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  • Primary Residence - what does this mean?

    Ok so ex and I have exchanged offers to settle. On custody we basically agree to 50 / 50, but her offer to settle is written in that I have to agree to ALL the Parts under Custody and Access or none.

    I agree to everything except she one sub-part says "the children's primary residence shall be with the mother" and she will hold all the children's documentation.

    In 50 / 50 I feel that residence is equally with both parties and therefore "primary residence" has no meaning and it should be the boundries of the jurisdiction the children live in?

    My lawyer says that Primary Residence doesn't really mean anything other then from a tax perspective she may be able to claim both children as dependents. Since after 17 months I'm getting 99% that I should except the whole part and at least put custody to bed.

    But she's been a dog with bone on this "Primary Residence" thing for the last 17 months so I just feel like there is something more.

    So anyone know what the definition of Primary Residence is and what does this give her in a shared custody arrangement that she wants so badly???

  • #2
    I'm not sure what the legal definition of "primary residence" is, but I do think your instincts are right. If you have shared custody as described in Section 9 of the FCSG, there is no need, as far as I can see, for one residence to be declared primary. A shared custody arrangement with a primary residence doesn't seem like real shared custody.

    There is also no need, as far as I can see, for the child's documentation to "belong" to one parent. Both parents should be able to access the documentation as needed, and should make it easily available to the other parent. You should have language in there addressing that.

    My divorce order says "the child shall reside equally with both parents. The form of custody shall be shared parenting as contemplated in Section 9 of the FCSG". The ex fought the inclusion of that statement, saying that since we already agreed she would live with him half time and me half time, it was redundant. Some instinct made me dig in and insist that the phrase "shared parenting" and the reference to S9 had to be in there. With things that have transpired since then, I'm really glad I did.

    I don't know your story but if I were in your shoes, I would be concerned that she is setting up to try and claim more of the children's time or make a bid for sole custody somewhere down the time so that she doesn't have to pay offset. I'd dig my heels in on this.

    With respect to taxes, do you have language which addresses how you will share the tax credits associated with the child of the marriage? The usual thing is to rotate who claims the credits year-to-year, or to have one parent claim one child and one claim another, if there's more than one.

    Your lawyer should be a little more on the ball with this ...

    Comment


    • #3
      Originally posted by Dee1973 View Post
      Ok so ex and I have exchanged offers to settle. On custody we basically agree to 50 / 50, but her offer to settle is written in that I have to agree to ALL the Parts under Custody and Access or none.
      Firstly, Primary Residence and the whole concept of this antiquated legal ontology (terminology) has no place in a 50-50 residency situation between two parents.

      See my posting to this thread:

      http://www.ottawadivorce.com/forum/f...597/#post89271

      Originally posted by Dee1973 View Post
      I agree to everything except she one sub-part says "the children's primary residence shall be with the mother" and she will hold all the children's documentation.
      Your agreement should read something more like this... in my opinion.

      xx. The Father and Mother agree that the access ("residency") of their children shall be equally shared ("50-50") and implemented in accordance with the following joint residential schedule:

      (A) 2-2-5-5 schedule description in detail goes here

      See this thread on a 2-2-5-5 residential schedule:

      http://www.ottawadivorce.com/forum/f...plained-13702/

      Originally posted by Dee1973 View Post
      In 50 / 50 I feel that residence is equally with both parties and therefore "primary residence" has no meaning and it should be the boundries of the jurisdiction the children live in?
      You are correct. (See above comment) In fact, if you want to geographically bound the matter, both parents should agree to reside within the children's current school catchment or no further than a specific distance (radius) from their school.

      See this thread for more details on my recommendations:

      http://www.ottawadivorce.com/forum/f...to-area-13018/

      Originally posted by Dee1973 View Post
      My lawyer says that Primary Residence doesn't really mean anything other then from a tax perspective she may be able to claim both children as dependents. Since after 17 months I'm getting 99% that I should except the whole part and at least put custody to bed.
      Your lawyer is incorrect. Tax determination is based on access time and not the statement of "primary residence". If the children reside equally with both parents and both parents file them as dependents they will equally be rejected on the claim. If there are two children you have to settle something on how taxes will be filed or neither of you will be able to claim them as dependent. You can't get a court order from a family law justice to solve this either as they can't order Revenue Canada to do anything as they are a third party. You can agree if there are an even number of children to split the filings (you file child a b, other parent files child x y). Or you can agree to rotate who claims the children on a yearly basis.

