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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 03-12-2019, 01:05 PM
Malaika Malaika is offline
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Heres a simple break down
We were common law but never married, with one child together. She has two kids from a previous relation.
-Lived together for roughly 8 years
-A year ago i got my own place and my son lived with me for 5 months (up to may)
-June She moved to a new place and i moved in with them
-October i moved to my own place whilst visiting every weekend
-November she couldnt handle all three kids so our son moved in with me
-January, she changed her mind and took our son

Now shes taking me to court and wants full custody with me seeing my son once every two weeks. Claiming (lying obviously) that ive never been there throughout the years.
I know the status quo right now is our son living with her, and they always think in the best interest of the child. But is it really in the best interest of the child if they make a boy see his father that he loves only once every two weeks?

I need answers/advice
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  #2  
Old 03-12-2019, 01:26 PM
HammerDad HammerDad is offline
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First of all, breathe.


You are likely in for a fight regarding custody (decision making for the child) and parenting time (amount of time spent with the child). It sucks, but many of us have been there. The first thing you should not do is overreact to what are commonly seen as boilerplate accusations. What the ex has said against you is pretty much the standard crap all initial applications say. If your evidence prove it is untrue, than there is no need to get all worked up over what is clearly an unsubstantiated accusation. I know you want to get worked up, as you are offended. But don't. It won't help.



Now, as mentioned you need evidence of your history of parenting. Do you have any evidence for the history above? Texts, emails etc. from the ex saying that you are to take the child and then requesting them back? You should prepare a calendar of the past year for when you have had your child in your care and when you were together.


How old is the child? Are they in school?



Did the ex actually serve you with court papers? If yes, you will likely need a lawyer to start out. While you can represent yourself, and we have had many great self-rep'd parents here, I don't always think that is the best way to start. Using a lawyer to start can show you are willing to put skin in the game and won't be pushed over by their lawyer.



IMO, there is little status quo. 2 months is hardly enough to create status quo when there has been 3 changes in houses in the last 6 months (ex, you, ex). What was the schedule when the child went back to the ex's house in January? Are you currently paying child support? Did you receive child support when you had the child?



There are a lot of questions that need to be answered to give detailed advice. Otherwise, all I can recommend is try not to get worked up and retain a decent lawyer.
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  #3  
Old 03-12-2019, 09:58 PM
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Janus Janus is offline
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Quote:
Originally Posted by Malaika View Post
-October i moved to my own place whilst visiting every weekend
Why were the kids not living with you at this time?

Quote:
January, she changed her mind and took our son
How did she "take" him? Did she do this in writing? To this day I don't understand how so many mothers are able to get away with just "taking" the kids.

My ex tried that, it lasted about five minutes. I explained that if she took the kids when it was not her parenting time, I would be returning the favour.

Quote:
But is it really in the best interest of the child if they make a boy see his father that he loves only once every two weeks?
Be careful about relying on the best interests test. It won't always go as you might think.

That said, this is a short status quo, and you are acting promptly. The big advice is to never consent to anything on a temporary basis that you are not comfortable having as a permanent arrangement. Or, if you feel you must consent to an unfavourable situation on a temporary basis, consult a lawyer first.
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Old 03-12-2019, 10:48 PM
Malaika Malaika is offline
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Thank you Hammerdad



Quote:
Originally Posted by HammerDad View Post
First of all, breathe.


You are likely in for a fight regarding custody (decision making for the child) and parenting time (amount of time spent with the child). It sucks, but many of us have been there. The first thing you should not do is overreact to what are commonly seen as boilerplate accusations. What the ex has said against you is pretty much the standard crap all initial applications say. If your evidence prove it is untrue, than there is no need to get all worked up over what is clearly an unsubstantiated accusation. I know you want to get worked up, as you are offended. But don't. It won't help.



Now, as mentioned you need evidence of your history of parenting. Do you have any evidence for the history above? Texts, emails etc. from the ex saying that you are to take the child and then requesting them back? You should prepare a calendar of the past year for when you have had your child in your care and when you were together.

yes i have documents and proof from last year but not much from previous years.


