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  • #61
    Originally posted by baldclub View Post
    Their position is I am a good father, that the children want more time with the children. But. The OCL says that their position is that joint custody with a 8 days with the mom and 6 days with the father is what they recommend. They say that is what the children (14, 12 and 10 "want").

    The judge than said I should pay full table child support. I got pushed hard by the judge and the OCL, to accept this. I got lectured about "quality" time vs. "quantity".

    I left saying I was prepared to continue on to trial because my position is that equal parenting is the in the best interest of the children.

    I've got tons of ideas for arguments but do you think? What arguments would you put forward in court?
    Your point is that you want equal parenting. One highlight of equal parenting is that CS uses the offset method. As long as they insist you pay full CS no matter what your access time is, you will have a hard time being an equal parent because you will lack the financial resources compared to the other parent. And as long as the children's 'wants' are being used to guide the access, there is no recourse should they 'want' to spend more time in the nicer house. I'm sure you'd be happy with 6-8, 7-7 or 8-6 as long as CS was offset properly and they could have an equivalent lifestyle at both homes.

    Unfortunately, I do not know how you could argue this without making it sound like you are just after money.

    Maybe you could just emphasize that you feel equal shared parenting is appropriate, with appropriate division of resources, so that the children can feel like both homes are equivalent.

    I don't know what's with this judge insisting on full CS even though the time should call for offset. Would you have the same judge if you went to trial? That doesn't bode well.

    Do you think it's possible that the mom is coaching the children to say that they want 6-8 because they all believe that only 7-7 would be offset CS? Could she have fed them stories about how going for 7-7 would mean less money? It just seems a weird proportion for children to ask for.

    Comment


    • #62
      Oink, you may think that what is reported here are the wishes of the kids (14, 12 and 10) but I clearly do not believe they intend for a schedule 8 days with mom, 6 days with dad, who pays full child support to mom taking away any chance to ever provide them with a real home (like a couch to sit on... a bed not just a mattress on the floor....not renters who help pay bills but take away from the feeling of home...who are leaving now meaning the bills won't get paid eventually...and I will have the children even more....you get the drift I'm sure).

      I'm not about to present the sob story in court, I know they couldn't care less but here I'm telling you that I've gone a long time not being able to offer the children what they deserve, not because I don't make enough money (I make spec pay too) but because at the end of the day my situation does not allow me to use my money towards establishing a true home for our children.

      I am trying to brainstorm a list of arguments why I believe that equal access time is in the best interest .... based on the law.

      The thing is you see, the law states there are many considerations in the application of custody and access:


      Best interests of child

      (2) The court shall consider all the child’s needs and circumstances, including,
      (a) the love, affection and emotional ties between the child and,
      (i) each person entitled to or claiming custody of or access to the child,
      (ii) other members of the child’s family who reside with the child, and
      (iii) persons involved in the child’s care and upbringing;
      (b) the child’s views and preferences, if they can reasonably be ascertained;
      (c) the length of time the child has lived in a stable home environment;
      (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
      (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
      (f) the permanence and stability of the family unit with which it is proposed that the child will live;
      (g) the ability of each person applying for custody of or access to the child to act as a parent; and
      (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

      Comment


      • #63
        You would not have the same Judge for trial.

        Comment


        • #64
          here is some questioning I happened to be part of...

          Q.
          Is it fare to say that basically your conclusions about primary caregiver are not base on quality of relationships but simply amount of time

          OCL: Correct.

          Q.
          Quality of relationship between mother and child as the same as quality of relationship between father and child.

          OCL: Yes.


          Q.
          Should be amount of time sharing be decided on the basis of the quality of the child’s relationship with each parent or should be decided basis on a conflict between parents

          OCL: Quality and the availability of the parents…

          Q.
          Should quality take primacy on what they do?

          OCL: Yes

          Q.
          Is anything Mr. Dad could have done to have more than EOW?

          OCL: No. It was question more about conflict…


          Q:
          What a rational for depriving the child with significant contact with parent that they have equally connected with.

