Pushed up against a wall...

[Mess]

Good comment from Tayken.

You are looking at two things. You have day to day needs and issues which will change over time, even week by week.

The other thing is you need an agreement that is legal and binding and will "settle" things and then filed away in a cabinet.

If it were me and I thought I could co-parent and be co-operative, then I would sign the agreement as 50/50 and settle the legal issues. I would say to my ex that I now expect them to feel less threatened and to work with me as a co-worker, like two people in an office. If the child's schedule needed to be modified sometimes, then modify it. This doesn't have to threaten the legal standing of either parent.

From your first post you are mainly concerned with settling the assets and hopefully getting a small amount of CS flowing so you can stablize your budget. I think these are great goals. You could hopefully achieve this by agreeing to 50/50 and getting a commitment from your partner to work together for the child in the future.

In the future if the child ends up with you 80% of the time, this is an unforseen material change that would justify re-opening the agreement, likely with a simple motion. I am saying this just to point out that your ass is covered if he doesn't live up to his end, but there is room to be flexible if he is working odd hours.

[dorano]

Thanks everyone - a lot of really good points.
One point I just remembered however is subsidized daycare - I currently receive subsidized daycare for our daughter and am on a waiting list to hopefully soon receive it for our son. This would make my child care expenses under 200$ per month for both instead of the actual cost of 1700$ per month, and my current cost (with 1 subsidy) of 1000$ per month.
With joint custody and primary residence with me, we maintain this. With shared custody, we will lose it, and frankly, neither one of us can afford to maintain two households fit for kids "full time" AND pay our share of child care and everyday children's expenses... Sad to say but this is something to consider and I will have to discuss it with my ex now as this will play a factor. Problem is that I believe I am being flexible, have tried to negotiate and find compromises, some that I'm not even happy about! But I'm trying... he's just sitting there refusing to even have a dialogue about it - through ourselves or lawyers. We even went to mediation, came up with almost a complete draft separation agreement (including the current custody/visitation arrangement we have) but only to walk out calling the mediator a nasty bitch because she started to discuss his financial obligations to the kids. Her main point was that money was tight, and that we would have to be creative, but the thought of having to pay "me" anything (doesn't see it as providing for the kids) was enough to have him screaming, calling names and walking out on discussions and never going back.

[dorano]

And to have more facts, I have the higher income (not by tons) and would have to pay an offset amount of child support if we did agree and find an arrangement to make 40/60 or 50/50 work. I have no problem with this! But I need to survive in the meantime, and we need to get talking and get creative about possible arrangements to make it happen.

Not to mention that this shared custody would increase our financial burden significantly by loosing the subsidy, but we can only come to an agreement with the other on points that we can both agree to. There are just a lot of factors to consider...

[dorano]

Good comment from Tayken.

You are looking at two things. You have day to day needs and issues which will change over time, even week by week.

The other thing is you need an agreement that is legal and binding and will "settle" things and then filed away in a cabinet.

If it were me and I thought I could co-parent and be co-operative, then I would sign the agreement as 50/50 and settle the legal issues. I would say to my ex that I now expect them to feel less threatened and to work with me as a co-worker, like two people in an office. If the child's schedule needed to be modified sometimes, then modify it. This doesn't have to threaten the legal standing of either parent.

From your first post you are mainly concerned with settling the assets and hopefully getting a small amount of CS flowing so you can stablize your budget. I think these are great goals. You could hopefully achieve this by agreeing to 50/50 and getting a commitment from your partner to work together for the child in the future.

In the future if the child ends up with you 80% of the time, this is an unforseen material change that would justify re-opening the agreement, likely with a simple motion. I am saying this just to point out that your ass is covered if he doesn't live up to his end, but there is room to be flexible if he is working odd hours.

Mess, thank you. Cooperation is difficult but somehow we are managing. I agree that we need to get things finalized and settled and that will be my main goal. I'm trying to think outside the box, considering things I don't like or feel comfortable with and get creative, I just wish I wasn't the only one doing so!

[dorano]

Dorano, you have options for quick addressing of the case. Please review my post above: you can file the papers for permanent resolution to your case and immediately thereafter file a motion for an interim arrangement .

1. File your application with pleadings in the coming week
2. Wait the statutory period for response
3. file form 14 motion to reflect the orders for interim support you want made, you must include form 14A affidavit which outlines why you need these orders in the interim

You can ask for a 14 motion to be heard within 2 weeks of filing it.

Visit FLIC and identify your options. Remember: the court will not help you except with what you ask for and only with evidence to support your position. You must be your own best advocate within the court system.

