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Old 12-31-2006, 02:25 PM
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Default Need answers...

I have been seperated since January 2003 and have gone to court 4 times and I am at a lost of what to do ...and if i have rights if any at all... I am a single mom of a 6 yr old and struggling financially as i know i am not the only single parent in this situation... But can not afford going to court yet again ...as i am financially drained out .. while the ex has had promotions since we have seperated and refuses to revise child support and give the info on his T4. We have an iniatial court order in july 2003 that states that he is to pay 368$ per month for child support and 58% of extraordinary expenses (child care). Also this court order states that the primary resident of the child is with the mother and that that the father has liberal access under my conscente on reasonable notice. I am subsidized for the day care and this is only revised with my salary and he gets full benefits ... because it's like i have full custody of the our son, but yet the child support is joint custody based ... ?? A lot of this to me seems to be unfair as he is living a good wealthy life and i am struggling to make ends meet and can not afford going to court any more ... And i was on disability on and off in a 2 yr period due to stress and depression due to the fact that the ex has this controle over me that he has the $ to go to court and i do not... Another factor in this is that we had a house together that he chose to keep when we seperated as i did not want to stay there due to fact of the reason of our seperation was the controle and being monitored in this town by his family and friends, so in 2003 the court ordered me to get out of this area with my son and start a new life in the ottawa area ... and that my ex could not stop me... That being said the court order came in to this matter on july 23 2003 and i was out on july 29th 2003, because i now had the ok legally to leave... i was confined to the house for 8 months , that if i left the house with my son he would charge me with kidnapping.... and with my carreer i could not afford to have a judgement on myself as i would have to quit or lose my job...and these are things that he knew and controlled me with ...as our 7 yrs together .... was the same.
I have my son all the time except every second weekend where the father picks him up at daycare on the friday and brings him back to school on the monday am ...this way there is no contact with the ex ... Due to his verbal , mental abuse towards me... this is the best scenerio and stress free for me...
When our son is sick , or has days off that there is no school or daycare available i am the one that has to take time off ... as well as i have had a few occasions where i needed the father to take care of our son over night due to surgery for myself and for one i was hospitalised for 3 nights ...health issues due to childbirth complications of our son. That are now for the most part almost all resolved. I had to have my parents to take care of my son as the ex refuses to take time off to care for his son ... As his job is to important to miss work and his boss would not approve it ....
So the last time we went to court in july 2005, the judge had ordered that because we do not agree on anything and that it's an argument all the time due to the ex disapproving of everything i do... it was said that for any decisions towards our son ..wether it be school, daycare ect... that if we could not agree that it would go to a mediator...and if we still did not agree ...that I would take the final decisions. And that he had to provide his T4 and that we would retro the child support as well as the daycare that he owed me would me added on to the child support monthly as the court did not like the fact that he only paid me when he wanted to every 4 to 5 months ... But from that court day ...i have not had any court order to this effect with this changes and i there has been no update in the child support as he refuses to divulge the information ... at that point i did have a lawyer and he was unable to get this info from the ex and his lawyer with no success ... i had to let go of my lawyer as i had nothing tangible to hold up for me and i could no longer pay the lawyer. As i have my son and myself to take care of ...
So i guess i would like to know if that last court appearrance is valid even though i do not have it on paper and if this absolutly has to go to court for this changes to take effect ...??
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Old 12-31-2006, 07:05 PM
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jinx101,

After reading your post I came to realize the following:

The issues

Child Support: There is an existing order in place, To vary the amount the onus is on the party to prove a material change of circumstance before the court would vary same. This is easy to do. The government legislated changes to the child support guidelines effective May 2006. Due to this change, a material change has occurred and as such has paved the way to bring forth a motion to vary the current child support amount.


Custody: It appears the court never made a court order for custody of your child but rather a interim living arrangement order and that being primary residence with you. Such order is made without prejudice to either party and keeps same on equal ground pending a final custody adjudication of the child. In Ontario, until an order from the court or a separation agreement provides otherwise, both parties have coextensive custody of the child. See section 20 of the Children's Law Reform Act.

