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  • 38.25/61.75 split

    Hi,

    It's been a while since i've posted. Trial slated in a couple months.

    I've filed to motion for change, ACCESS and SUPPORT.

    Here's my dilema and a brief recap.

    I'm fighting for 50/50...

    My EX can't care for the children during her work. she's a shift worker and works 12hrs days and nights.

    She has 3rd parties care for the children before school, after school, meal times, overnight and weekends while she is working

    I work a normal 8-4 schedule.

    Both kids in school and registered to before an after school daycare.

    My argument is that I'm willing capable to care for them.

    Prior to seperation I would care for them during these described periods.

    She's withholding access to keep me bellow the 40% threshold intentionally.

    Any thoughts, recommendation, case law????

    Many Thanks for helping and support

  • #2
    Has there been a material change of circumstances?

    Has she always been a shift worker, or is this a recent development? If she was always a shift worker, why did you not have a problem with it before now?

    Has she always used babysitters, or is this a recent development? If she has always used babysitters, why did you not have a problem with it before now?

    If you cared for the kids prior to separation, why did that stop? What has changed now?

    If your ex made an offer to settle that gave you 50% of the time with the kids but still required you to pay table CS, would you agree?

    Comment


    • #3
      Originally posted by otttawa_dad View Post
      I've filed to motion for change, ACCESS and SUPPORT.

      That is respectable. But be prepared to be accused of only wanting to increase your access to decrease child support. Best way to handle that in court is to just let go of your claims for support as you near the trial.

      Originally posted by otttawa_dad View Post
      She has 3rd parties care for the children before school, after school, meal times, overnight and weekends while she is working

      There's not much you can argue for immediately before and after school because you are also not available at those times.

      meal times and overnights you can certainly ask for. It was likely not foreseen that she would be unavailable to take care of child release of school, late into evenings and overnights.

      You won't be able to touch her weekends. If she really is unavailable the entire weekend, then best you could expect is to have the child every 2 out of 3 weekends.


      Originally posted by otttawa_dad View Post
      I work a normal 8-4 schedule.

      If you can get your employer to make you available for school pickups/drop offs, then you can use that to your advantage. Maybe you can work 9 - 3 for 2 days out of the week to have more time with the kids and accommodate school pickups and drop offs, and then work overtime on the other days of the week to balance your work hours?

      Originally posted by otttawa_dad View Post
      My argument is that I'm willing capable to care for them.

      The court is not going to care about that right off the bat. The first thing is to prove a material change in circumstances. What is your argument for a material change in circumstances for access ?

      Originally posted by otttawa_dad View Post
      Prior to seperation I would care for them during these described periods.

      The court is not going to care about prior to the seperation. The starting point is the date of the present final order you are looking to change. If you would care for them during these periods prior to separation, then what led to you not caring for them within your current final order? Was it ordered by a judge or was it something you consented to ? What you don't want to be doing here is using a motion change as an appeal.

      Originally posted by otttawa_dad View Post
      She's withholding access to keep me bellow the 40% threshold intentionally.

      What does your current access in your current final court order ? If she's not complying with the current court order and in contempt of the court order, then that is your material change to change access.

      Originally posted by otttawa_dad View Post
      Any thoughts, recommendation, case law????

      See above.

      Comment


      • #4
        Originally posted by Janus View Post
        If your ex made an offer to settle that gave you 50% of the time with the kids but still required you to pay table CS, would you agree?
        Think this very thoroughly before you answer. Is it worth for you to pay for a trial, risk not being able to prove a material change, not getting 50% access, in hopes of doing both those things and getting the mother to pay child support (offset)?

        I personally would not agree to such an offer. However, there is a big difference in our cases. The difference is that I have 50% status quo for nearly 4 months now. 6 months if you count the summer. Likely around 1 year of status quo if and by the time my case gets to a trial.

        Comment


        • #5
          Hi!

          Thanks everybody for assisting!

          Here's a little more background info. I could also link to previous thread but would rather keep them separate.

          Background:

          My Children were of young age when EX left. 3year old and 2months old.

          We had the OCL involved, OCL recommendation where joint custody, liberal access to me given young age.

          Our final order had a clause stating that the baby turning 4 and starting school would meet the criteria of a material change. Therefore theoretically I don't have to meet the threshold of proving a material change. Also to be clear this was on consent and not order by a judge.

          Furthermore there have been several other material changes that have occurred; which for now I don't want to disclose in order to maintain "some form of anonymity"

          Originally posted by tunnelight View Post
          Think this very thoroughly before you answer. Is it worth for you to pay for a trial, risk not being able to prove a material change, not getting 50% access, in hopes of doing both those things and getting the mother to pay child support (offset)?

          I personally would not agree to such an offer. However, there is a big difference in our cases. The difference is that I have 50% status quo for nearly 4 months now. 6 months if you count the summer. Likely around 1 year of status quo if and by the time my case gets to a trial.