      Originally posted by Dee1973 View Post
      But she's been a dog with bone on this "Primary Residence" thing for the last 17 months so I just feel like there is something more.
      There is... It is a "legal trusim"... Unfortunate that the other party in your matter isn't educated properly by their lawyer that the concept of "primary residency" is of no value in a joint residential (50-50) situation. It really has no meaning to anyone legally - it does come with an "emotional attachment" for the parent requesting this statement be made. It gives them the feeling of "ownership". Easier to say "i have joint custody and primary residency" which sounds sort-of-like "sole custody" for some parents. The reality is, it is meaningless terminology in a joint residential situation.

      Originally posted by Dee1973 View Post
      So anyone know what the definition of Primary Residence is and what does this give her in a shared custody arrangement that she wants so badly???
      See my threads provided in this message.

      Good Luck!
      Tayken

      Comment


      • #4
        Originally posted by Dee1973 View Post
        Since after 17 months I'm getting 99% that I should except the whole part and at least put custody to bed.
        I guess I would wonder if it legally makes any difference too. If you have 99% of what you would like, is it worth it (emotionally and financially) to continue to fight over this?

        I do have a "primary residence" clause but we do not have equal access. I wonder if your ex just wants to be able to put the children's address as her own for OHIP, school, etc? Maybe to be able to say the kids "live" with her?

        I recognize that "primary residence" shouldn't be applicable for 50/50 but if he just agrees, will it come back to bite him in the butt? I don't see how she could use it other than the above... Maybe OrleansLawyer can clarify.

        Comment


        • #5
          SadandTired.....Tayken is absolutely correct when he says per below as the motivation combined with ignorance. Just makes her feel somehow special.

          "Unfortunate that the other party in your matter isn't educated properly by their lawyer that the concept of "primary residency" is of no value in a joint residential (50-50) situation. It really has no meaning to anyone legally - it does come with an "emotional attachment" for the parent requesting this statement be made. It gives them the feeling of "ownership". Easier to say "i have joint custody and primary residency" which sounds sort-of-like "sole custody" for some parents. The reality is, it is meaningless terminology in a joint residential situation."

          So that is my debate - if I'm 99% there is it worth it (emotionally and financially) to continue fight over something that means nothing legally??? So if it can't come back to bite me (although Stripes implies that it may) then god get it over with!!

          OrleansLawyer would be perfect here. If your around can you weigh in?

          Comment


          • #6
            I'm thinking that anyone who understood and was committed to the concept of shared parenting wouldn't insist on a "primary residence" statement. So either your ex doesn't understand the concept (in which case her lawyer needs to explain it to her in very simple words) or she understands it but she isn't committed to it - in which case there's a greater-than-zero likelihood that she'll try to get around it in some way, using the concept of "primary residence" to her advantage.

            I doubt she would get too far because as Tayken says it's kind of meaningless if parenting is truly being shared in practice - but this looks like it could be a setup for more hours of legal wrangling, which is sounds like she is fond of. I completely understand the get-it-over-with-already sentiment, but I think that by holding your ground now and insisting that that language be removed from the agreement, you may be saving yourself more of these fun and games in the future.

            Comment


            • #7
              LOL...yes "more of this fun and games in the future". So I did exactly that - sent a response that "primary residence" is meaningless in a shared parenting arrangement and should be changed to "the children's residence shall be within the boundries of X. Neither party shall remove the children from this boundry without the express written consent of the other party".

              I just hope she lets go as a result, would be a real shame to give up 99% of what I want because of the 1%. It sucks that the Offer was written in a way that forces me to accept 100% or nothing, otherwise, I would simply except everything except that section. Noone would go to motion to have a judge hear an argument on primary residence!

              Comment


              • #8
                Mine does not have primary residence listed in my agreement.

                It does say that the children will attend XXXX school which is in my neighborhood.