FG

This is my to-do list this week...

[Tayken]

We even went to mediation, came up with almost a complete draft separation agreement (including the current custody/visitation arrangement we have) but only to walk out calling the mediator a nasty bitch because she started to discuss his financial obligations to the kids. Her main point was that money was tight, and that we would have to be creative, but the thought of having to pay "me" anything (doesn't see it as providing for the kids) was enough to have him screaming, calling names and walking out on discussions and never going back.

Very interesting comment. Was there any official exchange from the mediator to either party describing this incident that you could use in your motion?

Also, this represents a behaviour pattern of a possible one-time situation in what is recognized in psychology as the most stressful time in someone's life. So, going based on this evidence is hard. If you have documented behaviours similar to this over the course of a marriage then you have something to go on.

Your ex sounds from your description to be a High Conflict Personality (or behaviour patterns of). There are a lot of great books out there on how to negotiate through this challenge.

Now, with regards to the offset and you having the higher income. On a 50-50 you will owe him the differential on the child support. That is how it works. On a 60/40 you run the risk of a judge ordering no support and just exchange of financial documentation. The only time I see 50-50 in the court room and CS is when there is an enormous difference in salary. (80,000+ difference)

It is hard to use the "financial abuse" argument in court when you are the higher income earner. You have means to support yourself so be careful not to try this argument. Establishing financial abuse in litigation is nearly impossible and hence the reason there are so few posted decisions around the argument. (Not saying you are doing this just warning you that is all.)

One thing you can do that is VERY creative is to open a joint account. You BOTH agree to pay FULL table amount to the joint account. Those funds are then managed jointly against things the children need. Every transaction is managed and justified. The remaining leftover money in the account at the end of the year goes towards education.

You could even have an accountant settle the account against all your receipts at the end of the year.

That I find tends to take the "stress" out of it all. Also, teaches both parents what the real "cost" of childcare is too.

Good luck!

[NBDad]

Couple comments to some of the posts here:

he wants 50/50 in theory, and because he loves his kids, but in practice it can't work yet and is not recommended by any of the professionals we have met with. It also won't work just yet

1. He's legally entitled to 50-50 joint/shared from the second you two separated. If he fights hard enough, he WILL get that.

2. The "professionals" you've spoken to don't sound very on the ball. 50-50 is both the legal precedent and what ALL the most recent research indicates to be in the best interests of the children. Unless there is an actual reason he cannot have them. (ie. it would put them in danger) then there is no reason he cannot have 50-50. What the "norm" was before you separated goes straight out the window when you split.

You cannot use his work as an excuse. Lots of people are able to make accommodation in this day and age. If you wish to put yourself at ease regarding him being able to care for them, ask him to submit a parenting plan outlining how he would care for the children and ensure they get to where they have to be in the mornings when he has them.

eventually when he is better set up for it with his job and schedule and as the kids get a little older

Not your call to make. Put down a set schedule in writing if you are going to play that game. Show the gradual increase in time until he gets what he's asking for. No lawyer in their right mind is going to allow their client to sign something that says "eventually". Put it in black and white.

On a 50-50 you will owe him the differential on the child support. That is how it works. On a 60/40 you run the risk of a judge ordering no support and just exchange of financial documentation. The only time I see 50-50 in the court room and CS is when there is an enormous difference in salary.

This is wrong. At 60-40 you'll most likely see offset. With 50-50 you'd also use offset. The only time you would NOT see CS is where the salaries are damn near equal (and thusly cancel each other out).

If YOU are the higher income earner, YOU will owe HIM, not the other way around. Are you currently collecting the CCTB/UCCB full time? Over 40% time and he'll be entitled to a share of that as well.

In all honesty, what I would offer in your shoes (again, unless he's a documented danger to the kids)

1. 50-50 Physical w/ Joint Legal. Designate YOU as primary residence (for the purpose of determining school zones)

2. Offset table amounts of support, recalculated yearly on July 1, exchanging notice of assessments no later than June 30 of each year to determine the new calculations.

3. Pro rata split of section 7 expenses, after any applicable subsidies are taken into account (ie. UCCB, government subsidies/etc). Individual section 7 expenses exceeding 500/child/year to be agreed upon in writing prior to being incurred. (Not including childcare) I use 500 as a number because that's what you can claim on income taxes for activities/etc.

4. The above being dependent on him being able to provide a viable, acceptable parenting plan to provide proof of him being able to get the children to daycare/etc. on time, and having arrangements to pick them up from school/etc. If you believe the conditions of his home to be an issue, include a clause for a home assessment from a 3rd party organization prior to the new schedule taking effect.

