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Interim Order for 50/50 from Primary, urgent

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  • Interim Order for 50/50 from Primary, urgent

    So my ex is serving me with papers for court on Monday to get 50/50 access.

    She signed a consent order 2 weeks ago, that I would have primary custody. She has decided to change her mind.

    I think what she expects to happen is that she is going to get the interim access order that gives her 50/50.

    My first question is, would the judge even decide anything as I don't have time to respond to her and I need my lawyer present.

    She is hoping he gives her 50/50 in the morning chambers.

  • #2
    why not 50/50?

    I will say though it does look bad for her wanting to change an consented order after only two weeks. Ink isn't even dry.

    Comment


    • #3
      I note your verb tenses above: my ex is SERVING me with court papers for court ON Monday. If she hasn't served you yet, you have not been served. If she served you after dinner time tonight, service is not effective until monday. Which is it?

      Comment


      • #4
        She has not served me yet. She texted me at 4:20PM today at work and I was not at my phone.

        She told me to come over to her house to see them. Not really sure or else I get them tomorrow morning.


        Originally posted by Serene View Post
        I note your verb tenses above: my ex is SERVING me with court papers for court ON Monday. If she hasn't served you yet, you have not been served. If she served you after dinner time tonight, service is not effective until monday. Which is it?

        Comment


        • #5
          So you haven't been served and you are already in court on monday? Why are you in court on monday if you already have an order on consent?

          Comment


          • #6
            Hmm, where do I begin...

            She wants to change the order because she feels that I'm being vindictive and not in the best interest of the child.

            My arguement back is that it's in his best interest to be with me, she gets him all day fridays her day off and sunday nights.

            She is the one who actually offered to give me full custody of him in exchange I help her out financially as she was given an eviction notice and she needs a break. *this is the second home, after she got evicted in June*. This was 2 weeks ago and I have the email.

            Previously, we are in status quo 50/50 shared parenting.

            Best interests of Child.
            1. Stable physical environment of child.
            She had been evicted out of house in June, had her power and gas cut off a few times in past 2 months. Did not pay his dayhome in August and thus he had no daycare for that month.
            2. Emotional well being of child.
            She has been investigated by child services around issues with her daughter. *fighting* etc. It hasn't gone away, this past weekend, I was invited to dinner with them and half through, she got mad at her daughter on the way home and screamed at her and stopped her car on the freeway and told her to get out, all this in front of our son, I have this actually recorded. I told her not scream and she doesn't care really. Is that evidence? I would hope so.
            3. Flip flops like a fish around custody of our child.
            Refuses to negotiate for shared parenting, but then I have a texts from her in August and June that she texted me that was leaving Edmonton, and I can have our son.
            4. Actual ability to take care of child. Her working hours are from M-T 2-8:30 PM, Friday 4:00 to 9PM and Saturday 12 - midnight and Sunday 12-5. As you can see above, the consent order we both agreed to was she get Friday and Sunday night as that's when she is even phyiscally available.
            **Please note, these are not allegations but I have this as texts and emails from her, and yes she texts me to tell me she got her gas cut off**

            She is trying to argue she wants him wednesday and Thursday night after she gets off work. I disagree because that doesn't even make sense to me, he's is in bed by then, what value is it for to drag him out after he's settled in.


            What I provide.
            1. Stable physical environment
            I have the same house I've been living in for the past 6 years. I have a bedroom for him, everything. I don't have power cut off issues.
            2. Emotional well being
            I have been consistent with what I want with our son, I do not flip flop on my custody access.
            3. Till she figures her shit out, it is best he stays with me right now.

            The crazy part here everyone is she OFFERED IT TO ME. My original thought was you know what, she was going to be evicted, I could let her get evicted then come after for primary as she can't even provide him a stable home but i thought hey, I will give her money i would have spent going after her anyways in court so why not just save her as well from being evicted in the best interest of Brandon.

            Nope, as soon as she got the money, it was basically, I change my mind, i want 50/50 still.

            I think I have a good case, because I will say to the judge, if she wants this now, how do we know she's not going to change her mind 2 months from now? I provide the stable, security and routine he deserves at 3 years old.