          OCL: I put more emphases on conflict between the adults.

          Comment


          • #65
            Great post Rioe, thanks.


            Originally posted by Rioe View Post
            Do you think it's possible that the mom is coaching the children to say that they want 6-8 because they all believe that only 7-7 would be offset CS? Could she have fed them stories about how going for 7-7 would mean less money? It just seems a weird proportion for children to ask for.
            There is no doubt she has been bribing them lately, not at all. My partner (who the children adore, only her name popped up among partners names) recognizes that the children have been talking about a lot of 'trips' lately, to South America, France, England, Switzerland.... They've told me about how Mom was going to buy them laptops....again, you get the gist. She can be a good mother, really, but this is wrong, plain unethical.

            I just keep on truckin' the old fashion way: love.

            Comment


            • #66
              Thanks WorkingDad.

              Comment


              • #67
                Originally posted by baldclub View Post
                There is no doubt she has been bribing them lately, not at all. My partner (who the children adore, only her name popped up among partners names) recognizes that the children have been talking about a lot of 'trips' lately, to South America, France, England, Switzerland.... They've told me about how Mom was going to buy them laptops....again, you get the gist. She can be a good mother, really, but this is wrong, plain unethical.
                Giving it further thought, I think you'd have to very carefully frame the issue of greed. It is not you wanting the money that is greedy so much as it is greedy of the ex to want to keep the money when the situation doesn't call for it. She's willing to agree to equal time but not appropriate CS sharing, therefore she is acting out of greed and not in the children's best interests to have two parents able to give them similar lifestyles. I am very concerned that there are judges out there who would push for this!

                If you are to have the children nearly half the time, as they desire, you should be able to use the offset method so you can provide for them properly when they are with you.

                I wish I could suggest a good strategy for accepting the 6-8 as "what the kids want" but standing firm that offset CS is appropriate in this case.

                Comment


                • #68
                  • Child support is the right of the child and the Guidelines call for the set off method in order to provide the children with comparable living conditions in both homes.
                  • The other party seeks an exception to section 9 of the Guidelines, but does not provide any reasoning or factual support.
                  • According to the budget provided by the other party, the children would not suffer any level financial hardship under the setoff method.
                  • Meanwhile, if the other party does not pay their share under the Guidelines section 9, a comparison of both parties' monthly budgets shows a wide discrepancy in financial resources and thus affecting the children's living conditions.

                  Notice how I frame the argument in the bolded section. As well, make sure you meticulously examine the other party's budget for exageration and fantasy.

                  Comment


                  • #69
                    Mess - logical and factually supported strategy!

                    Child support is the right of the child and the Guidelines call for the set off method in order to provide the children with comparable living conditions in both homes.

                    I was under the impression ^ was the starting point and rationale for set off method being utilized. Baldclub could advance his monthly budget and detail how his income is spent in support of their children. The onus would then be on the OP to prove she needs full CS in order to provide comparable living conditions for their children to dad's place.
                    Financial comparison (assuming it is relatively accurate) is numbers based, and ... monthly budgets shows a wide discrepancy in financial resources and thus affecting the children's living conditions.

                    Comment


                    • #70
                      Just seeing the above now, thanks to all, Mess, Rioe and bthom.

                      I also thought that offset child support would have been the starting point but it's been pointed out to me that judges in fact do order full child support to one parent over the other. They say it's because, yes, it is in the best interest of the children. Say one parent has a lot of debt but the other is super frugal and maintains a tight grip on their finances ... well that parent is deemed capable of supporting the children in the other household, to the full extent. The thing to show is to prepare a fully detailed NDI (Net Disposable Income I assume).

                      I was pointed in the direction of this case on CanLII, which I still have to digest:

                      CanLII - 2011 ONSC 815 (CanLII)

                      Well that should be no problem as I too track my finances very well, but in my case I believe I will be able to prove the discrepancy between our financial positions, in particular showing how I am frugal and at the same time at the brink of bankruptcy if I continue to pay full table amount, all the while earning a decent income.

