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.

Reply
 
Thread Tools
  #1  
Old 03-05-2020, 02:02 PM
Googlelawstudent Googlelawstudent is offline
Junior Member
 
Join Date: Oct 2019
Posts: 18
Googlelawstudent is on a distinguished road
Default Distance between homes as a reason to deny divorce

Hi All,

This is my second post, but I do snoop often, and it's been wildly helpful, though I still have a lot to learn. I appreciate how transparent the help is, which is why I'm here again. I'll try to keep this concise, while also providing what i feel are relevant details, so I apologize if this comes off as being all over the place.

Just for background to save time for those who would like context from my previous post:

Ex and I have been separated for 5.5 years with no separation agreement and have a 10-year-old son. We live far away from one another. I am about 100km/1 hour drive away from my son's school, and she 50km away from his school in the opposite direction. (she moved a few years after, to live with current spouse, but kept our child in same school). When I first moved, my ex and I had a discussion and decided that she would have him during the week as she lives close to his school, and I on weekends. I moved under horrible circumstances: contract, part-time, low paying work, poor credit etc, resulting in a really hard time finding a place; I was legitimately worried I would be homeless. so my friend let me rent the spare room in his apartment. Because of my poor financial status, my ex was accommodating, and child support was not originally discussed. Once I obtained full time employment, we agreed on a child support amount, slightly below guideline for my income at that time, due to all the costs I incurred driving back and forth twice a week to see my son. Child support amount has not been changed since.

Over the past few years, my time with my child has progressively increased, since I have a space where he has his own room now. I have surpassed the magical 40% threshold. I continue to have my child every weekend, but now also have him extra time on all long weekends (PA day, holidays, etc), have him 4 days a week in the summer/christmas/march break, 2 weeks at the end of the summer, and have been dropping him off at school about one monday a month for the last 5 months. This works for him (in my opinion), as he is enrolled in a sports team where I live, so has friends here and activities he enjoys doing, where as, he does not have friends where his mom lives and not close to his school friends either. The amount I pay now, combined with my increased income, is actually about $100 below what I guess set-off amount to be. I also pay all out of pocket sec 7 expenses (his glasses, dental, and sports/extracurriculars). So to put it lightly, im broke at the end of every month lol. Aka no money for lawyers.

I would like to apply for a divorce. There is a section where it is asked "if the amount is less than the guideline, explain why". I was thinking of saying something to the effect of "Payor utilizing setoff amount as result of shared schedule, in addition to incurring high access costs, and paying 100% of all agreed upon sec 7 expenses. This to ensure similar standard of living in both homes."
is that a reasonable explanation? I am also willing to just mutually pay one another corresponding guideline amount, but would prefer to not do that, as, I am sure ex will freak out when I ask her for NOA, as she thinks my extra time with him doesn't matter since she has him during school. I only know her rough income, which is what I am basing setoff at, because I know her work hours and roughly how much she is paid hourly. She would feel a loss of control if I asked for her NOA, and dont want to rock the boat.

My main concern is, that since it's likely unusual to have 'shared parenting' with such a large distance, can a judge use that as reason to deny the divorce? Perhaps, in their opinion, they don't see it as feasible in the long term?

I want to get a divorce, but I don't want to jeopardize anything either. My ex has always been reluctant to make a separation agreement, so I feel that filing for a divorce on my own is the only option for me to even consider having something in writing.

Also, if i apply in my jurisdiction, does this mean my ex would have to follow up with anything at my local courthouses or can she respond anywhere (if she decides to).
Reply With Quote
  #2  
Old 03-05-2020, 02:22 PM
rockscan rockscan is offline
Senior Member
 
Join Date: Mar 2014
Posts: 6,240
rockscan will become famous soon enoughrockscan will become famous soon enough
Default

Quote:
Originally Posted by Googlelawstudent View Post
Ex and I have been separated for 5.5 years with no separation agreement and have a 10-year-old son.
Look up status quo on this forum.

Quote:
We live far away from one another. I am about 100km/1 hour drive away from my son's school, and she 50km away from his school in the opposite direction. (she moved a few years after, to live with current spouse, but kept our child in same school).
You both agreed to her moving=cant argue the costs or change.

Quote:
When I first moved, my ex and I had a discussion and decided that she would have him during the week as she lives close to his school, and I on weekends.
Is this in writing or verbal?

