Hi Everyone,
I would like some advice on the situation my husband is facing with his son. He and his ex-wife separated over 7 years ago, they have had a SA in place since 2012. The children were 5 (son) and 2 (daughter) at the time of their separation. An agreement was made for joint custody and Mom as primary residency (I don’t wish to get into the details on this because it doesn’t change the fact that has been the agreement for the past 7 years).
For the past two years, his son has expressed interest of moving in with his father and I. While we would have loved to have his son with us, my husband knew that at that time the fight would have been very difficult due to the status quo and age of his son. Over the years the comments from his son have not stopped. He has said things like “Mom won’t let me move in”, “Mom doesn’t listen to me”, “I’m not allowed to spend extra time”, “I wish I could move in”, “Why can’t I live with you now?”, “Mom said when I am 12 I can decide where I want to live”… each times these have been met with the generic “Your mom and I made an agreement and that’s what we go by”
However the past few months his son has started coming to us with reasons why he wants to move in…
This is just coming from him and his sister, Dad hasn’t spoken to Mom about this just changes the subject
It seems every weekend his son bring this up in one form or another. Dad does want to approach this with Mom but knows he doesn’t have a huge leg to stand on because there hasn’t been a major change in circumstances. I know many on here are currently fighting for more parenting time, but has anyone been through this scenario where time has passed and the child still has that need to move with the other parent? Dad doesn’t know how Mom will react until he talks to her, but he wants to be prepared.
We have read some cases on Canlii where the passage of time & age of the child are the first steps in a material change of circumstances. A couple examples,
Yates v. Boswell, 2010 NSSC 11 (CanLII)
Edwards v Basaraba, 2015 ABQB 594 (CanLII)
Also, thanks for Tayken for always pointing out Gary Direnfeld's articles on parenting, we have spent time reading many of them. Some that pertain to our situation are;
Foot in Two Families
Who Chooses?
Issues on Both Sides of the Fence
The other factor is my step-daughter. She is a total Momma's girls, which is great and will always be with her Mom. Dad has come to terms with that. I also know courts don't like to split up siblings, but are their cases where siblings are split up because the older sibling has a strong desire to be with the other parent?
I guess the question is what is the best way to approach this? Should Dad wait until the end of the school year? If this is truly what their son wants, he doesn't want to blind side Mom and wants them all to be able to discuss this.
Would the automatic change of schools be another change in circumstances? Does Dad have any chance of granting his son's wishes is Mom disagrees? We don't think it would go to court, they would have to go through their dispute resolution as their SA states, but Dad wants to be prepared.
Please, we are not interested in creating drama, we are really just interested in how this may turn out and what information Dad can provide Mom to show her that listening to what their children want is important.
Thanks in advance!
I would like some advice on the situation my husband is facing with his son. He and his ex-wife separated over 7 years ago, they have had a SA in place since 2012. The children were 5 (son) and 2 (daughter) at the time of their separation. An agreement was made for joint custody and Mom as primary residency (I don’t wish to get into the details on this because it doesn’t change the fact that has been the agreement for the past 7 years).
For the past two years, his son has expressed interest of moving in with his father and I. While we would have loved to have his son with us, my husband knew that at that time the fight would have been very difficult due to the status quo and age of his son. Over the years the comments from his son have not stopped. He has said things like “Mom won’t let me move in”, “Mom doesn’t listen to me”, “I’m not allowed to spend extra time”, “I wish I could move in”, “Why can’t I live with you now?”, “Mom said when I am 12 I can decide where I want to live”… each times these have been met with the generic “Your mom and I made an agreement and that’s what we go by”
However the past few months his son has started coming to us with reasons why he wants to move in…
- He wants to have his own bed to sleep in… his mom works nights so they spend the nights at their Nana’s, on weekends he is either with us, or sleeps at his Mom’s Bf’s… this is what he doesn’t like because he sleeps on the floor there, not a bed
- He is switching schools at the end of the year anyways. His current school only goes up to grade 6 and then he has to go to a new school, so he can make his new school the one in our area
- He is able to join in extra-curricular activities with us (due to his Mom’s work schedule he is unable to do so in her area)
- He wants to be with his Dad… I think this one just has to be with being a young boy… he wants his Dad and he has a lot to learn from his Dad we believe
- His Mom has apparently told him that when he is 12 he gets to decide.
This is just coming from him and his sister, Dad hasn’t spoken to Mom about this just changes the subject
It seems every weekend his son bring this up in one form or another. Dad does want to approach this with Mom but knows he doesn’t have a huge leg to stand on because there hasn’t been a major change in circumstances. I know many on here are currently fighting for more parenting time, but has anyone been through this scenario where time has passed and the child still has that need to move with the other parent? Dad doesn’t know how Mom will react until he talks to her, but he wants to be prepared.
We have read some cases on Canlii where the passage of time & age of the child are the first steps in a material change of circumstances. A couple examples,
Yates v. Boswell, 2010 NSSC 11 (CanLII)
“[5] I’m satisfied that there have been changes in circumstances and, as it is in the case of parenting, custody and access arrangements, one of the changes in circumstances that often gives rise to the court re-examining custodial arrangements is the mere passage of time. Even though the passage of time is something that is foreseeable when the parties enter into an agreement or the court makes an order with respect to parenting, the needs and circumstances of children change as children grow and develop and therefore because the legislation that the court operates under has as its halmark the fact that the best interests of the child is the overall governing consideration. The court has to look at changes in circumstances in light of that as well, and it is normal for a child to go through changes in his or her life and therefore her needs and her interests change as the child goes through life. So the court can put into place some kind of a parenting arrangement that is perfectly acceptable for a particular point in a child’s life and even though it’s foreseeable that time is going to pass and circumstances may change, that does not mean that the court cannot then re-visit the parenting arrangements to ensure that they continue to be in the best interests of the child, and if they are not to vary those provisions so that they are...”
1) Has there been a material change in the circumstances affecting the child?
[93] The parent applying for a change in the custody access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. The Father concedes that there has been a material change.
[94] I am satisfied that the threshold requirement is met as this is a situation where the passage of time constitutes a material change of circumstances (see Bergen v.Bergen,2008 ABQB 237 (CanLII) at paras:41-47).
[93] The parent applying for a change in the custody access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. The Father concedes that there has been a material change.
[94] I am satisfied that the threshold requirement is met as this is a situation where the passage of time constitutes a material change of circumstances (see Bergen v.Bergen,2008 ABQB 237 (CanLII) at paras:41-47).
Foot in Two Families
Who Chooses?
Issues on Both Sides of the Fence
The other factor is my step-daughter. She is a total Momma's girls, which is great and will always be with her Mom. Dad has come to terms with that. I also know courts don't like to split up siblings, but are their cases where siblings are split up because the older sibling has a strong desire to be with the other parent?
I guess the question is what is the best way to approach this? Should Dad wait until the end of the school year? If this is truly what their son wants, he doesn't want to blind side Mom and wants them all to be able to discuss this.
Would the automatic change of schools be another change in circumstances? Does Dad have any chance of granting his son's wishes is Mom disagrees? We don't think it would go to court, they would have to go through their dispute resolution as their SA states, but Dad wants to be prepared.
Please, we are not interested in creating drama, we are really just interested in how this may turn out and what information Dad can provide Mom to show her that listening to what their children want is important.
Thanks in advance!
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