can he get 50 50 custody

[Janus]

A parent cannot be expected to interact normally with his child while in the house and constant supervision of his ex.

I just wanted to say, the fact that he endures access at your place and under your hostile eye means, to me, that he actually wants to be involved. He was just unlucky enough to have made some very poor decisions that allow you to really screw him over.

So, do you love your child more than you hate your ex?

[Janus]

50/50 does not save a parent any money compared to a CP/NCP situation. A parent would be buying clothes, groceries, providing transportation, taking time off work when the child is ill, covering costs of toys and entertainment, recreational activities, everything in an equal amount to the other parent.

The above is only true if the NCP sees his kid exactly 0% of the time. At any level of access above 0%, it is cheaper to have shared custody than to be a NCP. (Assuming a relatively equal income between the two parents)

There is no sudden revelation that it is cheaper to seek 50/50, because it isn't cheaper.

If I did not have shared custody, I would not be able to live in my house. I would not even be able to afford an apartment where I live. You are clearly under the impression that CS is what I actually spend on my children. They are substantially cheaper than table support. If I had them for 65% of the time, I would be swimming in cash, and could probably afford a luxury cruise every year.

Now, I don't buy brand name clothes and I cook meals from home, so if I was receiving table CS I could probably eat out in a restaurant every day. That would be fun... I mean, that would be better for the children.

[scaredmama]

He is not under constant supervision nor it is hostile in anyway. We get along great in front of our daughter. No fighting, arguing or anything. I even cook him supper. I also try to not be here or not be right around them when he is here in order to give them space. Again, its HIS choice to come here and HIS choice not to take her anywhere. I do not hate my ex at all but I do love my daughter more than him.

[Abeona]

If your ex isn't abusing your kid, or doing something seriously wrong (drug addict, drinking and driving, pimping out hookers in front of her) you're going to have to chill out or you will get stomped in court if he decides to go that route.

If he was disappearing for weeks or months at a time, you could argue that the in and out of her life behavior could be harmful, but it sounds like currently there's a very flexible "reasonable notice" access happening. From what you've described, you both arrange it around everyone's schedule. That's not unhealthy.

You've also said there's no conflict, save you trying to impose a by the day access schedule. Regardless of the parenting schedule, an arrangement without conflict is THE most healthy thing for a kid. You should try to keep it that way if you're concerned about your daughter's emotional health. She's going to do FAR better with two parents who get along and a flexible access schedule than any other kind of schedule and conflict between you and her father.

If he isn't currently pressing you for 50-50, why are you worrying about it?

To an outside observer, it could appear that you're upset with your ex for leaving you for another woman, and you're using the kid in the middle to try and control his life. Morally, it's awful what he did. I don't think there's too many people here who wouldn't agree that cheating on your spouse is about as low as you can get. But it's done. You have to keep the failed relationship between you and your husband completely separate from custody/access.

You have no control over what he does with your daughter during his access time. It's nice that he agreed not to introduce her to the girlfriend, but he's not obligated to follow that and should he change his mind, you will have no recourse whatsoever. As long as his parenting isn't abusive or neglectful, you also have absolutely zero control over how he parents during his time. None. The sooner you understand and accept that, the easier this is going to be for you.

[scaredmama]

While we were still living together but separated, he did disappear for 3-5 days at a time with no contact but our daughter was with me so she was not in any harm. He is not pressing for 50 50 at this time but is threatening it. I just don't know when he thinks this.

What do you mean by "save you trying to impose a by the day access schedule"?

[Berner_Faith]

Why not just tell him that he can pick your daughter up on Friday and bring her back Sunday? Give him a chance to be a father. Sure she is going to meet the new gf but he could easily say this is his friend, nothing wrong with that. He lives with this woman and to me it sounds like you are attempting to create a false status quo because there is no way he can develope a healthy relationship with her if he can't bring her to his house.

[scaredmama]

Because he works, and has his hobbies on the weekends, this why he has never tried to take her for a full weekend. How and when he sees our daughter is his choice. I just go with the flow and try not to impede on his time with her. How is that establishing a false status quo? Its been this way for 5 months.

[Toutou]

So, the reasons that you have for sole custody are:

1. He can't take daughter to his home overnight because the she will have to meet his new girlfriend. So he is spending less time with her then you. He is probably still paying mortgage on your house, so getting his own appartment could be pretty hard.
2. He did not parent her as muh as you did when you were together. Probably because you were the one telling him what to do. You wanted him to do what you wanted and to have a relationship with your daughter the way you wanted it ( telling him what to do with her, what to tell her, etc. way too controlling in my opinion). You did not really let them have a relation on their own terms.
3. Your daughter might be hurt emotionally if she spends more time with her dad? And she willnot be, if she spends less?

Those are your reasons. In my personal opinion, they are absolutly not valid.

