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  • After settlement conference

    Just wondering if it is true that what is said at a settlement conference cannot be brought up at trial? The judge at my settlement conference last week suggested mediation, which both parties agreed to try. She also suggested adding on one more day to the access schedule as a "trial run". She definitely had her reservations about what my ex is asking for, as well as the motivation for it.
    My ex sent me an email which completely interpreted this differently (adding on four extra overnights) and highly suggested I comply with the "judge's recommendations". If I agree with what the judge actually suggested (one overnight) will he be able to "use" it against me at trial that I didn't add on what he perceives to be the judge's recommendations?


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  • #2
    And this is a perfect example of why/how mediation fails. Everyone has their own interpretation over what is agreed to. Mediation is expensive. I'd opt to just fast-forward to trial. Save your money.

    No he cannot hold anything judge suggested to you at trial. It is inadmissible. On the other hand, if you feel comfortable with giving the father an extra night with children then do so. If it works out then you could consider additional nights. I believe you indicated you didn't have a problem with children spending more time with father but rather it was the problem with schedule (always being on time which was preferable to his schedule as opposed to working out schedule which was agreeable to both).

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    • #3
      No he can't use it against you at trial but without knowing what the Judge actually said there can be different ways to interpret what the judge meant... the way you wrote it "add on more day onto the access schedule" I would interpret that as if he has EOW from Friday to Sunday an extra day on the access schedule would mean he picks up on Thursday's until Sunday or Friday to Mondays... the access schedule in this case is EOW so adding a day would mean one day extra EOW


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      • #4
        Settlement conference is private and confidential. . The Sc judhe is only giving her opinion you don't have to follow it if you disagree with it.The same judge who heard your SC cannot hear your trial. Trial judge won't know what was discussed at SC and anything discussed at SC cannot be used against you in trial. He can't just show up to trial and say the SC judge said you should give him an extra day and you didn't -that testimony is not admissble and improper.

        Important Information About Your Settlement Conference | Superior Court of Justice


        Mediation works with reasonable people. If your ex is anything like mine (the give me an inch and I'll take a mile from you type of person) then don't waste your time with him.

        Just wondering, Would that extra day put him at the 40% threshold ?
        Last edited by trinton; 04-15-2017, 12:09 PM.

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        • #5
          My lawyer and I were both in agreement that she meant try a Sunday night on the end of one weekend (he wouldn't be able to do it both weekends he has). I honestly don't know how he is interpreting it differently. Anyway, I think I will agree to the one extra night even if he's mad that it isn't all the extra time he wants or thinks the judge recommended. My lawyer also agreed that she was recommending one more night and that a Sunday would be the least interruptive to the status quo.
          Yes Arabian you are right. My issue is with the proposed schedule being set around his work hours, offering no consistency. Not one week would be the same as another in the 4 week rotation. I'm going to offer the one night but still think it will go to trial. Going to have to think about whether mediation is even worth it.


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          • #6
            Originally posted by trinton View Post
            Settlement conference is private and confidential. . The Sc judhe is only giving her opinion you don't have to follow it if you disagree with it.The same judge who heard your SC cannot hear your trial. Trial judge won't know what was discussed at SC and anything discussed at SC cannot be used against you in trial. He can't just show up to trial and say the SC judge said you should give him an extra day and you didn't -that testimony is not admissble and improper.

            Important Information About Your Settlement Conference | Superior Court of Justice


            Mediation works with reasonable people. If your ex is anything like mine (the give me an inch and I'll take a mile from you type of person) then don't waste your time with him.

            Just wondering, Would that extra day put him at the 40% threshold ?


            Nope.


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            • #7
              If you feel you are quickly coming to a point where you can't see your ex and you agreeing then you could also consider binding arbitration. Lawyers make way less money (so they tend to steer clients to trial route). I went through the binding arbitration process and found it to be quick and I saved a ton of money. In Alberta we have judges who have a rotation schedule and conduct these (called Judicial Dispute Resolution). All each party has to pay for is their lawyer's costs. You must opt for "binding" or it is a total waste of your time and just ends up like mediation or case conferencing. Basically my ex and I (our lawyers) presented briefs 30 days prior to the arbitration date to the judge. We met with judge in a conference room for one full day (we had 3 days booked but only needed the one day). No recordings of proceedings and therefore everything is confidential and will never hit CanLII. If the two parties can't come to an agreement then judge will decide and it is binding. Then judge had us go upstairs to a courtroom and pronounced the order. No witnesses. Both my ex and I could speak directly to the judge during the conference process. Judge would ask questions and we answered directly. Lawyers were there to argue the case law and debate it with the judge.
              Last edited by arabian; 04-15-2017, 12:59 PM.

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              • #8
                Originally posted by Ange71727 View Post
                Nope.


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                That's probably why he wants more then. Go ahead and offer the extra day. He'd look like a fool if he doesn't accept the extra time offered by you - he wants more time does he not?

                That being said .. the closer he gets to shared custody, the better his chances securing shared custody at a trial.