            Please comment on that, are these relevant facts the court cares about? I tried to do as much research on CanLII as possible but I could be way off. My first problem though is I don't want to argue this out in the 5 minute morning chambers, as my lawyer doesn't even know yet. However, I think her tactic is she wants to get the judge to do an interim order till we go to court.

            How would I argue against that? I don't want to bring all this evidence and also risk screwing myself without adequate representation.
            Is it plausible to tell the judge that this vary order hearing needs to delayed till I have proper time to respond with my lawyer and not have an interim order go into effect?

            And doesn't she need to have a material change of circumstances to even make this vary order? Like something MAJOR?

            As well, I am sure her affidavit will have allegations of me being a terrible dad, and a wife beater. However, I also have emails and texts of her asking me to come over, go to her sister's destination wedding in November with her and the kids.
            Also, I have photos of me at her house on Father's day, and a card as well for being a great dad signed by her and her daughters....so this is the kind of person i'm dealing with.

            As my friend said, she flip flops worse than a fish. Jokes aside, this is not a stable environment that S3 needs right now.

            Originally posted by standing on the sidelines View Post
            why not 50/50?

            I will say though it does look bad for her wanting to change an consented order after only two weeks. Ink isn't even dry.

            Comment


            • #7
              To be frank and this is my opinion and 2 sides to each story. I think she thought she could get her money and change her mind and left it up to me to make the schedule. She feels that 2 nights is not enough, when her schedule doesn't even physically allow it except for M-T mornings but she would need to take him to Montesorri pre-school at 2.

              Am I being unreasonable here? Looking at the bigger picture though, what parents sells their kids custody out for $$$? I realize S3 needs his mom but she is not stable right now to provide that and I provide the most stable environment for him. I don't change my mind, I have activities I do with him, I plan things, I've been the only one taking him to his pediatrician for the past 2 years and again I have it ALL documented.

              Oh as well, yesterday she also sent me emails (this was after she thought the order was null and void on a technicality of me using consent order form instead of vary consent order form) saying she is charging me with assault from incidents that happened months ago and last year. When I say incidents, I'm saying I never hit her, but she is saying I did. So you be the judge.
              As well, she also went to court house and tried to tell me that the new order is NULL because i used the wrong form and that she will be picking him up tonight based upon the old order. I went to court house myself and the clerk said it sticks, it's signed by a judge and corrected the form to say Vary Consent Order and stamped it.

              I think she truly loves him, but I do not think she has the ability right now to provide for him physically, mentally and emotionally at his age.

              Originally posted by Serene View Post
              So you haven't been served and you are already in court on monday? Why are you in court on monday if you already have an order on consent?

              Comment


              • #8
                what parents sells their kids custody out for $$$?
                Normally custody = money not sure why this isn't the dynamic here.

                The consent she signed - was it homologated by the court?

                Don't make it easy for her to "serve you" make her follow procedures of service in your district and if she doesn't don't even show up.

                Comment


                • #9
                  Oh sorry it is the dynamic. She wanted a LARGE lump sum, I usually send her month early for the child support to help her with bills. I'm starting to learn family law/child custody is not about being fair when dealing with someone that is not....if you want justice that is.

                  I showed up to Queen's bench and judge signed off on it with all the proper witness, Commissioner of the Oath stamp, went down to the clerk and they stamped and filed it.

                  Yes, for sure, that's why i am asking, I can't have a fair trial if I'm not even served yet. Isn't there a mininum serve window....and I know weekends do not count?

                  Originally posted by Links17 View Post
                  Normally custody = money not sure why this isn't the dynamic here.

                  The consent she signed - was it homologated by the court?

                  Don't make it easy for her to "serve you" make her follow procedures of service in your district and if she doesn't don't even show up.

                  Comment


                  • #10
                    -She had independent legal advice?
                    -Can she argue she was under undue pressure?

                    Comment


                    • #11
                      Chain of events.

                      Day 1- She wanted money to pay bills (2 months advanced), I said you know what this isn't right, I want 50/50. She said yes, then decided no and said she will go to legal aid.

