Help Needed

[MarkSwayCanada]

Hi,

we have two girls (5 and 1.5 years old). I've moved out of the house a year ago. This will be our third mediation that just deals with the parenting time.

Currently I have the 5 year old 5 nights over two weeks. And I have the little one just one night over two weeks. And I see the little one about 4 times over two weeks for short times as apparently she is still being breastfed.

I just want 50/50 but she is refusing. Mediation is next month. The little one just started having an over night recently. And its been fine. My oldest doesn't like it as I think she just wants me all to herself.

There has been no abuse and we stay close to each other and no infidelity either. She just doesn't want to

Is there any case law that I can rely on? I have a lawyer and have already spent so much.

Please help me. I miss my kids so much. I'm worried about the bonding time. I'm worried how this is affecting my oldest too.

Thanks

[Hide on Bush]

There are definitely more qualified people here to answer this question but a judge doesn’t care what either parent wants. They care about what is in the best interest of the children, which, outside of specific circumstances, is to have a full relationship with both parents.

IMO Case Law on standard parenting-time and decision-making in a situation as simple as you expressed (no abuse, kids are young) isn’t really needed. But to give you some peace of mind: Huess v. Surkos, 2004 CarswellOnt 3517, at para. 30 has the judge stating:

“I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children. What I glean from these cases are the following principles: First, it is important to maximize the contact between access parents and young children. Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish. Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits. And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.”

As for breastfeeding I remember seeing a recent case where a judge ruled against the mom saying that breastfeeding isn’t a guarantee of majority parenting-time. I’ll see if I can find that.

Edit: here you go Holomey v. Hillis, 2020 ONSC 6299 (CanLII) that deals a lot with breastfeeding and parenting time

[MarkSwayCanada]

Thanks. I agree whatever is in the best interests of the children.

I should add that my stbx has hired a very combative lawyer. It’s very contentious- but really all that matters is the kids. She is very wealthy (family money) and I am not.

I’m just wondering if I should have gone straight to court. The past two mediations have not been collaborative. I just take whatever she is willing to give. My lawyer advised that she only gave a bit as strategy as else I could don’t an emergency court hearing.

I’m mentally exhausted. But know I have to fight for the kids

[Janus]

The bad news:

You probably should have never left the house, or accepted less than 50% parenting time of the 5 year old. That dug a big hole.

The good news:

Kids are still young, this is a reversible situation


What to expect:

Right now the mother can get a lifetime of free money. 5/14 is the perfect "fuck you" schedule, because it puts you under 40% which means you have to pay full table support.

There is no chance she will give you that extra day willingly. It would cost her tens of thousands of dollars. Depending on your income this could easily be a $200,000 difference over the lifetime of the child.

This will require court. Mediation is costing you money and time, neither of which you can afford. Again, there is no chance she will willingly move from 5/14, no chance at all.

What you need to do

You need to explain why it would be better for the child if you had 50% of the time. What would the kid get that kid is not getting already with the 5/14? As previous poster said, your desires are irrelevant. You have to be able to create the tapestry that shows how much more awesome life will be if the kids are with you 50% of the time.

You also need to become insanely involved with the kids. Sign kid up for activities and be there. Attend every single doctor or dentist appointment. Try to take days off work when the kid is sick so you can show your availability as a parent.

Super sucky thing

You might need a lawyer, you're in a hole. Tough to get out of it.

Edit: Just read that you have a lawyer. Why the fuck is the lawyer not moving this to court? Have the lawyer send an offer to settle, and then stop negotiating. Negotiating is expensive. Tell your lawyer if they want to negotiate they can send an offer to settle back to you.

[Tayken]

^^^^ This.

I am just going to further emphasize that you won't get anything changed in Mediation.

[blinkandimgone]

On the breastfeeding front, you have the youngest overnight, how are you feeding them at that time? Whatever that is, would certainly be acceptable for more overnights. If mom insists that breast milk is vital she can pump and provide.

[Tayken]

"My happiest male clients are the ones who accepted that they weren't parents anymore and moved at least 500 miles away. They accepted that everything they'd worked for was gone and that, going forward, they were going to have to live on 40 percent of their former income. They didn't have to see or interact with the plaintiff who took everything from them. If they wanted to be dads they started over with a second wife or partner."

Stop reading this nonsense.

http://www.realworlddivorce.com/

That is crap advice. It is also from the USA. Its just on-line "sad dad" BS.

