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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 07-28-2015, 10:21 PM
father30 father30 is offline
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Default Primary residence

Hello

I have a court order effective January 14th 2015 to let me have my son with me from Wednesday 10a.m. until Sunday 6 pm. every second week following by stat holidays that appear on Following Mondays.

Most of the time My son is either with me or when Im at work ( fort mac) he is being dropped off with my parents, so he canwait for me to come back from work ( I work 7 on7 off fly in fly out)
Up to 31 of July I will have my son 108 days of 198 instead of as going by court order which would give 75 days out of 198 days. Based on those numbers my sons mom doesnt have time for him that is why she gives me extra time with him or leaves him with my parents.

My son is 4 years old. He has a half sister - 8 years old, and two brothers (twins ) on the way that will be born in August. When those kids are born my sons mother will have no time for 8 year old daughter, 4 year old son and 2 new born.. She will have to rely on her family. Her new boyfriend ( father of twins) is 8 years younger than her, he is 22yo, they are together on and off...

She lives in low income housing, her income is monthly maintenance from me ($403 CAD - last year it was $900 but i got it lowered in court) and low employment insurance.

We have a share custody, share decision making, but primary residence of my son is at her place which is 2 hours away from my city. She lives in Lac la Biche, Alberta I live in Edmonton, Alberta.

Before she got pregnant, she was partying a lot, got in trouble with child services by taking cocaine... that is why when I went to court with affidavits with all the bs and lies she agreed to give me more time without going to trial.

We both have court order saying telephone access between 730-830pm daily. Most of the times she ignores me when I call or txt asking how is my son doing.

Father of her 1st child is Native, drug user, drinker, works on and off... Father of her soon to be born twins is drug user, and likes to party as well. I dont know if he works. They both have a criminal records for drugs or assaults. In fact, my ex also has criminal record for an Assault in the bar fight.

Both of them and my ex are native. I am Immigrant from Europe.
I am the only one paying child support. ($403/month) On top of all that she always takes my son around drug users or drinkers to bad environment, against my will.


With all that being said, do I have any chances in court to go for Primary residence so my son can live with me, go to school and daycare few blocks away? if i had any chance i would be right away changing my job and working in the city to be able be home every night, having my parents live with me as a little support etc.

Do I have any chance of getting primary residence, me not asking for child support or sole custody but just primary residence...?
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  #2  
Old 07-28-2015, 11:49 PM
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blinkandimgone blinkandimgone is offline
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Most of that is irrelevant and won't get you far in court to change primary residence.

Things that may be relevant :

1- the amount of time the kid spends in your care - document the actual time vs. what your agreement says.
2 - is there any proof she exposes the child to drugs and alcohol and that it is affecting the child? If it is as serious as you believe, child services should be involved. (again)
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Old 07-29-2015, 09:18 AM
Beachnana Beachnana is offline
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Well first change your job and establish yourself in a home with support. Then offer to take your son to help your ex as much as possible. Build up the days you have him. Give him the stability to be able to come over to you when he needs to.

Then apply for more time. Do not make it about money mthe minute you tell your ex you want primary residence and she will loose her income then you will be in a battle. So take it slow and strategic and good luck.
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Old 07-29-2015, 10:40 AM
stripes stripes is offline
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If you're working 7/7 and your son with your parents during your 7 away, it's going to be difficult to argue that you want primary residence with him, as Mom could say that your parents are taking care of the kid more than you. That doesn't help your case.

Similarly, if you reduced your child support payments from $900 to $400 and now claim that Mom doesn't have time or money to look after Kid, it looks like you are the problem. According to the FCSG, if you are making $100 000 per year (a reasonable assumption if you work in the oilpatch), you should be paying Mom $868 for one child.

Your ex's other kids and adult friends are irrelevant unless the situation is endangering your child. If that's the case, you need to be able to prove that it is dangerous, not just that you don't like it (and you should be talking with CAS). The fact that your wife and her friends are native is completely irrelevant to the question of residence and sounds racist.

If you want to improve your chances of getting primary residence, keep documenting the nights that Kid spends with you in your home (not your parents), and also start looking for work that will allow you to spend less time in McMurray and more time with Kid. This might be difficult to find in the current climate but you should show that you are trying. You can also keep asking your ex for more time to build up your case that you are already sharing residence.
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  #5  
Old 07-29-2015, 01:52 PM
FirstTimer FirstTimer is offline
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Everything that BlinkandIamGone, Beachnana, and Stripes is bang on..LISTEN to them. The key being EVIDENCE.

Private message me with your number. I live in Edmonton and currently have primary residence of my son so it can be done. And I would be more than happy to help you as people have helped me immensely on this forum.

From the safety standpoint of the child speaking, my main concern would be that if your ex is still doing drugs, and is she doing it around him?

How come you didn't go to trial if you had evidence from child services she was a danger to her child for drug issues. It would be a slam dunk for 50/50 even if you were 7 on 7 off. You could work a week on week off.