                      Day 2 - Sends me another email "I will give you full custody and all my rights to get me out of this situation. I'm losing my home and my car and now I need to make a payment to the family tht lost their daughter and D15 (not mine) crashed into their restaurant. I got another job cleaning air planes mon to Thursday. 10 pm to 5 am. Please help me"
                      second email
                      "I want you to get me out if this situation and I will give you full custody. I trust that you will let me have my son fairly. But I need to work 3 jobs so I'm giving him to you. I'm losing everything I can't do this anymore. I need to work harder and I won't have much time for him. "

                      Wrote up agreement based upon her work schedule and had her sign it in front of witness.

                      The independant advice can't stick as she is the one that offered it to me? It's one thing for me to offer her an agreement then yes she needs to go see a lawyer. But it doesn't make sense then for example IF putting it in my shoes, I could make an offer i know that doesn't make sense, then renege on it cause I didn't ask my lawyer if MY offer makes sense to me?

                      I looked up under pressure as well. You have to do the malin test and from what I read the judge looks at 2 things must be true to prove undue presure.

                      1. I have to have caused the situation for her to be where she is (not sure how it's my fault as i pay her the child support set off amounts and even forward her advance money)

                      2. I made threats against her...again I did not offer her settlement. She did.

                      However, if she didn't come up with the money, she would be evicted that night. On my end, I also knew once I give her the money she would change her mind. So hence we made the consent order that night.

                      Thoughts?

                      Broader picture to me, she is on verge of being evicted a second time, this is not providing our son a stable environment. I could have been a dick and let it happen...and come after her for primary after but I didn't. Put it in perspective here, her rent is the same as her net income.

                      Another thing is if she wins this interim order, it will be a nail in the coffin for her that she can do whatever she wants without the consequences of not providing a STABLE secure environment for our son that I CAN.

                      The mere fact she wants to change it after 2 weeks shows it.

                      Am I out to lunch here?
                      Originally posted by Links17 View Post
                      -She had independent legal advice?
                      -Can she argue she was under undue pressure?

                      Comment


                      • #12
                        I would argue she is basically asking for a change of custody and for that she needs to show a change in circumstances.

                        Do you mean the miglin test? I am not sure what the most recent jurisprudence on this topic - in Quebec from what I understand the Miglin case is sort of on the way out and getting out of agreements is way more difficult.

                        She doesn't qualify for spousal support? Normally they don't let mothers be in this situation.... its pretty strange.

                        My ex pretty much takes 2/3 of my income and sits at home doing nothing and I have my kids ~39% of the time.

                        Comment


                        • #13
                          Sorry that's what I meant, the Miglin test.

                          No, we were never married.

                          Your ex is smart, however mine as my lawyer said drinks champagne on a beer budget. If she makes 30K she will live 50K, and she makes 50K, she lives like 80K. It's her nature, hence we are not together and it's gotten tot he point where this is now affecting how my son is raised + in addition to her bi polar episodes when I can provide stability.

                          Originally posted by Links17 View Post
                          I would argue she is basically asking for a change of custody and for that she needs to show a change in circumstances.

                          Do you mean the miglin test? I am not sure what the most recent jurisprudence on this topic - in Quebec from what I understand the Miglin case is sort of on the way out and getting out of agreements is way more difficult.

                          She doesn't qualify for spousal support? Normally they don't let mothers be in this situation.... its pretty strange.

                          My ex pretty much takes 2/3 of my income and sits at home doing nothing and I have my kids ~39% of the time.

                          Comment


                          • #14
                            so the judge won't let you move to 50/50 why not? That sounds really unfair.
                            Originally posted by Links17 View Post

                            My ex pretty much takes 2/3 of my income and sits at home doing nothing and I have my kids ~39% of the time.

                            Comment


                            • #15
                              No, we were never married.
                              Never married or cohabited (or are you from Qc?)

                              If she is asking a change in custody she needs to show a change in circumstances.

                              If she tries to throw out the agreement:
                              -she can rely on lack of ILA
                              -she can complain about being in a stressful situation.

                              I think you should at least argue that for the interim nothing should change as the kid is settled and she can't even offer him stability anyways and it should go to a full hearing but at that point the agreement she made will kill her.

                              I don't think she realized how much money is attached to children.... maybe doesn't have a lot of divorced friends.

                              Give her lots of access.

                              (btw i am just a troll on the internet so what i say is meaningless...)

                              Comment

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