In a recent case in the Ontario Court of Appeal (Kaplanis); The court held that there must be historical co-operation and communication in the best interest of the child before a court should consider a joint custodial regime of a child. However, with this standard widely known, one party may deliberately choose not to communicate or co-operate to pursue a sole custodial order. Courts are aware of this tactic. Each case sways on its own facts in determining the outcome.

Status Quo - Courts generally do not interrupt the status quo living arrangement of a child especially if everything is going well for the child.

I have interpreted the facts to be:

It appears that you are the primary caregiver of your child. (Hence the reason why the court made the current order of primary residence with yourself. Call this the primary caregiver presumption if you will.) This legal dispute has consumed a significant part of your child's life and the parties life as well. As such it makes sense to put some closure on issues.

It appears since your child is only spending alternate weekends and other times with the other parent. It makes logical sense then you should be receiving full tabled guideline child support reflective of the payors income. This is somewhat problematic for you, that being the party is NOT co-operating in the interest of the child and disclosing financial information to determine the proper amount of child support to reflect the guidelines. This is just one example of that party demonstrating a historical non-co-operation!

There appears to be communication problems between the parties; hence the need for the child to be picked up at daycare and returned early Monday morning. This somewhat demonstrates historical non-communication.

What is not clear to me is What custody order did each party ask for when the case started? This is significant.

As far as taking time of work to care for your child, there is not much you can do other than state the action. This demonstrates your commitment to your child. For your ex's conduct, a refusal to look after the child when ill suggests that he is not willing to be a parent. This willingness by you will reinforce of sole custody to yourself.

Quote:
So i guess i would like to know if that last court appearance is valid even though i do not have it on paper and if this absolutely has to go to court for this changes to take effect ...??
If it is endorsed in the continuing record, the order is valid. You should obtain a copy of this endorsement and have the order drafted on the official form. Form 25. is the form to use which can be found here.

Form 25 Order(general)

http://www.ontariocourtforms.on.ca/e...mily/index.jsp


You could draft the order yourself. A free office application you can use to open the ms word doc* file can be obtained here http://www.openoffice.org/
if you do not have MS Word. You will also need a copy of the Judge's endorsement from the continuing record of the order.


Once you have this office software, and a copy of the Judge's endorsement go and download the MS word doc version of Form 25 and save to a directory of your choice.

Open the the word processing application (open office) and open Form 25. Complete the required information and type out the endorsed order word for word. Print out a few completed copies. Take one of the completed Form 25 and a copy of the endorsement and complete a cover letter something to the effect.eg:

"This draft order is being served upon you pursuant to the Family Law Rules

"Kindly find enclosed a draft order for your approval, a a true copy of the Mr. Justice X hand written endorsement of continuing record XXXXXX"

Take your cover letter, A copy of completed form 25, a copy of the hand written Judge's endorsement as found in the record and serve unto the other party. The other party has 10 days to dispute the order. If they remain silent, then go ahead and file the order with the clerk at the courthouse. When filing, you will also have to complete another form called Affidavit of Service ( Form 6B) stating what documents were served and method of such. Keep copies of everything! Once filed with the clerk, Form 25 will be forwarded to the Judge for signing. Ask the clerk the approximate time for processing. Return to the court house, obtain a copy of the processed order with judges signature and court seal. You could forward a copy of the order to the other party.

lv
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Old 12-31-2006, 08:06 PM
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Default hope this helps ...

