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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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  #21  
Old 08-23-2019, 10:22 PM
Mother Mother is online now
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Another question, whnt a child can decide where/with which parent they want to live and how much? Since what age a judge would listen and take in cosideratin child's wishes assuming child is very opinionated, reasonable and vocal about the whole living arrangements thing?
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  #22  
Old 08-24-2019, 12:53 AM
iona6656 iona6656 is offline
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Quote:
Originally Posted by rockscan View Post
BUT...what if it was simply an agreement not an order and that agreement has details in there about increased access upon agreement?

Number one is met because the needs and means have changed. Child was 18 mos and had different needs. Dad didnít have the means to meet those unique needs. More than likely they agreed that parenting time will be modified as the child aged. Now that the child is in elementary school, the needs are changed. Child may not need all day daycare, dad could be available before and after school, op mentioned before there were behavioural issues. Many things have changed in this situation and mom is preventing any change in amount of time.


I donít think it matters if it was an agreement or if it was an order. The legal question is the same- does age alone constitute a material change in circumstance? But youíre right that if the agreement contemplates that it will be revisited from time to time with the purpose of changing the terms, the OP could argue that.

But if itís a pure material change in circumstance due to age. The courts considered this last year and the decision has made its way all around the family law blogs- see the case of Coppin v. Arboine. A father of a young boy brought a motion to vary an order of the court on parenting as the child was entering elementary school and getting older. The case relies heavily on Weiger v Gray, wherein the judge in that case found that:

It is my view that mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change of circumstances as required by s. 17(5) of the Divorce Act and the case law that has interpreted that section. Were it otherwise, there would be an automatic right to seek variation of custody orders on a regular basis every few years. This is clearly contrary to the established law. While the reviewing judge may, of course, take into account that a childís needs may change as he or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before the reviewing judge, made the original order inadequate.

Of note , however, is that Phillip Epstein actually thinks the case is patently unfair. But it hasnít been overturned yet. If you read the case - the dad in that case tried to go from EOW to week about when the kid went from 2 yrs old to 4. He probably shouldíve built it up. And tried to get what the OP is seeking. Which, for what itís worth, actually sounds reasonable. That being said, OP sounds like he has some anger issues.

I canít understand how the mother is money grubbing if she is refusing extra time despite the OP offering to keep CS the same? And if sheís saying no in order to alienate the child- well, her alienation strategy is clearly shit since the kid wants more time with dad.
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  #23  
Old 08-24-2019, 05:04 AM
tunnelight tunnelight is offline
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LOP - The issue of material change was very prevelant from your original post which indicates the child has developed into their adolescence years and expressed a preference to spend more time with their father.

I had to deal with the huddle of material change in my case so hopefully this helps...

But before I begin, I wish to answer your question about age. There is no magic number. Every child grows and develops and matures differently. If your child seems mature and independent enough to express her genuine views and preferences without influence from parents, then more than likely judge will give it significant weight, for as long as it is in the children's best interests to do so



Quote:
Originally Posted by rockscan View Post
You have a material change in the sense that the child is somewhat self sufficient¬ócan feed, bathe and dress themself.
This is not a material change. This is a normal development.

Quote:
Originally Posted by rockscan View Post
They are also on a set schedule with daycare being phased out as they age.
Again a normal and expected development. They surely didn't anticipate child to stay in day care their whole life.

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Originally Posted by rockscan View Post
Going to school is a material change (I am pretty sure)
Once again, a normal and expected development in this case. If child did NOT go to school however , then that would be a materials change indeed - a very concerning one.

Quote:
Originally Posted by rockscan View Post
and being old enough to care for themself is also a material change.
Normal and expected development. If child grew older but couldn't care for themself and required extensive support similar to a special need child, then yes that would be a material change.

Quote:
Originally Posted by rockscan View Post

If she moved then thats a material change.
Yes, automatic material change.


The material change here is due to the order being made when children were toddlers. Children have developed into their adolescence years and expressed a preference to spend more time with their father.

There will me more back and forth arguments here but this is one of those things that will end in your favour given the age of the children.

Last edited by tunnelight; 08-24-2019 at 05:25 AM.
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  #24  
Old 08-24-2019, 02:53 PM
Stillbreathing Stillbreathing is offline
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Quote:
Originally Posted by Mother View Post
Another question, whnt a child can decide where/with which parent they want to live and how much? Since what age a judge would listen and take in cosideratin child's wishes assuming child is very opinionated, reasonable and vocal about the whole living arrangements thing?
If the child has been apprehended by CAS and been made a crown ward they get to decide at age 7 whether or not they wish to be adopted by a couple who expresses a wish to do so.

When the child has not been apprehended by CAS, even though CAS may be heavily involved because one of the parents was criminally charged and convicted of child abuse, the child does not get to legally choose where they want to live until age 18.

However, once they turn 12 the court may take their preference into consideration.
Children have also swayed the courtís decision when they become teens and openly defy the judgeís order by running away or refusing to visit a parent they are ordered to see whom they despise or who has s history of abusing them. This can be from actual abuse which the court has minimized but the child has not or from parental alienation.
There are also cases of teens who have committed suicide in response to a judge ordering them to visit with an abusive parent.

To answer your question.
A crown ward gets to choose at age 7, every other child at age 18.

Last edited by Stillbreathing; 08-24-2019 at 02:56 PM.
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  #25  
Old 09-04-2019, 04:14 PM
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Parent A has negotiated with the Parent B for one more access day (with overnight stay) every other week.

Lawyer advised Parent A needs to file a motion to change on consent amending the existing court order or an agreement amending parenting time as per the order, which is expensive.

Is it ok for the Parent A to agree with the Parent B via email (as it is what this Parent B wants) and leave the existing court order in place?

Lawyer also mentioned the other way to do it is to have it over the email and create a new status quo.

The concern Parent A has is what happens if Parent B decides in the future to revoke this extra day in absence of court order amendment, just email-consent?

Is there any possibility for both Parents to avoid motion on consent and draw up their own amendment/agreement, then let the lawyers review it and court enforce it?

TIA
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  #26  
Old 09-04-2019, 04:34 PM
rockscan rockscan is offline
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If they both agree you simply file a motion to change on consent. You donít even need a lawyer for it. It gets rubber stamped and becomes the new normal.
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  #27  
Old 09-04-2019, 04:54 PM
Mother Mother is online now
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Quote:
Originally Posted by rockscan View Post
If they both agree you simply file a motion to change on consent. You donít even need a lawyer for it. It gets rubber stamped and becomes the new normal.

Thank you rockscan. Do you know by any chance how much does it cost to file this motion?
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  #28  
Old 09-04-2019, 06:01 PM
rockscan rockscan is offline
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I donít think it costs anything.
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  #29  
Old 09-05-2019, 11:30 PM
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Quote:
Originally Posted by tunnelight View Post
if she moves...
Yes, automatic material change.
So if one parent moves it's an automatic material change. Does it matter where that parents moves? It they move to another place across the street or if they move further away, is it still material change? How does it affect the existing order?
Thank you
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  #30  
Old 09-06-2019, 01:15 PM
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Quote:
Originally Posted by rockscan View Post
I donít think it costs anything.

You are right, confirmed at the court house. Thanks
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