                      And I'll say again, she earns more money than me. Just a quick note, another judge thought I was jealous about her making money, it drives me nuts! Why do they keep repeating these silly little mantras, as if a person's salary makes them better than another person? The judge in my settlement conference was incredulous, downright irritated that I replied that my position was that I saw offset child support as in the children's best interests.

                      I really, really think judges do not read the material presented to them (and yes it may be because there are tons of docs to read), but I think it's more like Old Lawyer said here on the forum, that in fact many judges are just not in touch with the reality of people of lesser means.
                      Last edited by baldclub; 04-19-2013, 12:37 AM. Reason: Thanks bthom

                      Comment


                      • #71
                        The word thrown around in courts is "disparity" .. In incomes, households, lifestyles.

                        I agree that Judges do NOT familiarize themselves with many of the details. I've wondered if they look at any of it.

                        Comment


                        • #72
                          CanLII - Federal Child Support Guidelines, SOR/97-175

                          Split custody

                          8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

                          Shared custody

                          9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

                          (a) the amounts set out in the applicable tables for each of the spouses;

                          (b) the increased costs of shared custody arrangements; and

                          (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.



                          Parenting Arrangements (Custody and Access)


                          Under the federal law, the following terms describing parenting arrangements are used:

                          Some parents have shared custody. (Some people may also use the term "shared parenting" to describe this arrangement.) Shared custody works best when parents can communicate well and can cooperate to meet their child’s needs.

                          In such arrangements, the child lives with each parent for at least 40 percent of the time. Also, both parents usually share the responsibility for making major decisions affecting the child.

                          When there is more than one child, some parents choose to have split custody. In this type of arrangement, some of the children live with one parent most of the time, while the other children live with the other parent most of the time


                          I'm only looking at shared custody, no children would be separated.

                          Comment


                          • #73
                            CanLII - 2011 ONSC 815 (CanLII)

                            [93] In Weismiller v. Jolkowski,[12] the Applicant had sole custody of one child and shared custody of the other with the Respondent. The court took into account the financial realities in each home in concluding that the full Table amount for two children should be paid to the mother. She earned $18,093 per annum compared to the father’s income of $86,130:

                            41 What the court is left with in this matter, is a picture of two parents with widely divergent incomes. The Respondent appears to enjoy a better standard of living with fewer dependant demands. The Applicant given her income would inevitably spend the greater proportion of her income on meeting the basic necessities for herself and her dependents. Justice Aitken in Herbert-Jardine v. Jardine (Ibid) (at para. 24) states:

                            "As well, there is the policy consideration that a shared parenting arrangement may be compromised in the situation where one home offers the child a wide range of benefits or luxuries which cannot be afforded in the other home. From a policy perspective, if it is decided that it is in the best interests of the child that the parents share parenting responsibilities more or less equally, it is important that the financial reality in the two homes not be so divergent that the child is tempted, for financial reasons, to make the more affluent home his or her primary residence. The realization that this may happen can increase spending in the less affluent home. It is certainly one factor the Court must take into account in determining child support in a shared parenting situation."

                            Comment


                            • #74
                              Originally posted by Rioe View Post
                              Your point is that you want equal parenting. One highlight of equal parenting is that CS uses the offset method. As long as they insist you pay full CS no matter what your access time is, you will have a hard time being an equal parent because you will lack the financial resources compared to the other parent. And as long as the children's 'wants' are being used to guide the access, there is no recourse should they 'want' to spend more time in the nicer house. I'm sure you'd be happy with 6-8, 7-7 or 8-6 as long as CS was offset properly and they could have an equivalent lifestyle at both homes.

                              Unfortunately, I do not know how you could argue this without making it sound like you are just after money.

                              Maybe you could just emphasize that you feel equal shared parenting is appropriate, with appropriate division of resources, so that the children can feel like both homes are equivalent.

                              I don't know what's with this judge insisting on full CS even though the time should call for offset. Would you have the same judge if you went to trial? That doesn't bode well.

