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  • Question about Summer Split

    If I am available to take my child half of the summer holidays and the mother refuses to allow this, am I responsible for a portion of the daycare?

    We normally do proportionate to income during the school year, she pays a higher percentage.
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    She basically wants to put her in day programs rather than to have our child spend the time with me.

  • #2
    What does your order say about access when school is out i.e. during July/August?

    Since only care costs required in order for parents to work are to be split, and this care is not required in order for her to work, I'd say NO. It's not like daycare where you have to commit to a specific long term schedule due to scarcity of spots.

    But, if these are just day programs, then I'd say the ONLY issue is what your access schedule is during the summer. And then you do whatever you want during YOUR time.
    Last edited by dinkyface; 04-11-2011, 02:39 PM.

    Comment


    • #3
      If you have a court order you need to abide by the order as does your ex. Of course if you mutually agree to change the circumstances then I believe its OK(when it is in regards to access).

      As an aside breaking an order is a criminal offence. So if anyone denies court appointed access here is what the criminal code says about disobeying a court order.

      As per the criminal code:

      Disobeying order of court

      127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of
      (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
      (b) an offence punishable on summary conviction.

      I know people who have successfully filed a private prosecution(ie this was not done in family court) and charged the other party with disobeying a court order. If I had an ex-spouse that denied me court appointed access I would charge the ex-spouse in criminal court.

      In terms of your situation. If it is a final court order it is difficult to change.
      If it is an interim/temporary court order it is easier to change.

      If it was me and it was an interim/temporary court order I would file a motion to have access for that time. Of course you would have to provide an affidavit with attached exhibits (ie evidence) to explain why this is in the childs best interest. that is you need to argue why this would be in the best interest of the child. Of course ALWAYS ASK FOR A WRITTEN RULING WHEN BEFORE THE COURT!!!!! The stuff you see at www.canlii.org those are written rulings.

      If it was me and it was a final order that said she had the kids the time in question then I might file an application to vary the order. Of course you need to show that this is an unforeseen change in circumstances. Then explain why this is in the best interst of the child.

      I hope you are aware of the 40&#37; rule, considering it appears you are well into the system! ie I am sure this was the first thing that you were told about when these matters started. Nonetheless for those who are just starting out in the system here goes.

      If you earn 50K and your ex earns 50K and you raise your son/daughter between 40-60% over the course of the year then you pay...zero in child support.

      If you earn 50K and your ex earns 50K and you raise your son/daughter between 60-100% of the time over the course of the year she pays you...full support that is $462 per month (ie look at the Child support guidelines. You can find the child support guidelines by going to www.canlii.org and typing in child support guidelines.)

      If you earn 50K and your ex earns 50K and you raise your son/daughter between 0-40% of the time over the course of the year you pay her...full support that is $462 per month.

      Note for instance if you raise your kids 146 days per year(40% of the time) and you each earn 50K then you pay....zero!

      If you raise your kids 145 days per year (39.7% of the time) you pay $462 per month. That one day sure costs a lot doesn't it and the other person...hits the jackpot!

      You can draw your own conclusions about why an ex-spouse may strive to ensure you raise your kids but you just don't do it that much.

      Nonetheless if you don't have a court order then...you are not really bound to schedules(of course act within reason)....if you have a temporary court order for access then in my opinion you should get the time if you present a well crafted case to the court...if you have a final order....well you better sharpen you pencil and make a good argument as to why this is an unforeseen change in circumstances.

      Of course this is all just my opinion and should in no way be construed as legal advice.

      Comment


      • #4
        Um, holdthemaccountable, thanks for the family law primer, but could you at least try to make your posts somewhat relevant to the OP's question?

        Comment


        • #5
          To say nothing about the fact that that information is completely irrelevant to what would really happen in family court, which is to say, nothing.

          Comment


          • #6
            Why I mentioned about the denying access is that I believe that parents who do not let the other parent have the child and would rather put the child in daycare are the types of parents who also deny access. Hence I believe my comments regarding this are relevant to him.

            He also asked if he is responsible for daycare. I stated that a court order must be followed. If he has a court order that says he pays 1/2 daycare..he must pay 1/2 daycare no excuses. Does not matter what is right or wrong. Hence my comments about breaking court orders is also relevent to him.

            Next point I discussed was the type of court order he might have. Final or Temporary. He makes no statement about what it is so I covered both. I covered what he would do so he could see his child during this time frame and briefly discussed this for both final and temporary court order situations. This is also relevant.

            The 40&#37; rule. What are the reasons the other parent would their own child the right to have time with the other parent and instead prefers to stick the kid in daycare? Also secondly this also which takes away from overall funds that can be spent on the child. Answer to the type of parent that would do this...a $#%@ who does not have the childs best interest at heart. As this situation appears to be one where we are dealing with such a parent and such parents place money above the welfare of the child then a key money matter is the 40% rule. Hence I mentioned this which is relevant to this man.

            The fact I mentioned that Section 127 says breaking court order criminal offence is also relevent. Why you ask? If the otherside denies their own child the right to be with the other parent and will put the child in daycare instead of letting him be raised by a parent I think such actions demonstrate a spiteful person who has their own interest of spite at heart not the childs. Such people tend to break court orders via denying access. I believe the way to redress this is in criminal court via private prosectution not in family court. I have heard situations in family court where a parent denies access and then is not held to account in family court. When criminal charges are laid against such an access denied they tend to start to take the responsibiltiy of ensuring the kid gets to the other parents house as very serious. The fear and or experience of jail tends to do that. Hence while it may be a little long winded I think it relevant for the above reasons.

            Of course once again this is just my opinion and should not be constured as legal advice.

            Comment

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