Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law > Common Law Issues

Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

Closed Thread
 
Thread Tools
  #1  
Old 01-26-2011, 09:39 AM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default Urgent Help Needed – Child Custody

I can see that our common-law relationship is nearing an end, and I’m seeking some help and advice from the many experts on this site...


My situation:
  1. Common-law relationship for 6 years, have a 4-1/2 year-old girl;
  2. Have sole custody of a 15 year-daughter from a previous marriage since she was less than 3;
  3. Been living in my house (in my name, mortgage has just been paid off). She has not contributed to anything for mortgage/tax/utilities/phones etc;
  4. I earn over twice as much as she does (she brings back home about 32K);
  5. She told me that her lawyer informed her that mostly likely she would get full custody for the little girl because she is small and should stay with Mom. -- Is this true?
My questions are:
  • 1. Does she have a case to get full custody for our common child, as she tells me? What’s the chance of her getting the sole custody (or my chance of getting a shared 50/50)?
  • 2. Since the house is in my name, so I guess she needs to find a place to move out. But can she automatically take the 4-year old away with her?
  • 3. Will she get spousal support automatically (I think this is what she assumes), and if yes, for how long? Will the court/law approve SS just because she earns less? -- What does the Law say?
Now my arguments for the 50/50 are as follows:
  1. Will the court ever consider 50/50 shared custody so that at least the two girls can be together for more time? Even though they are half-sisters, they are fairly close and my elder daughter has been baby-sitting the little one a lot;
  2. I have been doing a good job with my bigger girl, who is doing very well academically at school and in terms of character developments;
  3. I have extended family around whereas she doesn’t. My parents and my two sisters’ all live very close to my house. Whenever anything unexpected comes up (kids getting sick), helping hands are always available. Will the court take this into consideration?
What should I do and get prepared? Just overwhelmed. Would appreciate any suggestions and help.
  #2  
Old 01-26-2011, 10:28 AM
HammerDad HammerDad is offline
Senior Member
 
Join Date: May 2010
Location: Hamilton
Posts: 3,952
HammerDad will become famous soon enough
Default

First I would stop listening to her when it comes to legal advice. And yes, her lawyer will tell her she could get custody because that is exactly what your STBX wants to hear.

If this relationship is doomed, what you need to do first is:

1. stop talking to the ex about anything not relating to the children.

2. by a digital voice recorder and wear it 100% of the time in the house. It can't prove parenting in court, but should things get ugly and she realizes that you will fight her on custody, she may take the easy route and file a false claim of domestic violence, have you removed from your home and give her the upper hand moving forward. The recorder will be gold against any false allegations. So always be civil, business like and calm in her presense. Download the recordings each night to a secure computer, one that she cannot access.

3. Journal your daily activities with the children. If you make them breakfast, you journal it. If you take them to school, tuck them in, help with school work, you journal it. If you child babysits, I would journal that too.

4. Become more involved in parenting if at all possible. Your focus is your children.

From there you need to stay calm and focused. Do not for any reason leave the house (even though it sounds like you won't). Should she try to leave with the child, get a lawyer and file an emergency motion to have the child returned to the matrimonial home. She cannot just leave with the child unless you let her (now with all that said, you cannot physically stop her from leaving with the child. But you can let them go and on very next day you head over to the court ask for the child to be returned and custody). She can leave, and you can help her pack her bags, the child remains in the house.

You may be on the hook for SS, but it is a common law relationship. There are others here that are better when it comes to SS (I was never married or common law with my ex, so I have no experience).

She may also be entitled to a portion of the equity in the house. So be prepared for that. I am not talking 50% of the equity, I am talking the increase in value in time she lived there.

I would suggest speaking to a lawyer though and prepare yourself. Filing for custody first may not even be a bad strategy, as at least it keeps the child in the house until an parenting agreement is established.

You have a very good case for 50/50 IMO. You own the house the child grew up in. You have a sibling to that child in the house. And you have a strong support group local to you in your family. Just don't blow it by agreeing to allow her to leave or making a stupid mistake which would green light a false DV claim.
  #3  
Old 01-26-2011, 11:56 AM
NBDad's Avatar
NBDad NBDad is offline
Senior Member
 
Join Date: Dec 2009
Location: New Brunswick
Posts: 2,734
NBDad is on a distinguished road
Default

Quote:
. Does she have a case to get full custody for our common child, as she tells me? What’s the chance of her getting the sole custody (or my chance of getting a shared 50/50)?


50-50 physical w/ joint legal is your right from the second you separate, as it is hers. It's proven to be in the child's best interests.

Quote:
2. Since the house is in my name, so I guess she needs to find a place to move out. But can she automatically take the 4-year old away with her?
Since you aren't actually "married" then any claim she would have to the home would be only 1. what she contributed and/or 2. the increase in value of the home during the period of time you were together.

If you were married she'd get 50%, period. She cannot automatically take the 4 year old with her. If she tries, you run your ass to a lawyer and file a motion to have the child returned to the home until custody/access is arranged.

Quote:
. Will she get spousal support automatically (I think this is what she assumes), and if yes, for how long? Will the court/law approve SS just because she earns less? -- What does the Law say?
You don't say how much you currently make. What is YOUR after tax income as compared to hers? If she qualifies, it'd be for very little and only for 3-6 years. (closer to 3 I'd suspect).

With a common child, if she's within 41-46% of your Net Disposable Income, AFTER child support is paid/received, then no she doesn't qualify. If she's under, then the amount of spousal you'd potentially be on the hook for is whatever amount is short.