So, you are really hoping that he keeps his promise that he will not introduce your daughter to his new girlfriend which would create status quo in your favor.

It is my understanding that he is saying that as soon as he is allowed to take your daughter to HIS residence ( in a years time) he will ask for shared cusdody, isn't he?

[Abeona]

While we were still living together but separated, he did disappear for 3-5 days at a time with no contact but our daughter was with me so she was not in any harm. He is not pressing for 50 50 at this time but is threatening it. I just don't know when he thinks this.

What do you mean by "save you trying to impose a by the day access schedule"?

If he had the every other weekend access schedule you mentioned he wouldn't be around for over 3-5 days at a time. Even with 50-50, you each "wouldn't be around" for a week at a time. What access schedule are you interested in that would allow both of you to be around 100% of the time? Because I can think of only one, and it doesn't sound like your ex is going to move back in.

I meant the only conflict appears to stem from you trying to impose an access schedule he doesn't agree with.

When is he threatening you with 50-50? Is it during arguments about the access schedule? If so, stop arguing. Let him take the kid when he wants to, which doesn't sound like very often. Let him introduce her to the girlfriend. Unless she's abusive, what's the absolute worst thing that could happen?

[Exquizique]

I do not hate my ex at all but I do love my daughter more than him.

Being strongly against your daughter enjoying equal time and interaction with both her parents is sure an odd way of loving her.

[Tayken]

Scaredmama:

I highly recommend you re-read this entire thread from start to this current response. A user recommended a few posts back to read the messages posted by me (Tayken).

I am not a lawyer, clinician (doctor) but, I have researched significantly the evolving jurisprudence (case law) which is used when determining a child's "best interests".

Suffice to say, the arguments you present in this thread for you to be the "primary custodial parent" are nothing more than a set of "truisms" which in 1989-1995 may have been successful before the court it is now 2013 and a lot has evolved since then.

The way you are conducting yourself, restricting access of the child, which under the current law as there is no order from any court to custody and access may be in contravention of the Criminal Code of Canada section 283.(1) Abduction which explicitly states:

Section 283

(1) [ Abduction ]

Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
(b) an offence punishable on summary conviction.

I present this extreme case as a contravention of the Criminal Code of Canada not for an argument that you should be arrested or criminally charged but, it is the only law for which governs both parent's "lawful care or charge of a person under the age of fourteen years".

From what I can see in your numerous postings to this forum you seem to be someone who needs to be in "control" of a situation. You may be in a very anxious / nervous / fearful state which is totally normal at a time like this for anyone. The court will not hold this against you but, do consider that the governing law which defines the role both parents play at this time without an order of the court is the Criminal Code of Canada.

It would be unwise for a parent at this time to seek criminal charges for what you have been done but, please do consider the following with regards to how you are restricting access of the child in question from the other parent and the wise words of a number of posters to this site.

You will also note that not a single responded (to the best of my knowledge) has supported any position you put forward as a "emotional reason" as to why you should be the "primary caregiver", be awarded sole custody and majority access of the child in question.

The key component of 283.(1) to consider is as follows:

Every one who... takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

You have made decisions to restrict (take, detain, harbour) the access the other parent has to the child, which is rightfully the RIGHT OF THE CHILD and not either parent to determine, from a parent who has " lawful care or charge" of the child in question.

These are NOT good decisions and the fact that you have disclosed that someone whom is under the employ of Legal Aid Ontario, a private not-for-profit organization that is only responsible for funding litigation and not legal advice is gravely mistaken in their advice to you. I am yet again disappointed, to say the least, that Legal Aid Ontario continues to demonstrate their inability to respect the laws of our Country in such a manner and is providing such "bad advice".

To further support my argument that the advice you have possibly gotten from anyone representing themselves as a panel lawyer, duty counsel or employee of Legal Aid Ontario I highly recommend you read the following well known case law:

This matter involves a parent, who with the assistance of Legal Aid Ontario attempted to leverage the same "arguments" you are presenting to this very forum with regards to your matter.

URL: CanLII - 2011 ONSC 6451 (CanLII)
Citation: 2011 ONSC 6451 (CanLII)

You will note, if you actually read the 606 paragraph decision resulting from this 17 day trial on similar issues (and others of course) that it was not the "mother" whom got sole custody of the child in question but the "father". You will also note, despite all the allegations, claims, and other conduct the matter was ordered to 50-50 access. This was even after the OCL made radically different recommendations but, if you read the case law provided you will see why.

I encourage you to learn from this case law and really understand the impact your current decisions regarding the child in question can have on you, your custody of the child in question and your access to this child.

Finally, nothing is "free" before the court. Costs were ordered against the Applicant Mother in the case law I provided despite the fact that this Applicant Mother had full financial (and possibly emotional support) from Legal Aid Ontario.

