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Super dad · #11 11-28-2019, 11:53 AM

Thanks guys. This forum is super helpful. Wish I looked it up 6 months ago. Anyway, still wondering if my tracking will help anything. I basically built a calendar in Excel and it has her coming and going everyday for the last 6 months. It shows daily how many hours she either left the kids with me or someone else so she could go out. Every day is supported with screenshots of text messages and emails from my phone or my kids phones with her saying she will be out. I have messages from 4am with me asking her to come home so I can go to work. I have one from my son's phone where she asks him to ask his friends if he can sleep at their house so she can go for a sleepover. I feel sort of dirty using my kids phones to prove she is not there for them when I'm at work. I hope my kids never find out and will forgive me if they do. Will this have any impact with a judge?

rockscan · #12 11-28-2019, 12:22 PM

It probably will never get to the judge. Keep it as documentation that can be used in discussions with her or as proof to back up a claim. Its good documentation but may never go anywhere.

Leaving with the kids does not look good on her which help your case. As long as the emergency motion has been filed to get them back you can focus on moving that forward.

Tayken · #13 11-29-2019, 02:58 AM

Quote:

Originally Posted by Super dad

So my STBX was a very good mom until she blindsided me and announced she wanted a divorce. She then became a 40 year old who is trying to re live her 20s and started going out all the time. I stepped it up as a dad and stayed home all of the time when I wasn't working. She would send the kids to relatives or friend's houses if I were working. This went on for about 6 months and I have it all documented on a spread sheet calendar with screen shots of text messages and emails from both mine and my kids phones (10&13 year old).

Welcome to no-fault divorce. No one cares. Especially the judge. I would not bother with this kind of nonsense. It just causes you emotional distress and creates unnecessary conflict.

Quote:

Originally Posted by Super dad

Last month while I was at work she moved out with the kids and backed a moving truck up to the house and took a ton of stuff. I found out by her through email.

This would happen eventually. (Living separate and apart.) Bandaid approach but, see my comments below.

Quote:

Originally Posted by Super dad

She is now dictating a schedule that is significantly less time than what I was doing and her lawyer is demanding child support.

1. Child support is based on a schedule. You have no schedule. So until such time, the issues of custody and access are resolved child support will sit idol.

2. At best you should calculate the off-set 50-50 payment that either of you would pay. If you are the paying parent in that scenario open a bank account and start paying that account.

3. At worst you should calculate what full table child support would be should you not be able to establish yourself as a joint custodial parent with equal (50-50) access and pay that into the account.

With the climate in the courts these days (depending on if you are in the GTA, Hamilton, Peel, Milton or Durham Regions) #2 is a highly likely scenario. (Where you get joint custody and equal access of the children.)

Quote:

Originally Posted by Super dad

I am worried this will become status quo.

It won't if you act in an appropriate time frame. Wait 4-5 months and it could become the status quo. But, with a 10 year old and a 13 year old in the mix. It will be hard for that to happen. They have opinions, options and are independent thinkers. (Especially a 13 year old.)

Quote:

Originally Posted by Super dad

I thought that I had already established status quo with my tracking. Will the judge look at my tracking. Will her recent or past actions have any influence with the judge. Please help me here

No. It will just make you look a bit silly. Don't every concern yourself with what the other parent does. As well, tracking is stocking. Concern yourself with the evidence of what YOU do as a parent. Not the other parent.

Stop trying to make the other parent look bad. Start organizing your thoughts about you as a parent. What you do. Your relationship to the children. That is YOUR evidence. Most cases where the parent attacks the other parent never works out. The "I DO EVERYTHING FOR THE KIDS" pattern of evidence is bullshit and most judges know this, have seen it all before.

Quote:

Originally Posted by Super dad

Her initial email said that if I don't agree with her schedule she would have sole custody until things are sorted.

Retain counsel and bring a motion immediately. Don't even bother sending a demand letter. Have your lawyer prepare standard 50-50 access and joint custody offer in full in accordance with the rules. Send that first in its own package. Then send immediately a fully completed motion, and other supporting documentation that outlines a request that is IDENTICAL to the offer. Attach a very basic affidavit with no allegations against the other parent other than pure facts.

Pure facts are ones that don't require paragraphs of bullshit to explain them.

