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  #1  
Old 10-14-2009, 02:42 PM
canniiee canniiee is offline
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Default Chances of a Judge agreeing to go back to original agreement

I just got surprisingly served with court documents from my ex, requesting our divorce and permanent residence and child support…There is a case conference scheduled for November 18th, 10 days before my due date. I believe this stems from the fact that I asked my ex to go back to our original separation agreement of 50/50 no PR and I believe that really made him mad…I want to know the chances of a judge allowing me to go back to 50/50 and no primary residence with my kids. I have retained a lawyer, but I don't get in to see him until next week and I'm in such a panic now I just want to see if anyone else has gone through the same thing. These are my notes that I've been keeping to make sure I don't forget anything when I see my lawyer; you should get a good idea of my situation from this:

Separated March 2007

We continued to live under the same roof until March 2008 in order to make the separation transition easier on the children.

March 2008, I moved into my parent’s home and began the 50/50 one week on one week off.

In April 2008 my ex moved in with his mother in Kanata and commuted with the children to Orleans and back to Kanata each day, he felt that this was acceptable and I did not contest.

From March 2008 – September 2008 my Mother acted as a daycare provider for the children, on both of our weeks. I myself paid my Mother and Father for all child care and associated costs and did not ask my ex for any financial contribution, nor did he offer. He did not contribute whatsoever financially in regards to the children for this time period, other than when he physically had them. I was laid off from my job in April 2008 and did not gain employment until May 2008 and did not receive a first pay until June 2008, and still did not ask for any contribution for Daycare from my ex.


September 2008 both children began new Daycare’s we agreed to each cover a cost for 1 child, I covered our daughters care at $600/month and he covered Son’s at approximately $400/month


In September 2008 my parents informed me that they were putting their home up for sale there was no pressure for me to leave however I felt that I would need to start looking to get on my feet and on my own. It was impossible for me to find a suitable home for me and the kids in Orleans, as the only place I could find within my budget were 1 bedroom basement apartments, which I did not feel were suitable for the children, so I began to look elsewhere and moved into an apartment with my boyfriend in Gatineau. By no means was this a nice place, but it fit my budget and I tried to make it work, the kids did not like my place very much (especially in consideration of the home they had with their father) and my ex was constantly intruding into my personal business. It became increasingly difficult to manage all my bills and pay for the gas on my own, and the children were not especially liking my apartment, so my ex and I decided, that for the time being on a temporary basis, he could have the kids during the week and I would have them every other weekend, I was always under the impression that this was temporary and always made it clear to my ex that I wanted to keep my 50/50 and as soon as I got back on track financially and found a suitable home that we would return to the original agreement.


Beginning in November 2008 my children received subsidized spots in the school daycare, my ex wanted to go ahead with the subsidy but told me the only way he could get it was if he said he had primary residence, so I told him yes go ahead and do that so that we can have free daycare as we were both tight financially.


In December 2008 my ex informed me that the City wanted to see proof of primary residence, he said we absolutely had to get an amendment done to the separation agreement, stating he had primary residence, he assured me that this was only for subsidy purposes, and reluctantly, without legal counsel I signed the amendment, as he assured me it was only for the subsidy and that we could go back to one week on, one week off when I was financially stable. The amendment was signed by me and returned to his lawyer; however to this date (October 7, 2009), I have still not received a fully executed copy for my records. I have however requested one.


In March 2008 I lost my vehicle, I missed one payment and the lender was totally unwilling to help me out whatsoever, so it became impossible for me to go back to 50/50 with the children as I had no transportation, and due to my credit history was unable to get a loan on my own.


Since March 2009 I have been providing my ex with $200/month, which was an amount he requested, as well as covering all costs in relation to the kids (when informed) 50/50. Items covered include, school supplies, extra activities, special school lunches etc…


In June 2009 my boyfriend finally, after a year of looking, found a permanent stable job. The extra income has helped me significantly get back on my feet and I am now able to go back to the original 50/50 agreement.