Quote:
Because of my poor financial status, my ex was accommodating, and child support was not originally discussed. Once I obtained full time employment, we agreed on a child support amount, slightly below guideline for my income at that time, due to all the costs I incurred driving back and forth twice a week to see my son. Child support amount has not been changed since.
This could work against you

[quote{Over the past few years, my time with my child has progressively increased, since I have a space where he has his own room now. I have surpassed the magical 40% threshold. I continue to have my child every weekend, but now also have him extra time on all long weekends (PA day, holidays, etc), have him 4 days a week in the summer/christmas/march break, 2 weeks at the end of the summer, and have been dropping him off at school about one monday a month for the last 5 months. [/quote]

40% means nothing if there is no agreement for off set. And if you have a written agreement, she could scale back that time taking you back to every weekend.

[quote]I also pay all out of pocket sec 7 expenses (his glasses, dental, and sports/extracurriculars). So to put it lightly, im broke at the end of every month lol. Aka no money for lawyers. [/quite]

She should have been paying her share or at least submitting to benefits if she had them. This wasnt fair to you unless it was part of your agreement because support was low.

Quote:
would like to apply for a divorce. There is a section where it is asked "if the amount is less than the guideline, explain why". I was thinking of saying something to the effect of "Payor utilizing setoff amount as result of shared schedule, in addition to incurring high access costs, and paying 100% of all agreed upon sec 7 expenses. This to ensure similar standard of living in both homes."

is that a reasonable explanation? I am also willing to just mutually pay one another corresponding guideline amount, but would prefer to not do that, as, I am sure ex will freak out when I ask her for NOA, as she thinks my extra time with him doesn't matter since she has him during school. I only know her rough income, which is what I am basing setoff at, because I know her work hours and roughly how much she is paid hourly. She would feel a loss of control if I asked for her NOA, and dont want to rock the boat.



My main concern is, that since it's likely unusual to have 'shared parenting' with such a large distance, can a judge use that as reason to deny the divorce? Perhaps, in their opinion, they don't see it as feasible in the long term?



I want to get a divorce, but I don't want to jeopardize anything either. My ex has always been reluctant to make a separation agreement, so I feel that filing for a divorce on my own is the only option for me to even consider having something in writing.
Tell her you want to apply for the divorce and you should put in writing the custody and support items to apply. That it would probably be best to finalize everything since the situation has changed, you have a much more stable life and you both can have a document outlining each of your obligations. Especially since kid will be going into a different school in a few years, will eventually start working and have post secondary expenses. You can make it as benign as you want.
Reply With Quote
  #3  
Old 03-05-2020, 02:42 PM
Janus's Avatar
Janus Janus is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,658
Janus will become famous soon enoughJanus will become famous soon enough
Default

Why are you applying for a divorce? Unless you are planning on getting married, it does not matter.

If you are above 40%, let a status quo of that build. As soon as you apply for divorce, there is a reasonable chance you will immediately lose a lot of time with your child. Money is a strong motivator, and you may find that while she accepts less money for now, your ex may be substantially less willing to put that in writing.
Reply With Quote
  #4  
Old 03-05-2020, 02:53 PM
Googlelawstudent Googlelawstudent is offline
Junior Member
 
Join Date: Oct 2019
Posts: 18
Googlelawstudent is on a distinguished road
Default

Hi Rockscan,

Thanks for your response.

Can I ask why you think status quo is relevant for the first part of the message? I (think) know what status quo is, but can't it constantly be changing? As in, wouldn't my increased time be the new status quo?

As for our original schedule, it's verbal. But we text every weekend confirming pick up and drop off time, so I definitely have evidence of it happening.

As for your points about the 40% and S. 7: No, nothing is in writing agreeing to who pays what, we just sort of worked it out that way. In part because before I was paying any CS, I would reimburse her when she bought him clothes or boots etc, and it just kinda ended up being how we worked together financially. And since I am the only one involved in his extracurriculars, i just pay and dont ask for it.

As for her scaling back time, thats actually why I don't want to bring up anything before applying for a divorce. I am worried without anything in writing, she will in fact begin to scale back time. She is blissfully unaware of how much time I have with him.
Reply With Quote
  #5  
Old 03-05-2020, 03:02 PM
Googlelawstudent Googlelawstudent is offline
Junior Member
 
Join Date: Oct 2019
Posts: 18
Googlelawstudent is on a distinguished road
Default

Quote:
Originally Posted by Janus View Post
Why are you applying for a divorce? Unless you are planning on getting married, it does not matter.

If you are above 40%, let a status quo of that build. As soon as you apply for divorce, there is a reasonable chance you will immediately lose a lot of time with your child. Money is a strong motivator, and you may find that while she accepts less money for now, your ex may be substantially less willing to put that in writing.
Thanks for your response.

I am obviously very new to this, so i apologize if this is a silly question: Why would a divorce risk me losing time with him? Wouldn't a divorce support a schedule by having it in writing?