Hi LV,
Thanks for the info i greatly appreciate it...
When we originally went to court the first time in 2003 , i went in there with the intentions of having sole custody due to the unhealthy lifestyle surroundings .... My ex husband , had made that i was not taking to my family and friends and that i only had his friends and family in my life...
I was trapped and following the night telling him that i did not want to be with him anymore ... things got worse and i was in the same home for 8 months before the court actually ordered me out of the home safely with my child... and i did so.
So that first court order the judge issued it with the vue that we where living under the same roof...and that we where still getting along...
The ex filed for sole custody as well ...and if you can believe stated i was unfit mother and that his parents wanted custody of the child as well ... One of my friends when i was with him even put an affidavit stating that i was unfit as well...due to the complications at childbirth i was not able to care for my son... in all this surgical interventions i went to the doctors on my own with my son in the carrier and had the surgeries done alone ...with my son by my side at only a few months old cause the father could not take time off of work for this... and i would return home to care for my young baby as well as myself ...
All this issues where not brought into the court as my lawyer thought it would not help me that it would only damage my case ... the ex has had the medical file at the pharmacy modified in 2003 cause my son is allergic to penicillin and he had that erased in the computer that he was not allergic...by talking to the pharmacist after i had called the pharmacy myself before because you never know when i child can be sick ... having my son have another reaction... and i had clearly told him to call me at work when he got the meds cause he would not write down the med he was allergic to...and i would give it to him then to make sure he would not give him the wrong one... Alas... the wrong med was given ..and my son had had a dose of it by the time i picked him up at daycare... i then had to go to the doctors and get a new perscription while he being at work... Anyways this is only one event that he has done that worries me when he is with my son...
Even to this day he does not take full care of his son, and his parents still take care of my son when he is there as the ex is at work...
I know that the father has to have my son more than 40% of time for it to be joint custody and this is not the case... And i am not stopping him in anyway to spend time with his son ...this is his own decisions. It is not convenient for him... we live aproximetly 45 minutes away from each other and this is the end of the world according to my ex...He has also tried to have my son for a full month in the summer time ...and the court has denied it as my son is too young and that is too long to be away from his mother ...the ex does not encourage communication with me and my son when he is away from me for more that 3 days...
So to answer your question ... we both went for sole custody ...but i got the primary care as the judge saw that i was completly organised with a plan for school and daycare for my son and that i had the job from 8h30 to 4h30 to care for my son as the ex did more than 12 hour shifts ... every day.... and that my son would be with the grandparents if he where with the father ...and the i the mother was fit and able to care for our son so i had it in my favor ... my ex has been trying to reverse the court order ever since and is not impressed when we go to court... especially that last time ..
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Old 01-01-2007, 04:23 AM
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jinx101,

as you mentioned,

Quote:
When we originally went to court the first time in 2003 , i went in there with the intentions of having sole custody due to the unhealthy lifestyle surroundings .... My ex husband , had made that i was not taking to my family and friends and that i only had his friends and family in my life...
That is a typical mudsling. Don't take this to heart. If the allegations are unfounded, the party that made same loses credibility with the court. Some parties deliberately mudsling to get the opposing party off focus of the central issue, that being custody of your child. Don't be swayed! Rebut the allegations as they arise and stay focused on your child.

In a custody adjudication of a child; the court has to apply the best interest test as enumerated. Bond, stability, primary caregiver presumption and status quo living arrangement is given great weight in determining custody regimes. A significant amount of people do not realize that until an order from the court or a separation agreement provides otherwise, Both parents have coextensive custody of their child. (To reinforce this philosophy; Generally children are born in a hospital and subsequently discharged to the care of the parents to make everyday decisions for that child). When the parents separate and the child remains with one parent, with the acquired consent of the other such as in your situation the authority to act as a parent is suspended but not ended (this is usually referred to defacto custody) However, both parents still have coextensive custody of the child until a court order or separation agreement provides otherwise.

In your situation, you have an edge, that being status quo, primary care giver presumption.

Keep in mind the following;

Access is the child's right and as such is the child's right to a meaningful relationship with their other parent. By default of the law, Both parent's have the identical right to make inquires and to be given information pertaining to the health, welfare and education of the child. Keep the other parent informed by way of letter of all events such as result of medical and dental appointments etc and any other significant event in the child's life. This will benefit the child and also will demonstrate your ability to parent!

Quote:
The ex filed for sole custody as well ...and if you can believe stated i was unfit mother and that his parents wanted custody of the child as well ... One of my friends when i was with him even put an affidavit stating that i was unfit as well...due to the complications at childbirth i was not able to care for my son... in all this surgical interventions i went to the doctors on my own with my son in the carrier and had the surgeries done alone ...with my son by my side at only a few months old cause the father could not take time off of work for this... and i would return home to care for my young baby as well as myself ...
Suffice to say this so called friend most likely is no longer a friend. Typical mudsling. It can also be noted that this individual can be called later and cross examined on this affidavit. I do suspect the court did not give it much weight as the individual is not a professional in child rearing hence the affidavit is opinioniated. Common sense prevails, parents are going to be ill from time to time and require medical intervention such as surgeries and hospital care. The condition is not permanent and does not prevent you from acting as a parent to your child. It is water under the bridge, don't dwell on it. The Courts endorsed the child to be in your primary care! Focus on this instead! Demonstrate to the courts that they made the correct decision. Courts like this also.