In September 2009 my ex started a new job which requires him to work Saturdays, he asked me to keep the kids on Friday nights and Saturdays during the day, which of course I agreed to and have been doing.


September 2009 – In conversation I asked my ex if we could go back to 50/50 split time, he did not seem to like this idea, and then I come to find out he has filled to finalize the divorce and ask for a permanent child support which leads me to believe he wants permanent primary residence, which was not what I asked for.


We have also recently purchased a vehicle and are now able to bring the kids back and forth to school, just as he did when he moved to Kanata originally. It has always been my intent to go back to 50/50 as soon as I got a vehicle and we just finalized the paper work for the vehicle on October 7th, 2009, thus why I am now requesting to go back to 50/50 no primary residence.


I will be going on Maternity leave at the end of October 2009, and will be off work for one full year so it will be no problem for me to transport the kids to and from School as well as to daycare.
  #2  
Old 10-14-2009, 03:46 PM
representingself representingself is offline
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Quote:
Originally Posted by canniiee View Post
I just got surprisingly served with court documents from my ex, requesting our divorce and permanent residence and child support…There is a case conference scheduled for November 18th, 10 days before my due date.
Were you served with a Motion to vary an existing court order?

Quote:
Originally Posted by canniiee View Post
I believe this stems from the fact that I asked my ex to go back to our original separation agreement of 50/50 no PR and I believe that really made him mad…I want to know the chances of a judge allowing me to go back to 50/50 and no primary residence with my kids.
How many children are involved and how old are they?

If the agreement had been all along that once you were financially stable, you would return to the 50/50, why do you believe he is so angry, all of a sudden?

Quote:
Originally Posted by canniiee View Post
I have retained a lawyer, but I don't get in to see him until next week and I'm in such a panic now I just want to see if anyone else has gone through the same thing.
If finances are so tight, and you are about to go out on maternity leave, (which means you'll have less money), do you think it is absolutely necessary to involve Lawyers? Is there any way that you and you ex can try to mediate these issues first?

Have you applied for Legal Aid, or Legal assistance from your employee/union benefit package?

Quote:
Originally Posted by canniiee View Post
March 2008, I moved into my parent’s home and began the 50/50 one week on one week off.

September 2008 both children began new Daycare’s we agreed to each cover a cost for 1 child, I covered our daughters care at $600/month and he covered Son’s at approximately $400/month
Did you have a written agreement at this time for joint custody? Did you have an agreement in place for child support and section 7 expenses?

If not, you could be entitled to retroactive child support and section 7 expenses for the period of March 2008, to September 2008.

Just because you agreed to joint legal custody, doesn't mean that child support becomes a moot issue. Even with 50/50 time sharing, the parent with the higher income could be responsible for financial contribution based on the off set method.

Quote:
Originally Posted by canniiee View Post
By no means was this a nice place, but it fit my budget and I tried to make it work, the kids did not like my place very much (especially in consideration of the home they had with their father) and my ex was constantly intruding into my personal business. It became increasingly difficult to manage all my bills and pay for the gas on my own, and the children were not especially liking my apartment, so my ex and I decided, that for the time being on a temporary basis, he could have the kids during the week and I would have them every other weekend,
It seems as though you willingly relinquished joint custody to your ex in September 2008, and as such, he has had over a year to fully establish a 'status quo' as the custodial parent and primary caregiver. In most cases, it would be almost impossible for a Judge to consider changing the status quo if there hasn't been significant 'material change in circumstances' and the children are thriving.

Quote:
Originally Posted by canniiee View Post
I was always under the impression that this was temporary and always made it clear to my ex that I wanted to keep my 50/50 and as soon as I got back on track financially and found a suitable home that we would return to the original agreement.
Do you have anything in writing that proves that you both agreed that this was a temporary situation, and that he would return to the 50/50 once you were financially able to? If not, it is his word against yours, and it appears that you consented to the current arrangement.

