Hello

[Pinto]

I have been reading this forum for a good number of months now, and find it full of great information and advice. These days I wish some of the members were my close friends and would have a couple of weeks for a long cottage retreat to discuss my issues in detail. That being said, I am confused and looking for help.

I separated from my spouse 10 months ago after 10 years of marriage. We never officially agreed on anything, and have not signed any separation agreement. I met someone shortly after separation and have been in a long-distance relationship since. That didn’t help. For my spouse this transformed the situation into a matter of principle to the detriment of the best interest of the children. I will leave the financials aside as I believe we might be able to reach an agreement if everything else is settled. We make about the same money and have always contributed all of it towards the family expenses.

Our biggest problem is the access to our two children, now 5 and 1 ½. We seem to agree on shared custody but she goes on and on on how the youngest child is fully dependent on her because she is the mother. Therefore, in terms of access, she would only offer that I see him two afternoons a week, and one Saturday-Sunday overnight every two weeks.

Since the children need to be together as much as possible, the oldest would follow the exact same schedule, plus one extra overnight every two weeks at my place. Percentage-wise I would have access to the oldest for about 20% of the time, and less for the youngest. She wants a three month trial period on this arrangement after which, based on the children’s reactions, would reconsider the access. I am afraid this would become status quo, should I agree. I also think she would be overwhelmed with the amount of work involved in carind for them day in day out but would rather have them go to afterschool than give me additional overnight access.

I believe that both children are ready for what’s coming. They are well together, and need both parents equally. While she cared for the youngest during maternity leave, she is now back to work and spends as much time as me with the children in the home. I do as much with the children as she does: medical appointments, lunch bags, good-night reading, homework, teacher-parent interviews, changing diapers, pick-up and drop-off to/from school, feeding, cooking, playing, bathing, PD days, etc. 50-50 (or at least 60-40) access to both children would make sense from all points of view. We are capable parents, in comparable financial situations, willing and able to do the best we can for the children.

We went through lawyers last summer inbetween useless police visits, spent $2,000 each and got absolutely nowhere. We are still living in the matrimonial home and neither of us intends to move out until the house, currently on the market, sells.

Following a report from the Ottawa Police, a file was open with Children’s Aid Society of Ottawa, and closed after a home visit and personal interviews. I may add, CAS’ approach was biased beyond belief against me. But that’s another story.

Since the one year separation anniversary is around the corner, and we haven’t moved an inch, I am wondering what to do. How do I take it further? What should be my next five legal steps? I was thinking to apply for divorce but no other issues have been resolved (access, division of property/debts). I would like to stay away from lawyers as much as possible, knowing they are being adversarial to my wallet’s disadvantage. We have contemplated counseling but knowing my spouse, it would be just another money pit. What would a judge decide should we give her the power to decide?

I thought of an offer to settle but my lawyer was iffy on the idea, since no legal proceedings have started. At this point I am afraid the house would sell some day, and we will re-start the arguments on how to share time with the children, backed in a corner by the sale date. I prefer to plan and act ahead trying to avoid seeing more police officers biased towards me just because I am “the wrong sex.”

Any advice or your own venting is welcome .

Thank you.

[billiechic]

You are both still living in the same home, so is there some communication possible? What about mediation? Can you sit down with someone and try to work things out fairly? Her offer is ridiculous, especially since you are a fully involved parent already.

IF you ask for 50/50, but would be willing to take 40%, then I think you may have a shot at avoiding too many costs. Can your ex be reasonable? You will need lawyers to look over whatever you come up with, and then make sure it is filed at court so it will be enforcable.

Good luck!

[Mess]

Your argument should be based on the fact that you have been separated for 10 months (living in separate bedrooms and hopefully you have separated family finances) and you already have established a 50/50 parenting time with the children.

The youngest needs to be with dad as much as with mom, any other argument is ridiculous and cannot be supported with facts. If the child doesn't need you, then they don't mom either.

You've done well to stand your ground and stay in the home, this has protected your custody.

At their ages both children would do well with a short rotation schedule, for example 2/2/3 or 2/2 which would even out over two weeks. You should plan on alternate weekends so you each get time off to go out, and both get time for weekend activitities with the kids. Young children have a short view of time and a week is a long long time; two days is fine to be away from mom or dad and settle in.

Presumably since mom is working the kids are in daycare? There is no merit in her seeking greater time with them, you should be as capable and as important to them as she is. If she is "going on and on" about the child being dependent on her, don't engage in this conversation with her, bring her to a third party mediator and your first question should be how she expects the child to ever become independent of her if she can't start now when she is at work again.

[billm]

...
IF you ask for 50/50, but would be willing to take 40%, then I think you may have a shot at avoiding too many costs. ...

Don't accept anything other than equal time with the kids - you are obviously an equal parent.

I would follow some of the suggestions in here regarding documenting what is going on and using a voice recorder. The police have already been involved for no reason (I assume) which is ridiculous.

You can't sell the house until you have a properly executed separation agreement PERIOD.

[representingself]

You can't sell the house until you have a properly executed separation agreement PERIOD.

I agree with Billm on this point...

How do you plan on splitting the money from the sale?
Do you have your family equilization figured out?

If you are planning on shared parenting, do you and your STBX have an agreement on where you are going to live? As your oldest is in school, it is important to consider living in the same school district... what are your plans?

[dadtotheend]

I will leave the financials aside as I believe we might be able to reach an agreement if everything else is settled. We make about the same money and have always contributed all of it towards the family expenses

Believe me, this s**t becomes about money once it's cards on the table time. It's more expensive to run two homes than one and CS will be an issue that has to be dealt with.

Her argument about a three month trial period is total b/s. It might be about her wanting to protect her motherly status and a presumption that she is somehow a primary parent just due to her gender. Or it might be about angling for CS. Or a combination of the two.

