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Parenting Issues This forum is for discussing any of the parenting issues involved in your divorce, including parenting of step-children.

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  #1  
Old 02-19-2014, 01:35 PM
engineer engineer is offline
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Default arguing for sole custody

common-law ex and I separated in fall of 2012 after 14 years together. There are two kids - the oldest from my first marriage, now 20 and in University, and the youngest, now 12 1/2. I have always been the primary parent.

Ex worked overseas for the last 3 years of relationship, and was away for a good 7-9 weeks at a time, coming home for about a week in between each trip. After drumming up a massive debt to pay his foreign taxes (used the money loaned to him by his employer for taxes which he pi$$ed away instead - I was unaware of this loan until well after he used joint funds to pay the taxes and that is a separate topic), he announced he wanted out. I subsequently learned that he took on a second family overseas in early 2010 - she is a therapist in a hotel spa. You can interpret that how you will.

He missed most holidays, long weekends, and all the kids birthdays in the past 4 years. Even when I brought them to see him while we were still together, he claimed he had to work and did not spend any holiday time with them.

He was a parent by proximity before 2010 and has been an absentee father since. He opened social networking accounts and indicated that he lived overseas.

Since separation, he has spent more than half of his time overseas. He rarely texts either child (I mean, months can go by). He sees the youngest once every other week he is actually in Canada, on average. I have instigated about 1/4 of these visits - usually because the kids and I have plans that put us near where he is living.

He married his new partner early last year and has now brought her to Canada. He did not inform the kids. He did not inform me either - but he is sloppy with his on-line presence. He completed an Affidavit for Joint Custody and did not include his new wife as an adult that would have access to the child, so he has attempted to conceal this from the court as well.

He claims to want joint custody of the youngest.

He has not been paying the table amount for CS, not even close. Hence my application for motion and the upcoming case conference.

I have all of his travel dates from the last 4 years (3 years before separation and the time following) that show just how rarely he has been around. I know when he took holidays overseas since 2010, and was therefore away from the kids entirely by choice. I have the all the records of their few text conversations.

I want sole custody with reasonable and fair access, which is what we have had since separation. I want both kids to have a relationship with him, but I recognise his limitations as a parent.

I really believe that sole custody is in the best interest of the child, and that is the current situation. I understand that the court is suspicious of parents that don't want joint custody - I guess there are plenty of parents that want sole custody in order to control the ex and I do not want to be lumped in that group.

What is the best way to communicate what I think is best? Apart from the documents/evidence I have mentioned, what else should I obtain?

It is quite possible that he is just doing this for show. Like I said, he was never an active parent and he has not stepped up his game since we split up.
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Old 02-19-2014, 01:59 PM
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Quote:
Originally Posted by engineer View Post
common-law ex and I separated in fall of 2012 after 14 years together. There are two kids - the oldest from my first marriage, now 20 and in University, and the youngest, now 12 1/2. I have always been the primary parent.
I would drop the terminology of "primary parent" right now. Clearly you have been reading a bunch of self-help legal information. Using the terminology of "primary parent" in 2014 makes you the "primary instigator" of conflict in the eyes of most justices these days.

I have not observed a single motion in the past year where a justice hasn't lamented about the use of "primary parent" ad nauseam.

So, leave the 1980's legal terminology at the door when you enter the court rooms in 2014!

Also, common law, doesn't really mean anything in a custody and access dispute. You can simply refer to the other parent as the other equal parent.

Quote:
Originally Posted by engineer View Post
Ex worked overseas for the last 3 years of relationship, and was away for a good 7-9 weeks at a time, coming home for about a week in between each trip.
Mostly irrelivant when discussing a 12 1/2 year old child. Especially if this person is (a) in the military or (b) doing this to support their family financially. Courts don't punish people these days for supporting their families.

As you are calling yourself "engineer" I am going to assume you have an iron ring on your pinky finger and are capable of making 100,000+ in income yourself...

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Originally Posted by engineer View Post
After drumming up a massive debt to pay his foreign taxes (used the money loaned to him by his employer for taxes which he pi$$ed away instead - I was unaware of this loan until well after he used joint funds to pay the taxes and that is a separate topic)
As you are not married this debt is not yours to worry about. That is the great thing about *not* being married. If the debt is in his name, he owns it 100% and not you. Put it out of mind... Also, as someone who is not married, you have no claim to his assets either unless they are jointly owned and you are on title generally.