Quote:
Originally Posted by canniiee View Post
Beginning in November 2008 my children received subsidized spots in the school daycare, my ex wanted to go ahead with the subsidy but told me the only way he could get it was if he said he had primary residence, so I told him yes go ahead and do that so that we can have free daycare as we were both tight financially.


In December 2008 my ex informed me that the City wanted to see proof of primary residence, he said we absolutely had to get an amendment done to the separation agreement, stating he had primary residence, he assured me that this was only for subsidy purposes, and reluctantly, without legal counsel I signed the amendment, as he assured me it was only for the subsidy and that we could go back to one week on, one week off when I was financially stable.
If I am understanding this... you signed a legal amendment to your separation agreement which gave your ex full legal custody of the children 10 months ago?

Quote:
Originally Posted by canniiee View Post
Since March 2009 I have been providing my ex with $200/month, which was an amount he requested, as well as covering all costs in relation to the kids (when informed) 50/50.
Is this the guideline amount based on your income? If not, he may seek a retroactive child support order from September 2008 to present date.... and it is likely he would win.

Quote:
Originally Posted by canniiee View Post
I am now able to go back to the original 50/50 agreement.

In September 2009 my ex started a new job which requires him to work Saturdays, he asked me to keep the kids on Friday nights and Saturdays during the day, which of course I agreed to and have been doing.

September 2009 – In conversation I asked my ex if we could go back to 50/50 split time, he did not seem to like this idea, and then I come to find out he has filled to finalize the divorce and ask for a permanent child support which leads me to believe he wants permanent primary residence, which was not what I asked for.

I will be going on Maternity leave at the end of October 2009, and will be off work for one full year so it will be no problem for me to transport the kids to and from School as well as to daycare.
Due to your decrease in income from Mat leave, will your ex be able to argue that you are once again, not in a financial position to provide for the children?

I have a few ideas, so if you could clarify things for me a bit, I would appreciate it.
  #3  
Old 10-14-2009, 04:03 PM
canniiee canniiee is offline
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Quote:
Originally Posted by representingself View Post
Were you served with a Motion to vary an existing court order?



How many children are involved and how old are they?

If the agreement had been all along that once you were financially stable, you would return to the 50/50, why do you believe he is so angry, all of a sudden?



If finances are so tight, and you are about to go out on maternity leave, (which means you'll have less money), do you think it is absolutely necessary to involve Lawyers? Is there any way that you and you ex can try to mediate these issues first?

Have you applied for Legal Aid, or Legal assistance from your employee/union benefit package?



Did you have a written agreement at this time for joint custody? Did you have an agreement in place for child support and section 7 expenses?

If not, you could be entitled to retroactive child support and section 7 expenses for the period of March 2008, to September 2008.

Just because you agreed to joint legal custody, doesn't mean that child support becomes a moot issue. Even with 50/50 time sharing, the parent with the higher income could be responsible for financial contribution based on the off set method.



It seems as though you willingly relinquished joint custody to your ex in September 2008, and as such, he has had over a year to fully establish a 'status quo' as the custodial parent and primary caregiver. In most cases, it would be almost impossible for a Judge to consider changing the status quo if there hasn't been significant 'material change in circumstances' and the children are thriving.



Do you have anything in writing that proves that you both agreed that this was a temporary situation, and that he would return to the 50/50 once you were financially able to? If not, it is his word against yours, and it appears that you consented to the current arrangement.



If I am understanding this... you signed a legal amendment to your separation agreement which gave your ex full legal custody of the children 10 months ago?



Is this the guideline amount based on your income? If not, he may seek a retroactive child support order from September 2008 to present date.... and it is likely he would win.



Due to your decrease in income from Mat leave, will your ex be able to argue that you are once again, not in a financial position to provide for the children?

I have a few ideas, so if you could clarify things for me a bit, I would appreciate it.

Thanks for your reply, I'm not too good with the quotes so I juast answered each of your questions:

There are 2 kids, they are 6 & 7.

He doesn’t want to go back to 50/50, I have no idea why he's so mad, I think it’s because I'm having another baby, that’s when all the arguments started....

