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-   -   If there is no agreement on offers to settle at a settlement conference (https://www.ottawadivorce.com/forum/showthread.php?t=23588)

Donald Duck 05-18-2021 11:44 AM

If there is no agreement on offers to settle at a settlement conference
 
Dear friends,

I have been in court with the mother of our child for over four years and the child is only four and a half.

We have had around 20 CC and SC and we only have access issues on the table to settle.

There has been multiple false accusations and police reports filed against me and never any charges, and the same issues at CAS.

She has leveraged the silver bullet strategy and I started with supervised access, and was transferring the child at access centre for years.

For these reasons access has been a very steep hill to climb and I'm currently only seeing our child on the weekend for eight hours.

They have offered every other weekend and Wednesday after school for four hours and my goal is a minimum of 50/50 access.

My question is is that at our next SC at the end of the month, if we still do not agree, what are the next steps ?

Thanks for any input, in advance

rockscan 05-18-2021 03:23 PM

Push for trial. Having so many conferences is ridiculous if the accusations find nothing and CAS has no concerns.

Donald Duck 05-18-2021 04:16 PM

Police actually wrote some very damning evidence about her and CAS never even contacted me, but I followed up with them because the police told me that she had contacted them.

So if we put in a counter offer and it is not accepted, and I do not accept theirs, then do we just proceed to a trial and how long do you figure that would take and are there any steps in the mean time after this next SC?

50/50 should be a slam dunk then , no?

rockscan 05-18-2021 06:26 PM

Yes at the next sc you can ask to be put on the trial list. It could take months depending on where you are. The problem with waiting is that she sets up a false status quo. If she has created problems for herself you could maybe try for full custody.

Im not an expert though. I just know constant conferences are a waste of time.

Donald Duck 05-18-2021 06:43 PM

Thanks very much!

Really appreciated

Janus 05-18-2021 11:33 PM

Quote:

I'm currently only seeing our child on the weekend for eight hours.
Quote:

Originally Posted by Donald Duck (Post 246313)
50/50 should be a slam dunk then , no?

Honestly, I do not see you going from 8 hours to 50%. No matte what CAS says, or the cops say, or what almost anyone says... that kind of radical change almost never happens.

To be clear, I'm not actually saying it would be a problem. The idea that kids are fragile flowers who cannot handle change is epic nonsense.... but judges believe it.

I mean, you don't even have an overnight. You actually have less than the vast majority of NCP's out there. I haven't reread your story, but you alluded to CAS calls so perhaps there was some nonsense that got you stuck with so little time. At the end of the day though, it does not really matter. The time to get 50% is immediately, it is very hard to change such a lopsided status quo.

Maybe accept the offer, with a clause that says that entering grade 1 is a material change of circumstances and that custody will be reevaluated at that point.

I don't think court will give you anything more than EOW.

Donald Duck 05-19-2021 07:22 AM

I understand what you're stating and I completely agree with the fact that it could not jump to 50% immediately and to be perfectly honest, for the child, I think that a gradually increase over time is better to get to 50/50.

That being said, how long would anyone figure that it would take to get to trial in Toronto as a ballpark guess and do we not go to a focused hearing first?

Thanks again

Stillbreathing 05-19-2021 09:22 AM

How long to go to trial in Ontario? You really want an answer? Are you sure? It depends on the other party and how good their lawyer(s) are at stalling. Take my case for instance. We have been litigating now for 10 years which includes more CC and TMC’s than I can count. Trial kept being put off because my ex’s lawyer estimated more than 20 trial days while my lawyer estimated 5. The judge was not willing to book a trial date until my ex’s lawyer significantly lowered his estimate of days needed ( which he never did). So we switched to med-arb several years ago. It’s faster said my lawyer....he was wrong. We went to one single mediation date which I had to push for in order to get to arbitration. Now we are stuck in an arbitration date adjournment hell loop.My ex has managed to get arbitration adjourned six times now. So to answer your question, how long can it take to get to trial? Answer: more than 10 years!!!!!!!

Donald Duck 05-19-2021 10:27 AM

Wow! That's insane!

So on the total opposite side, if both sides agree that they want to go to a trial in Toronto, what is the quickest do you figure ?

Also, if possible, do you know anything about what a focused hearing is?

Thanks!!!!!

Stillbreathing 05-19-2021 11:44 AM

We both agreed to go to trial and 10 years later are still waiting. Right now with the pandemic and the courts being backlogged beyond belief, unless your issues involve the life and death of your children you are likely looking at several years wait at the earliest. The courts at this point are resolving many issues by way of motions instead of trial. Trial would likely be 3,4,5 years away for you at the earliest, given how behind the courts are. You are better off trying to resolve things without trial.

