Ottawa Divorce .com Forums


User CP

New posts

Advertising

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

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

Closed Thread
 
Thread Tools
  #1  
Old 07-08-2010, 08:48 PM
NeedHelpPls NeedHelpPls is offline
Junior Member
 
Join Date: Jul 2010
Posts: 1
NeedHelpPls is on a distinguished road
Default What do I need to do to get Primary residence for my Children.?



I have been married to my Husband for the last 14 years, about 17 months I go I filed for separation as I found he was having an affair. I got in touch with a Lawyer, who I explained my story to.,,, We have four children, ranging from 5 being the youngest to 13 the oldest. We both work, I have a regular 9-5 job that pays about 45k a year, he has a part time job for 5 months of the year that he makes 12k a year.. His job has odd hours, as it usually means he starts around 5pm and finishes around 12pm or later. During the day he is with the kids. I have been harassing him for years about getting a full time job as his income is not enough, but after one empty promise after another, nothing has come from it. I even hired nanny's which I paid so he could find a full time job, to no avail. Also on a side note we get rental income from the house we live in in the amount of 26k a year... As the result of his lack of income we have had to refinance the house three time over 12 years, in the amount of about 100k each time. Going back to my problem, so once I found about the affair, i decided I had enough and wanted to end my marriage. So when I went to my lawyer, she stated I do a separation agreement, which would outline our financials and custody of the children, My main focus was joint custody with me being primary residence. My husband who drew up the agreement with me agreed at the time to let me have primary residence. After 16months or so of delays on his part, starting with no money to get a lawyer, etc... my soon to be ex-husband, said he does not want me to have primary residence. He wants it too. He told me his lawyer told him he has as much rights to the children as I do as well as since he can get all this income from me, as he is lower income earrner. I spoke to my lawyer then, and she mentioned to me that he would have a better chance than me to get primary residence as he is considered the primary caregiver, as he has been taking care of the children. Even though we have never agreed or talked or decided that he was a stay at home parent, and only became that as he kept stringing me along about getting a full time job and fell into that role as he was not working.. On top of that she told me I would have to pay him child support and spousal support and he would use that income to take care of the children if he got custody with primary residence. She also mentioned ot me It would be an uphill battle for me to win if I tried to fight this in court or via arbitrators. What should I do, as it does not make sense. Why would the courts want to give custody to a person who could not look after them financially, nor can he provide them with medical benefits. Can I quit my job and take a part-time job so as to get on equal playing field with him in regards to being a primary caregiver.. How would that favor me, or would that harm me more. My children are my world, every morning I wake up and go to this crappy job, so I could have food on their table, and provide medical and dental coverage for them only to be told that is good by now for that you can loose your children as you were not primary caregiver.. Whatever advise you can offer me would be greatly appreciated. how does this make sense.
  #2  
Old 07-08-2010, 09:06 PM
Pharah Pharah is offline
Senior Member
 
Join Date: Apr 2010
Location: Brampton
Posts: 385
Pharah is on a distinguished road
Default

Your both have equal right to your child according to the Children's Law Reform regardless of who is the bread winner in the family.

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

CanLII - Children's Law Reform Act, R.S.O. 1990, c. C.12

It doesn't matter who makes more money or who can provide benefits and who can't, the court is solely interested in what is best for your children.
  #3  
Old 07-08-2010, 09:11 PM
Mess Mess is offline
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

Imagine a couple where the husband worked full time and the wife was a stay-at-home mother, probably much like your own parents?

Why would it make sense for the courts to award custody to the mother, who couldn't possibly earn enough on her own to support the children?

I'm sorry but all of your reasoning through this would sound absurd if the genders were reversed.

Your husband WAS the primary caregiver and is perfectly capable of remaining so. Your reasoning is that the primary caregiver should be determined soley by a financial measurement. I could spend hours writing and explaining and arguing this, but the simple fact is, our society and our laws don't work this way.