I wanted to mediate... he's the one who filled court papers, he said his lawyer advised him this is how you begin a divorce...

I get topped up for 6 months of my Mat. leave, so it will only be for 6 months that I am at the lower salary.

Haven't applied for any legal aid, I didn't think I would qualify as my salary is about 45K/yr.

We had a separation agreement made in May 2008; it stated no PR, 50/50 joint custody and no spousal or child support.

Nothing in writing that this was always temporary... I trusted him and never thought he would do this to me...

The amendment that I signed was just giving his PR, other than that it was still 50/50 joint custody.

In the documents I was served with he waives his right to go for retroactive payments back to September 2008, he is only asking for payments commencing September 2009

I understand your point about a Judge seeing that the kids have been with him for a year and why bother upsetting the status quo…. I will accept that if that is the case, but in that case I’m so scared about my CS payments… with another baby on the way, my table amount would leave me broke…. Before I got my new car and was able to resume the 50/50 he and I had talked about increasing my temporary CS payments, I have several emails between us where we mutually agreed on a higher amount and emails from him stating he does not want the table amount, but now from these documents I received today he is going for the table amount.

  #4  
Old 10-14-2009, 06:43 PM
representingself representingself is offline
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Yours is definitely a difficult case! And this is just my opinion on how I would deal with it, if I were in your shoes. Only you know the complete details of your situation.....

He has excellent grounds for maintaining the status quo, especially if the children are thriving in his care... (doing well in school, keeping up with medical/dental treatments etc.).

I think if you fight this.... you are going to spend thousands on legal fees.... hours of stress, more hard feelings with your ex, and you may end up getting E.O.W visitation and guideline CS payments in the end anyways.

The hard part is that he has jumped the gun and hired a Lawyer. His Lawyer is probably telling him to hit you as hard as he can upfront (while still appearing reasonable), so that he has room for negotiations.

It can take years to work through a custody battle like this.

The first thing that the Lawyers require from both parties is a detailed financial statement... that way they know upfront how much money they can bilk from you.

They want to make as much money as they can, so they will often exaggerate your 'rights' and fill your head full of grand outcomes... that way you get your back up and start 'throwing mud'.

Truth be told, the 'system' is designed to get the both of you to reach a settlement. There are very few cases that actually go to trial, and that is mostly because trials costs tens of thousands of dollars, and most people just don't have that kind of money.

But if your Lawyer told you that, they wouldn't make the big bucks....

As hard as it is to deal with.... IF your children are happy and doing well living with their dad... then maybe you should consider leaving things the way they are... Especially since you are going to have your hands VERY full for the next year.

I am assming here, but it seems like for the past year he has possibly established a close relationship with the kids, and they are all in a good groove and he is happy.

Then you approach him and want to turn his life upside down by taking the kids 50% of the time. Add that to the fact that he is clearly hurt by your new pregnancy...
Maybe he still has some residual feelings for you??

It seems to me that he is threatened by you and he is retailating.

If I am correct about the "why" he is doing this, and the child support is going to break your bank, maybe you should bring forward an Offer to Settle.

If you are willing......

Offer him joint custody and primary residence. Put forward a request for VERY liberal access.... maybe every other weekend, plus 1 overnight (Friday or Saturday) on the alternate weekends... evening access twice a week, shared holidays, birthdays, Mothers day, ect... in exchange for below the guideline child support payments that you both agree on.

Put in a release for future claims for retro guideline support.

You can ALWAYS bring forward a Motion to vary later on, if circumstances arise that 'change' how custody and access should be dealt with.

Basically, to answer your initial question...

No, I don't think you have a good chance that a Judge will go back to your original agreement. Too much time has passed, and even though your ex may have acted in bad faith by getting you to sign over primary residence under false pretenses, I doubt the Judge will find it in the 'best interests of the children' to flip flop back to the way things were before.

Sorry...