StillPaying 05-19-2021 12:23 PM

You're already at your (20th?) Settlement conference.
Book a trial management conference at your next SC for asap, 1 or 2 months. They'll give you homework to do before trial and you'll probably meet for one last conference right before trial. Trials are usually set for a few weeks twice a year.

Donald Duck 05-19-2021 12:35 PM

It's something like 18 to 20, honestly cannot remember and there have been CC/SC and also a TMC which really have all been the same thing.

I have been behind the 8 ball a lot due to the false allegations and also had numerous lawyers and self represented a lot so there were lots of mistakes on my part among other issues.

We also had 2 legal aid settlement conferences when I had a regular lawyer and she had a legal aid one.

We in effect agreed that we would go 50/50 but the other side said when the child was 4 then changed it to 5, and then we did not go back as I could not afford my lawyer anymore, so that whole thing went by the wayside, then Covid hit and they denied access for months.

It's been a gong show and her lawyer is very sneaky and plays the silver bullet strategy to perfection.

Bottom line is that I have never wavered that I want 50/50 and due to no fault of the child, we need to increase access steadily once they agree to overnights.

StillPaying 05-19-2021 12:45 PM

Quote:

Originally Posted by Donald Duck (Post 246330)
Bottom line is that I have never wavered that I want 50/50.

I agree with Janus here. Your expectations are very high and you need a lawyer desperately. There's no way you're progressing backwards.

Saying you want 50/50 and actually fighting for it instead of letting it go to the wayside are way different.

iona6656 05-19-2021 01:46 PM

Quote:

Originally Posted by StillPaying (Post 246331)
I agree with Janus here. Your expectations are very high and you need a lawyer desperately. There's no way you're progressing backwards.

Saying you want 50/50 and actually fighting for it instead of letting it go to the wayside are way different.

this.

you need an actual plan of how you're going to get to 50/50. Janus and I disagree on whether that is gradual or not. BUT if you've beat all these "silver bullets" the other side has lobbed at you- get a parenting plan together that shows gradual increases every two months or so. If access and parenting time is the only thing left on the table- get to trial.

StillPaying 05-19-2021 02:13 PM

Depending on when you can get on the trial (waiting) list, and only if you had a lawyer, you may want to bring a motion before trial to increase your access now. Then, hopefully you can come to an agreement or at least it's less of a jump for the trial judge.

Janus 05-19-2021 04:11 PM

Quote:

Originally Posted by iona6656 (Post 246336)
you need an actual plan of how you're going to get to 50/50. Janus and I disagree on whether that is gradual or not.

Not really. Anybody who does not have 50/50 and wants it must propose a gradual plan to get there. In the case of Donald here, that gradual is probably on the order of a year or two. He is starting from a shockingly low amount of parenting time.

Our general disagreement is that you think the gradual change is useful, whereas I think the gradual change is just theatre. Either way, judges agree with your interpretation, so even if gradual is just theatre, it still has to be done :)


Quote:

BUT if you've beat all these "silver bullets" the other side has lobbed at you- get a parenting plan together that shows gradual increases every two months or so. If access and parenting time is the only thing left on the table- get to trial.
Exactly. And not a vague plan either. A very specific one with very specific times. I've seen gradual plans that look like:

Week 3: One overnight
Week 7: Two overnights
Week 9: Three overnights

Which overnights? What time do these start? When do they end? Where do the transfers take place? The schedule has to be ridiculously specific. You need to know exactly where the kid is going to be October 11th at 6:43pm. If you do not know that, then the schedule is not sufficiently specific.

Donald Duck 05-19-2021 09:48 PM

Thanks very much all for the incredible advice!!!!!!

Putting things together as we speak!

Thanks again, very much, as always,

iona6656 05-20-2021 01:44 PM

Quote:

Originally Posted by Donald Duck (Post 246348)
Thanks very much all for the incredible advice!!!!!!

Putting things together as we speak!