[CoolGuy41]

Whereas the advice in this thread is mostly generally correct, but the gloomy tone is not. Many posters here are pointing out how shitty your situation is as if you were not already aware. While your patience will certainly be tested, I think there is hope.

Push for either 50/50 now (very unlikely in your case based on established status quo and tender years doctrine) .. or a progressive schedule over 2 years max to get you there.

1) Yes, you should push for 50/50. If you do, it is likely you will get it. Make a settlement offer with a ridiculously long graduation to 50/50; e.g., a progressive sched over 2 years. When she rejects it and you go to court, ask for less a shorter graduation period than you have offered; e.g. 1 year.

2) The Supreme Court of Canada has struck down the "tender years doctrine", so don't worry about that.

3) As for the status quo, if you currently have close to 40% parenting time, you are actually in a much better position to convince a judge to give you 50% than if you had very little time & involvement with your children. The only thing that can trip you up is any sort of written agreement by you to the status quo, but I think even that can be overcome (depending on what it is).

[iona6656]

3) As for the status quo, if you currently have close to 40% parenting time, you are actually in a much better position to convince a judge to give you 50% than if you had very little time & involvement with your children. The only thing that can trip you up is any sort of written agreement by you to the status quo, but I think even that can be overcome (depending on what it is).

totally agree.

Go for 50/50. Unless there is really something wildly unique about your situation- I don't see why you shouldn't get 50/50.

Offer a VERY FAST graduated parenting schedule. Move to 50/50 within a year.

[pinkHouses]

Agree with most here especially the ones questioning why your lawyer let you be for less than 50/50 and why they are mediating.

50/50 is the norm now, maybe people have been feeding you the wrong ideas. Lawyers telling you otherwise may be playing you or as another poster put it "sad-dad" stuff.

1. "Best interests" of the child is a bit of a misnomer. Still argue that where you can though.

2. If they have more money than you and the lawyer is aggressive the point of mediation has less to do with reaching a settlement and more to do with exhausting your resources and trying to figure out how to play it out in court. Mediation is not binding and it sounds like you have been through it enough, time for court.

3. Unless there are extraordinary circumstances do not agree to a Section 30 or an assessment. You can read how much of a scam section 30s are and they will use it to increase your expenses.

4. I don't know what led your lawyer to go down the mediation route especially if they know the other lawyer is high conflict. If you ex wanted to mediate you guys could have done it yourself to a large degree when it came to the kids at least.

5. Keep all your communications to an absolute minimum. 2 or 3 times a week.

6. Some people don't want kids, really. The kids want them though so really up to you but don't sign away 50/50 and do quickly move to equalization. Mom can provide breast milk for the 1.5 year old that will soon be off of it.

A divorce lawyer in a one lawyer town makes a lot of money. 2 in the same town make even more. It sounds like you might have those 2 lawyers working here. Save your money for trial. If you and your ex want to talk and work it out then perfect, bring that result to the lawyers.

[MarkSwayCanada]

Thanks for all your messages.

Had the mediation this week. It was useless. Didn't get much increase in time at all.

my lawyer is confident that I can get 50/50. But its just really crap that we have to go this route of going to court. Its really going to be scorched earth and I'm sad that i will have to deal with her for the like the next 25 years!

My lawyer estimated 20k in costs by going to court- is this a good estimate? The plan is to make an offer and still take to court so that I can least recuperate some costs if I'm successful.

[pinkHouses]

20K for a trial or 20K for filing and going through the motions?
No one can tell you but count on 20K for sure, no way that includes a trial.

When it comes to costs with a high-conflict ex these are things that increase the costs dramatically, no one knows your ex:
-An assessment can be unpredictable and create a big hole for you.
-An false accusation of assault, stay away from the ex. Never darken their doorstep, ever. Never invite them to your place.
-Do exchanges in a public place with cameras and even then beware don't talk, just do the hand off of the baby and go. Run away if you have to, I have no pride.
-An accusation of being controlling or harassment, message 2 or 3 times a week and keep it super brief. You are not friends and don't attempt to convince them of anything even if it benefits the kids. Just say it once and if you must follow up do it once.
-don't ask them to come back.
-don't get suckered in by your exes lies and purposed stupidity. It is a setup.

Do:
-take a parenting course even if you are a good parent.
-know the teachers names and be friends with them.
-The please and thank you thing in your written messages. Be kind don't have pride.

Your 5 year old will get over it but you have to figure out how, I would include them in the activities of the younger one. You will be busy.