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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 10-30-2021, 10:22 PM
helenj helenj is offline
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Default Criminal Charges Stayed - Family Trial Coming Up

Hi all,

The below is the situation I need some advice on:

Background:
-False domestic violence criminal charges have been stayed (withdrawn) after 2 years due to a technicality. We did go to trial but due to an unforeseen circumstance (not due to her credibility), it was dropped. Unfortunately, this may mean in Family court that I have not been proven innocent.

-In the meantime, young kids (under 11) have had supervised access with me for 2 years for once a week as per court's order. I was heavily involved in their lives prior to the false charges.

-We have a 8 day trial coming up ranging from parenting, custody, equalization, etc. I do not have the funds to fight this and self-representing is out of the question given how badly my previous self-representing went.

Question:

1. Since charges have been stayed, I have not heard from her/her lawyer. Should I make the first offer or wait to see what they have to offer first? My understanding is that every other weekend and a mid-week visit is something I may get at trial. .

2. My lawyer is advising to bring a motion to expand parenting time BEFORE the trial to increase our leverage at trial given how limited my current parenting time is. I do not want to spend money on a motion and rather settle my entire case. Thoughts?

3. My Family lawyers want me to pay $70k as a retainer 2 months before the trial, which I do not have. Yet they tell me that the "best settlements happen 1-2 days before trial". This is really concerning for me and I am really not sure how to pursue this.

Thank you for your time reading and responding.
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  #2  
Old 10-31-2021, 01:45 AM
standing on the sidelines standing on the sidelines is offline
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first off I would always ask for more than you expect to get. That way, they feel they go the better of you when you get less,but still get what you wanted or very close to it
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Old 10-31-2021, 05:26 PM
pinkHouses pinkHouses is offline
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Your lawyer may be forced to do the trial, not be able to get rid of you even without a full retainer.....so I would be asking about that too....your lawyer will bully you!

1)
Get on this NOW. Your ex is worried about money. Is it wrong to have 50/50? No. You are a good parent.

Talk to your ex, be strong, tell them this will cost her and you and the kids.
Don't talk about "you know I didn't do that" Just focus on the end goal.
Ask them what they really want but you can say "there is no way you are getting that" or "that is hard lets deal with that later"

Make multiple offers now; it is only an offer if made officially.
access schedule, custody (education, religion, medical, dental and and that can be split even further), life insurance, division of pension / property, spousal support with release, child support, holiday schedules, what a material change will be, what school the kids will go to.
Do you need a separation agreement with release? Things that can't go in an order can go in there.

Write them yourself then ask for a review/polishing for legal terms.
You can ask your ex directly what they want as far as custody, holidays etc.
You can tell her your fears that a trial is expensive and very damaging for both of you.
Tell them your expectation is to get back to 50/50 parenting, no fault was found.

Offers put pressure on the opposing side, costs start being considered.
You can give up some custody / decision making and to attend appointments etc. exchange that for more access. do a 2-2-5 schedule. Also it will be in there head....50/50, 50/50....you can also save a more generous offer till the end if you really need to...



They will ignore you for a bit but the sooner you get on this yourself the easier it will be to do a good last minute arrangement.

2) Ask for 50/50 in your offer, provide a schedule; ask for X and a graduation to 50/50.

3) Sure the best offers come near trial/under pressure but maybe nothing comes. The most f*cked up offers also come with lawyers screwing up the wording and then dragging it on with a separation agreement and more bickering.
I can see a motion being cheaper than normal because your lawyer has to prep anyways so the work parallels. Zoom is cheaper than in person.
How much do they want for the motion, they may do it for a flat fee.
The trial is only 2 months away, will a motion be heard?

Last edited by pinkHouses; 10-31-2021 at 05:43 PM.
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Old 11-01-2021, 10:04 AM
rockscan rockscan is offline
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Send ONE offer right now. Make it over what you would get at trial so there is room to negotiate.