Thanks again, very much, as always,

This is roughly how our graduated parenting plan was laid out:

Applicant = dad
Respondent = mom
D3 = my daughter's name

PARENTING TIME

1. In this section, the words listed below have the following meanings:

“School Year” means the Montessori pre-school year as set by D3’s Preschool [add your kids school here]; when the Child reaches such age as to make her eligible to attend public school, it shall mean the set school year as outlined by the applicable school;

“Agreement” means this Agreement and the Schedules to this Agreement as may be amended from time to time between the Region and the Service Provider;

“Day” means the each Calendar Day , inclusive of weekends;

“Statutory Holiday” means a day on which government offices and agencies are closed, this would include school closure(s);

“Non-Statuory Holiday” means a day observed as having special meaning at large but no closure or special observation is required of the parties, e.g. Halloween or St. Patrick’s day.

“Summer Holiday” means the summer holiday when the Child will not be attending school.

“Vacation” shall mean travel outside the province, including travel outside of Canada.


“Pick Up/ Drop Off times” for clarity on the pick up and drop off times; pick up will be the responsibility of the Party who’s parenting time is beginning to pick up D3 from the other Party’s residence. For example, on Wednesdays, the Applicant shall pick up D3 from the Respondent’s residence at the beginning his parenting time. At the end of the Applicant’s parenting time, the Respondent shall pick up D3 from the Applicant’s residence. Pick up from [NAME OF SCHOOL] School means the end of school day at 3:45pm. When D3 transitions to public school, pick up shall be from her school at the end of day.


2. The parents agree to the following transitional schedule with the understanding that there are no significant issues/concerns raised by either parent with regard to the emotional and physical safety of D3. If any issues are raised by either parent, they commit to scheduling a session with [NAME OF OUR PARENTING COACH] as soon as possible in order to discuss the issue/concern with the view to reviewing the appropriateness of the transitional schedule. Any emergencies or safety concerns will require the parents to contact a hospital and/or police.

Starting from the date of execution of this Agreement, the parties shall have parenting time with the child as follows:



3. Commencing [DATE]:



a) When these conditions are fulfilled, the Applicant shall have unsupervised parenting time with D3 on Wednesdays 2:30 pm – 5:30pm, and Saturdays 10:00am – 5:00pm.

b) The Applicant shall be responsible for providing lunch for D3 on Saturdays.

c) The Applicant shall pick-up D3 from the Respondent’s home. The Respondent shall pick-up D3 from the Applicant’s home at the end of the Applicant’s parenting time.



4. Commencing [a DATE four months later]

Commencing on [DATE], the child shall be in Applicant’s care as set out below. The child shall be in the Respondent’s care during the remaining times.

Wednesdays: 2:30pm to 7:00 pm.
Saturdays: 10:00am to 7:00 pm.

The Applicant shall be responsible for providing lunch on Saturdays, and dinner on Wednesdays and Saturdays.


5. Commencing [DATE two months later]

D3 shall be in the Applicant’s care as set out below. D3 shall be in the Respondent’s care during the remaining time.

Wednesdays: 3:45 pm to 7:00 pm.
Fridays: 3:45 pm to 7:00 pm.
Saturdays: 10:00am to 7:00 pm.


Pick ups on Wednesdays and Fridays will be from [NAME OF SCHOOL] School in [CITY].
Pick up on the weekend will remain at the Respondent’s residence.

6. Transition to overnights

Building on clauses 5 and 6 above, the parties agree to the following schedule to allow transition of D3 to overnight. On the third Friday of each of [add in 3 consecutive months- e.g. August, September, and October], D3 shall spend one overnight with the Applicant, outside the normal schedule as follows:



August 2021: From 3:45 p.m. on Friday, August 20, 2021 to 11:00 a.m.
on Saturday, August 21, 2021

September 2021: From 3:45 p.m. on Friday, September 17, 2021 to
1:00 p.m. on Saturday, September 18, 2021

October 2021: From 3:45 p.m. on Friday, October 15, 2021 to 4:00 p.m. on
Saturday, October 16, 2021


7. Commencing [DATE]

Commencing [date], D3 shall be in the Applicant’s care as set out below:


Wednesdays: 3:45 pm to 7:00 pm.
Weeks 1 and 3: Fridays 3:45 pm to Saturday 6:00pm.
Weeks 2 and 4: Saturdays 10:00 am to Sunday 6:00pm.

8. Commencing [Date- two months later]

Commencing [DATE], D3 shall be in the Applicant’s care as set out below:

Wednesdays: Pickup after school Wednesdays to drop-off at school on
Thursday morning
Weeks 1 and 3: Pick up after school on Fridays to drop-off at school on
Monday morning.

9. Commencing [Date- pick a date when kid is say- 5 years old]

Commencing when child reaches 5 years old. The parents shall have equal parenting time on a 2-2-3- schedule, or week about- or whatever gets you to 50-50.

