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  • Starting the Process

    Looking to get any guidance, dont have any experience with this
    Me and my Wife have been living separately for 5 years now. We have 3 kids together she has one child from before and is currently pregnant with another person's kid

    We have never done a seperation agreement, I tried organizing Mediation but she failed to follow it. I have also emailed Parenting Emails for we can work together to make an agreement. But she fails to respond.

    Currently I get the kids every weekend and we split holidays. and im paying support slightly less then the amount on the chart. Everything have been working out alright although shes always early when dropping off the kids and always late picking them up when she drops them off or sometimes not home when I drop them off.

    I have been recording everything such as drop offs and pick ups, and our communications. I also save all text messages and print them out to file.

    I do have criminal charges from 2009 and 2010.

    She does not work and has never held a job past 3 months


    I would like to get them full time,

    In my situation what should I do?

    I would really like to do it as peaceful as possible

    Sent from my LG-H812 using Tapatalk

  • #2
    What is your reasoning for wanting the kids full time and how do you plan to show that this is in the children's best interests? You would have to prove the mother is unfit or negligent in order to achieve this, none of which you have mentioned in your post.

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    • #3
      Originally posted by blinkandimgone View Post
      What is your reasoning for wanting the kids full time and how do you plan to show that this is in the children's best interests? You would have to prove the mother is unfit or negligent in order to achieve this, none of which you have mentioned in your post.
      Mother's are able to achieve this without ever even coming close to proving the father unfit or negligent, therefore, it is not just the case of one parent being unfit or negligent in order for the other parent to get custody. If conflict is present (which most always is after a separation) then one parent must be selected as the primary parent over the other, and unfitness or negligence by one parent is often not present nor proven and not the deciding factor.
      Last edited by tunnelight; 12-02-2018, 12:18 AM.

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      • #4
        how old are the kids
        what are the criminal charges
        why do you think you should have sole custody after the status quo of the last 5 years

        Comment


        • #5
          Originally posted by walhalla View Post
          Currently I get the kids every weekend and we split holidays. and im paying support slightly less then the amount on the chart. Everything have been working out alright
          I would like to get them full time
          I would really like to do it as peaceful as possible
          So, mother is getting almost table child support, and has the kids almost full time, and you want to complete reverse that. You want her to pay you child support, and for her to barely see the kids at all.

          ...and you think this might happen peacefully?

          I do have criminal charges from 2009 and 2010.
          What the other posters said is of course very relevant. You need a reason to switch, and you haven't really laid one out here at all. Without a material change of circumstances, your case is dead in the water right from the beginning.

          That said, you're a father with a criminal history and a 5 year status quo against you. Even if you were able to argue that there was a material change, you would be lucky to get shared.

          Save your money, take the kid on a nice vacation.

          Comment


          • #6
            I dont expect and child support as she does not work.

            Reason I want to do this is I believe it will be better for the kids. She does not do much with the kids, They complain about having to stay in their rooms all afternoon cause her friends are over.

            I have taught the kids to Skate, ride bikes and we do school work st my place on weekends. And spend quality time with them

            Kids are now 9, 8, and 7 and their behavior is getting worse and I can only do so much on my weekends.

            So for me to have a chance to have a case for custody I have to put her look bad?

            What about split custody, this she would likely even agree on. Would I still hsve to pay table support since she does not work?

            If I get a record suspension would my criminal record still be used against me?

            Sent from my LG-H812 using Tapatalk

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            • #7
              Yeah, none of what you have listed is in any way a material change, nor is it anywhere near neglectful or dangerous for the kids.

              Her not working means she is available to care for the kids rather than them being in childcare.

              And no, for you to have full custody, you or an agency would need to have facts and proof that she is either harming or neglecting the kids. Your job is not to make her look bad. Your job is to be a good and effective coparent. And if you refuse to do that, then at least be a good parent on your time.

              Teaching the kids to skate and ride bikes etc is great, but isn't proof of being a good parent. I know people who taught their kids to ride bikes outside and beat the snot out of them and starved them behind closed doors.

              Have you even discussed with the mother increasing your time with the kids or did you just jump right to "how do i get the kids full time" and how to make her look bad to do so?

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              • #8
                You haven't mentioned what your charges were for so there is no way to know if they would even impact your case in any way.

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                • #9
                  Originally posted by Janus View Post
                  What the other posters said is of course very relevant. You need a reason to switch, and you haven't really laid one out here at all. Without a material change of circumstances, your case is dead in the water right from the beginning.

                  That said, you're a father with a criminal history and a 5 year status quo against you. Even if you were able to argue that there was a material change, you would be lucky to get shared.