Whatever the technicality was it does not translate to not guilty. A judge may still question the validity of the claim that you were abusive. BUT the onus is still on your ex to prove you are a danger to the children and/or you cant co parent.
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Old 11-01-2021, 02:33 PM
helenj helenj is offline
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Thank you all very much. I will make an offer now then. Please critique my below offer:

I am asking for:

1. Every other weekend + mid-week visit and 50/50 holidays.

2. Right of First Refusal for overnights only. Please let me know if this would ordered at trial? Kids sleep frequently with my ex's grandparents.

3. Parenting time to be revisited in 1 year in hopes of me getting 50/50. My understanding is that a Judge would NOT order this at a trial. What can I do if my EX refuses this clause?
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Old 11-01-2021, 02:39 PM
rockscan rockscan is offline
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I would ask for it to increase over time.

The point of an offer is to get the person to the table. I would make the offer to transition to a shared regime over a period of time and see what the counter is.

ROFR is a crapshoot from what people on here have said before. Her time, her decision. Theyre with their grandparents not a stranger so it isnt all bad. And truly, would you accept it if she wanted that of you? Most agreements simply said and any other time agreed upon by the parties. Although you could offer it and then agree to take it out as part of negotiation but then again you could risk her taking it to trial.
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Old 11-01-2021, 02:48 PM
Brampton33 Brampton33 is offline
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A wise offer would seek 50/50 over a short graduated period. It is fresh now, but as time goes on, you will eventually be estranged from your ex. 50/50 gives you the opportunity for week about. Her week, your week. Life goes on.

ROFR does not work in high conflict relationships. And yes, if you are in court arguing over parenting time, you are in a high conflict situation. Remember, your ex does not want you to see the kids. They would rather choose grandparents, aunts, whoever, so long as its not you. ROFR only works in amicable situations where the parents like and respect one another, and WANT the children to be with the other parent. If you are in court, you simply aren't there.
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  #8  
Old 11-01-2021, 05:25 PM
helenj helenj is offline
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Thank you all for the feedback.

Just to make sure, I will be asking for Joint Custody/Shared Decision making. Is this a fair offer?

So I will make an offer for every other weekend + Joint Custody.

She has been asking for sole custody the past 2 years. She's claiming abuse and inability to communicate, and I of course am maintaining my innocence and that we have always communicated.

Thanks
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Old 11-01-2021, 10:11 PM
Brampton33 Brampton33 is offline
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Quote:
Originally Posted by helenj View Post
So I will make an offer for every other weekend + Joint Custody.
Joint custody is the majority norm these days unless one of the parents lives 200+ km away. In that case, it does not make sense for that parent to chime in on school selections. Otherwise, it’s generally joint. If communication is issue, use Our Family Wizard as forum to communicate.

Judges regularly see arguments where one parent claims they cannot talk to the other parent. In such cases, judges will tell that parent to grow up and put the focus and needs on their children as first priority- ahead over their own personal desire to not have to deal with the person they chose to have children with.

Your proposed parenting time is contrary to what all posters have suggested, however you know your case best. Right now you might be content with EOW because it’s better than your current situation. As you spend more time with your kids, you may regret not having 50/50 as time goes on.
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  #10  
Old 11-01-2021, 10:37 PM
pinkHouses pinkHouses is offline
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a) make multiple offers at once with different combinations...maybe 4 and have 2 of them good and they will work with the offer type they like.

b) drop the right of first refusal, that is messy.

c) detail your custody and split up the responsibilities....that way there is no arguments about who should be doing once and no competition. They are responsible for say booking dental appointments and you book specialist appointments or whatever

d) work in an increase in the parenting time NOW....you want an easier road to get to 50/50 later on. In another offer ask for 50/50 right away.

e) state how/when exchanges are to be done. At school is best.

f) state activities cannot be booked on the other parents time without their consent, the word reasonable consent has to be in there somewhere.

g) have a summer schedule, this is where you might want to start working on your 50/50.
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