[dorano]

Couple comments to some of the posts here:




1. He's legally entitled to 50-50 joint/shared from the second you two separated. If he fights hard enough, he WILL get that.

2. The "professionals" you've spoken to don't sound very on the ball. 50-50 is both the legal precedent and what ALL the most recent research indicates to be in the best interests of the children. Unless there is an actual reason he cannot have them. (ie. it would put them in danger) then there is no reason he cannot have 50-50. What the "norm" was before you separated goes straight out the window when you split.

You cannot use his work as an excuse. Lots of people are able to make accommodation in this day and age. If you wish to put yourself at ease regarding him being able to care for them, ask him to submit a parenting plan outlining how he would care for the children and ensure they get to where they have to be in the mornings when he has them.



Not your call to make. Put down a set schedule in writing if you are going to play that game. Show the gradual increase in time until he gets what he's asking for. No lawyer in their right mind is going to allow their client to sign something that says "eventually". Put it in black and white.



This is wrong. At 60-40 you'll most likely see offset. With 50-50 you'd also use offset. The only time you would NOT see CS is where the salaries are damn near equal (and thusly cancel each other out).

If YOU are the higher income earner, YOU will owe HIM, not the other way around. Are you currently collecting the CCTB/UCCB full time? Over 40% time and he'll be entitled to a share of that as well.

In all honesty, what I would offer in your shoes (again, unless he's a documented danger to the kids)

1. 50-50 Physical w/ Joint Legal. Designate YOU as primary residence (for the purpose of determining school zones)

2. Offset table amounts of support, recalculated yearly on July 1, exchanging notice of assessments no later than June 30 of each year to determine the new calculations.

3. Pro rata split of section 7 expenses, after any applicable subsidies are taken into account (ie. UCCB, government subsidies/etc). Individual section 7 expenses exceeding 500/child/year to be agreed upon in writing prior to being incurred. (Not including childcare) I use 500 as a number because that's what you can claim on income taxes for activities/etc.

4. The above being dependent on him being able to provide a viable, acceptable parenting plan to provide proof of him being able to get the children to daycare/etc. on time, and having arrangements to pick them up from school/etc. If you believe the conditions of his home to be an issue, include a clause for a home assessment from a 3rd party organization prior to the new schedule taking effect.

I appreciate your comments and advise - it was quite productive and you bring up very many good points. I do understand that he's entitled to shared custody, they are OUR kids after all. But is anyone taking into account the fact that I have a 12 month old? Who by the way, I didn't mention until now but I'm still breastfeeding. I didn't mention it because its controversial, but let me just point out that I nursed my 3 year old daughter for an extended period of time as well and I am not one of those freaks who is nursing as long as humanly possible in order to hang on to control of the kids. I started him on cows milk early in order to facilitate more extended and frequent visits with dad and have been quite flexible about it all - and I've never tried to use this as the only reason for having the current arrangement we have.
Anyone else curious as to why we have the current arrangement we do? Anyone perhaps think that maybe, just maybe, this is benefiting him and that he's happy with arrangement and maybe just keeps asking for 50/50 because there is SO MUCH damn pressure to do it from lawyers and onlookers?

I'm not against shared custody, in fact I've come up with something that could very well be a good compromise for everyone that would amount to shared custody, which could come into play when I'm done nursing our son. (and it won't be 2+ years...)

Danger to the kids? Maybe. Documented danger? No because I was always too chicken shit to call the cops. He's picked up our daughter from daycare drunk in the past, is a depressed alcoholic narcissistic asshole and so yes, I do worry. But I've never stopped him from seeing the kids... because that's not my right to do so. I did have to leave the home suddenly at one point, and he cried in public (facebook) for days about me taking the kids away from him, but he ignored our repeated attempts through lawyers to arrange access and try to come up with a solution. he's threatened to leave with the kids, and was never shy about being verbally and emotionally abusive to me in front of the kids, or using them to milk information and manipulate me on endless occasions, or using his mother to spy on me etc etc. Unfortunately this is only my opinion, and the nature of these forums means that we only always get one side of the story. He is a very difficult person to deal with in my opinion and I've been doing the best I can under the circumstances.

But I will not claim any kind of abuse in court, I do not feel this would be productive and it would be nearly impossible to prove (despite months of documentation). I am trying to move on and do what's best for the kids.