Donald Duck 05-20-2021 02:14 PM

Wow!!!!!!!!!!!!!!!!!

Thank you very much!

Donald Duck 05-25-2021 02:17 PM

Quote:

Originally Posted by Janus (Post 246346)
Not really. Anybody who does not have 50/50 and wants it must propose a gradual plan to get there. In the case of Donald here, that gradual is probably on the order of a year or two. He is starting from a shockingly low amount of parenting time.

Our general disagreement is that you think the gradual change is useful, whereas I think the gradual change is just theatre. Either way, judges agree with your interpretation, so even if gradual is just theatre, it still has to be done :)




Exactly. And not a vague plan either. A very specific one with very specific times. I've seen gradual plans that look like:

Week 3: One overnight
Week 7: Two overnights
Week 9: Three overnights

Which overnights? What time do these start? When do they end? Where do the transfers take place? The schedule has to be ridiculously specific. You need to know exactly where the kid is going to be October 11th at 6:43pm. If you do not know that, then the schedule is not sufficiently specific.

I put togeather a very specific parenting plan and retained a lawyer too.

As I stated previously the only outstanding issue is access and the childs mother offered a final phase of parenting time of EOW and Wednesday for a few hours.

Our counter offer takes their offer and increases time up to 50/50 over two years which takes the child to 7.

All other details are very specific as to holidays, exchanges, etc.

They obviously will not accept and I'm curious to see what the Judge does but the other lawyer has already requested that we go to a trial or a focused hearing if I do not accept their offer.

There literally are zero other issues, and the childs mother has even written in a recent affidavit that I'm a very good father and our son needs to spend more time with me.

iona6656 05-25-2021 03:26 PM

Nicely done.

Question- as you've stated, false accusations have been dealt with- correct?

What is mom taking issue with? Why can't you have 50/50? other than mom wanting child support.

Donald Duck 05-25-2021 04:48 PM

Thank you!!

Yes, dealt with in the sense that nothing ever happened, no charges and the police offices knew that she was lying.

CAS did not even do anything at all, in fact, I chased them down as the officers told me that she called them and literally nothing happened, not an interview, nothing.

I was self represented at the time of these issues and she stopped any and all contact at the time of the police calls, so at the following CC, I spoke to the Judge ( where her lawyer reiterated that she called the police and reiterated the lies)

I told the Judge that nothing happened and that it was a lie and the other lawyer asked for supervised access which would "graduate" to non supervised access.

I did not want to agree to this but the Judge said that I could then have third party documentation and that he thought it was a good idea.

At the time, I was desperate to see my baby and I agreed just so I could see him.

So I started the supervised access at a place where they do this and they took notes and saw how much the child loves me and me him and that our connection was great.

Then we "graduated" to " access in the community " and continued to use this service simply for transfers.

Interesting part is is that we used them up until Covid shut that place down but I accumulated a lot of evidence including many more of the childs mothers antics and false accusations, and times where my son said certain things that they documented and that I can use as evidence if/when needed.

Believe it or not, after all these silver bullets and ridiculous antics, now they're saying that the best that they will do is EOW and Wednesdays for a few hours.

She has used the child as a pawn since birth and uses him as her own property, and has completely weaponized him since birth.

Thanks to the incredible people on this board, I do not get emotional during transfers, I'm polite, I dont engage and she continually tries to provoke me but I don't take the bait, I document everything and quite frankly, I think that she just wants to hurt me by not letting me see him.

She has missed 42 court ordered access visits in the last two years.

Even recently she asked me if I could switch days for Mothers Day and I said absolutely, and I got a card and a small gift that our son choose for her and got him to make a short video for her, and she was very touched and thanked me so much.

The following week I asked her if I could speak with him for a few minutes and she did not even reply to both requests.

Donald Duck 05-25-2021 04:54 PM

Their stance in court next week will be that I have not had overnights so they dont know how we could do 50/50 but my premise is is that I want it to be gradual but the child is incredibly close to me and it will not at all be an issue as we scale up.

Since day one, it has been to deny access by any means necessary and I'll be the first to admit that I've made multiple strategic mistakes in court, it's been quite the learning experience.

Donald Duck 05-25-2021 05:06 PM

Also it's not our sons fault that he has not had much time with me or my family.

That's why I am saying a gradual increase over two years.

This is not my first child, I have raised children before, and am a really good father, while this is her first child ( and for the most part, she is a very good mom) it's not my first rodeo so to speak, so it's not even like how would I do it , I've done it multiple times.