                It also states that all children's legal documents will have my address on it for ease of school registration and extracurricular activities. This was important since she moved to a different city (30 min away). We do have 50/50. If you live in the same city this may be different.

                It also states that we will co-operate in regards to taxes and each claim one child as a dependent since we have 2.

                Comment


                • #9
                  Originally posted by Dee1973 View Post
                  LOL...yes "more of this fun and games in the future". So I did exactly that - sent a response that "primary residence" is meaningless in a shared parenting arrangement and should be changed to "the children's residence shall be within the boundries of X. Neither party shall remove the children from this boundry without the express written consent of the other party".

                  I just hope she lets go as a result, would be a real shame to give up 99% of what I want because of the 1%. It sucks that the Offer was written in a way that forces me to accept 100% or nothing, otherwise, I would simply except everything except that section. Noone would go to motion to have a judge hear an argument on primary residence!
                  You could always provide a counter-offer with the 99% and the 1% updated to include what you have stated above.

                  Comment


                  • #10
                    Hi FB_ sorry maybe I wasn't clear but that's exactly what I did counter-offer with the 99% cut and paste and the 1% changes on primary residence and documentation mentioned above.

                    Hopefully she excepts or I go from 99% to 0%!

                    Comment


                    • #11
                      Originally posted by FB_ View Post
                      You could always provide a counter-offer with the 99% and the 1% updated to include what you have stated above.
                      Joint custody + joint residency nullifies the "primary residence" meaning. Primary residence doesn't give anyone any power to do anything... It is typically used to identify the habitual residential location of the children in a "sole custody and majority access" situation. In a joint custody and joint residency situation the "title" of "primary residency" is effectively useless as it holds no value to anyone.

                      The statement of "joint custody" will prevent the other parent from making unilateral decisions on any major element... For example changing schools... If there is an agreement to joint custody then, the title of "primary residence" really is meaningless because the change to a school requires consent from both parents or in the alternative when they can't agree a court order.

                      Just make sure that you get agreement put in place that any dispute regarding custody be arbitrated in the event that the parents are unable to agree on a custodial decision.

                      Primary residence doesn't really mean much in 2013... Anyone who bothers to have it put into an agreement is wasting everyone's time in my opinion. Even when "sole custody" is agreed upon. Primary residency is easily challenged because in the event of a dispute the school will become the primary focus for determining anything really... Where the doctors are located, etc... School is a critical element of any separation agreement and needs to be nailed down.

                      Always live in close proximity to the children's school and you won't need to worry I say...

                      Good Luck!
                      Tayken

                      Comment


                      • #12
                        Tayken totally agree and I absolutely plan to live within the school district. So my next question - hoping that we resolve the 1% difference and custody is a done deal.

                        So how do I formalize - don't want to try and put together a full separation agreement at this point. Finally won something and need to make it ironclad.

                        So would the next step be for one of the parties to write up a final Order and then somehow you get it front of a judge to sign???

                        Just want to understand the logistics!

                        Comment


                        • #13
                          Originally posted by Dee1973 View Post
                          Tayken totally agree and I absolutely plan to live within the school district. So my next question - hoping that we resolve the 1% difference and custody is a done deal.

                          So how do I formalize - don't want to try and put together a full separation agreement at this point. Finally won something and need to make it ironclad.

                          So would the next step be for one of the parties to write up a final Order and then somehow you get it front of a judge to sign???

                          Just want to understand the logistics!
                          We made up a full separation agreement (I paid for it) signed it and then requested her lawyer sign the order on consent. This to my knowledge has yet to be returned or sent to the court to have a final order created.

                          Comment


                          • #14
                            We have too many unresolved issues to keep this item on hold while we draft up a separation agree my. Hell I drafted a separation agreement 7 months ago that they shredded.

                            So need to formalize this item individually. So is that the option - draw up an order based upon the agreed upon wording and both parties and lawyers sign? Making custody a done deal?

                            Other option?

                            Comment


                            • #15
                              In our case, hubby's ex was obsessed with primary residence status as well. She thought this meant hubby could not touch any of his child's documents (passports, etc.). Of course, then enter the OLC and in their recommendation, she gets 'primary residence'. Why? Because she asked. It is a status thing 100%.

                              Comment

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