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MarkSwayCanada 05-05-2022 06:52 PM

Help Needed
 
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 05-05-2022 07:08 PM

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 05-05-2022 07:19 PM

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 05-05-2022 09:07 PM

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 05-06-2022 08:55 AM

^^^^ This.

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

Bogdan 05-06-2022 10:57 AM

From my very similar experience, I’ll say that getting things changed in mediation is unlikely but not impossible.

I made the similar (mistake?) of excepting less than 50/50 interim agreement which made it an up hill battle.

Ultimately after multiple days of mediation (high conflict) we agreed to a progressive schedule that moved up to 50/50 over 2 years. Expensive, but still cheaper than court.

Indefinite 5/14 access with a high conflict ex a horrible situation you can be in - full child support plus Section 7, the same at home child expenses as the mother, and 18+ years of conflict, contention and even more legal fees. Advice that I’ve received (including legal), is at that point the consideration needs to be made to just move on with your life. Sad I know.

blinkandimgone 05-06-2022 12:39 PM

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.

Brampton33 05-06-2022 01:35 PM

5/14 is a high conflict ex's dream and a horrible situation to be in financially. You basically have children enough to require you to spend as though you have 50/50, BUT you must also pay Table CS. It is literally a gravy train for your ex who will receive a monthly windfall.

I know I repeat this in threads related to 50/50...but here is a snippet of what I saw in my case:

Ex to judge: "It has to be 5/14 your honour"
Judge to ex: "Why not 6/14, what is one extra overnight gonna do?"
Ex to judge: "Because it HAS to be 5/14 your honour!!"
Judge to ex: "Why exactly?"
Ex to judge: "Because it HAS to your honour!!!!!"

In my case, the judge was quite aware that my ex was solely motivated by money and maximizing the amount and duration of support.

The legislation favours a maximum contact principle being that the children have the right to equal access to both parents, provided it is in their best interests. Unless it is unsafe for the kids to be around you, or you live an unreasonable distance away where it affects schooling, the law favours 50/50. PS- there is plenty of case law reflecting 50/50 as best interest for kids. Just search Canlii

Bogdan 05-08-2022 11:34 AM

Sure the legislation on paper probably says that it prefers maximum contact from both parents… but the actual outcomes are still very lopsided, and the default is not 50/50 even with recent changes.

The following quote summarizes the current system based on my experiences, discussions with lawyers, and dad's in similar positions as myself.

Canada is similar to the U.S. in that it has moved from a "mom always wins custody" system to an "officially we can't tell you who will win" system in which parents spend hundreds of thousands of dollars to litigate and, at the end of it all, mom usually wins.

Brampton33 05-08-2022 06:53 PM

Quote:

Originally Posted by Bogdan (Post 250501)
Canada is similar to the U.S. in that it has moved from a "mom always wins custody" system to an "officially we can't tell you who will win" system in which parents spend hundreds of thousands of dollars to litigate and, at the end of it all, mom usually wins.

Unless there is a legitimate reason for you not to have 50/50, such as there be potential harm to kids or you live 200km away, you should be fighting for 50/50 and be successful. Moreover, your lawyer should be confident in his/her ability to get you that outcome. If not, you may wish to seek alternative opinions.

Bogdan 05-08-2022 09:06 PM

Agree with Brampton33 that you should be fighting for 50/50 ... but Ontario/Canada is not a 50/50 state EOD like some states in US are. It is not a 50/50 split (extenuating circumstances aside).

I'm speaking specifically for the Greater Toronto Area (GTA) ... there very much still is a bias amongst judges. Hit the wrong judge on the wrong day (as a male) .. and you will not get 50/50 regardless of facts. I've had this explained to me by numerous lawyers here.

You can see it on this forum too, with dads having to agree to some ridiculous progressive schedules. It's never the other way around.

A dad asking for 5/14 would be ridiculed at ... a mom asking 5/14 is not unusual.

Brampton33 05-09-2022 08:47 AM

Don't agree to anything less than 50/50, its hard to get out of something you agreed to. And I'll repeat, having 5/14 is financially crippling because you are literally doing double-duty. You are paying full CS AND you are expected to have all the groceries, bedrooms, clothing, entertainment, etc as though you had your kids 50%.

Agreed with Bogdan that the standard is to graduate to 50/50 through transitional steps. That is what transpired in my case. It was obvious that my ex was solely focused on retaining 5/14 simply for the Table CS.

