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  • Motion to relocate

    Hi,

    I know this has likely been put to the group hundreds of times over (and I did find and excellent earlier post from 2013 http://www.ottawadivorce.com/forum/f...sidence-14033/)

    Our story- 4.75 years ago my SO and EX separated, with two young children. SO and I have been together just over 4 years but have know each other since high school. EX has been in minimum two relationships in that same time, reportedly with a restraining order against the first. The custody battle has never stopped, even after the final order as it was vague in a few respects. We argue that we have shared custody (over 40%), EX argues we do not. We were back in court already arguing for a more definitive custody plan, when EX slips in a motion to allow her to relocate the children 2hrs away to be with her BF.
    We knew this would happen (if she could hold onto him long enough) and SO expressed this to the OCL 2 years ago. It's in her report that SO had this concern but that EX told OCL that she had no intention of moving to maintain stability in the children's lives and relationships with family. The OCL recommended a clause that the parents remain in this region to facilitate the children's lives, which is in the order.
    EX cites being in a long term relationship (for longer than they have been), that they are serious and hope to move in together and that among other "reasons" BF cannot move out here due to his work. She cites that this is in the best interest of the children to relocate them and is willing to give SO more weekends and summer (but far less than SO currently has) and reduce support due to travel expenses. EX has not mentioned anything about her own employment as her current company works only in our area, meaning should would have to leave her 4th (or 5th) job in as many years. There is no explanation of how this is in the children's best interest.
    ALL of SO and EX family is in this area along with the children's school, friends and activities. The children are in elementary school - Eldest child an early junior and youngest is in her early primary years. Eldest has educational, emotional and social needs that have required counselling from the regions must respected child psychologist and developmental therapist for 3 years. Although EX was the one to request the services initially, SO has been the only one taking him as we see and understand his continued emotional and mental struggles. EX has verbalized to eldest that she doesn't know why he still goes. Eldest also has a very strong bond with his paternal grandmother who lives very close to both SO and EX. SO has a fairly significant support structure of educators that help us to work within the eldest's educational needs (although not a severe delay, but he does need extra assistance), EX has no such support structure. Eldest and I work well together and I can see that he is not getting the continued practice with EX on his scholastic skills when he is away from us. The youngest is otherwise a well-adjusted little girl, but she has lived with this lifestyle from a very young age.
    (Side note - EX has refused them play dates and birthday parties in favour of her own desire to travel to be with BF.)

    Although the transitions will be a nightmare fighting through traffic, we have no issues with her moving per se, however, we firmly believe it is in the children's best interest to remain here with us. We would grant EX the same access she proposed for us and would waive any support. This is a stable home with two parents and two kids, where they are our sole focus. EX wants to move them into a blended family who they are comfortable with, but do not get the focus that is required.


    We see this as being purely selfish move by EX and the kids are simply luggage to her.
    What do we need to do here? What are our chances?
    SO is destraught that he could virtually lose his kids.

  • #2
    From all the reading I've done, here and other sites, your SO's ex has a very tiny (if at all) chance of being granted the children's move. A new boyfriend would not be considered a valid material change in circumstance. Keeping the children status quo will be the priority. And if that's in their current neighbourhood, at their current school, that is likely what the judge will decide.
    Although, she herself is free to move any place.

    I do not believe you would be able to waive support completely, as that is the right of the child, but a reduction for travel expenses would be an understandable offer and may help you convince her to agree with leaving the children with you and your spouse.

    As it is her move and her choice, she would not automatically be granted any reduction for travel expenses, that would be more of a negotiating tactic for you to use.
    My ex chose to move away from the children and is responsible for 100% of travel expenses plus child support.

    Comment


    • #3
      If you have shared custody, the judge will not allow the move unless they find the mother has been the significant dominant figure.

      Generally in sole custody situations the move is granted, in shared custody it is a toss up but the other factors (family in the area etc....) become very significant

      Its important that you emphasize that whether its shared custody or not (technically) that your SO is a daily/weekly major presence in the kids life at about the same level of ex-wife.

      Comment


      • #4
        SO just spoke with his lawyer who confirmed that we can't waive child support. He's at work so I couldn't participate in the call.

        SO makes more than EX and under our counter-offer SO would have the majority of time with the kids.
        Would SO have to pay her because he makes more or would she have to pay him because he has more time?
        Can he offer a significant reduction to CS? We're trying to figure out how to make our counter-offer as palatable as possible (even though we know she'll refuse).