[Tayken]

I appreciate your comments and advise - it was quite productive and you bring up very many good points. I do understand that he's entitled to shared custody, they are OUR kids after all. But is anyone taking into account the fact that I have a 12 month old? Who by the way, I didn't mention until now but I'm still breastfeeding. I didn't mention it because its controversial, but let me just point out that I nursed my 3 year old daughter for an extended period of time as well and I am not one of those freaks who is nursing as long as humanly possible in order to hang on to control of the kids. I started him on cows milk early in order to facilitate more extended and frequent visits with dad and have been quite flexible about it all - and I've never tried to use this as the only reason for having the current arrangement we have.

Breastfeeding is a horrible argument and stay away from it. Case law has already been set and even Dr. Jack Newman himself tried to testify as an expert witness regarding the matter.

To quote the wise Justice Quinn:

[3] The petitioner may have an honestly held and well-intentioned theory on breastfeeding. This breastfeeding however must come to an end at some point. The petitioner in an earlier affidavit indicated that she intended to breastfeed until at least the child was two years of age. Dr. Newman’s letter indicates that pediatrics recommend breastfeeding for at least a year with no upper limit. The petitioner will have breastfed for two years beyond the minimum recommended. This child is not an appendage of the petitioner. The child will very shortly have to leave the petitioner for day care, junior kindergarten and other outside relationships. It is important for the child’s good that she learn to adapt outside of the petitioner’s constant attention. The petitioner should therefore end breastfeeding over the next four months and the child should then experience overnight access with the respondent.

CanLII - 2003 CanLII 2121 (ON S.C.)

[Tayken]

This is wrong. At 60-40 you'll most likely see offset. With 50-50 you'd also use offset. The only time you would NOT see CS is where the salaries are damn near equal (and thusly cancel each other out).

If YOU are the higher income earner, YOU will owe HIM, not the other way around. Are you currently collecting the CCTB/UCCB full time? Over 40% time and he'll be entitled to a share of that as well.

2010 case law changed this recently. Judge in Kitchener (or Waterloo I have to lookup the link) basically set the offset differently. It isn't a widely known case but, is being used a lot in the courts by GOOD family law laywers.

Basically the formula is:

Table Amount Parent A - Table Amount Parent B = Old Way (where B is the lower paying parent)

The new case law screws that formula that it is then Old Way divided by 2 because of the 50-50 (or I have seen it argued on 60/40 with a different % removal) based on time.

Digging up the decision. I have it in my research somewhere. Just have to find it.

Good Luck.

[NBDad]

You can agree to almost anything you want, and the judge's DO have discretion pertaining to unique situations. I haven't heard of that case, so if you can find it, please share as I would be very interested in reviewing it.

What I am trying to get across is that she will likely be the payor in a 60-40 or 50-50 situation. If she gets lucky and is able to avoid it great, but worse case scenario she's looking at offset table.

Breastfeeding beyond 12 months is of minimal value and has been successfully rebutted in numerous cases as being irrelevant past that point. It won't play a factor, and you'll look bad for bringing it up.

As far as him wanting 50-50 due to being pressured, if he's happy with the current arrangement, offer that up. Custody/Access and support are NEVER written in stone, they are ALWAYS re-openable given a material change in circumstance.

40% is 3 nights a week. If he's employed full time he probably has at least 2 days off...write in that he gets them on his days off, and toss him some extra time during the summer/holidays so he goes over 40% on a yearly basis.

How much of a difference in incomes is there? (ballpark?) Do you collect CCTB/UCCB for the children currently? How much would losing 50% of that affect you (IF he was paying a proportional split of child care on a regular basis like he is supposed to).

What you SHOULD be doing as well is submitting receipts to him for the daycare expenses and asking for him to pay a share. That way there is at least documentation that shows you are trying to work with him.

[dorano]

2010 case law changed this recently. Judge in Kitchener (or Waterloo I have to lookup the link) basically set the offset differently. It isn't a widely known case but, is being used a lot in the courts by GOOD family law laywers.

Basically the formula is:

Table Amount Parent A - Table Amount Parent B = Old Way (where B is the lower paying parent)

The new case law screws that formula that it is then Old Way divided by 2 because of the 50-50 (or I have seen it argued on 60/40 with a different % removal) based on time.

Digging up the decision. I have it in my research somewhere. Just have to find it.

Good Luck.

You guys, and girls! amaze me...
Anyone one of you ever consider offering your services as "consultants" for anyone self-representing themselves? lol... charge half what the lawyers do, help with paperwork, research and advise, and of course have a nice waiver signing away any responsibility in in the event it all goes bad...lmao Sounds brilliant to me, and I'd even considering hiring!