Quote:
Originally Posted by engineer View Post
he announced he wanted out.
As you are not married the reason for his departure from the relationship is of little relevance. In fact, even when married, it is irrelevant.

Quote:
Originally Posted by engineer View Post
I subsequently learned that he took on a second family overseas in early 2010 - she is a therapist in a hotel spa. You can interpret that how you will.
You learned? This is so off the wall and rare that I have a hard time believing your "story".

Again, kindly remember that we operate in a no-fault system of law for divorce and extramarital affairs have no weight on anything... It is "no fault" of his or yours that he wants to leave the relationship. As well, remember that you are not married to this person so the evidence of an affair doesn't provide you anything other evidence to the other party in the matter that you are (a) bitter and (b) jealous and (c) vengeful for even raising it.

Quote:
Originally Posted by engineer View Post
He missed most holidays, long weekends, and all the kids birthdays in the past 4 years. Even when I brought them to see him while we were still together, he claimed he had to work and did not spend any holiday time with them.
Again, you need to read about the concept of "hearsay". Unless you can present tangible evidence to support what you said above... It is all hearsay and "emotional reasoning". There are no reasonable facts contained in what you have stated.

Quote:
Originally Posted by engineer View Post
He was a parent by proximity before 2010 and has been an absentee father since. He opened social networking accounts and indicated that he lived overseas.
Again, what relevance does this have? If he lives over seas then he lives over seas.

Quote:
Originally Posted by engineer View Post
Since separation, he has spent more than half of his time overseas. He rarely texts either child (I mean, months can go by). He sees the youngest once every other week he is actually in Canada, on average. I have instigated about 1/4 of these visits - usually because the kids and I have plans that put us near where he is living.
Is he paying Child Support now? That is all that really matters. I would make an offer to settle to pay full table child support based on his previous year's income tax statement.

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Originally Posted by engineer View Post
He married his new partner early last year and has now brought her to Canada. He did not inform the kids. He did not inform me either - but he is sloppy with his on-line presence.
1. He isn't obligated to tell you he got married.
2. He isn't obligated to tell the children.
3. He can bring his wife to Canada.
4. All of the above is irrelevant evidence.

Quote:
Originally Posted by engineer View Post
He completed an Affidavit for Joint Custody and did not include his new wife as an adult that would have access to the child, so he has attempted to conceal this from the court as well.
You can assume what you want... but, he probably isn't familiar with the requirements. Simply advise him that the affidavit needs to be updated and identify all the adults residing at the residence with him. No need to be all mean and nasty about it... or assume he tried to "conceal this from the court"... Just send a with prejudice letter asking for the affidavit to be updated and served again.

Quote:
Originally Posted by engineer View Post
He claims to want joint custody of the youngest.
And this is a problem because? Custody is the decision making authority... Access defines the residential time with both parents -- NOT CUSTODY.

Quote:
Originally Posted by engineer View Post
He has not been paying the table amount for CS, not even close. Hence my application for motion and the upcoming case conference.
It is both of yours responsibility to insure the proper CS is being paid. He should pay it, and if not, you should bring the matter to court to insure it is...

Quote:
Originally Posted by engineer View Post
I have all of his travel dates from the last 4 years (3 years before separation and the time following) that show just how rarely he has been around.
But, again, this doesn't preclude him from being a joint custodial parent. What kind of access to the child is the parent seeking? The evidence you are discussing is only material in determining access.

Distance never stopped good parents from coming to a joint decision about medical, dental and schooling.

Quote:
Originally Posted by engineer View Post
I know when he took holidays overseas since 2010, and was therefore away from the kids entirely by choice. I have the all the records of their few text conversations.
Again. This is irrelevant. Put it out of mind.

You need to hire a good lawyer to help you understand this.

Quote:
Originally Posted by engineer View Post
I want sole custody with reasonable and fair access, which is what we have had since separation.
No. Unless a court has ordered otherwise both parents are entitled to joint custody of the child. It is clearly stated in the CLRA.

Quote:
Originally Posted by engineer View Post
I want both kids to have a relationship with him, but I recognise his limitations as a parent.
Again, put this out of mind. You have limitations too... This posting is filled with them. You are clearly angry and your anger will impact the children and how they are raised.

Quote:
Originally Posted by engineer View Post
I really believe that sole custody is in the best interest of the child, and that is the current situation.
You can "believe" what you want... But, you haven't presented a compelling case on this forum to get "sole custody" ordered in my humble opinion.