                Do you know why the judge suggested an increase in his parenting time if there hasn't been any material change in circumstance? I assume in hopes of resolving the case.

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                • #9
                  My issue is with the proposed schedule being set around his work hours, offering no consistency. Not one week would be the same as another in the 4 week rotation. I'm going to offer the one night but still think it will go to trial. Going to have to think about whether mediation is even worth it.
                  I don't get it. You're not giving him fair access because he has to work and has a work schedule to adhere to?

                  Do you have a work schedule that doesn't coordinate with his?

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                  • #10
                    Originally posted by Pursuinghappiness View Post
                    I don't get it. You're not giving him fair access because he has to work and has a work schedule to adhere to?



                    Do you have a work schedule that doesn't coordinate with his?


                    My schedule does not coordinate with his. He is a shift worker and I have the same hours as my kids, right down to summers off. I don't know if you're familiar with my previous posts but there is an 8 year status quo with this arrangement and a separation agreement that he consented to. It's not that simple. There are many factors behind my disagreement with his proposed changes.


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                    • #11
                      Originally posted by Ange71727 View Post
                      Nope.


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                      on second thought .. if the current stayus quo is 65 - 35 as you said yourself previously:

                      . In my case, the status quo is 65-35 custody which ex wants increased to 50-50 now after 8 years.
                      that would mean he has 3066 hours every year (8760×0.35) There are 8760 hours in a given year (24hrsx365days).

                      an extra day every other weekend would mean 624 additional hours (26 weeks x 24 hours) let's assume he gets no extra time in summer and so he's at extra 480 hours by your offer.

                      simple math...

                      3066+480 = 3546

                      3546÷8760 = 40.48%

                      ...

                      He would be over 50% (58%) if he got 4 extra nights every other week...

                      am I missing something here?
                      Last edited by trinton; 04-15-2017, 11:03 PM.

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                      • #12
                        Originally posted by trinton View Post
                        on second thought .. if the current stayus quo is 65 - 35 as you said yourself previously:



                        that would mean he has 3066 hours every year (8760×0.35) There are 8760 hours in a given year (24hrsx365days).

                        an extra day every other weekend would mean 624 additional hours (26 weeks x 24 hours) let's assume he gets no extra time in summer and so he's at extra 480 hours by your offer.

                        simple math...

                        3066+480 = 3546

                        3546÷8760 = 40.48%

                        ...

                        He would be over 50% (58%) if he got 4 extra nights every other week...

                        am I missing something here?


                        I have no clue how to calculate it or how a judge is even going to calculate it. I did amend this statement later though to say that I think he is closer to 30/70 with the current arrangement. Actually if you calculate just overnights right now, it is 25% for him. If you add actual hours and not just overnights it is more because he always has late in the day pickups. He also gets more time in the summer and shares holidays so there's more time there. If your kids are in school, those hours are still attributed to someone I would assume. Which can tip the scales in one direction even though you're not physically with your kids. Not sure how that factors in. He is asking for a big increase considering he may be less than 30%. I fully admit that I don't know how to calculate it accurately though.


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                        • #13
                          here is a case which discusses using days or hours in calculating:

                          https://www.canlii.org/en/on/oncj/do...&resultIndex=4

                          " The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.))."

                          something else to keep in mind in this same case:

                          "Counsel for the mother submitted that if the father’s motion to change was dismissed that the court should set a return date for consideration of the mother’s cross-claim for increased child support. I agree that this would be preferable to the mother being required to commence a fresh motion to change."

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                          • #14
                            Originally posted by arabian View Post
                            here is a case which discusses using days or hours in calculating:

                            https://www.canlii.org/en/on/oncj/do...&resultIndex=4

                            " The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.))."

                            something else to keep in mind in this same case:

                            "Counsel for the mother submitted that if the father’s motion to change was dismissed that the court should set a return date for consideration of the mother’s cross-claim for increased child support. I agree that this would be preferable to the mother being required to commence a fresh motion to change."


                            Thanks Arabian. I will keep this in mind.


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                            • #15
                              The judge is proposing an increase in his access time for a reason ... the same reasons I've been trying to tell you. Judges are already attempting to alter the status quo.

                              To answer your question...technically you can not use conference material in motions or trial. But this is family law .. my ex's lawyer included material from a CC in our motion...even the transcripts. Despite objections the judge listened.

                              Also, after conferences, judges write up endorsements for the parties .. often including information or clues for the subsequent judges.

                              I would definitely reexamine every syllable of the endorsement to see where your ex got 4 days from. I also think you would be smart to follow the judges suggestion of allowing more overnight access to dad. I predicted that would be the judges feelings given the information you provided.

                              Just as PH noted, I wouldn't worry so much about his job/hours and support systems .. just as he shouldn't worry about yours.

                              I honestly see this case settling soon. Given the judges recommendations to "change" the status quo to give dad more overnight access ... we can kind of see how trial will go. In fact that's what a conference judge does .. illustrates how a trial judge would probably rule.

                              Hope you had a splendid Easter Angie!~

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