                              Do you think it's possible that the mom is coaching the children to say that they want 6-8 because they all believe that only 7-7 would be offset CS? Could she have fed them stories about how going for 7-7 would mean less money? It just seems a weird proportion for children to ask for.
                              Well I have to say I completely disagree with what you said here.

                              UPDATE: Just touched a nerve sorry, but I need to rant, here.

                              Just taking one less day in a 2 week schedule to save money if you are going to be paying full child support is completely wrong.
                              Infact it's been proven that at least 35% of what is spent on the child is for the shelter, which has nothing to do with time as as long as there is one overnight there has to be shelter. Equal shared parenting is what is in the best interests of the children.
                              In this case the Judge and the OCL are calling it 6 days out of 14 but in fact it is only 5 overnights. Wednesday night, Thurs night, Friday night, Saturday night, Sunday night. That is 35.7% since most judges only count nights.
                              If you wanted to get technical then you would have to argue that the access time should be Wednesday at 8am to Monday at 5:45pm then that would be 6, however the caselaw which I won't get into here has judges counting time differently.
                              Some judges count time at school as being with the primary residence parent.
                              Other only count overnights.

                              I think it is an injustice where a an access parent can have 1/2 the summer and only EOW and one overnight during the week when there is school. Either the parent is capable or not. Children need both parents in this world. Be it any kind of parent.

                              Baldclub your position is clear, you were the stay at home parent, you were the primary parent during the relationship. Your ex makes more money than you. You should be seeking CS, and she is the "dead beat parent".

                              I would be asking the OCL if any of the interviews with the children were recorded. If not why not? How were they conducted? What procedures where followed? Where are those procedures?

                              It is law that if a judge of court interviews a child or children then it must be recorded by a court reporter. It's in the LAW in writting, then why is it that and OCL or CAS social worker who doesn't have the legal training that a judge has, get away with not recording a children's interview.

                              It's sick. Even police must record interviews with children.

                              Stop focusing on the money, and as soon as a judge or a lawyer says you'll still have to pay full child support, simply state to them, that you hope they leave the profession very soon, because it is our government that has placed a price tag on our children, and turned them into objects that can be owned.
                              My position at trail even when offered 40% access with EOW and most of the summer to get me over the 40% was simple.

                              I am a grunt dad, I want to make there lunches in the morning rushing them off to school, pick them up from school, and help them with their homework, I am not and don't want to be a Disney land dad. Our children had equal shared parenting before the break up, they desire it, want it, deserve it, and have a right to it after the break up. Provide me one good non financial reason why it's not in the best interests of the children.

                              Baldclub you live 1500ft away, if any case was gonna get equal shared parenting it would be yours.

                              The judge in your conference is just that a judge at a conference. they will not be your trial judge. And their goal at the conference is to settle the case without it going to trial. And if that means putting pressure on you or your ex to give into to something you don't agree with by scare tactics then they are simply testing your resolve and you strength.
                              Last edited by involveddad75; 04-19-2013, 09:11 AM. Reason: correction to my rant.

                              Comment


                              • #75
                                Originally posted by involveddad75 View Post
                                Well I have to say I completely disagree with what you said here.

                                UPDATE: Just touched a nerve sorry, but I need to rant, here.
                                I must not have been clear enough in my previous post then, because I completely agree with what you said!

                                Best case scenario for all children of a broken marriage is for both parents to live near one another, in the school zone, both working full time to the best of their potential, CS to always be calculated by offset (half offset even!), and access arrangements to revolve around activity and work schedules, and desires of the children if they are old enough, instead of counting hours and nights.

                                If the children in this situation weren't old enough to have any say, I'd encourage him to push for 7-7 more strongly. But because they are, I am encouraging him to go for the 6-8 (which I had understood to be overnights) as that's what's being offered and it is enough to trigger offset CS which evens out the money better than what he has now. Then he has offset going forward into the time when the children will fully come and go as they please.

                                For the judge to be going against offset even when it's clearly called for is just idiotic of him. Bad enough having a difficult ex, but adding in a less than fair judge is horrible.

                                Comment

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