You are right to be concerned about a status quo developing from that. You know the dynamic far better than anyone here, but you have been lurking long enough presumably, to know that could be a strategic move.

There's no magic bullet. You are going to have to do your best to work out everything b/w the two of you and engage the expensive professionals as little as possible. But ultimately you will have to shell out some $$ to end up with a valid SA. How much will depend on how agreeable you can be with each other.

[billm]

It should all be so easy, you both work, you both are raising the kids.

You should simply agree to raise the kids equally after separation (50/50), live near each other, split ALL assets and debts equally after selling the house. CS should be set off method which means almost none in your case and SS should not happen given that you said your incomes are about the same. If your incomes are not about the same, it should be still easy to figure out what to do.

BUT a lot of people, stirred by unreasonable lawyers, make it really hard.

[dadtotheend]

BUT a lot of people, stirred by unreasonable lawyers, make it really hard.

And stirred by their hurt and vindicitiveness.

[Pinto]

Hello again, thank you all for responding. I’ll get right into the points you’ve made with more detail:

We still leave in the same house but communication is minimal. Every time I opened the subject of access, the conversation lasted 3 minutes followed by raised voices on both sides and police calls. I’ve learned my lesson, tried communicating only by e-mail and avoided the police but still got nowhere. As I explained in my original post, she won’t budge, having been advised by her lawyer that there is no judge in Ottawa that would give me access to the youngest anywhere close to 50% of the time. With that in mind and the siblings' need to be together, the oldest is being held hostage.

I think I can be reasonable, with the children’s interest at heart, but not with propositions like explained above. I agree with a short rotation schedule. Even if more difficult for the parents, it would best answer the children needs, like Mess said.

We have separated finances but can’t agree on whose debts are those before separation date. Since most are under my name (about 15,000), she wants nothing to do with those. At this point she wants to split in two the money from the sale of the house but each pay the debts accumulated since separation in their own name. So far we have nothing official; she claims she doesn’t care about anything but the children and the money from the sale of the house. Oh, and possibly the pension split.
I have been waiting for 6 months for her financial statement. I gave her mine in August.

Unfortunately, I am 150% convinced a mediator would not work. We spent money in one-sided aggressive lawyer-to-lawyer letters and got nowhere, families got involved preaching being reasonable; the universal conclusion was that I need to file with the court and let a judge decide. I’ve used a voice recorder, took notes, documented my involvement with the kids for some stretches of time until everything calmed down.
But let’s say I give this a try. How many sessions should I try it before admitting it doesn’t work, if it doesn’t?

If we can’t sell the house without SA, I need to get working on that. Do you have any suggestions on a good sample form? I started filling out the free form from candivorce.ca.
Should I submit a parenting plan with that at the same time? Shoud I serve the SA through my lawyer with a warning that no answer means going to family court?

True, it should be simple, but there is hurt, there is vindictiveness, there is payback, there are lawyers that like to profit.

Thanks. Pinto

[KanataKathy]

Like Bill M. says, it *should* be straightforward. I was in a similar position some 11 years ago, and it was MY lawyer who tried to get into a p!$$!ng match with my ex's lawyer, wanting to 'school' the country lawyer on family law, at MY expense!

I fired the first lawyer, and retained a 2nd one who basically echoed what Bill M. said, and a separation agreement was worked out in less than 6 weeks. 50/50 custody, 50/50 split in assets. The whole thing cost me about $800 in legal fees...

BTW, Pinto. Work on the separation agreement - put the divorce on the backburner for now. My 2nd lawyer said something along the lines of "divorce papers just enables someone to go out and do something stupid a 2nd time".

[billm]

Pinto, tell your wife to join this forum, you can use it together and one of you will get a reality check!

[Pinto]

Pinto, tell your wife to join this forum, you can use it together and one of you will get a reality check!

billm that would be nice. but as you know, there are always two sides to any story and I would be afraid to have found yet another battleground. I will consider it though

[dadtotheend]

As I explained in my original post, she won’t budge, having been advised by her lawyer that there is no judge in Ottawa that would give me access to the youngest anywhere close to 50% of the time.

Total bullshit being spouted by a lawyer who is using schoolyard tactics to try and bully you into submission.

If that's going to be the way things are, you might as well offer up mediation expecting nothing (only works with two willing parties) and head straight to court.

If she wants to blindly listen to what her lawyer tells her what she wants to hear, there's no talking sense. Let a judge tell her what time it is.

You have a working (kinda) parenting status quo that will be continued if you fight for it.

And get ready to open your wallet. Your task is going to be learning to use the lawyer correctly. Continue to learn as much as you can on your own.

[NBDad]

You have a right to 50-50...so does she. PERIOD.

Do you have a separation date nailed down? did you file the forms with CRA to back it up if it comes down to it? (RC65 I believe...change of marital status).

Offer up a reasonable settlement IN WRITING to her (via email)...ie. 50-50 physical, joint legal, set off CS based on notice of assessments (line 150) etc.

If she refuses, go and start the process. Use her refusal as grounds to bypass mediation, etc. as clearly she is not willing to negotiate with you.

Debts that are paid out of equalization are anything accumulated DURING the marriage. Anything accumulated AFTER are your own problems. (hence why you need a distinct date of separation).

[InterprovincialParents]

As a MOM, I agree that the "tender years doctrine" (infants and toddlers needing mom more) is utter BS...You can find a lot of resources on the foruns on procedures, and case law precendents on Canlii.ca. Family law guides and forms can be found on the OAG website.

I recommend everyone read A Guide to Procedures in Family Court - Ministry of the Attorney General to familiarise themselves with what to expect, and what you need know know/have.