Quote:
Originally Posted by engineer View Post
I understand that the court is suspicious of parents that don't want joint custody - I guess there are plenty of parents that want sole custody in order to control the ex and I do not want to be lumped in that group.
But, it is clear that you are based on the "evidence" you thing is "relevant" (which is not!). You are stating a bunch of irrelivant reasons to be a "sole custodial" parent. So, you will (and are) being lumped into that category simply based on your own writing.

Quote:
Originally Posted by engineer View Post
What is the best way to communicate what I think is best? Apart from the documents/evidence I have mentioned, what else should I obtain?
Most of your evidence is irrelevant.

You should be retaining a lawyer to assist you. That should be your first order of business. I recommend this because you are citing useless information as "evidence".

Quote:
Originally Posted by engineer View Post
It is quite possible that he is just doing this for show. Like I said, he was never an active parent and he has not stepped up his game since we split up.
Again, this is your opinion. It is a common opinion shared by many new posters to this site... Many of whom are shocked into reality when they enter a court room.

Heed my warning.... Hire a lawyer.

Good Luck!
Tayken
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  #3  
Old 02-19-2014, 03:04 PM
Toutou Toutou is offline
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Why do you want sole custody?

Because he is often away and you don't want to wait for him to make decisions? You do not think that he is a reasonable person, does not have kids best interest at heart when it comes to chosing right school, religion, or making major medical decisions.

You are also saying that he was only parent by proximity prior to 2010, he was not really a parent. Do you expect him to pay CS for your child from previous relationship? If you do, you will need to make up your mind if he was a parent or he wasn't a parent.
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Old 02-19-2014, 03:16 PM
stripes stripes is offline
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It sounds pretty simple to me - the OP has primary residence with the kid. The father should be paying full table child support for the one child he has with the OP. There aren't any strong reasons why she should have sole custody (that is, why he should have no input into any decisions involving the kid). He sounds like a distant and uninterested parent, but not one who is incapable of participating in decision-making. I suspect in reality the OP will end up making most of the decisions herself because the ex just isn't interested, but she can't lock him out of the possibility of ever having any input into the kid's life.

Tayken is right, the circumstances of the breakup, the new partner, the lack of involvement with the kid, etc., are irrelevant, although I assume they must sting.

I think what needs to happen is that the OP needs an order establishing joint custody, with primary residence to her, and corresponding table child support from him. If he's not paying up, find a way to go after him (which would depend what province you're in). Bear in mind that retroactive child support is difficult to get, so if his financial irresponsibility is a problem, the sooner she gets an order and seeks to have it enforced, the better.
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Old 02-19-2014, 05:05 PM
engineer engineer is offline
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Thank you all.

To Tayken,

Wow. You have formed an opinion quickly, and in the complete absence of data. As an engineer, I generally refrain from this kind of thing.

I am not actually looking for an opinion on my case. I have not presented my case here and have no plan to do so. I have a lawyer for this. I interviewed a few and retained one in September, 2012. Primary parent is his term. All the lawyers I spoke with felt that joint custody was a no-go, based on the ex's frequent travels. I didn't ask, this was volunteered. His infrequent communications with the kids does not help his case.

I am aware that custody speaks to decision making. I don't think that my ex gets it, but he has his own lawyer. I expect that they can both figure out what "are there any other individuals over the age of 18 living in your place of residence?" means.

We have offered to settle for the table amount, based on line 150 of his return. He has not complied. We have sent a demand letter. He has not complied.

Just because I have not referenced specific data/evidence, it does not mean that I have none. Again, I am not presenting my case here. I'm not sure what I find more offensive - that you would presume that have formed a theory without data or that I lack the technical wherewithal to obtain it. I'm an engineer, after all. I mine and analyse data for a living, and I am very thorough. I have literally thousands of individual documents that relate to where he was when, who he was with, and how much he spent. It is amazing what you can find with a relatively small amount of effort. I have a dozen bits of information from the two weeks I brought the kids to visit him alone.

I started looking for data after I went through the accounts, after I learned about the loan he had from his employer, and after he paid his foreign taxes out of our joint account.