Quote:
the ex has had the medical file at the pharmacy modified in 2003 cause my son is allergic to penicillin and he had that erased in the computer that he was not allergic...by talking to the pharmacist after i had called the pharmacy myself before because you never know when i child can be sick ... having my son have another reaction... and i had clearly told him to call me at work when he got the meds cause he would not write down the med he was allergic to...and i would give it to him then to make sure he would not give him the wrong one... Alas... the wrong med was given ..and my son had had a dose of it by the time i picked him up at daycare... i then had to go to the doctors and get a new perscription while he being at work... Anyways this is only one event that he has done that worries me when he is with my son...
Document the incident. In the future provide your ex with all medications the child requires. Provide specific instructions to dispense. If your ex gives the child something else with specific instructions in place, this can work against him. Clear demonstration that no historical cooperation exists.

Quote:
Even to this day he does not take full care of his son, and his parents still take care of my son when he is there as the ex is at work...
This will work against him in his quest for sole custody! Document same.

Quote:
I know that the father has to have my son more than 40% of time for it to be joint custody and this is not the case...
That is an incorrect view. Joint Custody regimes are not tied to the amount of time a child spends with their parents.

There are different forms of Joint Custody -

Shared Custody: the child spends an equal amount of time with each parent.

Parallel Parenting: Often used in high conflict, and cases of parental alienation where a parent has been deliberately marginalized out of the life of the life of a child.

The 40% threshold is used to determine applicable child support amounts. If a child is spending 40% or more of their time with a parent, then usually an offset amount of child support is calculated what each parent would pay the other.

Quote:
And i am not stopping him in anyway to spend time with his son ...this is his own decisions. It is not convenient for him... we live aproximetly 45 minutes away from each other and this is the end of the world according to my ex...He has also tried to have my son for a full month in the summer time ...and the court has denied it as my son is too young and that is too long to be away from his mother ...the ex does not encourage communication with me and my son when he is away from me for more that 3 days...
There is no law that can compel a parent to be same to the child. Their lack of effort to act may be held against them. The court denied the month long continuous access not because your the child's mother but because your the primary caregiver and is out of sync of child development research. A child needs frequent interaction with their primary caregiver. The lack of communication will work against him as it appears to be a non child centered approach.

Quote:
So to answer your question ... we both went for sole custody ...but i got the primary care as the judge saw that i was completely organised with a plan for school and daycare for my son and that i had the job from 8h30 to 4h30 to care for my son as the ex did more than 12 hour shifts ... every day.... and that my son would be with the grandparents if he where with the father ...and the i the mother was fit and able to care for our son so i had it in my favor ... my ex has been trying to reverse the court order ever since and is not impressed when we go to court... especially that last time ..
The current regime as endorsed by the court is without prejudice, However a status quo has developed and the courts will be reluctant to interrupt same if everything is going well for the child. I believe the best your ex could hope for at this stage is perhaps some form of Joint custody, but with everything you mentioned with the lack of co-operation and non communication I believe the regime may not be workable for the child. A child requires stability and it appears you are doing this on your own. Be confident in your stance, focus on your child. Don't sling the mud. Encourage their relationship. Rebut the allegations. Document events as they occur by keeping a journal. Smile at your ex! they will wonder what on earth your smiling about and drive them crazy!

Draft the existing order and file same. Subsequently take action to pursue an increase of child support and seek retroactive amount to reflect guidelines. I believe you will be most successful in such an order as the case has been started.

