Access & Distance / Child Support Problems

[ConcernedDad71]

After more than a year in litigation trying to argue my motion and then failing to settle our dispute. Now I am going to Trial to fight for what I feel is right.

I am a Father who divorced, moved nearby so the transition to our children would be lessened, near the same friends, school and family.

My ex-spouse moved 100km away about a year ago to live with boyfriend claiming severe financial distress. I do not agree with my one child, who still shares equal time with us both, having to drive back and forth for the school year during her parenting time which is currently every 2 and 3 days at a time. I do wish to keep a one week with each parent for the summer and split holidays up because I feel it important, my son has chosen to stay solely with me for his own reasons.

My ex-spouse is paying me child support, not because I want it but because I currently need it. My wife is moving here from the US and is currently not able to work in Canada until her work visa is approved as I am also Sponsoring her, and she has applied for Permanent Residency as well. Once she is working I don't want a dime from my ex-spouse for our children.

The problem is, my ex-spouse has forced me to take legal action for both access as well as Child Support. She continually states I should "be a man and not take support", "live within my means", "reduce child support to what is fair for her". Meanwhile, she lowered her yearly income by over $30,000 but claimed severe financial distress as her reason to move in with her boyfriend and now claims me to blame for her having to change jobs and lowering her income as well as mental stress. We're both under a lot of stress because of this, both our children are also under a great deal because of this...I have had to maintain my full position.

In my opinion, this has always been about the money to her and little concern of what a 100km move has done to our children. I wish I did not have to accept Child Support but it is fact. She should also be concerned for the financial well-being of our children instead of continually looking for a way to lower child support. I heard that some dead beat parents have gone as far as cease employment to go on welfare just to spite the ex-spouse and not have to pay child support, and that disgusts me greatly.

I am waiting for my Trial Court date and my lawyer (who is only appears partially helpful) said it should only take a single day. But being a guy I find it just a bit harder to fight for what is right. The moment she turns on the waterworks and says anything true or not, she is heard but when I make any objection to a false statement or make any point I feel shunned by the Judge.

I'm so scared of losing my children, wanting to give them what I feel is a more stable environment in the comfort of their familiar environment near friends and family.

Any advice or things to keep in mind or what I should be focusing on. I have no idea what to expect in a Trial, if it is a private Courtroom or anything.

Thanks in advance.

[NBDad]

"reduce child support to what is fair for her".

Table Guidelines exist for a reason. Child support is the right of the child, not the parent. Even if you do not NEED the money, she should still be contributing to the care and upkeep of the child. If you don't need it once your wife begins working, then stuff it into an RESP or something.

Meanwhile, she lowered her yearly income by over $30,000

Financial disclosure, 3 years of tax returns, and she needs a damn good reason why she shouldn't be assessed an income she is clearly capable of making...you push that and you have a good chance of having it inputted.

Yes, as a father you face an uphill battle, but you have status quo on your side, and judges will be loath to break that. SHE made the decision to move 100km away, and you son chose to stay with you.

How hold is your son? Depending on his age, his wishes may be given some weight in court. Having the child being subjected to a 100km drive is clearly not in their best interests during the school year, I would hope that now that it is currently summer you are being reasonable, flexible and generous with access for her, with the understanding that once school begins it's not going to be as feasible.

By the sounds of things, you are in a very good position to maintain what you have.

[dadtotheend]

She continually states I should "be a man and not take support", "live within my means", "reduce child support to what is fair for her".

If she wants to spout that drivel, remind her that the term deadbeat doesn't have to be only about dads.

Seriously though, those statements are rationalizations and she would be a fool to make them in court.

[ConcernedDad71]

Thank you for your response. I was told by a couple of lawyers to go forward with Child Support for the children even if I don't need it and bank it for their future needs.

My son is 14 years old, daughter is 8. He does not like where his mother lives, does not like her boyfriend, a bit envious that his little sister continually receives gifts by his mother but told if he does not go out to visit he won't get anything. So, animosity continues to grow and he is feeling a lot of anger toward his mother.

The worst part is the level of bribery and brainwashing she does to my daughter. Things like "you cannot really love your new stepmother, she will never be a part of you", "you are not allowed to call her mom", "if you live with me I will put you in ballet", "don't you want to ride a school bus to school, you can if you live here". And then there is the continual gifts and financial love instead of quality love and a structured and stable environment that I feel important.

I have tried to make my stand in court a number of time arguing motion after motion but the Judge cock's his head toward me and focuses on her waterworks and stories of her hurt and out of work boyfriend.

She is not the person I met, clearly. 17 years of marriage and wow, not to be able to say "we don't seem to be able to make this work anymore, but we should try to be friendly toward each other divorced, at least for the kids". ...she loves to fight and will go until she gets a win, at all costs. (kids)

[NBDad]

Your son is old enough where his wishes will basically be ratified by the court. He can make his own decisions on whether he wants to visit or not.

Your daughter is NOT. At 8, she cannot make those decisions and thus you will need to ensure that you lay out access very clearly.

[ConcernedDad71]

I feel confident about my situation. Some other questions are things like, why did my lawyer and the judge speak of setting up a one day trial, my lawyer said it would only take a day?

What are some things I should be prepared to prove or show the court?
Her stability with her residence and strange relationship situation?
I do not want to make this a circus but I do not wish this to go on and on either.