The money was loaned by his employer to pay foreign taxes - he would give them the tax refund that sprung from the foreign tax credit - I was unaware of this loan. He spent it instead. He then used joint credit to pay the taxes in the months before we separated, when I was unaware of the impending split. When he received his tax refunds months later - after the split - he gave them to his employer to repay his loan to them. That means we paid his foreign taxes. He turned a personal debt to a joint one when I was unaware of the loan in the first place. That makes his use of company funds overseas, on purposes unintended, very relevant, and it makes his extra-relationship affair relevant. And yes, she is a spa worker. No kidding. I think it is funny. Not sure whether we will go misappropriation or reckless depletion. The misappropriation route is certainly a lot less sordid.

I am not angry that she is in Canada. I am glad that she is. The likelihood of him absconding on his support obligations is slight. No he does not have to tell his kids about her. Most parents do, though.

I am not sure why you would reference my income or what you think it should be. It isn't relevant to my ex's obligation to pay child support and it isn't relevant to custody. It is, however, relevant to SS. When we first moved in together, I out-earned him. I turned down promotions that required too much travel as we considered it better for the family for me to come home each day. We moved to a new area in order to follow his career opportunities, thereby limiting my search for work to our new geographic location. I found work, but the hours were non-traditional and never at the same level as before. The oldest really had to step up to help out with the youngest when he was overseas. We put his career first at the expense of mine and he now earns 2.5 times as much as I do. But this is not what the post was about.

He is responsible to support both children. Being disinterested doesn't give him a bye. He was listed as a parent with the school boards for both kids. He refers to both as his kids on emails to friends and family.

Having said that, this has nothing to do with custody arrangements.

He hasn't been a completely appalling parent - he isn't abusive - but he hasn't put himself out much either. We always ate our meals together at the table as a family (when he was in Canada), but not a lot more than that (I am frequently surprised at how many families do not eat at the table together). I did all of the appointments, school stuff, extracurricular stuff, homework help, shopping... He did take them snowmobiling a few times, but obviously not for a good 5 years. His intentions were good, but he rarely followed through, and during the last three years we were together, he had already supplanted this family with the one overseas. I thought he might step up once we separated, as many parents do. He hasn't.

His decisions are exclusively guided by money and how a decision might impact his ability to spend money on himself. He resisted orthodontics for the kids, believing that we could just "yank teeth out" to save costs. He wanted the oldest to go to community college instead of University on the basis of cost alone. He questioned where I purchased the fabric for my oldest's dress for her high school formal, thinking we should check out the Salvation Army store instead. No kidding. I have these email trails and dozens more. There are many reasons for why sole custody makes more sense, but I am not laying out my case here.

This is a simple question. What documents should I provide to defend the request for sole custody? I have thousands. I can't imagine anyone will want to see them all. I could go through it all with my lawyer, but that will cost $$$. I was hoping someone could just indicate what sorts of data I should have my lawyer review.
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Old 02-19-2014, 05:22 PM
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So you understand in Ontario

Custody: decision making authority

Residence: where the kids live and who pays how much child support.

Your kids are pretty old, custody sounds meaningless anyways?

So which are you worried about?
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Old 02-19-2014, 05:37 PM
DowntroddenDad DowntroddenDad is offline
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First off, don't think your iron ring will help you much here. But thanks for showing your arrogance and conceit.

Tayken has a great deal of experience in family law matters and you would be very wise to get off your high horse and listen to what he says.

Family law is not like engineering. There are laws, but laws don't cover everything. For that we have precedents, case law.

First you must understand that divorce in Canada is no fault. So don't waste the courts time (or get the judge upset with you) by presenting anything to do with your soon to be ex's new wife. It isn't at all relevent.

In the matter of custody, it is accepted that it is in the best interests of the child that they have access to both parents and that both parents are involved with their lives. If you want sole custody, the onus would be on you to prove that he is unfit to make decisions about your child/children. That is the ONLY thing that matters in custody, and as Tayken has indicated, the bar is pretty high. There are people with substance abuse problems, people who are in prison who still have joint custody.

To get him to be responsible for a child that he is not the father of is again something you will have to prove. In loco parentis is pretty tough, use the search function here to see. Taking an interest in the child is not the standard.

You will also have to prove a need for spousal support. The onus again is on you, it isn't automatic.

You seem to be confident based on your discussions with your lawyer. As many here have found out, lawyers exist to bill clients, and are not above being overly optimisitic about their chances in court, in order to wrack up billings. My accountant told me about a golf foreseome of lawyers that played through on one of his games. They were all wearing hats that read "Bill 'em till they bleed".


