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The messiest custody/CS situation EVER

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  • The messiest custody/CS situation EVER

    Ok you'll need some back story to really weigh in on this...
    We were common law never engaged or anything. We seperated when my son was appx a year old and she took me to court for custody and CS. Nov 2009 was the court date. During that appearance I mentioned my concerns about her gang involved drug dealing new BF. The judge may have taken my concerns as those of an jealous ex and dismissed them. The outcome was she was awarded full custody, I was given access every second weekend and one 2 hr period in the off weeks and ordered to pay arrears in CS as well as my guideline amount. Fast forward to 30 days later her BF was killed 5 blocks from where her and my son lived, I went to court got an emergency interim order and was given full custody and she was given access times. Now the second judge made sure in the interim order that "it was not meant to replace status quo" which means I cant use that time of me having primary care towards status quo so I would have to return to court in the future.
    Now during her numerous applications and court hearings she has gained more and more access and it is now close to shared parenting. However during the last few months she has been keeping him days beyond her access time ( he is supposed to be dropped of on Sundays at 5pm she refuses and brings him Mondays, sometimes even Tuesdays) forcing me to have to go back to court because there currently isn't a police enforcement clause. Now when I filed my application I had to take into account that he will be attending school in the fall and since he spends the majority of his time with me and most school days I would be responsible for picking him up and dropping him of I figured it only made sense that the school he attends is close to my home ( Current schedule is she has access week 1 Wednesday from 10 am till friday @ 5pm, And Week 2 Thursday @ 10 am till Sunday @ 5pm). Well since we still have shared decision making she filed a counter that I was enrolling him in a school without her consent. So now the court battle is on!! Keep in mind hes only 4 years old and this is now my 3rd trial with him and my finances are exhausted because I get no money from her at all not even for section 7's so I'm forced to self represent. She now informs me a month before court that she is engaged and her BF is buying her a home and is rich enough to support her so she is quitting her job, and that the courts will give her custody because she is a stay at home mother. I don't take too much stalk in that argument but I have been surprised by judges ruling before. So my questions are...

    #1 I understand that there is no clear cut way judges determine access times for shared parenting. Some go by days, sleep overs etc. In our current order the judge does say that we will "share parenting" BUT the judge also put in specific times for her access right down to the hours. When you calculate the hours during the 2 week period she has %39.7. Which is less than the %40 threshold. I'm gonna make the argument that you cannot impute parenting time like you impute an income 39% is less than %40 so its not actually shared parenting. I've found case law in Alberta where a judge deemed more parenting time then there actually was and it was overturned.
    L.C. v. R.O.C., 2007 ABCA 158 (CanLII) — 2007-05-16 Court of Appeal — Alberta


    #2 will the fact that she quit her job and now has no source of income help her case or harm it?


  • #2
    Originally posted by ronnt View Post

    #2 will the fact that she quit her job and now has no source of income help her case or harm it?
    The fact that she doesn't have a job doesn't make her a better or worse parent. It does, however, leave her with more time to spend with the kid rather than having him in daycare.

    Comment


    • #3
      Wall of text.

      Try paragraphs, bullet points and restructuring your material if you want people to provide some insight.

      Comment


      • #4
        Originally posted by ronnt View Post
        #1 I understand that there is no clear cut way judges determine access times for shared parenting.


        Incorrect. There are common access schedules for joint custody with 50-50 access schedules.

        For example:

        http://www.ottawadivorce.com/forum/f...plained-13702/

        Originally posted by ronnt View Post
        Some go by days, sleep overs etc. In our current order the judge does say that we will "share parenting" BUT the judge also put in specific times for her access right down to the hours. When you calculate the hours during the 2 week period she has %39.7. Which is less than the %40 threshold. I'm gonna make the argument that you cannot impute parenting time like you impute an income 39% is less than %40 so its not actually shared parenting. I've found case law in Alberta
        Originally posted by ronnt View Post
        where a judge deemed more parenting time then there actually was and it was overturned.
        L.C. v. R.O.C., 2007 ABCA 158 (CanLII) — 2007-05-16 Court of Appeal — Alberta
        1. Access time will be determined more than likely for "overnights".

        2. You are rambling and posting % of time to the first decimal. Sorry to say, no judge will listen to this rambling argument.

        3. They will round up the % to 60-40 access split which is joint residency.

        4. The case law you provided isn't a defacto standard for anything before the court. Each case is determined on the merits of evidence and after that when making an order the judge will, if needed, turn to the book of authorities supplied by both parties in support of their order requests.

        Originally posted by ronnt View Post
        #2 will the fact that she quit her job and now has no source of income help her case or harm it?
        It won't be much of an impact unless she can't find a place for the child to live with her while the child is residing with her. Also, CS is determined on the "offset" of the two paying parents in accordance with the CS Guidelines. If you are making an income then you will be paying her child support if there is 60-40 access schedule.

        Search "offset method child support" on Google.

        Good Luck!
        Tayken

        Comment


        • #5
          Also, you should argue that her previous income from before she quit her job should be imputed as her income for CS calculations.

          Comment


          • #6
            Tayken makes great points. I would add, you really need to frame your arguments in a positive manner.

            Don't just tear down your ex. That is a really bad position to take if you are seeking a shared parenting situation. Your ex is a good parent, you are a good parent, your child will thrive with a strong, secure relationship with both of you. That is the fundamental basis for every argument you make.

            You attack your ex's arguments, not your ex. Learn the difference.

            Attack the arguments when they are against shared parenting. Agree with her sometimes, when she says something works for both of you as equal parents.

            The most fundamental thing you have to do is to state clearly what situation you want, provide clear reasoning for it, profide factual evidence supporting the reasons, provide case law supporting such a decision. Put 90% of your time and effort into this.

            The other 10% is to refute your ex when her assertions go against your own premise. You don't tear her down, you just refute any allegations or illogical reasoning.

            If you think she is a bad person and your child would suffer if she shared custody with you, that is a different story. Then, of course, fight for what you believe. But be sure you can back that up with fact, not just opinion.

            Comment

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