settlement conference advice

[stillsoyoung]

My sons settlement conference is coming up next week.

Up to this point his ex has a temp order for one weekend a month (or to be agreed upon) supervised visitation, based on her allegations of drug addiction, abandonment of his son and criminal record.

All of which are untrue.

But the judge doing do diligence ordered 3 random drug tests and criminal background check.

All have come back clean.

Things have been running fairly smoothly until the Offer to Settle.

My son received her offer ....Sole Custody, Friday at 5 to Sunday at 5, visitation to be at my (Grandmother) home, with myself as providing the transportation.

He replied with Shared Custody with Thursday evening until Wednesday evening every other week visitation until the child is in school (hes 3).

Visitation was agreed upon for a theme park vacation first week in August from Thursday to Monday returning his son on Wed morning. (non refundable).

Upon receiving his offer to settle she disallowed the visit changing her story 3 times when asked why.

As grandparents we have maintained a very good relationship with the mother and have enjoyed a very close relationship with our grandson.

She has asked us on many occasions to take him and have on average had him at least one full week a month.

Now we are cut off as well.

This is heartbreaking for all...up until this point we thought this would be cut and dry.

Her allegations are all made up and will be proven so.

She is immature and the texts she send us are quite dramatic...using such statement as "I cant believe you want to rip a child from his mothers arms".

She also stated that because my son is working he wouldnt need to see his son during the week....she is a "stay at home mom", that we all are paying for. Plus she does not have a drivers licence or car.

She has a lawyer, again that we all pay for and my son is self rep'ed.

4 main questions
1. Should an email be sent to her lawyer letting him know what she has recently pulled.
2. Can he put forth to the lawyer a new offer to settle reducing the visitation to Thurs evening to Mon evening...(our thought there is maybe this will keep this out of trial)
3. How can he request a new temp order for new visitation days, thus changing the existing temp order
4. Does it sounds as he will need a lawyer. (money is very tight and he doesn't qualify for any legal aid)

Im sorry for the length and sounding bitter we are now just so scared that things can go terribly wrong.

Reaching out to you all for advise.

[Selfrepmom]

If there is any way you can scrape together some money for a lawyer, you may want to do it. If not, it’s buckle down time.

A couple questions for you..

-How long have they been separated/how long has child been in moms primary care?
-Do you have copies of this clean criminal background check and these drug tests? Have you filed these as schedules to an affidavit already?
-What does your son truly want? Does he really want 50/50 or is he happy with EOW and visits in between?
-Did mom agree IN WRITING to the planned vacation?
-Does child start school this year or next?

To answer your questions:

1) I would have your son send the email to mom and CC the lawyer. Something to the effect of:
“Dear Ex,
As per your email (or text or phone convo) on xxxxx 2019, you had previously agreed to (child’s name) attending xxx resort with myself and my parents from xxx until xxx. This will be a great bonding experience for (child) and I, and I am not in agreement with your unilateral decision to cancel this significant father/child time that will only hurt (child).
As the tickets have already been purchased and are non refundable I still look forward to taking (child) on vacation, and am happy to provide travel details and contact info. I look forward to your consent on this matter, as it is in the best interest of (child). Please advise by Tuesday so that I am able to confirm travel plans”

2) NO. Unless he actually wants less time (which I’m guessing is not the case). He should send her lawyer a new offer to settle with a graduated access schedule that leads to whatever his goal is.
Ie. Immediately: Unsupervised Access every other Friday at 5 until Saturday at 5 with one 3 hour weeknight visit a week
4 weeks from today: Friday at 5 until Sunday at 5
And so on until you reach your goal. Just don’t spread it out too far. Don’t forget to include holiday access so you avoid the same resort issue in years to come.

3) Have you filed your SC brief yet? If not, make the above offer to settle (have your son go down to the courthouse and speak to duty/advice counsel and have them look over the offer if you are not comfortable drafting it) Attach offer to settle to the brief. In the section where it asks what orders you are asking for, reference your final step in your graduated access offer. Also ask for an immediate order for access time for the upcoming vacation. When you get in front of the judge, be sure to specifically ask for this (cause they may just blow past it) Have the email you sent with you along with travel dates etc. and anything in writing from mom where she previously agreed to the trip.