As for my reason for wanting a divorce: I would like to eventually apply for a mortgage, which cannot be approved without a SA or divorce decree indicating my support obligations. It was my understanding that i can apply for a divorce, and if she doesn't respond/contest, I can move forward. Ive asked her to make a SA numerous times, but she isn't willing to sit down and do it with me. In my opinion, knowing her for well over a decade, she likes to do as little as possible. So in her mind, making a separation agreement means she has to do something, where as not responding to a divorce application, means she has to do nothing. Again, I can be very wrong in my understanding, but that's how I understood the divorce process in my research.
Reply With Quote
  #6  
Old 03-05-2020, 03:03 PM
rockscan rockscan is offline
Senior Member
 
Join Date: Mar 2014
Posts: 6,240
rockscan will become famous soon enoughrockscan will become famous soon enough
Default

Quote:
Originally Posted by Googlelawstudent View Post
Hi Rockscan,



Thanks for your response.



Can I ask why you think status quo is relevant for the first part of the message? I (think) know what status quo is, but can't it constantly be changing? As in, wouldn't my increased time be the new status quo?



As for our original schedule, it's verbal. But we text every weekend confirming pick up and drop off time, so I definitely have evidence of it happening.



As for your points about the 40% and S. 7: No, nothing is in writing agreeing to who pays what, we just sort of worked it out that way. In part because before I was paying any CS, I would reimburse her when she bought him clothes or boots etc, and it just kinda ended up being how we worked together financially. And since I am the only one involved in his extracurriculars, i just pay and dont ask for it.



As for her scaling back time, thats actually why I don't want to bring up anything before applying for a divorce. I am worried without anything in writing, she will in fact begin to scale back time. She is blissfully unaware of how much time I have with him.

Status quo could go either way in this case. Since you have nothing in writing you could argue that your status quo is shared physical custody.

As Janus said, unless you are getting remarried, dont apply for divorce. She seems to be closer to remarriage than you, let her apply and then come to you for the details.

Yes you are a little broke right now but you are under the radar so to speak.
Reply With Quote
  #7  
Old 03-05-2020, 03:39 PM
Janus's Avatar
Janus Janus is offline
Senior Member
 
Join Date: Jul 2012
Posts: 2,658
Janus will become famous soon enoughJanus will become famous soon enough
Default

Quote:
Originally Posted by Googlelawstudent View Post
I am obviously very new to this, so i apologize if this is a silly question:
The legal system is byzantine: like that Waxman guy says, there are no stupid questions. Unlike Waxman though, we are free.


First, a clarification:

1) Separation Agreement

This is where you sign an agreement that determines issues such as custody, parenting time, child support, and spousal support. You should have had one 5.5 years ago, and you definitely DO need one of these right now if you want to get a mortgage.

2) Divorce

You usually need a separation agreement to get a divorce. You do NOT need a divorce unless you are getting remarried. Another reason to get a divorce is if you want to sign up for eHarmony, I think they require a divorce.



Quote:
Why would a divorce risk me losing time with him? Wouldn't a divorce support a schedule by having it in writing?
Well, the SA causes the risk, not the divorce. The problem is that when you ask to put it in writing, your ex may go to a lawyer. The lawyer will tell her that it is important that she keeps more than 60% of the parenting time. She may unilaterally start to restrict your time with your child to keep you under 40%. You live VERY far from your child, she could easily make a case that you should be a non-custodial parent (NCP). Honestly, unless you move closer, you probably will become one of those very shortly.

Quote:
As for my reason for wanting a divorce: I would like to eventually apply for a mortgage, which cannot be approved without a SA or divorce decree indicating my support obligations.
True, you do need a separation agreement.


Quote:
but she isn't willing to sit down and do it with me.
So she will have to be forced. This may not be friendly. You may lose time with your child. You will almost certainly be forced to pay table support.

I think you need to move towards your kid before you start this game. Offhand, I would say that being within 20km should be enough, but that's a really rough estimate. Ideally you would want to be in the school district of kid's school.

Going for this agreement might be devastating, get advice from others here, and proceed cautiously.
Reply With Quote
  #8  
Old 03-05-2020, 04:43 PM
Googlelawstudent Googlelawstudent is offline
Junior Member
 
Join Date: Oct 2019
Posts: 18
Googlelawstudent is on a distinguished road
Default

Quote:
Originally Posted by Janus View Post
You usually need a separation agreement to get a divorce. You do NOT need a divorce unless you are getting remarried. Another reason to get a divorce is if you want to sign up for eHarmony, I think they require a divorce.
Thank you for the info and the laugh lol.

You said one usually needs a separation agreement to get divorced? when can one get away with not having a separation agreement?