Your best bet is to pay for an hour of time with a lawyer to get answers to these questions and some direction. Spousal calculations can vary (widely) from province to province and situation to situation.
  #4  
Old 01-26-2011, 03:53 PM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default

Thank you both for your replies, which really gave me some boost...

I make 68K, she does 32K, before Tax. She does most of the cooking and I bring the kids in outdoor activities and do the yard work etc.

Now is there a rule that defines a 'small minor' (in her term)? I know for a 2~3 year old, probably it's logical for the kid to be with mom, and in some cases when teenagers or even 7~8 year olds are involved the Judge may even seek their opinion as to which parent they prefer to stay with. But do you think she can use our girl's age (4-1/2) as a strong argument for that? This is my main concern and the area I'm not very clear.

I think she has started to look for alternative day cares which are close to her work place. Well, it's not surprising that she doesn't want to live near. But does she have a bigger say in the Day Care arrangement, or even where to register for next year's Pre School Kindergarten?

From what you have suggested, it seems that the child would stay in my house until a court order is issued for access/custody. Is this a given, i.e., only after a judgment is made in court before anyone can 'move' or 'hold' the child? I feel sad. I just don't see we can work it out by ourselves.
  #5  
Old 01-26-2011, 04:34 PM
dinkyface dinkyface is offline
Senior Member
 
Join Date: May 2009
Posts: 2,476
dinkyface will become famous soon enough
Default

You have had sole custody of your first girl since 3yo, so that's a big advantage. An even bigger advantage if you have been the 90% caregiver when she was little (as opposed to a 50-50 arrangement).

Most arguments for 'young kids need mom' are based on the presumption that mom has been doing 90% care, and so that should continue (and that somehow she meets kids' needs better than dad due to being female). This ties into the 'Tender years' doctrine which has been officially struck down... but unofficially still persists in the courts. Officially though the most relevant issue is your current roles as parents (the status quo), and the degree to which you can cooperate. If there is any conflict/non-cooperation, you have a big danger of being painted as the problem (those overbearing, conrtrolling, dominating men!), and this is how she can justify sole custody to her. BEWARE! Your defense is to show full cooperation and willingness to support her as mother (i.e. show that you won't try to alienate your daughter from her mother).

Also the argument comes from the fact that men typically earn more, so, hey, its best for the family if he focuses his time on being out there working while mom looks after the kids. 'Dad is the wallet'. A human rights minefield there if this is used as an argument that you should have less time than mom with your daughter!

The more involved you have been in the day to day (bathing, comforting, playing, feeding, putting to bed etc), the stronger your case will be.

You said "I know for a 2~3 year old, probably it's logical for the kid to be with mom" STRIKE THAT THOUGHT FROM YOUR BRAIN!

Last edited by dinkyface; 01-26-2011 at 04:42 PM.
  #6  
Old 01-26-2011, 04:37 PM
HammerDad HammerDad is offline
Senior Member
 
Join Date: May 2010
Location: Hamilton
Posts: 3,952
HammerDad will become famous soon enough
Default

A 3y/o needs both parents equally. Or, more accurately, EVERY CHILD needs both parents equally.

The tender years doctrine was thrown out the window long ago. And unless you do something stupid, like agree that the child needs mom more, you are in good shape.

Just document your involvement, be a good dad and DO NOT get caught up in any drama with your STBX.
  #7  
Old 01-26-2011, 04:44 PM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default

Quote:
Originally Posted by dinkyface View Post
you said "i know for a 2~3 year old, probably it's logical for the kid to be with mom" strike that thought from your brain!
Got it! How right!!
  #8  
Old 01-26-2011, 04:48 PM
Acura Acura is offline
Junior Member
 
Join Date: Jan 2011
Posts: 21
Acura is on a distinguished road
Default

Quote:
Originally Posted by HammerDad View Post
Just document your involvement, be a good dad and DO NOT get caught up in any drama with your STBX.
Do we really need to go this far for Digital Voice Redorer or documenting daily activities? What if she disputes that as proof?

Would Judge/Court recognize this as evidence?
  #9  
Old 01-26-2011, 04:54 PM
dinkyface dinkyface is offline
Senior Member
 
Join Date: May 2009
Posts: 2,476
dinkyface will become famous soon enough
Default

Funny story: I was with my 3yo girl visiting my first (nice) ex's parents. And DD had to pee. So I took her inside and helped her with her business.

Afterwards, my ex's dad (about 80) commented IN AWE that I was CAPABLE (as a man) to do this.

A real eye opener that this mindset does exist.
  #10  
Old 01-26-2011, 04:56 PM
dinkyface dinkyface is offline
Senior Member
 
Join Date: May 2009
Posts: 2,476
dinkyface will become famous soon enough
Default

The DVR is to protect you against criminal charges, not for the day to day routine stuff.

When the police come knocking....

Seriously....
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Children's bennefits Wiser2008 Financial Issues 21 05-03-2019 07:21 AM
need info on getting temporary custody order sloane Divorce & Family Law 11 07-03-2010 12:49 AM
Information on Case Conference boyo Divorce & Family Law 3 05-30-2009 12:52 AM
Father is seeking child custody/joint custody! amhoush Parenting Issues 10 03-17-2009 07:50 PM
Need answers... jinx101 Introductions 7 05-28-2007 07:15 PM


All times are GMT -4. The time now is 11:26 AM.