4) See my first comment. If all his drug tests have come back clean it is only a matter of time before he gets unsupervised access. It is do-able on his own. But he needs to buckle down, and not fall into the trap of accepting less access time than he wants and letting her walk away with sole custody

From my experience, if the ex has no solid proof of any sort of abuse/addiction/wrong doing by the SC and is still withholding access, AND the other party has proof that they are not doing anything wrong, the judge will light into the ex pretty good and probably make a new temporary access order.

[stillsoyoung]

Selfrepmom...thank you so much for responding.

Yes I think a lawyer may be the next step...hoping to get through the SC next week first.

The mother has had primary care since the start and has made visitation very difficult for my son. She has blocked his number and removed him from her social media pages shortly after the child was born.

She also moved back with her family 150km away.

Up until that point they had lived off on on together from 2013 to 2017. The child was born in 2016.

Criminal background check and all drug test have come back clean and have been submitted to the courts and her lawyer.

The SC is scheduled for next week and yes all papers have been properly filed and submitted. Along with his offer to settle

What he would accept is visitation Thursday evening until Monday evening.
In the offer he requested Thursday evening until Wednesday evening but would like I mentioned, would accept Thurs- Mon.

He understands that once the child starts school in 2/3 years this would have to change and would be willing to change visitation to Friday after school to Monday morning.

I have agreed to continue with the transportation as he will be working.

Unfortunately mom did not agree in writing but I do have texts stating that July 13th and July 27th weekend the child is unavailable but the first week in August would be great.

She called me on Tuesday of last week to chitchat and we conformed the vaca at that point. Wednesday morning after receiving my sons offer to settle from her lawyer she cancelled.

Although we do not have the agreement in writing , if you read the texts she sent refusing the visit, it reads that she changed her mind.

If my son was to ask the judge to reinstate the vaca and also drop the temp order and issue a new order with the visitation to be Thursday to Monday, how do we go about getting that heard for next weeks SC?

We will send her a email and cc her lawyer, as you mentioned asking that she allow the visit, but again if she says no which I believe she will....how then do we get that info to the judge?

[Selfrepmom]

I’m assuming she’s on legal aid? (You said she doesn’t work)

With her living that far away and for that long, it probably would be very difficult for anything other than EOW.

The judge won’t order new access on his/her own at the SC (I don’t think that is possible). What they will do is give the mom shit for what she is doing and strongly advise her that she sign a new temporary consent order for unsupervised access. If she has legal aid, her lawyer isn’t going to trial with her, so they will also be pushing her to settle as well. If she STILL refuses straight to the judges face to allow unsupervised access, you file a motion for a temporary unsupervised access order as soon as the SC is over. At the motion, a judge CAN order this. And probably will if she has no solid evidence why it shouldn’t be.

As far as the vacation goes, mention it to her lawyer first before you go in to see the judge. Explain that you would really like that dealt with before you leave. When your son has his chance to speak to the judge he should put emphasis on getting unsupervised visits right away, and have him mention (very respectfully) that he had already planned the vacation in August verbally with mom and that he would like written consent on that matter as well.

At my SC I wanted it down in a final order that ex had to provide me with travel info and proof of travel insurance for our daughter for out of country trips. He had been refusing up until that day. I mentioned it in front of the judge and his lawyer (legal aid) handed me the order she had drafted up to that point and told me to just write in whatever I wanted. I did, then she turned to my ex and made him sign it right there in front of the judge.

Remember this will probably take baby steps. Mom probably won’t agree outright to the final schedule your son wants by next week. She will most likely end up agreeing to unsupervised though. After that you go for the motion.

The joint/sole custody battle is a whole other beast. Has your son been actively involved in doctors appointments etc the last couple years? I’m assuming not as you say mom has cut him out completely. The issue here is that mom can argue that she has basically had status quo sole custody for 2+ years, and that there is no communication between her and your son to have a successful joint custody relationship. You could hire a lawyer and fight this out (and quite possibly not get the outcome you want), or just let her have sole custody OR bargain other things for it in your offers to settle. Depends what he wants/what is important to him. I personally wouldn’t want to give up joint but it’s probably going to be your biggest battle here.

[stillsoyoung]

Yes she is had a legal aid lawyer.

But you did mention something that I was not aware of....her lawyer cannot go to trial with her?

I tried googling that and could not find that anywhere....does that mean that she will have to hire someone to represent her if this goes to trial?

My apologies as I read back to my previous comments and I did not word it properly....He would be looking at visitation every other Thursday to Monday.