But like I said... just my opinion!
  #5  
Old 10-14-2009, 08:21 PM
canniiee canniiee is offline
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Thank you so much no need to be sorry, in all honesty, I think your right.. but everyone around me thinks its a "no brainer" and that I'll get the 50/50 back... but I'm not so confident.

yeah he clearly has some sort of feelings or whatever for me, I can't imagine why but he seriously acts like it. like this weekend when I dropped off the kids, he was outside with his GF, I just let the kids out of the van, gave them hugs and kisses and said bye, they ran over to their step-sisters, and I got in the car and left. I get an email from him Monday morning telling me how immature I am for not going over and talking to him for 2 minutes.... Why would I talk to him, the kids aren't babies, I don't need to tell him anything... He does things like that all the time, hes always in my business, it kinda actually makes me feel bad for his GF...

I'd be willing to make the offer you've suggested, I just want this all over, as much as I want the 50/50 back, I do want this to be all over and I'm confident in my relationship with the kids, so I know I can get through life with eow and holidays, he never denies me seeing them, I have them most holidays and I could see them during the week whenever, its just the CS payments, I think he is going to stick to his table amounts he feels he is "entitled to it" and says he wants a judge to decide what's fair... not us I think the agreement we made in may (before I got my car and was able to go back to 50/50) by email exchange for $400 plus half of "extras" is fair with all incomes taken into play....

I think what's most upsetting is that he acts like hes in distress and the kids are suffering, those kids have a way better life financially now that we're not together then when we were, I've always held up my end of the bargain in relation to covering things half with him, and I'm even willing to pay reasonable child support, but those tables are just so ridiculous, I'm honestly so scared to be hit with the full amount, especially with the baby due. He's just being so mean and I'm still shocked hes being like this, but I guess I'm just naive to the fact that I can't trust him, he always makes me feel like I'm the one who broke a deal. As it is I'm all over my boyfriend to get a higher paying job in anticipation that I'll have to pay 700 + daycare. And then, come next November, when I'm supposed to go back to work, how will I pay for daycare for this new baby? theres so much to think about, I think my brain is going to fry :S

and with all that said (something I didn't mention in my first post), the kids have both told me on their own that they want to be with the baby allot and want to come back one week on and one week off when I have the baby.... would that come into consideration or are they too young to have a say?
  #6  
Old 10-15-2009, 12:07 AM
representingself representingself is offline
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Unfortunately the children are too young for their wishes to be taken into consideration. I believe that they have to be at least 10 before their opinions hold any weight in court at all.

It sounds like he is trying to punish you, and he knows that if he forces the money issue, your new baby may suffer the consequences... maybe he sees that as 'hitting you where it hurts'?

If I were you, I would be very hurt and angry, and also scared for my new family. But you have to try your best to push those feelings aside. It is of the UTMOST IMPORTANCE that you always remain courteous and calm when dealing with your ex.

Never say anything to him or write anything that you wouldn't want a Judge to see, (recordings of telephone calls and emails are admissable in family court).

If he insists on pushing this issue, and you don't get the week on, week off living arrangement back, you'll have no choice but to pay the guideline child support amount, plus your pro-rated portion of their section 7 expenses.
Judges rarely vary from the guidelines, and only under the most extreme situations. You can guarantee that you will be ordered to pay the guideline amount.

Truth be told, if you were a man in this situation, I'd say to you outright, that you had a snowballs chance in hell at winning this.... but, being that you are their Mother, and there is a lot of gender bias in the family court system... you may just get your 50/50 back.

There is really no legal reason why you wouldn't. Aside from 'status quo', he has no real grounds to deny shared parenting. What I mean is, he doesn't restrict your access, claim you are an emotionally unstable, child abusing, crack addicted, raving lunatic....

If you choose to put your 100% into fighting for this.... you can push the issue that he acted on bad faith and had you sign primary residence on false pretenses. State in your claim the reasons why you consented to e.o.w. access, and that it was very clearly agreed upon to be a temporary situation.