Your husband doesn't have to do whatever you say, just because you say it. That would not be co-operation, it would be obedience. You two obviously had different views of your priorities and roles, your view is not any more correct than his.

I'm not saying this to be hard on you or mean, but you are entering into negotiations at least, and possibly a law suit if this does not work out. You need to have realistic expectations, and you would do yourself well to avoid blame and victimization. Keep a level head, accept the law, try to negotiate and collaborate and you wil come out much much farther ahead.

The two of you could share physical custody equally, and a collaborative parenting approach will much much much better for the children, and also for the two of you in the long run. The children have as much right to a relationship with their father as with their mother, they have a right to live with each of you, they have a right to expect that the two parents will work together to minimize conflict over them. Getting in a custody battle does not help the children in any way, shape or form.

If you absolutely insist on trying to get primary residence of your children, you have to show that it is in their best interests to live with you and not their father. You will simply have an impossible time of that from the situation you describe.

I think you should also keep in mind that in general you are not going to pay a huge amount less or more if you have full custody or if you have half and half. If you have full custody your expenses will increase dramaticly, groceries, transportation, the nanny, clothing, entertainment, sports and recreation, etc. If you share custody and pay some support, their father will be paying for half these things, and with your schedules he can continue to provide childcare while you are at work. If you co-operate with each other instead of fighting then this could work very well.
  #4  
Old 07-08-2010, 09:11 PM
billm's Avatar
billm billm is offline
Senior Member
 
Join Date: Sep 2008
Posts: 2,431
billm is on a distinguished road
Default

First, the decision to who will raise the kids, or whether you will raise them together should not be a financial one.

It sounds like you both want to live with and raise your kids, so the only fair thing to do is that they live with you equally, which means you have to pay for two homes big enough for the family (perhaps the rental income location/s would work for that).

Morally and legally you should not reduce your income as a strategy, your family needs more money now than ever.

If you both can agree to equal shared parenting (50% of the time with each), then that would be best.

You would pay support to him as you make more money, but this should be updated every year according to incomes. Realistically it seems difficult to force him to work more as you have already tried, but hopefully this new situation will encourage him to do more.

As you are raising kids together, the incomes in the two homes must be somewhat similar, or at least the lower income home must be at a certain standard.

Sucks, but you married the guy and had kids with him. He was the primary care giver (does not matter why), but that deal is now over and you were also a daily and important part of the kids lives, so 50/50 would be best probably.

Child support is easy - it is your CS table amount minus his CS table amount, is what you pay him, called the Offset Method. Again, updated every year based on incomes.

Spousal support is hard, but mostly is done as income sharing after other things (including CS) are considered.

Don't mix money/support with access to the kids. You both have a right to raise the kids equally, and the kids have the right to be raised by both of you.

So hopefully you can agree with the shared custody, and simply divide all assets and debts in two (Grade 4 math - it is simple), and then determine CS and SS payments, and move on with your life.

Emotionally I am sure you are very upset, I am sorry to hear that he left you (when he started the affair). You married the lazy guy and had kids with him, so that part is on you.

And finally, educate yourself and your spouse regarding family law and don't let the lawyers run you!

Best of luck in this very difficult time.

Last edited by billm; 07-08-2010 at 09:14 PM.
  #5  
Old 07-08-2010, 09:18 PM
Elvis's Avatar
Elvis Elvis is offline
Senior Member
 
Join Date: May 2010
Posts: 102
Elvis is on a distinguished road
Default

I commend you for working hard to put food on the table for your children and that when you say they mean a world to you. However, besides not working (what's his reasons for not working?), is your STBX a good and caring father? If so, why would you take the kids away from him? Now I am not saying he should get sole custody either, but if he is a good father, and based on your post you are a good mother, you should talk to him to work on shared physical custody. Maybe see a mediator.

Your lawyer could be right and his lack of employment could go in his favour. Anyway, it could be a long battle without early prediction.

