Medical issue and holiday time and cancellation of driving

[Elomelo8387]

Good morning gents and ladies,
Looking for some opinions and preferably references to caselaw if applicable
My ex and I live about 5 hours apart and have been separated for over a year. He isn’t being very amicable to the divorce and this will end up in front of a judge because he isn’t opening to compromise. We share a child who is living with me and dad is able to see him whenever he’s free. Prior to Covid he had most holidays and coming biweekly to see son. After Covid hits he’s been coming maybe once every 6 weeks and that too I have been forgoing my holiday time to accommodate him. Now here is my questions:

1) father has been coming to see child in my city and for extended holidays we meet half way for exchanges. This has been the norm for our separation period. Now father wants me to do all pick up and drop offs on his time to his city. How likely will a judge grant that in your opinion? I have a diagnosed medical condition that my doctor has stated not to drive for extended periods of time. Will a letter hold up in court and let me keep the status quo? Child will be three in September so still relatively young. Also father is now citing health issues that hamper his ability to drive the distances but he does not have medical proof yet.

2) father is now after one year threading a motion for undue hardship based on “high access” costs despite not coming frequently, not really having any hard proof and making over 120K a year. Is this likely to pass ( I make 60K)

3) I am hoping to draft a settlement offer and am thinking of the following terms
- father will get reasonable access as long as I get 72 hours notice, half the stat holidays, alternating Christmas, all March break and half the summer. He will continue to see child in my city but on his holidays I’ll meet half way for exchanges. Child support would be guidelines but I would be open to 50-50 for section 7 expenses. I will reimburse his gas expenses up to once a month. Does that seem reasonable? If not how can I improve it or what would be fair.

Regards- Eloelo

[Stillbreathing]

Who moved away? If your ex moved away then you are being more than generous meeting him half way and helping with his costs. Often the parent who moves away is 100% responsible for their own costs and picking up the child.
My ex initially moved 2 hours away and he was 100% responsible for his costs plus he has supervised access so had to bring his supervisor with him all the way to our matrimonial home where the exchanges happened. He had to bring the kids back as well to our home. He tried to get out of it and asked for his costs or overnight access to which the judge said no.

[Elomelo8387]

It’s a little complicated. I did move away when I was married but it was a mutual decision and for better employment. The marriage dissolved about a year later but we were living at two different cities at that point. Father took no action for the kid to come back. Just started to see him time to time

[Janus]

1) father has been coming to see child in my city and for extended holidays we meet half way for exchanges. This has been the norm for our separation period. Now father wants me to do all pick up and drop offs on his time to his city. How likely will a judge grant that in your opinion?

Extremely unlikely

I have a diagnosed medical condition that my doctor has stated not to drive for extended periods of time.

What on earth does "extended" mean? Do you have medical documentation that explicitly states the maximum allowable number of driving minutes?

Assuming you have that documentation, then obviously you cannot be forced to drive more than those allowable minutes. If you don't have the documentation you can say whatever you want, but nobody will believe you.

Also father is now citing health issues that hamper his ability to drive the distances but he does not have medical proof yet.

If you guys start bringing medical experts to court this is going to become a very expensive trial. Might be worth compromising here.

2) father is now after one year threading a motion for undue hardship based on “high access” costs despite not coming frequently, not really having any hard proof and making over 120K a year. Is this likely to pass ( I make 60K)

High access costs are indeed a thing that can reduce CS. I'm surprised he is not maximizing his time with the child, he needs a better lawyer . Generally, I would say that a judge would like to see actual costs, not hypothetical costs. I anticipate he will use his parenting time more frequently as he gets closer to trial. It might be reasonable to expect a small reduction in CS, assuming he uses his parenting time. If he doesn't use it of course then he gets nothing.

3) I am hoping to draft a settlement offer and am thinking of the following terms
- father will get reasonable access as long as I get 72 hours notice

What is reasonable? Who decides reasonable?

If I was his lawyer, I would assume that "reasonable access" was code for "no access at all".

This is also a recipe for fighting. Tuesday he says he can come up for the weekend. You made plans to have a play date and some mommy to mommy bonding time with a friend. Does he get that access? Somebody is going to be unhappy.

Defined parenting times are always better than undefined "reasonable access" nonsense.

half the stat holidays

which half?

alternating Christmas

christmas day? christmas break? Dude lives 500km away.

half the summer.

which half?

on his holidays I’ll meet half way for exchanges.

How will you get there?

Your offer needs to be more fully fleshed out.

[Elomelo8387]

So for settlement I was going to offer every other weekend, his choice on half the star holidays - we both work for government agencies so they are the same. Alternating Christmas breaks, two weeks in July and two weeks in August. On his stat holidays I would meet him half way for the exchanges like what we have been doing for the last year or so. What else can I do to sweeten this deal and avoid it to go to trial?

[StillPaying]

Child support would be guidelines but I would be open to 50-50 for section 7 expenses. I will reimburse his gas expenses up to once a month. Does that seem reasonable? If not how can I improve it or what would be fair.

Are you able to provide numbers.
How much is your ex asking to reduce?
How much do you believe his access costs to be?
How much is he currently paying for s7 monthly?

How much would he save with your offer of 16% off s7 and gas once a month?