1. On date X parent Y moved from the residence.

2. On date X at time Z parent Y sent an email explicitly stating they had moved:

RELEVANT QUOTE FROM EMAIL.

Please see schedule "A" attached to my affidavit... blah blah blah. (Your lawyer will have a style for this.)

If you indeed did get email communications where the other parent enshrined stupidity like you are saying you don't need to say it was stupid. Just quote it exactly and provide the evidence. Often people overdo lead-ups to evidence that is unnecessary.

A good lawyer will be able to write your affidavit and clean it of all the emotional BS that most people include that is irrelevant.

(Now this comment may not be relevant due to the duration of the conduct being one day. I included the above for anyone who is reading this and going through a situation where it goes well beyond a day.)

Quote:

Originally Posted by Super dad

I emailed and said I don't agree but the kids should see their dad.

Tip: Hopefully you wrote it in a matter that you would not have to explain yourself, emotion or conduct to a judge. By that mean you wrote it with the understanding that a judge could read it. You should from now on write every response to the other parent as if a JUDGE is actually reading every correspondence. Even SMS messages.

Quote:

Originally Posted by Super dad

She held them back from me the first day.

One day does not win a case. So I wouldn't try to boil an ocean on 1 day of evidence. Be upset but, you are better off going to counselling and spending your dollars there (cheaper) than fighting it out in court.

I suspect you are easily emotionally baited. You need to develop tools on how to deescalate conflict. Check out William Eddy's materials from the High Conflict Institute. Specifically the BIFF stuff. (Google it.)

Quote:

Originally Posted by Super dad

She moved them 10min away. The distance did take them out of the school zone. She now drives them.

Sorry to say this is an insignificant move as well. Judges are quite lenient with parental moves that are under a 25km radius from the school in southern Ontario. In many cases, it boils down to the time spent in the car commuting to school. Significant time. Longer than a student in a rural community would spend on a bus going to school. (1.2-1.5h roughly)

Likely their is direct public transit between the home that is 10km away and their school. I suspect they are walking distance or in the zone for bussing where you are residing.

If you own this residence be prepared to have to sell it soon. It is probably a joint-owned property. Sorry to say. So don't die on the hill of where you currently live. That will change unless you have a rich relative that can give you a private mortgage and 0% interest loan to keep the place... It's going to be sold.

Quote:

Originally Posted by Super dad

My lawyer sent them a very stern, yet professional letter and mentioned court action.

As they should.

Quote:

Originally Posted by Super dad

They sent a letter back that was just full of personal attacks and gave me a different schedule that was even less time with the kids. It looked like my wife wrote the letter and her lawyer added some big words here and there.

Probably the case. You should be looking the lawyer up on CanLII to see if they have previous cases and how they conducted them. If nothing comes up then they don't go to court and are blowing hot air.

Letters are a waste of time. See the comment above about what you should do.

Quote:

Originally Posted by Super dad

My lawyer sent another letter that again was very professional. We are waiting for a reply and I filled out the court documents.

See the comments above on the next step. Do an OFFER TO SETTLE FIRST! That way when you smoke them in court you can get your costs easily.

Quote:

Originally Posted by Super dad

We plan on court action if they don't comply.

Just do it. Don't "plan". But, first should be a comprehensive and severable offer to settle sent in accordance with the rules. That will screw them up big time. The lawyer on the other side will have to review the offer to settle with their client and advise them about the offer. Especially when it is tailed by a real motion to court with a real date and all the paperwork. (Form 13.1, Form 35.1, Affidavit (simple), and the motion request and other relevant forms.)

I would just turn the 35.1 into your offer to settle really. You have a high probability of getting a 50-50 access and joint custody order on the first motion. ESPECIALLY IF YOU ARE IN HAMILTON AREA.

If your lawyer doesn't get this strategy get a new lawyer.

Quote:

Originally Posted by Super dad

My 13 year old son was telling me that my wife's lawyer told her that she is legally entitled to come and go as she pleases from the house.

That is "somewhat" correct. There is no custody and access order in place. So nothing can be enforced. Police won't get involved as this is a civil matter. Even with a court order, it is hard to make a child live somewhere at that age. At 14 things change significantly. Read my other main threads on all this stuff for more detail.

Quote:

Originally Posted by Super dad

He also said that he doesn't like the schedule that I made. I told him that I didn't make the schedule and he said that his mom said that I made it. Now I think she is filling the kids heads with crap.