As well, you also need to document with evidence that you are providing and giving your child a healthy environment on your end as well as well as your documented schedule. (she will say the opposite, my ex did, and I slammed her pretty hard with a day to day photo journal of when i was with him the past 2 years including days where she was supposed to have him)

To clarify, she has primary physical residence of him but you guys have joint legal custody right?

I could see you getting shared physical residence as well....given the fact that she given him to you half the time. However, you would need to show that it's at least a year's time that this has been 50/50 to argue that this isn't temporary but something permanent.

Not sure why you had to bring up the race card with the native comment. Obviously you're not a racist cause you were with her but it makes you sound bad.

Last edited by FirstTimer; 07-29-2015 at 02:04 PM.
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Old 07-29-2015, 09:01 PM
father30 father30 is offline
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Thanks everyone for answers and suggestions

I'm not racist, I mentioned it because she always tells me.that I have no chance fighting in court with natives that's their land, they have more more rights etc.

I would have no problem getting 8 or 10hMonday to Friday or Monday to Thursday job in Edmonton.

The only reason I let her consent to what I wanted instead of going to trial was because of her daughter. I was dad to her since she was 2 years old until my break.up with her mom which was when she was 6. If I have went to trial she Most likely would be taken to foster house.

The only reason I went down on maintenance was because I worked only half of the year and what's the point of giving her 900 bucks a month and still have to buy everything for my son and listen to her complaining to buy my son new clothes stuff etc. Obviously It was her play money.

Before my new court order was effective she was giving my son to me more often than in court order. Also, I don't trust child services in her town because child services workers are good friends of her family, in example... When she had a visit from them saying they were told she takes hard drugs she admitted it, saying it was just once. Social worker told her he will wait 2 more months and than will take her hair sample to make a drug test because if he had to take hair for.drug sample right away she would be in big trouble but because she admitted to him usage of drugs and that it was only once he will wait couple months under condition that she can't be around kids by her self during that time

During that time 3 times she brought my son to me or my parents without anyone around her... When I addressed that to child services in her town they just ignored me.

In January she consented to join custody decision sharing and Wednesday to Sunday every second week . I supposed to have him 35% to 65% of the times.... So fair it's 55% to 45% which is majority of the time.
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Old 07-29-2015, 09:03 PM
father30 father30 is offline
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Thanks everyone for answers and suggestions

I'm not racist, I mentioned it because she always tells me.that I have no chance fighting in court with natives that's their land, they have more more rights etc.

I would have no problem getting 8 or 10hMonday to Friday or Monday to Thursday job in Edmonton.

The only reason I let her consent to what I wanted instead of going to trial was because of her daughter. I was dad to her since she was 2 years old until my break.up with her mom which was when she was 6. If I have went to trial she Most likely would be taken to foster house.

The only reason I went down on maintenance was because I worked only half of the year and what's the point of giving her 900 bucks a month and still have to buy everything for my son and listen to her complaining to buy my son new clothes stuff etc. Obviously It was her play money.

Before my new court order was effective she was giving my son to me more often than in court order. Also, I don't trust child services in her town because child services workers are good friends of her family, in example... When she had a visit from them saying they were told she takes hard drugs she admitted it, saying it was just once. Social worker told her he will wait 2 more months and than will take her hair sample to make a drug test because if he had to take hair for.drug sample right away she would be in big trouble but because she admitted to him usage of drugs and that it was only once he will wait couple months under condition that she can't be around kids by her self during that time

During that time 3 times she brought my son to me or my parents without anyone around her... When I addressed that to child services in her town they just ignored me.

In January she consented to join custody decision sharing and Wednesday to Sunday every second week . I supposed to have him 35% to 65% of the times.... So fair it's 55% to 45% which is majority of the time.
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Old 07-31-2015, 12:00 PM
FirstTimer FirstTimer is offline
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Do you have a good chance?

Based upon your allegations and if you have the evidence...you have a very good chance of 50/50 if you can prove in a year that she has given you more than 40% access.

If you want to take over as primary, you need to get in front of a judge and give him the evidence that she is using drugs and require her to take a hair follicle test. I would not rely on child services to do anything. My ex accused me of doing drugs, called my work to get me fired.......LOL..as well as called Child Services on me for doing drugs. I was more than happy to take a drug test and she said she believed me that it was a lie anyways given the "authenticity" of the source and I showed her text messages that she made it up in retaliation for someone reporting on her to child services about her treatment of her daughters. (she thought i called)

Regardless, she said Child Services doesn't care what you do on your own time, but if you are doing this in presence of your child, then you would be in trouble. You have to remember that they look at it from a very focused window that this has to be an imminent danger, otherwise every child would be taken away given how much drugs are rampant in small towns in Alberta. They do not have alot of resources. Even then, she can refuse a drug test and child services i assume needs to go to a judge to order one.

A drug test would help you in a court of law though, as you are now arguing about best interests of the child and the long term care of child... (see below)


Depending on how that rolls, is proving to the judge the order that you signed off in January needs to be changed.

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

As well, Canlii.org is your best friend.

Last edited by FirstTimer; 07-31-2015 at 12:28 PM.
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