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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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  #1  
Old 01-11-2013, 07:07 PM
firhill firhill is offline
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Default Status Quo

Re: Access

Does the Court view it as becoming gradually more established with the passing of time, or is there a more specific time period where it is regarded/accepted as having been established?

Does the age of the child have a bearing on whether a status quo has (or hasn't) been established??
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Old 01-11-2013, 08:46 PM
cphunter cphunter is offline
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i think maybe more context would help.
Care to share any more?
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Old 01-11-2013, 09:26 PM
firhill firhill is offline
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2 1/2 yo child
Last increase in access in September.
Now at 25 hrs/week w/ two overnights a month.
TMC scheduled for March.

Trying to weigh my fear that some sort of status quo will be in place by late March against the consequences of filing a motion for increased access before then.
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Old 01-11-2013, 09:52 PM
cphunter cphunter is offline
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I would look for case law at canlii.org. But a common "idea" in family law with regard to "what has been established" is intent. So one simple step you can take if you want to increase access is to make a formal recommendation. Even if you don't think it will be granted, let the other parent know that you WANT more access and would like to establish it without the trouble on both of you of achieving that through court. Ask the other parent what options they would propose in that regard.
Then it is at least hard for the parent to claim that you had no intent to change access. Give the other parent the burden of proving that they are being reasonable in this process.
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Old 01-11-2013, 10:45 PM
firhill firhill is offline
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Quote:
Originally Posted by cphunter View Post
So one simple step you can take if you want to increase access is to make a formal recommendation. Even if you don't think it will be granted, let the other parent know that you WANT more access and would like to establish it without the trouble on both of you of achieving that through court.
I did all that a month ago and just heard back from the Respondent that her lawyer is preparing an Offer to Settle, but it will be at least two weeks before I receive it.

So the question is, do I wait two weeks, plus another couple of weeks for a response to my counter offer plus another couple of weeks before having a motion heard as that would take the status quo to almost 5 months at that point, or do I file the motion now, before trading more Offers to Settle.

FWIW.. I expect any Offer to Settle to include (as every previous offer has) full custody to the Respondent and that's not an option for me (or my daughter). I'd rather take my chances, unrepresented, in front of the Court.
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Old 01-11-2013, 11:24 PM
cphunter cphunter is offline
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Have you been through the processes of having a motion heard before?
It is different in different cities, but my experience has been in my city that any motion is going to take more than a year until it is heard anyway. You file a motion and serve the respondent and file proof of service. You pick a date (I think its not less than 30 days after you serve, but I might have that wrong). That date is for a first appearance........at that point you are just getting some direction from the court......an opinion more or less as.........and the hope is that you settle. Then you have several months go by before the next appearance at which a judge tells you what he or she thinks a judge would order........and you are asked to go off and settle again. Your hearing at which an order might be made is still many months away.

In the end, the courts (barring any reason not to) would like to see 50-50. If you continue to behave reasonably and continue to emphasise that you want to increase your visitation, the court will hear that.

Of course, ANY appearance in court is a crap shoot. You often will get a reasonable judge who will pay attention, weigh the evidence and apply the law. But sometimes you get one that isnt' paying attention and the order is not appropriate. You have to always realize that.

I am not a lawyer, so my "advise" should be weighed with salt. But I would suspect from what I have seen (years in court myself and representing friends) if you continue to always exert your right to see the child, and focus on the child's right to see you, and never stop asking for more visitation, and show through your actions what a good parent you are and what a reasonable person you have tried to be, then the judge is likely to allow you as much visitation as you like.

Remmber too that children grow up quickly. Eventually they "vote with their feet." Be the parent they want to visit!

Try to settle outside of court but make it clear that you are willing to take it to court if the other parent won't give you the visitation you want.

It's in the best interest of the child to know both of their parents well.

It's a fine line to walk in this relationship with your ex. If you have a bad relationship, it really does hurt the child. They feel conflicted (when they are old enough to understand). Be the "bigger man". But never for a minute suggest that less visitation is ok.

Remember too, there is a greater than 50% chance that the child will eventually be divorced. Be a good role model for how that can work productively! Those people that did that that I know are VERY glad they did. I am VERY sorry my relationship with my ex was (and is) so accriimonious. I have the love of my children and he doesn't. But they'd be better off if they didn't hate their dad.
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Old 01-12-2013, 01:25 AM
firhill firhill is offline
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Quote:
Originally Posted by cphunter View Post
Have you been through the processes of having a motion heard before?
It is different in different cities, but my experience has been in my city that any motion is going to take more than a year until it is heard anyway. You file a motion and serve the respondent and file proof of service. You pick a date (I think its not less than 30 days after you serve, but I might have that wrong). That date is for a first appearance........at that point you are just getting some direction from the court......an opinion more or less as.........and the hope is that you settle. Then you have several months go by before the next appearance at which a judge tells you what he or she thinks a judge would order........and you are asked to go off and settle again. Your hearing at which an order might be made is still many months away.
Thanks.

We're obviously in a different city and/or province.

Maybe I got lucky, but just as Duty Counsel had advised me, my previous motion(s) were heard on the Wednesday after I filed and served.
The Judge expressed her/his thoughts in the form of a Court Order.
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Old 01-12-2013, 01:34 AM
cphunter cphunter is offline
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wow. That's fabulous. It took me over 2 years for almost every one of my motions. That was in Kingston.
Good luck to you.
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