Donald Duck 06-01-2021 10:45 AM

Apologies if this is somewhat of a ridiculous question.

At the court appearance, the other side wanted to finalize with the EOW and Wed for a few hours and I wanted to gradually increase to one overnight then two and eventually get to 50/50 over a 2 1/2 year period when the child would be 7 and change.

Judge wants us to come back with a deal in a month.

For me, anything less than 50/50 is a dealbreaker.

Can the Judge force this issue as in forcing me to accept less than 50/50 or is my worse case scenerio that we head towards trial.

Thanks very much

tilt 06-01-2021 12:06 PM

You should really be asking for additional time over the summer holidays. That is pretty normal to have vacation time with your child and demonstrating that you can care for your child for more than a weekend bolsters your argument that you can handle 50/50. Maybe suggest four consecutive days in July and seven consecutive days in August, both with a midweek visit to the co-parent and she can FaceTime once of twice

rockscan 06-01-2021 12:21 PM

You should also ask for some days over March Break, holiday weekends and several PD days a year. Theres no reason why you cant have child an extra day over weekends when there is no school.

CoolGuy41 06-01-2021 12:49 PM

Quote:

Originally Posted by Donald Duck (Post 246465)
Judge wants us to come back with a deal in a month.

Judge is an asshole.

Wait out the month. Do not pay a lawyer to negotiate when there is no reasonable prospect of success. Pretend to negotiate while keeping your financial bleeding to a minimum. Do not say "I refuse to negotiate" to the judge or to the opposing counsel. (I don't know why you cannot say that. I'm just echoing my own lawyer's advice as I have been in a very similar situation.)

Quote:

Can the Judge force this issue as in forcing me to accept less than 50/50 or is my worse case scenerio that we head towards trial.
The SC judge cannot force a parenting regime on you but the trial judge can. If you only have 8 hours a week after 4 years then your ex's "silver bullet strategy" has been phenomenally successful at alienating you. Did the SC judge comment on the strength of your ex's evidence against you getting 50/50?

If it does go to trial I would propose a much shorter graduation than you did in your offer. If you want 3 bananas, ask for 6 bananas. (But keep your settlement offer as-is.)

tilt 06-01-2021 01:07 PM

Although Rockscan's logic is solid, it is overkill in this situation. You want an Interim Interim Order on Consent with another case conference scheduled for September to re-access parenting time - with the goal of increasing it. (And if it isn't increased on consent at the September conference you insist on to be put on the Trial list to motivate the co-parent)

The Interim Interim Consent agreement would be along the lines of: effective immediately, EOW and Wednesday evenings (specify the dates), an additional four consecutive days in July, a week in August (specify exact dates as suggestions but be willing to negotiate), if your weekend is alongside a long weekend you get the extra day (but don't make it so you have the child EVERY long weekend this summer - specifically I would let your co-parent have the Labour Day weekend). In September have the Wednesdays become overnight with pickup from school on Wednesday afternoon and return to school Thursday morning (shows you can adhere to routines and lets you meet the teachers) and ask that EOW in September be pickup from school on Friday and return on Sunday night the first weekend you have the child but, starting with the second weekend you have the child, expand it your weekend to be return to school Monday morning. If there is any long-standing family tradition over the summer, like the co-parent always has a family reunion or a special family birthday, or (unlikely) a planned wedding, then specify that on those dates that the child will be with your co-parent on those dates even if it interferes with your parenting time. That shows you are placing the child's best interest above your own.

Then at the September conference the Judge should be able to see that things are going well and put a lot of pressure on the co-parent to expand your parenting time.

Right now your co-parent is offering you more time than you have, and Judges will look askance at you not accepting it (in the best interest of the child), but will also like the fact that you are asking for a Judge to review it on a timeline so it doesn't just become a new status quo instead of a stepping stone to increased time.

Make this as an offer to the other side right now. If they do not accept it, accept the offer of EOW and Wednesday for NOW without prejudice to seeking to increase parenting time but that the next conference will still go ahead where you will have at least a few weeks of increased time with your child and can ask for the proposal again and ask for a September conference. The other side will probably try to encourage you to adjourn the conference on consent to "see how the parenting time will go" as a delaying tactic but you can insist it still be case managed at the conference with the goal of increasing your parenting time.

Donald Duck 06-02-2021 04:57 PM

Thank you very much to all for the really in depth explanations and observations and very valid points!

It's as if this board is the equivalent of a super hero lawyer!!!!!!

Thanks again so very much to all!


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