Part of the problem of Fri at 5- Sun at 5 EWO IS the distance.

If he was to pick the child up after work on Friday to return on Sunday...Friday is shot with the drive and basically so is Sunday.

Plus that is a lot of time in the car for a little one for only one full day.
He is asking for every other Thursday to Monday.

My apologies again.

It is now my understanding that the SC judge cannot issue or change the temp order without the Applicants consent.

So if we want a new order, we need to file a motion and that cannot be done until after the SC?

Its funny because I was thinking that Shared/ Joint vs Sole was going to be the easy part as she really has no grounds to deny my son that right...

Ok as you say...baby steps.

Thank you so very much. I really hope you do realize how much this helps.

[Berner_Faith]

I think your son really needs to think long term... you stated mom moved 150kms away and that because of the distance EOW wasn’t going to work... he is seeking shared custody but how will this work when child goes to school? Is your son planning on moving to Mom’s area so that son can attend school? There is already an order in place which I assume means currently mom has custody, your son will have to present a detailed plan on how he plans to facilitate shared parenting and how in a couple short years school will work. A judge is not going to want to see them back in court battling over school zones in a couple years.

I know funds are tight but having a lawyer present would really serve your son well. This isn’t a simple case given the distance and supervised access. I am sorry mom is pulling these stunts [emoji20]


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[stillsoyoung]

Berner_Faith... Friday after school dropping off the child Monday morning every other week is doable.
That would be the plan once the child starts kindergarten.... From now until then, what he would like is visitation from Thursday evening until Monday evening every other week.
Between myself and my son we are agreeable to do the drive.
What he doesn't want to see happen is Friday 5 to Sunday at 5 every other week. That only gives him one full day with his son every other week.

[tilt]

Has your son considered moving to where his child is? Yes it isn’t fair, but lots of things in life aren’t fair. It would allow more time with his child and make shared custody a possibility.

[standing on the sidelines]

Berner_Faith... Friday after school dropping off the child Monday morning every other week is doable.
That would be the plan once the child starts kindergarten.... From now until then, what he would like is visitation from Thursday evening until Monday evening every other week.
Between myself and my son we are agreeable to do the drive.
What he doesn't want to see happen is Friday 5 to Sunday at 5 every other week. That only gives him one full day with his son every other week.

you are not really thinking this out. At what time would the child have to be woken up to be on the road to be in school for the proper time? Yes it may be every other week but as the child gets older they will be more resistant to it. What about winter and the storms etc? Face it most teens hate getting up in the morning any earlier then they have to. Yes I know that is years down the road but you have to think of long term.

If your son can move closer then that is the best if he wants a chance to be a 50/50 parent and not just a visitor in his childs life.

[Berner_Faith]

you are not really thinking this out. At what time would the child have to be woken up to be on the road to be in school for the proper time? Yes it may be every other week but as the child gets older they will be more resistant to it. What about winter and the storms etc? Face it most teens hate getting up in the morning any earlier then they have to. Yes I know that is years down the road but you have to think of long term.



If your son can move closer then that is the best if he wants a chance to be a 50/50 parent and not just a visitor in his childs life.

Agreed... if it is too far for EOW visits due to travel time it really is too far to expect a child to commute for school.


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[stillsoyoung]

Thank you everyone for your suggestions and for giving us something to think about.
Moving at this point is not going to be an option as he has just started a new job but that is definitely something he would consider down the line.
We may just have to keep thinking outside the box to try and find something that will work.
We will begin exploring new visitation arrangements to see if there is something we can offer that would be in agreement with all parties and in the best interest of his son.
One final question... Selfrepmom made mention that the applicants legal aid lawyer wouldn't be going to trial with her... I have googled to see if I can find any information on that and I'm coming up short.
Does anyone know if Ontario a legal aid family lawyer can go to trial for their client?

[Selfrepmom]

From what I understand legal aid only covers up to a certain amount of hours (not sure how much).... This is what makes it very difficult to make it all the way to trial in family law with just legal aid, as most of the hours are usually eaten up way before then.

That is my understanding at least. Someone with a little more knowledge may correct me or clarify further.

[arabian]

I recall a few years ago on this forum (or more) there was a discussion about this topic. You could find information if you searched on this forum (legal aid gives you wings; legal aid certificates, etc.). I recall a discussion on how a lawyer would have to make request for continuance of legal aid certificate after a certain point in time.