[NBDad]

You want to ask for status quo of you having sole custody with residential care and control (THAT is important, it means YOU have final say on any major decisions respective to the kids, barring a court order), table amounts of CS, for her to pay a proportional share of the children's special expenses, for her to do the transportation one way to begin her access (and you or your designate will pick them up to end it) and for her to keep whatever the access she currently enjoys.

You want to make a formal offer to settle as per the above prior to your hearing date. IF she refuses, then you want to also ask for costs.

Stick with the facts. If you have school registration forms showing YOUR home as the primary residence, include them. Ditto any kind of email communication that lays out the existing status quo (regardless of whether she responded or not).

If her living arrangements are unstable, by all means make small mention of them. It's important, but not terribly so if she's only going to have EOW access or similar. It should be a bullet point, but I wouldn't dwell overmuch on it.

You want to focus primarily on the fact that the kids are well settled with you (affidavits from teacher's, pastor's, doctor's, dentists, etc are all helpful with this), that what you are asking is the status quo and has been for X amount of time. Basically whatever you call pull out that will back that up.

[ConcernedDad71]

We have a recent Order to 1 week with each for the Summer, the Judge said he has no idea what we are going to do for the school year.

She lives 100km away from me, from their school and everything they have known their entire life.

She has been exercising her access 50% of the time at this residence 100km away, she has been doing all the driving for pick up and drop offs.

It was almost a year ago that the Clerk at the Case Conference Brief told her that status quo stands, the kids stay here, but she didn't listen and Judge has not ruled it either.

I have tried to settle with her for a very long time, but she wants what she wants and I guess she can say the same about me, except I did not move away from my children and want to keep things the same, she did.

So, how come it seems I am having a single day for a trial, no mention of a pre trial hearing.

[NBDad]

Looks like you are proceeding right to trial as your ex is being unreasonable. Have you asked your lawyer what information you are going to need to bring with you?

[ConcernedDad71]

He said he will call me with a date to go in and talk to him. No idea when that will be, could end up being the day of trial and not know until that morning. lol

I'm not saying he is not good at what he does as he has been doing this for many years and has a very good track record, but I feel left in the dark and stressed out a lot not knowing what to expect or when dates are set.

[ConcernenedStepMom78]

Hey all I am the StepMom in this. I will say that I have been able to remain neutral and I have learned some Canadian Family Laws quickly. I feel that Concerned Dad will need to stick to the two main points of this case, being Child Custody/Access and Child Support. In regards to Child Custody/Access he has a firm case in being able to prove the kids "Habitual Residence". I found a form for Trial called a Request to Admit (form 22) which he can submit with his Trial Management Conference Brief (form 17E). This will allow for him and her to alleviate some of the "bickering" so the Jusdge doesnt get more upset than he already is. We both would like to know if there is anyone who has been to this sort of Trial, and maybe give us some insights on what to expect, can he call anyone as a witness he wishes? What evidence would he benefit from submitting, what are things he should or should not do or say in fron of lawyer and or Judge. Are there any books we can read that will asssit with this?

[ConcernedDad71]

I want to ask if not hearing from my lawyer is normal? He is a very good lawyer with a good reputation but he isn't in Family Law anymore except for me it seems, but he took my case because I needed someone.
I hear they are really booked up for a trial even though he wants just a single day trial, so I have asked to try for an interim order keeping my daughter with me until trial since I'm across the street from their schools and everything else. He hasn't gotten back to me at all, after numerous requests, his secretary says she sent on my email to him each time. Is this normal?

[InterprovincialParents]

We have been through it several times, with access travel of 3000kms. One thing that was not mentioned above is that you also want a clause for financial disclosure, stating that you exchange income tax once per year by X date, and all notices of assessment and reassessment within 30 days of receiving said notices.

As school starts soon-if it hasn't already-I would have your lawyer apply for the interim order mentioned above. I would also remind you that you pay your lawyer to work FOR YOU. If he is not, he can be fired...although that would lengthen the court process for you. You might want to send him a letter stating that you want him to apply for an interim order and that if you do not hear back from him directly on the matter, you will look to seeking new representation. Keep in mind, too, that you will be billed for all communication, so perhaps email is not the best way to do so, as you are not receiving them. Ask his assistant to ensure he telephones instead.

[InterprovincialParents]

Also, affidavit evidence is often best, as it is less time-consuming for the courts, and the courts will appreciate that.

[ConcernedDad71]

It is 100km distance but too far to be driving her to and from school on back roads throughout the winter. Also, my son and daughter have a great relationship and its is missed for the week she is not around.

Well, I also told my lawyer that I want 3 years of T4's and returns because she went and took a huge loss by changing jobs that she appears to have done on her own accord, losing children's benefits, her pension, more than $30,000 per year reduction....ugh. She and I both have a financial obligation to our children, to take that much of a loss an cry to the court severe financial constraints makes NO sense.

My Lawyer is not getting back to me. Typically my x finds out about court dates before I do and she is self represented now since she could not afford her lawyer. My lawyer was gracious enough to say he will only charge me afterwords and will make sure payments are within my budget. So, to fire him is almost out of the question because he is the only one who would help me out. As I said, he is a fantastic lawyer but does not typically take family cases anymore, he says criminal law is much more easy....and wishes he were back in his murder case. But he believes in my case, I just cannot seem to get him moving with it.

Should I try for a court date for an interim order on my own without him?