And, I hear you on the move. I am stuck between a rock and a hard place that way. My partner and I (not living together, but have been together for over 4 years and she and my son have a great bond) have looked into moving so many times, but our income would likely drop by almost half, based on the comparable job postings weve seen. Job opportunities in and around that community are limited - hence my prior financial status - and like I said, im only saving pennies at the end of a month now, so I'm not even sure I can get by with such a decrease in income. Beyond that, our jobs allow us so much flexibility (compressed work weeks, work from home), which we risk losing, so I'm not even certain that my time with him will increase regardless and then he's likely to need childcare, which will cost even more. Im afraid that the reality will be that since I'll have to be working such long hours to make ends meet or travelling long distances for even a semi comparable paying job, I wont be home long enough to spend time with him. Beyond that, I am worried that the risk of financial hardship will result in a decrease in his quality of life for my son, since i may not able to afford to enroll him in sports, programs, and get him the braces he so desperately wants.

Most importantly, my son hates change; he is not well-adjusted to being in new places, so I fear that even if I move closer, he will experience anxiety in a new home and i'll lose more time with him in an attempt to not trigger his anxiety. He also loves our current home; he likes that I live in a densely populated area where he can go on pokemon walks and drop in programs, which are not available in the rural community where he resides and goes to school. he likes his friends from his sports teams that he sees every weekend; they're the only ones he sees outside of school since he's with me on the weekends..and in my bitter opinion, my ex isn't willing to make the travel to bring him to his friends. whenever hes been off school and with his mom, they hang out together at home with her partner or with their adult friends.

Sorry for the vent, but perhaps that shows a bit of my perspective - and actually prompted another question/thought;

I think another reason that I would like to get something in writing as shared, is because I feel like it would give me a leg to stand on, if he ever wanted to live with me. He will have to change school in a year and half, and Im assuming he will go to a school near his mother's home. At which point, he will have to start brand new; new school; new friends; won't no anyone' this will likely terrify him. Does that fact that he has social connections where I am, and none where his mom lives, give me a leg to stand on should this go to court?
Reply With Quote
  #9  
Old 03-05-2020, 04:54 PM
standing on the sidelines standing on the sidelines is offline
Senior Member
 
Join Date: Dec 2006
Location: Kitchener Ontario
Posts: 5,682
standing on the sidelines is on a distinguished road
Default

Quote:
Originally Posted by Googlelawstudent View Post
Thank you for the info and the laugh lol.

You said one usually needs a separation agreement to get divorced? when can one get away with not having a separation agreement?
When I was divorced in the mid eighties we did not have a separation agreement. There were no kids and no property plus only a 3 year marriage. I had a lawyer and she filed based on a years separation.
Reply With Quote
  #10  
Old 03-05-2020, 04:56 PM
LovingDad1234 LovingDad1234 is offline
Senior Member
 
Join Date: Aug 2019
Posts: 309
LovingDad1234 is on a distinguished road
Default

Quote:
Originally Posted by Googlelawstudent View Post
You said one usually needs a separation agreement to get divorced? when can one get away with not having a separation agreement?
When there are no kids involved or property issues to settle, you can simply apply for a divorce. When there are kids involved, you need a separation agreement outlining terms of custody, access and supports.


Quote:
Originally Posted by Googlelawstudent View Post
Most importantly, my son hates change; he is not well-adjusted to being in new places, so I fear that even if I move closer, he will experience anxiety in a new home and i'll lose more time with him in an attempt to not trigger his anxiety.
He will get used to new home. Kids are risilient. Kids want to be with their parents, and there is a strong possibility his anxiety is a result of a new situation where you don't see him anymore. You and your ex have "played nice" so far, but once you get to SA and monies involved, it gets real, and all of a sudden she may not be so nice. Protect yourself and your kids time with you.

Quote:
Originally Posted by Googlelawstudent View Post
Does that fact that he has social connections where I am, and none where his mom lives, give me a leg to stand on should this go to court?
Distance will be the main factor over any social connections.
Reply With Quote
Reply


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 Divorce Procedure In Ontario? In-Law Trouble Divorce & Family Law 5 12-09-2014 10:57 PM
Online divorce? ExWife2Many General Chat 10 08-12-2010 08:15 AM
Surviving Divorce FPI Divorce & Family Law 2 04-29-2009 07:56 PM
Confused - Need Help -30 Days Up TODivorce Divorce & Family Law 1 12-22-2006 09:04 AM
The Unexpected Legacy of Divorce: A 25 Year Landmark Study mom22galz Political Issues 2 06-30-2006 10:04 AM


All times are GMT -4. The time now is 10:43 PM.