Quote:
Originally Posted by HammerDad View Post
How old is the child? Are they in school?
hes 4



Quote:
Originally Posted by HammerDad View Post
Did the ex actually serve you with court papers? If yes, you will likely need a lawyer to start out. While you can represent yourself, and we have had many great self-rep'd parents here, I don't always think that is the best way to start. Using a lawyer to start can show you are willing to put skin in the game and won't be pushed over by their lawyer.
yes unfortunately im self representing as im already too deep into debt to even consider a lawyer.


I believe shes driven by money. She knows that i love my son and shes probably going to provide more access if she gets full custody AND child support. That way i can be at her mercy in regards to access while she can still be entitled to child support



Quote:
Originally Posted by HammerDad View Post
IMO, there is little status quo. 2 months is hardly enough to create status quo when there has been 3 changes in houses in the last 6 months (ex, you, ex). What was the schedule when the child went back to the ex's house in January? Are you currently paying child support? Did you receive child support when you had the child?

I feel like i should pay child support even though i never received any support for when i had him by myself. I have no issue paying child support btw.



Quote:
Originally Posted by HammerDad View Post
There are a lot of questions that need to be answered to give detailed advice. Otherwise, all I can recommend is try not to get worked up and retain a decent lawyer.

Im trying my best not to get worked up but im dealing with a pretty illogical and unreasonable person here. I feel like just quitting my job if she wins so she gets nothing.
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  #5  
Old 03-13-2019, 09:39 AM
HammerDad HammerDad is offline
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Quote:
Originally Posted by Malaika View Post
yes i have documents and proof from last year but not much from previous years.

Good. Continue to document all of your time with the child. When discussing parenting time with the ex, only do it by email so you have a paper trail. Also make a calendar as it makes it easy for a judge to track.


Quote:
Originally Posted by Malaika View Post
hes 4

At that age, and given you have cared for the child by yourself for periods of time, I would respond to their motion with a request for 50/50 parenting time, as you have a history of parenting the child and the child is of an age where they are no longer beholden to either parent. Request 2/2/5/5/ or some other variant. I would also put in the response that all pickups and dropoffs be at the child's school to eliminate unnecessary transfer of the child.


Quote:
Originally Posted by Malaika View Post
yes unfortunately im self representing as im already too deep into debt to even consider a lawyer.

Best of luck. It is a tough slog. Research case law on Canlii. Right now there is no established status quo. As Janus said, if you act quick and say you disagree with the current parenting schedule, you will have a better chance of success. Should the ex withhold the child from you unilaterally, you have a good argument that they are creating a false status quo, and one of our members pretty much made the case law on that.


Quote:
Originally Posted by Malaika View Post
I believe shes driven by money. She knows that i love my son and shes probably going to provide more access if she gets full custody AND child support. That way i can be at her mercy in regards to access while she can still be entitled to child support

Her reasoning is irrelevant. You need to focus on you being the best parent you can be. Take a parenting class, cooking class, CPR etc. First reason is it is good to know these things and shows you are doing your part to be a great parent. Second, it gets you out of the house and gives you something to do, so you don't dwell on the ex and their purported reasoning.


Quote:
Originally Posted by Malaika View Post
I feel like i should pay child support even though i never received any support for when i had him by myself. I have no issue paying child support btw.

Good. Here is the link for the Child Support Calculator - https://www.justice.gc.ca/eng/fl-df/.../look-rech.asp


I would start paying next month, but I would also advise the ex that you don't agree with their unilateral to impose a parenting time schedule that unreasonably limits your parenting time with the child. That you will be seeking a more equitable parenting time schedule, which you believe to be in the child's best interests.


Quote:
Originally Posted by Malaika View Post
Im trying my best not to get worked up but im dealing with a pretty illogical and unreasonable person here. I feel like just quitting my job if she wins so she gets nothing.

Thinking about quitting your job is illogical. It will also hurt you in the long run. Search Canlii for "imputed income". It is where the courts determine that you capable of earning X dollars, but you are willfully and purposely under-employing yourself. The courts then order that you pay c/s based off of what you capable of earning, not what you are actually earning. Meaning, you rack up arrears quick and then have the potential to lose your licence etc. if the order is registered with FRO (which your ex likely would do). And for a long story short, you end up screwing yourself.
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