URL: CanLII - 2011 ONSC 7476 (CanLII)
Citation: 2011 ONSC 7476 (CanLII)

I note that the Respondent Father was awarded costs of $11,500 for having to defend against the "truisms" of possibly Legal Aid Ontario, the OCL and others who may have provided the Applicant Mother with some out dated and incredibly "bad advice".

I pose a very simple question to you which other have to consider:

Is the child in question truly at risk of emotional harm and/or physical harm and/or neglect and/or maltreatment if they were to reside with the other parent 50% of the time? You may have already answered this question by stating that the other parent is safe and not a concern.

Seperation and Divorce is about change. How one adapts to this change is what the court is going to seriously consider when making and decision regarding custody and access. Furthermore, question yourself if you want to go through a 17 day trial after years of conflict (because it takes this long to get to trial and a FINAL order) or do you want to resolve problems and do what is in the child in questions "best interests".

Take all advice you get from any "professional" in your matter with a handful of salt. These "professionals" be it social workers, therapists, representatives of Legal Aid, lawyers, your "friends", et all do not know the situation and they are all operating on "truisms".

If you don't know what I am talking about with regards to "truisms" go to paragraph 393 of CanLII - 2011 ONSC 6451 (CanLII) and read what follows. Also note that the justice in this matter and what the judge identifies clear as glass to how these "professionals" may be conducting themselves.

Every child has a right to be loved, cared for and raised by both their parents equally. I implore you not to setup a situation where the child in question will not have this opportunity with both parents.

Good Luck!
Tayken

[HammerDad]

supper one night a week and he would spend time with her one weekend night per month

That is less time than the every-other-weekend-daddy-screwjob any convict could get.

You arguments are emotionally charged and mostly hearsay. His past actions of taking off for a few days a handful times are not likely to be given much weight in court. He would have to due it on a routine and constant basis.

His hobbies etc., well people change. I know I changed my hobbies when my child came around. He may do what I do and plan the hobby stuff when the kid is with the other parent.

Unless you can provide clear and factual arguments that the child will not thrive while in your ex's care, you case will be very limited.

As has been mentioned, moms and dads parent differently. You seem to be the coddling type and your ex was likely standoff-ish. Being standoff-ish is not a reason to deny him the right to parent equally. It isn't a character flaw that will cause the child to be in harms way.

Judges only care about the facts. You ex may show up to court with a journal outlining all of the time he spent with the child, when he bathed her, put her to bed, got her ready for school etc. You may think you have done all of this, but if he comes armed with a well detailed journal, it is going to take some wind out of your sails.

As for spending overnight time with him now? Why not? Oh, th new g/f....yeah, he is an idiot for wanting to introduce the child so soon. But again, being an idiot is not something a judge will care about. You ex deserves the right to parent the child away from you.

Finally and most importantly, once he realizes that you do not have the right to tell him that he cannot parent the child or take the child for reasonable parenting time, he can up and walk out with the kid. There is no court order in place for custody or parenting time. Thus, you each have defacto joint custody. This allows both of you equal access to the child. He can simply tell you (with reasonable notice of course) one day he is taking the child to his place for the weekend in order to start regular parenting time with the child and will return the child at the end of the weekend, you would be the bad guy and be repremanded in court should you try to deny him reasonable parenting time.

[FightingForFamily]

Separation and divorce forces a LOT of change on people. Many dads spend their married life as the "provider" for the family, and when they are not working, they are able to enjoy some time with their children. They do some house work, but they generally don't do everything.

I will speak from experience that it is quite a culture shock during those first few visits to realize you will now be the main caregiver for your child, all the cooking, cleaning, laundry, discipline, bathing, shopping now falls to you. Whether it is just for 2-3 days on the weekend or a 50/50 schedule, it is still a big change of lifestyle. You have to learn many new skills, and do many things you never had to before.

It will be the same for you ex. He will either step up to the plate, or he won't. From what I have seen, most do quite well. Some need further support such as grandparents and other family to support them, some involve new partners to help them manage. But manage they do.

[Berner_Faith]

Big question here.... what were the roles during the marriage? Was he the main income earner? While you were the main child care giver? If so, you cannot hold that against him...that is something you guys set up during your marriage and he was the provider, but now it is up to BOTH of you to be the provider and the supporter.

Another idea, if he cannot take the child to his place or whatever, why not offer him the mat home for the weekend and you go stay and family/friends place? Give him some time alone with his child. If you are dead set against her meeting this new gf, well then he has every right to parent in the mat home. As was mentioned, he can move back in at any time, until you own the house alone, he is still part owner.

Please take the advice of the many posters who have given their free (or maybe not so free) time to respond and give you great pointers. You are very new to this process and have a lot to learn... better to learn it here than have a judge blast you in the court room...

[hadenough]

Do we know that they were married? Is it the mat home, with a mortgage/equity or is it a rental? Do they both have jobs? I didn't notice any of those details.