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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 08-24-2012, 08:00 AM
HBW HBW is offline
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Default Could we be forced to move back?

In April 2011—over sixteen months ago—I packed my car and drove from Alberta to Ontario with our 2 small kids to be with my family for support. My abusive, narcissistic STBX knew about this. I was in a desperate situation as he started drinking heavily, had been violent in the past where police were involved, and was increasing in aggressiveness towards me and the kids. I was becoming scared for our safety, and needed a break to think about our relationship.

When I got here, and after thinking long and hard, I wrote him a heartfelt letter how I wanted our family together (don't feel this way now!), but I couldn't consider living in the same house with him until he received professional help for his drinking and anger. HIS response was that he wanted a divorce... that was 16 1/2 months ago.

After being here a few months, I told him I wanted to stay in Ontario permanently with the kids. I even talked about my idea to register our daughter into French Immersion and he supported it. Over the months he mailed several items of the kids that I couldn't fit in the car. There was no custody order in place.

It wasn't until October 15th—exactly six months after living here—when I started asking for child support that he said once the house sells he wants "joint" custody. (Which is pretty much impossible due to the distance, and a concern for me anyway due to his drinking) He didn't even put the house on the market until February 2012 (ten months after separation), which sold three months later. In February, I also went to Alberta to move all our things, including our kids possessions. He still plans to send items I missed.

Now he has filed for divorce through the court (which was kind of a shock since we agreed to start a negotiation process) and he wants "joint" custody, which I find odd as he has shown little interest in the kids and has made little effort to see them. For example, he was supposed to see them at Christmas, but decided to work instead.

I feel like he's messing with me (behaviour not uncommon for him). My brother-in-law thinks it could be a bargaining chip.

Just in case he's serious, what are the chances are he'd be granted joint custody and we have to move back? The kids (now aged 4 and 6) are long established here and have a good—safe—home!
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Old 08-24-2012, 08:44 AM
HammerDad HammerDad is offline
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The chances of moving back are slim. You've been here over 6 months, which is generally deemed long enough to establish this as your place of residence. Had he filed <6 months from when you left, he'd have a VERY good chance. Now, I'd say marginal at best.

As for joint custody, I have no idea why you're against it. The distance, yes it would make things a bit of an issue. But you know that all joint custody entails is it requires the parents to agree on the major factors in the childs life. Meaning, it requires agreement on health, education and religion. It does not provide any sort of requirement for decision making on day to day matters.

IMO, given the distance, it may be that he gets it as a way to prevent being further marginalized in the kids lives. You've made it nearly impossible for him to have a meaningful relationship given the distance. So a court may order joint if for no other reason to allow him open access to the children's service providers (school, medical etc).

As for the distance, as it was you who moved, how do you plan on facilitating his parenting time? Generally it is the person who moves who is responsible for bearing the burden of increased costs associated with exercising parenting time. Given the distance, you'd likely have to options:

1. ex pays full c/s and you pay for his and/or the childrens flight tickets and possibly accomodations for your ex to be able to exercise his parenting time; or

2. less appealing - you waive c/s in lieu of him being responsible for his own costs to exercise his parenting time.

Further, what are your plans for allowing him parenting time? You've made it impossible for him to have regular meaningful time with his kids? Are you willing to allot him in exchange:

all of summer, or at least 1/2
all march breaks
every other christmas break
every other easter weekend

etc.

You will have to come up with a plan on how you are going to encourage and maintain the ex's relationship with the kids. If you don't a judge will.

Just food for thought.
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Old 08-24-2012, 09:01 AM
barriedad barriedad is offline
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HBW thanks for posting this. I'm in a similar situation as your STBX except i'm the nice guy we've just fallen out of love. My husband (same-sex) wants to take our son to live with his family 7 hours away (by car). I'm terrified that distance will make it difficult for me to see my son especially if he gets spousal support from me.

HammerDad your post about this makes me feel a bit better knowing that his choice to move can actually help me and my cause for not wanting to pay spousal support if he's taken my son to another province.

Thank you both for posting!
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Old 08-24-2012, 09:05 AM
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Thank you HammerDad. I do want to encourage a relationship with their dad.
The idea of him paying full child support, while I help pay travel fees is a good one! Thanks!
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Old 08-24-2012, 09:08 AM
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barried: why not try getting a custody order in place to prevent him from leaving? It's worth contacting a lawyer about...
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Old 08-24-2012, 09:12 AM
barriedad barriedad is offline
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Does a custody order prevent him from leaving a reasonable distance, or is that only temporary until the case can work through mediatation/ lawyers / court etc?
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Old 08-24-2012, 09:24 AM
HammerDad HammerDad is offline
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Quote:
Originally Posted by barriedad View Post
Does a custody order prevent him from leaving a reasonable distance, or is that only temporary until the case can work through mediatation/ lawyers / court etc?
It may not prevent him from leaving, but in general there are clauses that can restrict the distance with the CHILD can move.

My agreement provides my ex cannot move further than 100kms from her current residence without my consent. Should she try to, I can say yes, you can move, but the kid stays put (if I wanted to be difficult or the ex wasn't offering me any sort of compensation - financial or time wise - for any negative ramafications her move may have).

Also, having an agreement on custody in place to begin with is good practice. That way, should they move, you aren't stuck behind the 8-ball waiting on them to "allow" parenting time or responding to requests etc. If I were in a relationship where I lived with my stbx and they wanted to move out, I'd let them move out all they wanted. But the kid stays put until a custody agreement or court order relating to custody is in place.

If you let them move and establish residence far away, and you end up in court, you will end up having to travel to their jurisdiction for court. You don't want those hassles. You want frequent scheduled parenting time and an agreement to rely upon should things sour between you and your ex.

Because if they sour when they are 7 hours away, you are pretty well screwed.
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Old 08-24-2012, 09:24 AM
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barriedad: Good question! You should post it in the forum and see what comments you receive. I'm afraid to give you wrong information. Best of luck!
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Old 08-24-2012, 09:29 AM
raven70 raven70 is offline
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Default jurisdiction

I am in a simular situation as you with the exception that i am the traveling dad and in is from B.C to Ont.

Our jurisdiction and CS was decided by a court in Ont and not between us.

She was awarded jurisdiction for two reasons by the justice 1- I went there without a court order for the hearing on jurisdiction and 2-the child had lived in Ont longer than B.C although still an infant and therefore "had a greater connection with Ont",

The same justice at a later hearing reduced CS because of access costs 30 %.
At a later hearing CS was reduced further to over 40 % when access costs were submitted.

there are many other differences with access when a parent travels that distance to that arrise, some being time in school vs access.

Webcam can be helpful as well, Raven
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Old 08-24-2012, 09:48 AM
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Thanks Raven. I did ask him if wanted to Skype with the kids, but never got a response...
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