        Comment


        • #5
          Originally posted by cpartener View Post
          SO just spoke with his lawyer who confirmed that we can't waive child support. He's at work so I couldn't participate in the call.

          SO makes more than EX and under our counter-offer SO would have the majority of time with the kids.
          Would SO have to pay her because he makes more or would she have to pay him because he has more time?
          Can he offer a significant reduction to CS? We're trying to figure out how to make our counter-offer as palatable as possible (even though we know she'll refuse).
          If access will be 40/60 or 50/50 then offset child support would apply.
          The higher earning parent would pay the lower earning parent the difference between what each of them would pay based on full child support.

          I think the only way you can legally go about that is to offer a reduction in what she would be paying for travel expenses.
          You can't reduce child support without valid reasons, it is the right of the child.

          Comment


          • #6
            Is your counter offer to get her to not move? Or for an update to CS? Im confused.

            If its to get her to not move you cant waive cs. You can go for a reduction as now access with cost money. If youre trying to get her to not move you cant negotiate cs away.

            If youre waiving support for the ex you cant do that either. She will still be obligated to pay some support.

            Comment


            • #7
              We won't stop "her" from moving but the kids lives are here. If she wants to move then we're fighting for increased custody and she can have them on the reduced weekend schedule she's offered us. It was our hope that we could sway her greed by us waiving or significantly reducing any child support she would pay to us.

              She's seeking to reduce us from our minimum of 152 overnights (this year = 42%) down to a maximum of 100 overnights (27%).

              We're countering with a very similar offer but allowing her more summer access and where possible approximately 20 additional overnights (33%) should she wish to keep them overnight on Sundays at her mother's (who we presume will stay in town). As it stands EX drives the kids in from the BF's on Monday mornings for school, so it would be the opposite direction for her. We'd also allow her mother to use this additional access for time with the children (and trust me, we're no fan of her either) but it would be for the kids.

              So, her offer puts her at 73% and our counter puts us at 67%. As you can see, it's quite the divide.

              We think she's already told the kids that they'll be moving because the youngest has asked a few times if Mommy emailed Daddy about "something". And the eldest is being very and unusually tight-lipped and seems very off-colour. He shushed his sister several times last night when she tried to say something about Mommy. I caught him crying at the table while SO and youngest were upstairs sorting laundry and I was cooking. When I asked if him is he was okay he just sniffled and said yes. We don't know for sure, but this is definitely something she'd do, tell them they were moving long before SO has even been informed or anything has been decided.

              Comment


              • #8
                Motion to relocate

                Ya you need to just go with "no you cant take the kids". Then do some can lii searches (if youre self repped) on this. A family member successfully fought this when his ex wanted to move four provinces. He demonstrated that there was no benefit to their relocation as all their activities and schooling was here. The judge agreed as he was able to show that the kids had no stable life out there. All family, friends, school supports etc were here. They also had 50/50. Your ex will need to show that moving is a benefit and if she has no job its a bigger risk.

                Ask for costs too.

                ETA prepare yourselves for an emotional roller coaster too. She has probably told the kids and the next step will be "daddy wants to ruin your life by making you stay". He needs to communicate to her that she shouldnt be discussing this with the kids until there is a final decision.

                Comment


                • #9
                  We're prepared to tell the kids that there are a lot of people who will decide for Mommy and Daddy whether they stay or move, and that Mommy has to explain to those people why she thinks its better for them to move than to stay - and in a positive lots-of-smiles way.

                  SO and EX's communication has deteriorated significantly in the last 6-8 months. Telling her to do or not do anything would cause a huge fight so we stick to our lawyer.

                  She keeps says she has "reasons" for not believing the kids should be with us, but what they are we can't fathom. She'll argue that this is a long term, committed relationship where the kids are happy and comfortable. He has money and can support them - and he has a pool. Apart from that there is no benefit to the kids.

                  Comment


                  • #10
                    when EX slips in a motion to allow her to relocate the children 2hrs away
                    All of the issues are related and should be dealt with at trial. If there are deadlines then why doesn't everyone agree to disagree and ask a judge to set the matter down on the next trial list? Everyone marshals their evidence as to what is in the child's best interest then alea iacta est.