[dorano]

You can agree to almost anything you want, and the judge's DO have discretion pertaining to unique situations. I haven't heard of that case, so if you can find it, please share as I would be very interested in reviewing it.

What I am trying to get across is that she will likely be the payor in a 60-40 or 50-50 situation. If she gets lucky and is able to avoid it great, but worse case scenario she's looking at offset table.

Breastfeeding beyond 12 months is of minimal value and has been successfully rebutted in numerous cases as being irrelevant past that point. It won't play a factor, and you'll look bad for bringing it up.

As far as him wanting 50-50 due to being pressured, if he's happy with the current arrangement, offer that up. Custody/Access and support are NEVER written in stone, they are ALWAYS re-openable given a material change in circumstance.

40% is 3 nights a week. If he's employed full time he probably has at least 2 days off...write in that he gets them on his days off, and toss him some extra time during the summer/holidays so he goes over 40% on a yearly basis.

How much of a difference in incomes is there? (ballpark?) Do you collect CCTB/UCCB for the children currently? How much would losing 50% of that affect you (IF he was paying a proportional split of child care on a regular basis like he is supposed to).

What you SHOULD be doing as well is submitting receipts to him for the daycare expenses and asking for him to pay a share. That way there is at least documentation that shows you are trying to work with him.

One of my favorite posts to date! THANK YOU! You are all really amazing...

The 2010 notice of assessements show a difference of approx 3-5k per year (based on what he's told me and from what I know)- minimal, although I understand that may mean I would have to pay him CS. I have no issue with this what so ever - and as the years go on I have more earning potential than he does and if we are sharing custody, then the kids should benefit from this too as his income potential is basically topped out.

I do receive all the kids related provincial and federal benefits right now.
At this point, breastfeeding isn't a big issue. He's going along with allowing me to keep nursing before bed and in the morning, as I did our daughter for 18 months, but it will not go past that. It was however an issue when we seperated and our son was 4 months old. At that time it was being used as an argument, but since then many things has changed, and as i told him, our son is growing up and much more independant, in daycare, going extended periods of time without seeing me and thriving really.

One of the main issues I've just realized and mentioned earlier this morning was subsidy. Both daycares cost 1700$ a month. I secured a subsidy, on the basis of being the primary caregiver on 1 income, for our daughter so the cost has gone down to 1000$ with the potiential to go down to about 200$ when I secure a spot for our son. If we get shared custody we will lose this subsidy. I will have to discuss this with him and see if this affects his decision making, as it certainly has an impact and although its finances, we all know everyone needs enough money to make ends meet. The reality of loosing this subsidy will make both of our financial situations a lot more difficult. Although for me right now I'm paying the full 1000$ and receiving 100% of the CCTB/UCCB, splitting the CCTB/UCCB and daycare expenses would end up being in my favor but not his so it have to be up for discussion.

Having some positive constructive communication would allow us to openly sort through all these issues, although this never existed during marriage so why would it happen now? lol

[Tayken]

Having some positive constructive communication would allow us to openly sort through all these issues, although this never existed during marriage so why would it happen now? lol

Still looking for the decision I was talking about. I have it in an email thread somewhere and looking it up on CanLII as an alternative. It would be a big help for you. As well, I have only seen it used by fathers and it would be GREAT to see a mother use the same decision.

Now, for opening up communications. Based on your statements a really good option is Our Family Wizard. There is a cost but, everything is tracked. Think of it as one long running managed affidavit. So, if your ex does spout off the way you say he does... The best place to capture it and manage communications.

There is another service similar. I think OurSocialWorker.Com promotes it. It may be more "Canadian" in nature. I have seen OFW in action. Very well done.

Sorry about not finding the decision yet. I have piles of research all over my desk. It used to be on top of the pile but, I just can't seem to find it.

Good Luck!

[Tayken]

You guys, and girls! amaze me...
Anyone one of you ever consider offering your services as "consultants" for anyone self-representing themselves? lol... charge half what the lawyers do, help with paperwork, research and advise, and of course have a nice waiver signing away any responsibility in in the event it all goes bad...lmao Sounds brilliant to me, and I'd even considering hiring!

When the law changes around Paralegal representation at trial in Family Law I am sure you will see some changes. I am not sure how far this has progressed but roomers have been floating around about this.

There are divorce coaches out there who do help with high conflict divorce. Costs are high. I have done some research and they are more popular in the US than in Canada. I have spoken with some but, mostly they focus on cases where one party has a disorder (Cluster A/B/C) on Axis II of the DSM.

(Still looking up the decision. My email box is slow going at times.)

Good Luck!