You would be best served to be less combative, and ask more questions.
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Old 02-19-2014, 05:44 PM
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The oldest is 20. Custody is not an issue.

The youngest is 12 1/2. Custody is an issue. She likes seeing him, but does not want to spend weekends and holidays with him. I didn't ask her this, by the way, she volunteered it when she realised that some of her friends spend weekends at their dads' places.

I want to kill this issue off as early as possible. There are many issues surrounding finances and property division. The more I can settle quickly the better.

My ex is passive aggressive - meaning he will resist an opportunity for the kids just because he can if he has decision making authority. He likes to bully and posture when he thinks he can win, but his case is based on what he wants to recall rather than what really happened. He isn't data-driven like I am - he has formed his case without a shred of paper. He is likely to capitulate on an issue once he realises he cannot win it. If I present the right data at the right time I can kill issues off quickly, minimise costs, and move on.

I have loads of data on financial issues. Those are easy to interpret and are data-based. Custody and access arrangements are more touchy-feely, based on documents that don't contain data. It is only when you look at an array of them that the narrative becomes clear. I just want to know what are the best things to present for this.
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Old 02-19-2014, 06:02 PM
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Quote:
Originally Posted by engineer View Post
The oldest is 20. Custody is not an issue.

The youngest is 12 1/2. Custody is an issue. She likes seeing him, but does not want to spend weekends and holidays with him. I didn't ask her this, by the way, she volunteered it when she realised that some of her friends spend weekends at their dads' places.

I want to kill this issue off as early as possible. There are many issues surrounding finances and property division. The more I can settle quickly the better.

My ex is passive aggressive - meaning he will resist an opportunity for the kids just because he can if he has decision making authority. He likes to bully and posture when he thinks he can win, but his case is based on what he wants to recall rather than what really happened. He isn't data-driven like I am - he has formed his case without a shred of paper. He is likely to capitulate on an issue once he realises he cannot win it. If I present the right data at the right time I can kill issues off quickly, minimise costs, and move on.

I have loads of data on financial issues. Those are easy to interpret and are data-based. Custody and access arrangements are more touchy-feely, based on documents that don't contain data. It is only when you look at an array of them that the narrative becomes clear. I just want to know what are the best things to present for this.
Custody and Access are two different issues.

Custody is about decision making. You have to prove he isn't competent to make parenting decisions, most of which would be joint decisions with you anyway. You haven't presented anything relevent to that.

Access is how much time he will spend with the children. The default is 50/50, but you may have a shot at "every other weekend" and the occasional overnight, because you can show a status quo of not having regular visitation since separation. He will try to argue that you prevented this. Your counter is to show the documentation, emails etc that show you offered and he declined.

Financial issues for child support should be cut and dried. The low end of the range of child support based on the tables should be a given, more than that and you have to demonstrate a reason why. You can get a motion together for this and have it looked at quickly. as opposed to going to trial for other issues which will drag on and on.

Get it out of your head that there is a narrative. The judge doesn't want to hear about his new wife, or how bad a husband he was. He/she doesn't care, it isn't relevent, it doesn't matter. Divorce is no fault. Yes I am repeating myself.

Asset division will depend on getting the information.
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Old 02-19-2014, 06:16 PM
stripes stripes is offline
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My only experience with this comes from having a close relative who lost custody of his kids (a decision I completely agree with, by the way). In his case, what was needed for him to be denied custody was proof that he was incapable - not unwilling or uninterested, but incapable - of parenting. For him, this took the form of documentation related to cognitive impairment (disability), unstable housing arrangements, and a history of CAS intervention.

So I'm thinking you would need a pretty big smoking gun. What you've described here sounds like evidence that your ex is not interested in being a co-operative parent and is not willing to work with you - passive-aggressive, as you say - but not that he lacks the capacity to function as a parent. I think the dice may be loaded against you.

Do you have evidence of a criminal history for your ex? Or of untreated substance abuse problems? Or have there ever been investigations by a child welfare agency? Are there documented episodes of violence? Is he chronically homeless or suffering from an untreated mental illness? That's the sort of thing I think you need to overturn the presumption in favour of joint custody. Just being money-driven, a jerk, and emotionally deaf isn't enough.

Also bear in mind that any lawyer will tell you what they think you want to hear. You could easily go broke fighting a losing battle. I would think your best bet is to hammer out an agreement with primary residency for you and not open the question of custody, so you can get him to start paying up, based on his line 150.
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