                    Comment


                    • #11
                      If the kids have been at the same school, in the same neighbourhood, etc., for almost 5 years, and have spent 40% of that time with Dad, I think there would have to be very compelling reasons for a judge to allow Mom to relocate the kids. If Mom moves, no matter where the kids end up living there's going to be a big disruption (because they'll be seeing a lot less of one parent), but the disruption will be smaller if the kids' school and neighbourhood stays the same.

                      I think OrleansLawyer is right, this would be best handled by a judge, as it sounds like you also have a dispute over whether your arrangement is shared parenting or not. If it's shared parenting, Dad's case is very strong, if it's not shared parenting, still strong but not quite as strong. You need to get a determination on that.

                      Comment


                      • #12
                        Our lawyer has asked for an adjournment to be able to properly consider and counter the motion to relocate.
                        We're definitely going to court and trial on this if necessary (which it will be).

                        SO attends the kids extracurricular activities (3hrs on her days) and volunteers in their school (on both parent's days). There are occasions when EX can't take the kids to their extracurriculars and has her parents take them, similarly, there are some night SO can't make it and his parents go when when they can. Should we be making sure that SO's parents attend on the nights SO can't, to show that he and his family are ever present in the kids lives?

                        What else can me do to show that her motives are purely selfish and not in the kids best interest?

                        Also, we're looking at a counter offer (which we know they won't agree to) which is virtually the same as what she offered us - alternating weekends and half the summer. We're pondering whether to include a stipulation that should EX's mother remain in our area, EX will be given additional Monday nights with the children during the school year within her mother's home. Like if it's her weekend and she is able to care for the children in her mother's home (thus the kids will be in school), she can have the kids until Tuesday morning instead of Sunday evening. And we'd also allow for EX's mother to pick-up the kids after school on the Friday of EX's weekend and drop-off to school on the Monday morning after EX's weekend to allow the kids to continue their relationship with their maternal grandmother (as this move will take them away from her also). Can we/should we do this? Does this open us up to something we're not thinking of? We want to do what's right for the kids.

                        Also (#2), is there anything we can do about stopping EX from removing them from their school? She's already done this once during the divorce process, removed them from one school and enrolled them in one of her choosing without notifying SO. I was shocked that the school/school board didn't notify us or seek his permission. What legal options do we have?

                        Also (#3), EX has a history of restricting and refusing access to SO (which is why we were back to court to start with). So is afraid that EX will start pulling the “I have a flat tire”, “The weather is too bad”, etc excuses to restrict/refuse SO’s access even further. Is this something that we can use in our favour?

                        Comment


                        • #13
                          Mom and Dad are the kids' guardians so parenting arrangements are between them, not third parties like Grandma. In other words, you can't say that you'll "allow" Mom to have the kids until Tuesday morning only if her mother is in town - if it's Mom's parenting time, she decides who it will be spent with, including who will drop off and pick up the kids. The way you have it set up sound like micromanaging and controlling. I suggest you either offer Mom extended weekends or don't, but don't set conditions. The exception would be if Mom has to be supervised around the kids, then Grandma is needed as the supervisor.

                          Similarly, you should give up on trying to "show that her motives are purely selfish". You can't prove a motive because you can't get inside Mom's head. Undoubtedly she thinks that your motives are crappy too. Concentrate on producing a parenting plan that meets the kids' developmental needs and forget about trying to prove who is selfish and who isn't.

                          Comment


                          • #14
                            I found a very recent case which is SOOOO incredibly similar in almost every way.

                            The judge there had actually said what we were thinking - that the mother could have additional time with the child in the maternal grandmother's home in the designated area as the child was very accustomed to being there, that the mother had a family support structure in the designated area can would be granted additional nights when possible. The judge stated on the flip side that it was not feasible to provide the same provision for the father as he had no support structure in the relocation area.

                            That's what we were thinking, not micromanaging EX's time but trying to allow for the "maximum contact principle" (as we're quickly reading up on).

                            Comment


                            • #15
                              This may be a case where wording is important. You may wish to say something like "in recognition of the children's bond with their maternal grandparents, we propose that Mom have access from Friday after school until Tuesday morning so that they can maximize their time with Mom's parents". This sounds better than saying you would allow Grandma to pick up and drop off the kids on Mom's weekends. The end result is probably the same, but one phrasing sounds more co-operative and child-centred than the other.

                              Comment

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