          Comment


          • #6
            Originally posted by tunnelight View Post
            That is respectable. But be prepared to be accused of only wanting to increase your access to decrease child support. Best way to handle that in court is to just let go of your claims for support as you near the trial.
            I guess if I managed to increase access past the 40% I wouldn't need the support motion. Initially I had just filed a motion for ACCESS.

            Originally posted by tunnelight View Post
            There's not much you can argue for immediately before and after school because you are also not available at those times. Meal times and overnights you can certainly ask for. It was likely not foreseen that she would be unavailable to take care of child release of school, late into evenings and overnights.

            You won't be able to touch her weekends. If she really is unavailable the entire weekend, then best you could expect is to have the child every 2 out of 3 weekends.
            I would beg to differ, I'm always available prior to school, as I wake them up, feed them and drive to school, similar routine in the evening. On the flip side; EX isn't available for morning of evening routines due to work.

            Originally posted by tunnelight View Post
            If you can get your employer to make you available for school pickups/drop offs, then you can use that to your advantage. Maybe you can work 9 - 3 for 2 days out of the week to have more time with the kids and accommodate school pickups and drop offs, and then work overtime on the other days of the week to balance your work hours?
            I already have very flexible work arrangments! I'm super lucky and thankful for my boss and employer.

            Originally posted by tunnelight View Post
            The court is not going to care about that right off the bat. The first thing is to prove a material change in circumstances. What is your argument for a material change in circumstances for access ?
            please see my other post; outlining we had a clause that youngest child turning 4 and starting school automatically meets the threshold for proving a material change. This was on consent.

            Originally posted by tunnelight View Post
            Was it ordered by a judge or was it something you consented to ? What you don't want to be doing here is using a motion change as an appeal.
            See above.

            Originally posted by tunnelight View Post
            What does your current access in your current final court order ? If she's not complying with the current court order and in contempt of the court order, then that is your material change to change access.
            We have already leverage a clause that says we can agree to change the schedule in writting and on consent. However more things have happened and I think the children would benifit from more access to myself (stability, availability.........and so on! Furthermore during those negotiations she kept me bellow the 40% threshold denying an additional overnight.

            Comment


            • #7
              Originally posted by otttawa_dad View Post
              I guess if I managed to increase access past the 40% I wouldn't need the support motion. Initially I had just filed a motion for ACCESS.
              Hold up hold up. Are you going for 50/50 or just looking to get above the 40% threshold? At what point in time did the amendment for CS come into play?


              Originally posted by otttawa_dad View Post
              I would beg to differ, I'm always available prior to school, as I wake them up, feed them and drive to school, similar routine in the evening. On the flip side; EX isn't available for morning of evening routines due to work.
              I was confused because you said you start work at 8.. I say this as my child's school's in the last 3 years have all started around 9AM..


              Originally posted by otttawa_dad View Post
              I already have very flexible work arrangments! I'm super lucky and thankful for my boss and employer.
              Good. Get a letter from your employer to confirm this.


              Originally posted by otttawa_dad View Post
              please see my other post; outlining we had a clause that youngest child turning 4 and starting school automatically meets the threshold for proving a material change. This was on consent.
              Beautiful. Child is in school now and access should be re-visited. Mom want's dad to have 39.99999% Access, dad wants to have 40 or more percent access. Please please please, do not use the magic word 40% to refer to your proposed access schedule. Just say what your access schedule is instead.


              Originally posted by otttawa_dad View Post
              We have already leverage a clause that says we can agree to change the schedule in writting and on consent.
              Beauty. So if you guys can't agree, then that will automatically constitute a material change in circumstance.

              Originally posted by otttawa_dad View Post
              However more things have happened and I think the children would benifit from more access to myself (stability, availability.........and so on! Furthermore during those negotiations she kept me bellow the 40% threshold denying an additional overnight.
              Be careful about throwing in more than you really need to.

              Are you available to get what she can give you (without a court order) just to bring you closer to 50-50 and continue negotiations from there? If you do agree to such, make sure you (before, during, and after negotiations) clearly but nicely state that it is as the case continues - so that she can't argue that it was the final agreement. This would just be to avoid a big jump from 90-10 to 50-50 or 60-40? Alternatively, are you willing to suggest a gradual increase to 50-50 to ease the change?

              What access schedule are you seeking? I would suggest a predictable 5-5-2-2 schedule. I started it not too long ago and it's really awesome!

              Comment


              • #8
                I know there will be one sticky point during the negotiation process.... I moved away from the school district. However the distance isn't affecting the kids attendance to school. Furthermore I researched the school board "Service Level Agreement" with the transportation provider for children my kids age. The agreement between the bus company and school board is a max 60min commute to school, this time doesn't factor unforeseen circumstances (weather, traffic, accidents and so on). I'm well within this range.

                Is there any case law on distance?

                Comment


                • #9
                  I notice you did not answer the question about whether you would be willing to pay table CS for 50% access. I ask not because I think that would be fair, but just because it is those type of questions that trip fathers up. Mothers are assumed to want their kids for love, fathers are assumed to want them for money. It sucks, but that's the way it is for now.

                  As an alternative thought experiment, what if you were offered time after school, but then the mom got the overnights (and the consequent CS) otherwise?