Do what is best for children. Again, based on your post, shared custody is a good idea.
  #6  
Old 07-08-2010, 10:15 PM
DanTess DanTess is offline
Member
 
Join Date: Jul 2010
Posts: 55
DanTess is on a distinguished road
Default

what's important to remember is that the law REQUIRES him to earn to his potential. he doesn't get to be lazy or choosy and he doesn't get to work part-time if he's capable of working full-time. that'll actually work in your favor since it'll make him earn more.

quitting your job or changing to a lower-paying job will HURT you because for the same reason as above, you have to earn to your potential as well.

screw the 'primary residence' - force a sale of the house and split the proceeds and start fresh. the kids will be happier in a new place with cooperative parents than in the old place with parents fighting constantly.
  #7  
Old 07-08-2010, 11:05 PM
dadtotheend's Avatar
dadtotheend dadtotheend is offline
Senior Member
 
Join Date: Jul 2007
Location: Toronto
Posts: 3,644
dadtotheend will become famous soon enoughdadtotheend will become famous soon enough
Default

I bet you're feeling screwed because you had to be the breadwinner to support his lazy ass, and now he will strategically pile on that he was the primary caregiver with your agreement. Notwithstanding your harassing (don't use that word any more, won't look good on an affidavit) him to work, he didn't get work and you stayed, so there is implied consent there.

You could argue that the court should impute an income to him for support purposes, but he will win points saying that he was a house-husband with your agreement. You respond by saying that was yesterday, going forward he needs to work to contribute to the raising of two kids in two homes.

If this was a role reversal, he was making the money, you caring for the kids, you would be in a slam dunk position to obtain SS, CS and likely primary residence if you played it half right. The primary caregiver gets the kids, and 80% of the time that's Mom, so the court is slanted (although not biased) that way.

But it's not a role reversal. Your lawyer is right about support and primary residence. He has a slightly more uphill battle just because he's Dad, but it's not enough for you to rely on. The facts will easily outweigh gender bias if he plays it halfway well.

You can stirke a fair deal, but you will probably have to accept shared parenting. Don't do it by taking less work. That will look bad and be bad for your family. Become even more involved in the kids lives. And impute an income equal to yours to eliminate CS. Maybe offer him a few years of SS. SS is a crapshoot.

Above all for now, don't leave that house without a separation agreement/court order. Hopefully your lawyer has told you that.

Finally, his affair won't mean anything to the court. Leave it out. Or at least do not make it a litigation issue.

Last edited by dadtotheend; 07-08-2010 at 11:09 PM.
  #8  
Old 07-09-2010, 10:54 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

The only thing his affair is good for is getting divorced in under 1 year. Other wise it is totally irrelevant to the issues of custody, access and support.
  #9  
Old 07-09-2010, 11:17 AM
logicalvelocity logicalvelocity is offline
Moderator
 
Join Date: Oct 2005
Location: Ontario
Posts: 3,943
logicalvelocity has a spectacular aura aboutlogicalvelocity has a spectacular aura aboutlogicalvelocity has a spectacular aura about
Send a message via Yahoo to logicalvelocity
Default

By the time the infidelity issue got to trial...One year anniversary of separate and apart default probably surpassed. It's a waste of coin to pursue and makes it more cumbersome to resolve other issues.
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
Joint Physical Custody: Smart Solution or Problematic Plan? WorkingDAD Parenting Issues 19 09-17-2012 06:38 AM
Primary Residence rimanel Divorce & Family Law 15 11-18-2011 03:51 PM
Please Help with Parenting Agreement Ames Parenting Issues 9 09-27-2011 08:58 AM
Divorcing Well SigRent Parenting Issues 2 05-06-2010 09:02 PM
primary residence Foredeck Divorce & Family Law 21 11-21-2009 03:24 PM


All times are GMT -4. The time now is 07:42 PM.