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  • Custody and spousal support challenges.

    I really need some help.

    My wife and I separated probably close to three years ago now. We signed a separation agreement ourselves and agreed that we would share custody of the child (1 week each).

    Since then, she has tried to have the details of the separation agreement changed, either through negotiation, or through "forcing" me to change it.

    She now wants to force me to have my child every second weekend only, changing the terms of the conditions of the SA.

    I have questions on two issues:

    CUSTODY.
    We have been doing alternate weeks now for several years. How easy is it for her to have the court force me to give up my child and see her on weekends only? My child is about to turn 9 so I don't know if the court would consider the views of the child (who wants to retain the status quo).

    SPOUSAL SUPPORT.
    She has been living with a new partner for around a year. Is that good enough grounds for me to request termination of the Spousal Support payments?

    I'm really hoping that someone can help me out. I've been doing some reading and I like to think that I'm of at least average intelligence, but it would be great to have someone to bounce ideas off too. Maybe even someone who has been through the same situation.


    Thanks in advance.

  • #2
    1. I think you are definately in the status quo zone so for her to change the 50/50 situation would be very difficult. The court will do what is best for the child and if your child has had both of you equally for the last two years, who would it benefit her to go to, say, 80/20 in favour of the mother?

    This is assuming the mother will not bring-up the unfit/abusive father play. Then you will have to defend that.

    Get a decent lawyer and that will go nowhere.

    2. Spousal support is so wishy washy, it is entirely up to the court. Good luck on that.

    Comment


    • #3
      Thanks.

      Is there a way to bring the SA up into the courts to have it legally recognized and enforced?

      If I want to change the existing spousal payment structure and need to go to court, is there a specific thing I should be looking for?

      Comment


      • #4
        Courts reserve the right to amend any separation agreement.
        Generally they need to see that there has been a material change for the children to amend anything relating to them.
        As for anything relating to spousal support etc, then that is a tricky issue and would require the advice of a lawyer.
        Generally you can get a visit for a minimal fee and it will clarify your position.
        We requested an opinion letter from lawyer.
        We gave all recent documents/orders/agreements, outlined the status quo and the lawyer gave us an opinion based on those documents.
        It included what our options were and how to proceed in court for each of the choices he offered.

        Comment


        • #5
          Thanks. I'll look into that.

          Comment


          • #6
            Your ex is going to have one hell of a hard time changing that custody arrangement.

            As for any false allegations of abuse that may be attempted, I think that these days it is a lot harder to be successful on those. Social workers, medical practioners and judges are a lot more wise to that today and those kind of allegations could backfire on those who feel the need to make them.

            That ridiculous statement that she is looking for you to have every other weekend sounds like another petty schoolyard name calling tactic that a lawyer would use to try and intimidate you into giving in. It makes me sick how those bottom feeders operate.

            Comment


            • #7
              Just an update and a few questions.


              I was served with the papers and noticed a few (what I would consider) irregularities.

              The request (Form 8 Application) is filed under the divorce act for divorce, along with child custody and spousal support.

              * Interestingly - the separation agreement is not included in the application. Should the copy of the application that was served to me be a verbatim copy of the application? And if so - should it not have been included? There is a question on page 3 about previous agreements, but I don't see the SA attached. Is that an issue?

              * On page 6 there is a section that is required to be signed by a lawyer as per Section 9 of the divorce act. This has not been done. Does this mean that the application is meritless?

              Comment


              • #8
                Originally posted by OntarioDad View Post

                * Interestingly - the separation agreement is not included in the application. Should the copy of the application that was served to me be a verbatim copy of the application? And if so - should it not have been included? There is a question on page 3 about previous agreements, but I don't see the SA attached. Is that an issue?
                It needs to be included especially in the continuing record so that the judge can have a copy to refer to.

                Originally posted by OntarioDad View Post
                * On page 6 there is a section that is required to be signed by a lawyer as per Section 9 of the divorce act. This has not been done. Does this mean that the application is meritless?
                ALL legal documents MUST be signed when filing or serving for the purpose of court. I would still follow through with the process as if everything was signed properly. Just in case.

                Comment


                • #9
                  Hi Ontario Dad,

                  RE: Support
                  Just a note about cohabitation et al: Documentary proof of cohabitation when it was initiated is vital. Three years is the standard for the court to even think about it.If she is not employed have request that that a wage be imputed in lieu of employment. Asking for a Divorce means to me that there could be a wedding planned in the future. But first and foremost document verification of them cohabitating. Name on the property etc, drivers license same address etc. Income tax forms. Maybe a Request to Admit form 20 might provide your answers and what you will have to prove.Use it wisely, only ask questions that you can prove through witness or evidence.

                  RE: Child custody. Get evidence of your being a father and the importance in your child's life. From church members, a psator, neighbours,teachers, tickets to events you shared. Keep a diary and evidence

                  Just some thoughts, Maybe I can provide more in the future.
                  Hope this helps

                  Comment


                  • #10
                    Hi Ontario Dad

                    I have a little more time on my hands. My understanding of custody arrangements is that if the child is doing well in a de facto arrangement there is absolutely no reason to change it. THis is where some custody cases become bittter and emotional. Don't get caught up in the world of she is a bad mother unless the child is in harms way. I would accentuate the postitive, why it is important for the arrangement to remain as it is. It is after all in the child's best interest to maintain a two parent upbringing where possible.

                    I am philosphical at heart and would phrase it thusly,

                    I am the child's father and I am needed by him(her) at a more than monetary level.I recognize the access to both parents, Mother and Father should for the best interest of the child be equal. It was what the child was initially exposed to at birth and it should continue throughout the child's upbringing.

                    Also check out divorced dads.com for some information and maybe attend a support group meeting if you are in Southern Ontario.

                    Sorry about any spelling mistakes,

                    PS. The court looks at the children first and then the financial aspect of the case.

                    Mcbroke

                    Mcbroke

                    Comment


                    • #11
                      My understanding is that a separation agreement can only be varied either by mutual consent or by way of motion. I might be wrong but her application for custody under divorce act does not have merit unless the superior court rules on a motion that they are assuming jurisdiction over separation agreement because there has been a material change. Regardless of technicalities, you need to file your answer and emphasize that the parties have a separation agreement in place and nothing has changed that warrants the variation. And, do attach the separation agreement with the answer. I would go one step further and make a counter claim for sole custody, child support etc., just in case.

                      I don't think the lawyer needs to signed the application since its not a sworn document. It could also mean that she is self represented.

                      Comment

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