State that from September 2008 to present, it was in the best interests of the children that they stay predominately with their father, as your financial situation didn't allow for quality accomodations.

When your situation has changed, you immediately sought to return to the agreed upon 50/50.

You must be specific on how you plan to make the changes with minimal disruption for the children.

Take careful consideration into how you are going to co-parent effectively, provide transportation for school, extra-curricular activities, etc, etc, etc.

If you and your ex get into the 'Affidavit War' of she said, she said, it will show the Judge that you cannot work together, and he WILL NOT order joint custody if the two of you are at war.

Just be careful to not play into the Lawyers games. You don't want to go thousands in legal debt, and end up totally hating your ex.

Do as much of the work as you can, to avoid the legal bill... use the internet and forums such as this one for help. Many people self represent and do very well for themselves, but it is A LOT of work.

I still don't think its a "no brainer"... and you may have to be persistent.... but if your heart tells you that you need to do this.... then follow it. Then there will be no regrets.
  #7  
Old 10-15-2009, 08:46 AM
canniiee canniiee is offline
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I'm totally going to do as much work as I can, I work in law, financial law, but I still work for lawyers, so I'm familiar with processes. I don't want to fight in court one bit, I do want them back 50/50 since its what I always thought, but I can see now that he's willing to put up a fuss, so I don't want to take the chance... Not that I don't want to fight for my kids, but I'm not hard headed, I want them to be happy and I know if I'm fighting in court and etc.. I'm not going to be a happy person for them. Sometimes in life I guess we just have to suck it up and take it.

No there is no legal reason, or any reason at all for that matter that I shouldn't have them 50/50, but I can't hope for the fact that a judge will favour me since I'm the mother and change their "status quo".

So saying that, the more I read and research, and your replies, the more I think I'm just better off to try and negotiate the cs with him before this gets to the case conference on the 18 of November.... god I can't wait to meet with my lawyer on Tuesday. oh btw is there any way to delay the case conference? I mean I'm due 10 days before, I'm not really looking forward to having to drive into Ottawa, in the possible snow and sit in court so close to my due date, can you request to delay these conferences?
  #8  
Old 10-15-2009, 05:35 PM
representingself representingself is offline
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Sure, you can ask for a continuance...

Under the circumstances, I am sure both of your Lawyers would agree to it.

I hope that your ex will negotiate the child support with you...

Good Luck...
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Old 10-20-2009, 12:32 PM
canniiee canniiee is offline
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Thanks for all your good advice representingself, I just wanted to let you know that I took everything you said and was able to come to a decision that would save legal fees and really just end all this and move on. I decided to just make an offer to my ex for a lower CS, and leave the children in the routine they are currently in. I knew it would be a long and costly battle to go back to our original agreement, and even though I do feel like yet again, he won, I'm just going to let it go because for my kids I can't be a bitter person and for me, I need to just move on.

Since the court papers he sent me were asking for the Quebec table amount I got my T4's and went to the Justice site and got the amount for Quebec which is $520/month. So what I did was a sent him a super nice long email and offered him $500/month including daycare (he gets a subsidy and we split the extra he has to pay) and we would include that in the $500 there is a $75 daycare payment which will increase over time and that we will split it. I also asked for all the vacation and holidays I could and made sure to put in there that I have them every weekend and he basically agreed to everything. He added a few petty clauses in there, but whatever. He also agreed to open a bank account and have me deposit the money in it and it would be like a savings account, if he doesn't use a portion he will just leave it and the kids will be able to have access to it for extra things. basically it looks like its all going to work out, his lawyer is doing all the work, I'm just going to have my lawyer review and answer any questions I may have. He also dropped his request for back CS to September 2009 which was nice. I find it amusing that he went and started court proceedings without even trying to work something out, and that it was so easy for me to change his tune. I'll be happy when this is all over!
  #10  
Old 10-20-2009, 12:53 PM
billiechic billiechic is offline
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Congrats. I hope you can spend as much time as possible with your kids, and that one day you will have them equally.
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