Happy New Year!

lv
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Old 01-01-2007, 02:12 PM
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Default Thanks again ...

thanks again for the info
another issue that i have and trying to search for my rights on this ...is the fact that if decide to live with my boyfriend ...the ex states that he will stop paying child support as i would not need the money anymore as i would not be paying full rent ect ... is this true can he do this ? He is garnished at the present time with family responsibility office ... My thinking on this is as that it's still his child and responsibility..not my boyfriends responsibility to provide for my son .. and that the ex is to still pay child support as his son will always be his son ... are you able to clarify this for me?
As you can see it always comes to money issues with him and not the well being of his son... i think it is sad ...
And to respond to your recent reply ...i do document the events as they happen and log everything ... and i never involve or engage in any kind of discussion against the ex ...when we do meet face to face or talk on the phone... i walk away from it ...as in my opinion this does not have to be inflicted on my son. All though my son is quite aware that his father and his parents dislike me as they do not hide their feelings or limit discussion in family discussions when my son is present ... because my son repeats this to me after the fact... This i also document as this happens ...
Thanks for the help and answers i greatly appreciate it !!!
Jinx
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Old 01-01-2007, 06:12 PM
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Default Double check with LV

Although i am sure that if you start staying with your bf (even if you marry)till your son has your ex last name he is obligated to pay you.Anyway you can't change his last name till your ex mutually agrees . There is again a clause of "unduehardship clamied by the payor" where he has to prove that he is financially drained but your standard of living is comparitively high which can lower the child support(everything will go to court ofcourse).
Please double check with lv .
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Old 01-01-2007, 11:26 PM
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jinx101,

as you mentioned,

Quote:
another issue that i have and trying to search for my rights on this ...is the fact that if decide to live with my boyfriend
Careful on doing so at this time. This could construe to me a material change of circumstances for your child to the current primary resident order. That order was based on different information. If it was me, I would not change the material circumstances of the child and introduce another individual into the home until a final custody adjudication has been completed or become married to the individual. Reason being, part of the best interest test is to consider who lives in the home.

On the issue of child support

Quote:
...the ex states that he will stop paying child support as i would not need the money anymore as i would not be paying full rent ect ... is this true can he do this ? He is garnished at the present time with family responsibility office ... My thinking on this is as that it's still his child and responsibility..not my boyfriends responsibility to provide for my son .. and that the ex is to still pay child support as his son will always be his son ... are you able to clarify this for me?
Child support is the right of the child. Regardless of your living situation IE living with your bf or remarried, the obligation still exists for BOTH parents to the best of their ability as long as the child is still a child of the marriage or has withdrawn from parental control. It appears your ex is not too well educated on the child support laws or perhaps they are just attempting to intimidate you with false information. The fact is you do have a current support order which FRO is enforcing. If your ex wants this changed, your ex will have to bring forth a motion to vary on the grounds of a material change of circumstance.

I mentioned previously that you do have a material change already to vary - That being child support guidelines amounts have changed effective May 2006, Your ex should be paying more even if the same salary was used in reference for the previous child support order.

As "sufferer" mentioned:

Quote:
There is again a clause of "undue hardship claimed by the payor" where he has to prove that he is financially drained but your standard of living is comparatively high which can lower the child support(everything will go to court of course).
Courts at times have factored in undue hardship but seldom apply same to allow a parent permanently to get out of the obligation to support a child unless there was a viable reason such as illness or accident of the payor and they are no longer able to work. Even in this situation, most employed people have extended benefits to look to for income such as sick leave, accident benefits, EI sickness benefit. etc. I believe the only way a parent could get out of the obligation to support a child is if became a permanent public charge.

lv
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Old 05-28-2007, 07:15 PM
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Default settlement

Hi there,

I am back on the site as my ex has recently sent in a settlement offer to finalise our divorce and outstanding issues...

I have a temporary court order from July 2003 , stating that i am able to move to the city of ottawa...in this new settlement offer he is restricting me to sign that i can not move or live further than 50 km from him..to retain stability for our son. Is he aloud to restrict where i move to? or is this another of his contral tactics? He is to move in with his girlfriend shortly (which i heard from my son and they bought a house) which i have no problem as we have our lives to live. But where does he come in controling me as to where i can move? He really states that the fact that since my family is far away that my son needs stability , family ect... Would a judge go along with that ? As i have my circle of friends and relatives here ...but my folks are quite a few hours away?

(in my last post i stated i was to move in with my boyfriend ..that did not work out ...so i still live with my son in ottawa)

And being a temporary order in July 2003, is he to provide his T4 automatically to have the child support adjusted yearly ...as this has not been done ...but it did not state in the temporary order in 2003.

Thanks
Jinx
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