Settlement Conf. - Offer to Settle

[Sydmoe]

So quick recap. My ex has filed a Motion to Change as she wants to move my two girls age 15 and 14 from Ontario to Edmonton where she has become engaged to someone she met and has carried on a long distance relationship with. Our Final Order included my access to be every other weekend and every Wednesday. However, I pick my youngest from school every day and bring the oldest to her sports practices and games 3 or 4 times a week. Youngest also is very active playing on 2 rep sports teams which I also have to shuttle her to as well. Needless to say I have almost daily contact with them. They have a good relationship with their mother and don't want her to move but if she does they want to go with her. They have told a few of their friends they don't really want to go but feel they have no choice. At least this is what their friends parents have relayed to me.

Anyway, I am trying to fight this and the biggest thing I have going against me is their age and the fact that they say they want to go. I am arguing they may be agreeing on the move but they are too young to understand really how this is going to affect them. They have no connection to Edmonton. No family, no friends or any support.All my ex and my family is here. The kids don't understand what they are giving up.They see their mother flying back and forth all the time and they think that they will do the same.

We just had a case conference last week and it was decided that the OCL will be involved. Her lawyer has already scheduled the settlement conference for June 15 as they are hoping the OCL report will be in by then. They are pressed for time since she wants to move in Aug for the start of the next school year.

My question is, should I put my best offer in my Settlement Brief? The reason I want to do this is I want the Judge to see I am trying to make a reasonable offer to settle. If I am prepared to make such a reasonable access offer I would expect the final from her to be as good. Here is my offer.

OFFER TO SETTLE

1. Kids remain in Mississauga and attend XXXX High School
2. I wave all right to child support.
3. Kids spend summers with mother in Edmonton. Mother bares travel cost
4. Kids spend March break with mother in Edmonton or vacation spot of her choosing. Mother bares travel cost
5. Kids spend Christmas holiday with mother - from day after start of break to day before recommencement in New Year. Mother bares travel cost
6. Kids can travel to Edmonton on long weekends or other periods when not in school at mothers expense.
7. Kids can spend time with mother anytime she travels to Ontario to be with family.
8. Status Quo for section 7 expenses

[mom2three]

Your daughter's are at the age where they can make the decision which parent they choose to live with. That being said.................

Let the girls know (in the kindest way) that you would like them to live with you. And leave it at that. At your conference you both agreed to have OCL involved; however, it is at the discretion of OCL whether or not they become involved. The judge cannot order their involvment.

If the OCL become involved, you might stand a chance IF the girls express that they don't think they have a choice. If the OCL does not become involved you don't have much of a leg to stand on, despite your valid arguments.

She cannot arbitrarily leave (at least she is not supposed to - that would be violating the existing order), but she will need to file a motion and given the facts, the odds are in her favour.

I hope you can speak openly and honestly with your daughters. It may be extremely disappointing but if they do express their desire to go then in their best interests, IMHO, you need to given them your blessing.

Best of luck to you. It cannot be an easy thing for sure.

[Mess]

I'm not sure if you are aware, the judge doesn't look at your offers to settle, until after the trial is decided and it is time to decide whether to order costs paid. An offer to settle is only one factor in awarding costs, but if you make a generous offer to settle, and you then win in court, it makes it clear that there was no actual reason for trial other than your ex's obstinance.

If you are thinking that the offer to settle will make you seem reasonable during the trial, you are wrong.

You cannot waive the child support, it is the right of the child and not you. Between the two of you there can be an arrangement, but it is not legally enforcable. You could change your mind and seek support in court and it doesn't matter how many documents you signed in front of how many witnesses. And offer like that is based on her trusting you. Her lawyer will tell her that she shouldn't sign on that basis.

You are correct that the kids' wishes will be compelling. Instead of worrying about your offer to your ex, you should be having a heart to heart with your children about the consequences of the move. Perhaps suggest, since they shouldn't be moving during the school year, that they spend the summer there and have the option of deciding to return in the fall (and at any other time.)

[arabian]

Money will be a big issue when the kids move away. I would probably address the costs of flying the kids back and forth. Can you and your ex afford this? Does the extra cost of cross-country visits have an impact on their ability to attend post-secondary/university? These are issues that you might discuss with your children. They want to make adult decisions then perhaps ask them what they think about the cost?

Kids probably want to keep both parents happy. Lousy situation to be in but they have to know the consequences of their decisions before they make a move perhaps?

[Links17]

Respecting the opinion of a child of the marriage even at 12 years old is not a sure thing, if you can prove that they are doing it for their mother's sake or for loyalty or whatever the judge could throw out their opinion. If the kids are doing it because THEY want to be with her more than be with you then that is another story.

I would also say that the fact you have only access rights severely handicaps you here.

The case law from Gordon vs Goetz is your friend here.

-Is she moving to seperate you from kids? No.

If she moves as she is the parent the kids have been with all the time she is better.

-Can you prove that all the other factors (school, community, friends etc...) + access parent outweigh a custodial parent. It might be tough but that might be your best bet IMO.


______

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
_____

-Perhaps focus on the flimsiness of the Ex's relationship (if it is flimsy)?

[paris]

These kids are old enough to decide who they want to live with. The problem is they will only have full time access to one parent. Personally, I would be trying to stop her from moving.

[OrleansLawyer]

2. I wave all right to child support.

Efforts to establish ongoing child support down the road would withstand a prior waiver of child support.