Not much you can do. Hopefully the 13-year-old is reasonable and does not have a disability that impedes their cognitive function. Autistic children often are easily and unfortunately abused by dominating parents hell-bent on "winning" and "punishing" the other parent. Parents fail to give their kids the credit they deserve. They are some of the best parental crap detectors out there.

Good Luck!
Tayken

Tayken · #14 11-29-2019, 03:21 AM

Quote:

Originally Posted by Super dad

Thanks guys. This forum is super helpful. I wish I looked it up 6 months ago. Anyway, still wondering if my tracking will help anything.

Let your lawyer select what is relevant. YOu don't understand the concept of legal relevance. It is super complex and most lawyers struggle with it. Especially in family law!

Quote:

Originally Posted by Super dad

I basically built a calendar in Excel and it has her coming and going every day for the last 6 months. It shows daily how many hours she either left the kids with me or someone else so she could go out. Every day is supported with screenshots of text messages and emails from my phone or my kid's phones with her saying she will be out.

A good lawyer will reverse engineer this to demonstrate what parenting you did over that time and not to discredit the other parent. You should not talk about when the other parent is in/out/absent etc... You want to use that information to demonstrate you as a parent. Not how bad the other parent is.

Quote:

Originally Posted by Super dad

I have messages from 4 am with me asking her to come home so I can go to work. I have one from my son's phone where she asks him to ask his friends if he can sleep at their house so she can go for a sleepover.

Sorry to say but, you have a 13-year-old. They can be home and get themselves to school. Not like they are infants. Unless they are developmentally delayed and are not capable of being on their own for 5-10 hours in a day.

Quote:

Originally Posted by Super dad

I feel sort of dirty using my kid's phones to prove she is not there for them when I'm at work. I hope my kids never find out and will forgive me if they do. Will this have any impact on a judge?

A good lawyer will never present this evidence. They will use the knowledge/information to trap the other parent. If they outright lie then they will spring the evidence in response and only to demonstrate when the other parent is misleading the court. Its "evidence in waiting" for proper use. It takes a very experienced lawyer to know when and if this evidence should ever be used.

Worry about your conduct and not the conduct of the other parent. Simply stating you were caring for the children on that day and not worry about what the other parent was doing. Explaining their absence is their responsibility. If they give bad evidence that is misleading your lawyer can eat them alive in response.

Misleading the court is a bad thing to do. It doesn't win cases but, it widdles down the "your a bad parent" argument rapidly.

Here is some case law for you to read that smells similar to your situation:

https://www.canlii.org/en/on/onsc/do...4onsc4002.html

All these citings for that case as well:

https://www.canlii.org/en/on/onsc/do...002.html#cited

And the costs:

https://www.canlii.org/en/on/onsc/do...4onsc4707.html

Don't be a Breaking Bad Parent.

Good Luck!
Tayken

Tayken · #15 11-29-2019, 03:28 AM

I beg you to read that case and the other cases it has influenced. It could be the best investment of time you make today.

fairlight · #16 11-29-2019, 10:58 AM

Wouldn't he be able to just keep the kids after visitation time and not return them on her schedule?

HammerDad · #17 11-29-2019, 11:29 AM

Quote:

Originally Posted by fairlight

Wouldn't he be able to just keep the kids after visitation time and not return them on her schedule?

Yes he could. But then he would be acting just as unreasonable the ex. The best route for the OP to take is make an offer to settle just like Tayken said, while also filing a motion in court.....like yesterday.

fairlight · #18 11-29-2019, 07:23 PM

Quote:

Originally Posted by HammerDad

Yes he could. But then he would be acting just as unreasonable the ex. The best route for the OP to take is make an offer to settle just like Tayken said, while also filing a motion in court.....like yesterday.

How about keep the kids AND file the motion?

Super dad · #19 12-03-2019, 11:14 AM

Thanks for the cases. I have read them and they are pretty dam close to what is going on. Wish I could send them to my wife.

Tayken · #20 12-03-2019, 09:04 PM

Quote:

Originally Posted by Super dad

Thanks for the cases. I have read them and they are pretty dam close to what is going on. Wish I could send them to my wife.

Attach them to your costs request.

You could be so bold and include an offer to settle costs on the motion prior to the motion and include that case law.

Or your lawyer can reference it in a without prejudice letter.

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