Do it in 3-4 steps. Where you have 5/14 for 3 months, then 6/14, then 7/14. If your ex is ok with 5/14, surely 1 additional overnight over a 2 week period is not the end of the world, is it? Call her bluff. Judges are used to seeing 1 parent screaming it needs to be 5/14 whereby 6/14 would be a travesty.

Bogdan 05-09-2022 12:25 PM

Additionally ... 5/14 also means you're essentially being an unpaid babysitter for a child that the court has deemed to be essentially someone else's.

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.

Some legal food for thought on not getting 50/50 :

"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."

Tayken 05-09-2022 01:54 PM

Quote:

Originally Posted by Bogdan (Post 250513)
"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 05-09-2022 02:12 PM

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.

Quote:

Originally Posted by Bogdan (Post 250513)
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 05-09-2022 05:58 PM

Quote:

Originally Posted by CoolGuy41 (Post 250519)
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.

Brampton33 05-10-2022 09:17 AM

If your current lawyer is not confident they can get you 50/50 with kids, consider looking for a lawyer who is.

Like we said, 50/50 is quite common. Unless you live 200km away or there is a legitimate threat to their wellbeing. What is extremely common is to obtain 50/50 through graduated steps. Offer 50/50 by Age 3. Your kid is 1.5 now and by the time you negotiate and get agreement in place, your kid will be 2. As Iona said, do a few increments over a 1 year period. At age 3, your kid is a toddler running around and your other kid will be 6. Perfectly manageable and your kids should not be denied because your ex is being selfish.

pinkHouses 05-10-2022 03:39 PM

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.

Bogdan 05-19-2022 09:05 AM

Clearing up some things from my experience:

This is for the GTA and extenuating circumstances aside (equally involved parents, with no drugs, abuse, etc).

Mother will get atleast 50/50, the dad will likely get 50/50 (but it’s not guaranteed).

Officially there’s no more “tender years doctrine” .. unofficially the younger the child (specifically at the super young diaper / breast feeding age) there’s a preference for the mother.

This is why fathers (such as myself and Brampton33 and LovingDad on this forum) end up taking the “graduated parenting” schedule route. It’s risk mitigation since things aren’t guaranteed 50/50 for the dad. It’s never the other way around.

Rest assured though even with a graduated parenting schedule ... a very high conflict ex will still make it her mission to come up with BS excuses to prevent the progression and drag you back into litigation.

Regarding Tayken’s last post .. the site mentioned is an excellent resource, including for Canada. The best resource that I found on the matter that cuts all the standard cliche BS that most other resources have.

Was the quote I referenced sad ? Sure … but it’s really meant for “high conflict” individuals … think trying to co-parent with an Amber Heard persona for 18 years, it can be torture especially if you’re stuck at 38%, pay full offset and have no say in your kids upbringing.

I empathize with dads that are stuck in these positions .. and now get the alternative.

Brampton33 05-19-2022 10:38 AM

Agree with everything Bogdan said. For me, a graduated plan was not about risk mitigation. There was never any risk. The judges associated with my case, my lawyer, and OCL all indicated that the parenting plan should be 50/50. My ex was adamant that it be 5/14. Everyone saw right through her that she was motivated by having Table CS for 18 years.

A graduated plan was only presented, and agreed to, as a means to appease her and end the litigation. I paid an extra year of Table CS, but would have likely spent 5x more in a trial, and a trial would have been 2+ years down the road so I would have been no further ahead in terms of when 50/50 is achieved.

And yes, a high conflict ex will look for any excuse to haul you back to court to either halt the progression of 50/50, or somehow suggest 50/50 is not working when its being implemented. Best advice is to always be on your best behaviour, and document everything. Be ready for the inevitable return to court. A high conflict ex cannot accept anything less than getting their way. Sometimes to their own detriment as court's really don't have patience for that.

Get 50/50 and limit interaction with your ex as they will continuously try to bait you.

Bogdan 05-19-2022 11:07 AM

Yep Brampton brings up the other benefit of accepting a subpar (graduated) solution instead of 50/50 …

The cost benefit analysis side.

You can accept paying 1 or 2 years of child support via graduated progression … or you take things to costly court (which will cost you more than the child support) , drag things out for a year or 2 and the BEST you can hope for is 50/50. You still end up paying more (even if you “win”).

I had it explained to me as playing chicken with an insane person … the only way to win is to not play.

MarkSwayCanada 05-26-2022 05:42 PM

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 05-26-2022 06:26 PM

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.


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