[Elomelo8387]

Honestly his numbers don’t make sense. He is paying about $1100 for CS. Not paid for daycare till this date. He has not paid any s7. He is estimating $600 for access costs per month including but not limited to mileage gas hotel and miscellaneous including renting a vehicle when he has one. I thought mileage expenses included gas but apparently. I believe his access costs are around $200 as he often stays with his family and friends. He does not have many receipts included in his discovery.
If s7 was proportionate to income it would like 60 him 40 me. So offering 50-50 for s7 and up to $100/ month for gas expenses.

[StillPaying]

It’s a little complicated. I did move away when I was married but it was a mutual decision and for better employment. The marriage dissolved about a year later

What was your original plan, while still married living 500km apart?
Was it temporary, were you basically done with the marriage, were you coming back, was he moving to you. Child was young, but was school discussed or any long term plan.

[Elomelo8387]

Original plan was he would join me but now since it’s hit the courts he is singing a different tune. The child would have always remained with me since dad was never very hands on and I had a much larger support system in my current city then when we lived together. We didn’t know our lives would lead to a divorce to be honest. A lot of incidents happened after the move that made me reevaluate our relationship and plunge down this path. Prior we were married almost 10 years.

[StillPaying]

You both seem to be in agreement with everything except the undue hardship/financial issues. Court is not guaranteed. He sounds like he'll pass the 1st part with 10(2)bd, so then they'll compare both households - with him paying full table support and 100% access costs which could go either way. You're not far off $600v$100.

He's paying zero now for s7, so an extra 16% off doesn't mean much. In the future, it could though.

I would send your offer of $100 off monthly, and think anything under $300 would be reasonable.

[tilt]

He sounds like a winner; parent who choose not to see their kids get no respect from me. Keep a calendar of all access visits, and backdate back to the date of you moving cities by cross referimg txts or emails. Judges love seeing the pattern of parents suddenly wanting to see their kids when a court date is coming up. Have you filed a cross motion requesting retro Sec7? Are you getting his return/NOA every year? If he is going to nickel and dime you then it is only fair that there be full disclosure.

1. Don’t get a letter from your doctor, get an affidavit from them, have your doctor document how long exactly you can drive for and what accommodations you need.

2. Hardship is hard to prove, have either of you re-partnered? Because it compares household to household, including the partner’s income/payment of CS and SS. If you are just comparing $120k paying $13,000 CS and having some access costs v $60,000 getting $13,000 but paying all childcare and having some access costs (you said you drove sometimes)...well, I think it is a stretch for your ex to assume they will win. Especially if you have documentation that shows you were moving as a family and the ex reneged.

3. I would define the access, you have been very flexible and your reward is to be walked over. Specific dates gives more structure and certainty to you and your child’s life. If you agree to 72 hours notice you will never be able to make plans more than three days in advance and might be accused of denying access. Plus, school is coming up in the next few years and you won’t have much flexibility anyway. S7 should be proportionate and retro paid in full (include what you pay your employer each year in benefit premiums). When your ex comes into town they are also visiting their own family, right? So the trip isn’t just for access. So 50% mileage reimbursed up to a defined amount each month (start the offer at $100) within 30 days of receipts being provided.

Your initial offer is way too generous and you are painting yourself into a corner. Let your ex come back with a more reasonable offer. I doubt this would go to trial, their legal fees would be a minimum of $35,000 and it is not anything close to being clearly in their favour. You guys won’t see the inside of a courtroom for a while and the lawyer will do a cost-benefit analysis and just want this settled. Don’t be scared of trials or lawyers. Good luck!

[StillPaying]

He sounds like a winner; parent who choose not to see their kids get no respect from me. Keep a calendar of all access visits, and backdate back to the date of you moving cities by cross referimg txts or emails. Judges love seeing the pattern of parents suddenly wanting to see their kids when a court date is coming up.

Not sure if this is the case. She moved child 500km away and he's been driving the biweekly access, with her doing half driving on holidays.

Have you filed a cross motion requesting retro Sec7? Are you getting his return/NOA every year? If he is going to nickel and dime you then it is only fair that there be full disclosure.

If this goes to court, hopefully she asked for s7, but I'm not sure where he's trying to nickle and dime her. He's saying he has lots of bills and can't afford full support plus 100% of access costs.

1. DonÂ’t get a letter from your doctor, get an affidavit from them, have your doctor document how long exactly you can drive for and what accommodations you need.

True, but this can also be used against you. You're doing some driving, your offer includes driving, then you show a letter saying you can't drive.

So 50% mileage reimbursed up to a defined amount each month (start the offer at $100) within 30 days of receipts being provided.

Your initial offer is way too generous and you are painting yourself into a corner. Let your ex come back with a more reasonable offer.

Should she offer $100 or not?
There are obvious costs each visit, so hopefully they can agree on an amount without the need of receipts. (Discount should be contingent on each visit though) She agrees gas is $200 and is offering no more for 4 nights stay.

$100 off seems like a deal to me, of course court could mean you pay nothing. Then in negotiations I would be prepared to go up to 300, half of what he's asking for to help avoid court costs.
Then S7, I would keep at 66%, and start claiming child care.