                  I concur that you should never say 40% anywhere in your submissions or in court. Note that at 40% you would almost certainly still be paying table CS. Honestly, at 49% you would probably still be stuck paying table CS because "mom's costs haven't gone down".

                  You have an agreement that provides an automatic material change when kid starts school. That is good. It seems the conflict is as follows:

                  1) Mom - close to school and status quo
                  2) Dad - more time off

                  Is there any way you could move closer to school? That nonsense about the school board's service level agreement has nothing to do with the best interests of the child and a judge will not care. The truth is that if you are far (and you haven't said how far you are) a judge will not like that.

                  Comment


                  • #10
                    Originally posted by Janus View Post
                    Honestly, at 49% you would probably still be stuck paying table CS because "mom's costs haven't gone down"..

                    I don't really see how that works, from 0-49% the cost would be even. I still need need to supply a room, food, clothing.....as well as the S.7 expenses daycare and so on.

                    Originally posted by Janus View Post
                    You have an agreement that provides an automatic material change when kid starts school. That is good. It seems the conflict is as follows:

                    1) Mom - close to school and status quo
                    2) Dad - more time off

                    Is there any way you could move closer to school? That nonsense about the school board's service level agreement has nothing to do with the best interests of the child and a judge will not care. The truth is that if you are far (and you haven't said how far you are) a judge will not like that

                    Since signing the consent agreement the status quo has changed multiple times, this is what my motion is all about as well as we reached the agreed upon material change and the unwillingness to reach a new access agreement.


                    Also to clarify the distance I'm 40km from the school, I've been commuting this distance for over a year uncontested.

                    Comment


                    • #11
                      Originally posted by otttawa_dad View Post
                      I don't really see how that works, from 0-49% the cost would be even. I still need need to supply a room, food, clothing.....as well as the S.7 expenses daycare and so on.
                      I never said it was fair.

                      There is a current CS order. The mom's time is going for 61% to 51%, her costs have hardly changed. Some judges will look at it that way and say "since her costs have hardly changed, and dad's costs have hardly changed, why should CS change?"

                      I've noticed often that when dad's go from less than 40% to somewhere in the 40's, the CS often hardly changes. Offset is not mandatory, 40% just means that the judge can consider alternatives.

                      Also to clarify the distance I'm 40km from the school, I've been commuting this distance for over a year uncontested.
                      You've been driving the kid 40km in the morning regularly on school days for over a year?

                      I thought the kid just started school.

                      If you mean that you personally have been driving 40km, I'm not sure why that is relevant at all.

                      Comment


                      • #12
                        Originally posted by Janus View Post
                        I never said it was fair.
                        There is a current CS order. The mom's time is going for 61% to 51%, her costs have hardly changed. Some judges will look at it that way and say "since her costs have hardly changed, and dad's costs have hardly changed, why should CS change?"

                        I've noticed often that when dad's go from less than 40% to somewhere in the 40's, the CS often hardly changes. Offset is not mandatory, 40% just means that the judge can consider alternatives.
                        In my circumstance her "cost" would be greatly reduced, as hiring someone to care for the kids when she works would be t<null>he amount equivillant to my CS payments. That's is at minimum wage

                        Originally posted by Janus View Post
                        You've been driving the kid 40km in the morning regularly on school days for over a year?

                        I thought the kid just started school.

                        If you mean that you personally have been driving 40km, I'm not sure why that is relevant at all.

                        Yes my youngest just started school. However, prior to starting school, he would join us on the commute to daycare and drop his sibling off at school.</null>

                        Comment


                        • #13
                          Did you have overnights when the final order was made? Did you fulfill your material change clause by agreeing to eow and Wednesday nights?

                          I think 40km is too much and would move back if it were me. Otherwise I think you may not get the 50% you're hoping for.

                          Comment


                          • #14
                            Originally posted by otttawa_dad View Post
                            In my circumstance her "cost" would be greatly reduced, as hiring someone to care for the kids when she works would be t<null>he amount equivillant to my CS payments. That's is at minimum wage
                            </null>


                            Your costs would be reduced as well since presumably you are paying your proportionate share of the daycare.
                            <null>

                            Yes my youngest just started school. However, prior to starting school, he would join us on the commute to daycare and drop his sibling off at school.</null>
                            Wait, is this a half-sibling or a full sibling? What is the custody situation on that one?

                            Comment


                            • #15
                              Originally posted by Janus View Post
                              Your costs would be reduced as well since presumably you are paying your proportionate share of the daycare.

                              We have joint custody, I never agreed to hiring this person or consent to the use of these services. I did however offer to care for the children during these periods as I would have prior to the separation.


                              Therefore, I haven't personally incurred any "cost" of this nature. Furthermore this is part of my motion to change access material.<null>

                              Originally posted by Janus View Post
                              Wait, is this a half-sibling or a full sibling? What is the custody situation on that one?
                              </null>


                              I didn't express this properly, both my children have experienced this commute for more than a year!
                              <null>

                              </null>

                              Comment

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