View Post
This isn't entirely clear, but it seems that the mother moved and would only get the child on the weekends. This would mean the child's principle residence remained in the original jurisdiction and the mother had reasonable, regular access on weekends. There is nothing unfair about that, or not in the best interest of the child.
In fact, depending on the move and distance may have been actually signed in the child's best interests. Disrupting a child from their habitual residence is not something the courts generally like to do.

Quote:
Originally Posted by Mess View Post
Both parents agreed to the new agreement, even though the court order wasn't updated.[

The mother moves back to the city, the original court order hasn't been changed. So the question seems to be, would the kitchen table agreement that was in effect while the mother lived out of town for several months still be in effect when she moves back?
This all depends on how the current agreement is worded. No one has actually seen the body of the content for which the OP is recanting and has a bias to a specific party in the matter. It makes it hard to make objective statements as to what really could happen.

Quote:
Originally Posted by Mess View Post
If it went to court arguments would have to reflect the best interest of the child. Was the child happy and doing well during the original 50/50 situation? Then why should that change?
Furthermore, 4 months, even if agreed to in writing, does not create a "status quo" and the court would in my opinion restore the original order for 50-50 access full joint custody if the mother has indeed returned to the jurisdiction where the child habitually resides.

If the other parent attempts to create a false status quo based on a situation that changed and then changed back to original conditions and doesn't consider the child's "best interests" first to have 50-50 access with both parents... It wouldn't work in their favor before the courts in my opinion.

Quote:
Originally Posted by Mess View Post
The new agreement does not seem to have lasted more than 4 months, and that includes splitting off the summer months with the child spending extra time with the mom. Basically the situation has been in flux, but now it is returning to the old status quo.
Which, is a much better solution for the child in question. 50-50 Access and Full Joint Custody in my personal opinion is the child's best interests.

Quote:
Originally Posted by Mess View Post
Does the father have reason now to seek to reopen the old agreement and have it changed to the full custody situation of the "kitchen table" agreement?
Only counter to trying to keep the "kitchen table" agreement in place is that the mother's life is in flux and the constant in-and-out if she doesn't establish proper roots in the community and the impact it would have on the child. Th

Quote:
Originally Posted by Mess View Post
I don't see where he has an argument. The child's needs are best served by the 50/50 arrangment if the mother is living in town, what could be the reasons for refusing 50/50? The period of time that passed was not long enough to really challenge the status quo.
I agree 100%. The only counter argument is possibly the wishy-washy moving in and out of the jurisdiction, why it was done and if there is any relevant evidence that this is going to be a constant challenge for the parent in question with regards to their involvement in the child's life. If it is a one-time situation, then the father has no argument. But, should the mother continue to do this in the future, grounds for a more stable environment for the child in accordance with their "best interests" will evolve in his favor.

Quote:
Originally Posted by Mess View Post
While there was a temporary material change that was reflected in the new arrangement, there is now no material change from the original 50/50 court order. So what material change can the father bring forth to reopen the court order?
It is all dependent on evidence. Is the mother employed in a position which residential changes like this are always going to happen? The reason for the mother's move out of the jurisdiction in the first place is not clear so one can only speculate as to the arguments that could be brought forward on a "material change in circumstance".

Quote:
Originally Posted by Mess View Post
I think the question is interesting but I don't see how he could make a case here. The child is best off if the parents stay out of court, stay amicable, and work together to raise the child.
It all depends on the stability of the living situation of the moving parent in question. The one thing I think that would come to the attention of a judge in the matter is "why move in the first place and for such a short time?" Is this going to be a constant factor in the child's life when considering their "best interests"?

Courts prefer stability in the child's residential location and access to parents in general.

With regard's to Mess' comment which I highlighted in bold he has successfully stated in one single sentence something ALL parents in similar situations need to repeat to themselves as a mantra constantly in my opinion.

Good Luck!
Tayken
  #10 (permalink)  
Old 09-13-2012, 10:08 AM
Junior Member
 
Join Date: Aug 2012
Posts: 4
Mominlaw is on a distinguished road
Default

The story is confusing but I will try to put in point form.
She doesn't work never has
She lost her apartment due to not paying her rent (don't know what she spent the money on).
She went to a shelter wouldn't let the dad take the child because she said she needed him with her in order to stay at the shelter.
She was offered a place to stay with a friend 30 miles away so let the father take the child during the week, the boy goes to school. Then during the summer she had him during the week.
She didn't get a job, wouldn't look for one and had no money so it didn't work out.
She's back in the city, again in a shelter.
Has the boy because she needs him to enable her to stay at the shelter.
Does the father have any rights to enable him to take the boy as he has a good job and owns his own home. If they go back to court, would he have any chance of getting full custody? The father is worried about the boy being in a shelter.
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Habitual Residence - Jurisdiction - Forum Shoping Tayken Divorce & Family Law 15 08-05-2014 06:02 PM
Moving closer to the NCP... Should I? stressedmama Parenting Issues 3 07-30-2012 12:38 PM
Is Moving costs section 7? cashcow4ex Financial Issues 33 03-09-2012 08:43 AM
My Ex filed a Motion to stop us from moving Pharah Divorce & Family Law 15 05-18-2010 05:17 PM
Ex moving kids please help Desperate Dad Divorce & Family Law 8 07-24-2009 09:03 PM


All times are GMT -4. The time now is 12:26 AM.