                  Save your money, take the kid on a nice vacation.
                  The legal term "Material change in circumstances" is totally irrelevant to your case. You not need to prove any material change in circumstance as you are not commencing any motion to change any court order. You do not even have any separation agreement in place and this may be a good thing for you.

                  I somewhat agree with Janus however that the "up in the air" status quo could be a hurdle for you IF the matter goes to court. You don't need to meet the motion to change bar/threshold and "prove" any "material change in circumstances" per say , but you need to give good reason for wanting a new status quo in court. This could be as simple as the children are not adjusting well to current arrangement and the mother is refusing to grant you any additional periods of care.

                  You then suggest what periods of care you feel would work for the children and why. This would be done in way of affidavit in support of Claim of custody and access ( http://ontariocourtforms.on.ca/stati...flr-35-1-e.pdf) served and filed along with your application.. An example of this would be that you would pickup the children directly from the school for your periods of care and return them to school at the end of your periods of care. This will eliminate the children having to wait around when the mother is late and reduce the possibility of any conflict between the two of you during exchanges.

                  You would also ask for one or 2 overnights during the week to allow your more involvement with their normal routines, i.e., school, appointments, etc. The courts are likely to encourage expanded access of this nature to fathers who are trying really hard to step up to the plate but the mothers simply won't allow or otherwise "gate-keep" them, without sufficient cause.

                  For sole custody, you could argue that the children are not thriving under the primary care of the mother (school progress, report cards, etc) . and that there is too much conflict for shared parenting to work. Your best bet here would be to ask for the OCL to get involved and make recommendations BUT more often than not they side with the mothers.

                  If you want to go for shared/equal periods of care, which I think is what you should do here, then could technically just change the "up in the air" status quo and hope the matter never goes to court. You could technically just keep them for half or all of the time but you have to be very careful how you approach and do this. It could easily backfire on you if the matter goes to court. Other members could chime in here to suggest the best approach to this but I would personally start by letting her know that you would like to start to pick up the kids from school for your periods of care starting on X date, and return them to school when you are done with them on Y date. She can, and will likely say no but she can't really prevent you from doing that without any court order or separation agreement entitling her to do so.

                  If you want shared parenting, and with the going to court method, best way is to start by requesting more time, taking what you can, and documenting her denials. That would be the best way to prepare for court and not really piss her off. If you piss her off too much, then that could be used against you to keep you below shared parenting.
                  Last edited by tunnelight; 12-02-2018, 07:14 PM.

                  Comment


                  • #10
                    Originally posted by blinkandimgone View Post
                    You haven't mentioned what your charges were for so there is no way to know if they would even impact your case in any way.
                    More than likely not relevant if access is not supervised and he comes into regular contact with the mother. Especially given they are from 9 years ago.

                    Comment


                    • #11
                      Originally posted by tunnelight View Post
                      The legal term "Material change in circumstances" is totally irrelevant to your case. You not need to prove any material change in circumstance as you are not commencing any motion to change any court order. You do not even have any separation agreement in place and this may be a good thing for you.

                      Yeah, I missed that. tunnel is right, without a separation agreement you do not need a material change.


                      I still think you're swimming upstream though. Now instead of an agreement you have a status quo that you accepted for many years. Your situation is slightly better, but it is still really tricky.


                      I think tunnel has some good advice. I'm just going to leave off by saying that I would not even ask for sole custody. That is never going to happen and it makes you look unreasonable.


                      If you want to go for shared/equal periods of care, which I think is what you should do here, then could technically just change the "up in the air" status quo and hope the matter never goes to court. You could technically just keep them for half or all of the time but you have to be very careful how you approach and do this.
                      That seems a bit nuclear after 5 years of being a non-custodial parent. I might give some friendly warning, and have her say no rather than just acting unilaterally.


                      Dearest ex,

                      For many years I have been hoping to have more time with the children. I think we both have much to offer them, and it would be of great value if they could have quality time with both parents.

                      As such, I believe we should transition to an equal sharing schedule. I am open to negotiation on what structure that should take. I prefer a schedule known as 5-5-2-2. but perhaps a week about schedule might be more amenable to your needs?

                      I am proposing a three month transition schedule, as laid out below. Unless I hear back from you by December 11th, I will assume that you are in agreement, and I will be picking up the kids from school.

                      Sincerely,

                      Wonderful (no longer criminal) Dad

                      She will say no of course, but then at least you have your reason for going to court

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                      • #12
                        Thanks for the help everyone. I suppose it does seem unreasonable to ask for full custody. I will look into getting split custody. If I do get split custody how would it effect childsupport. Would ai be paying less?

                        Sent from my LG-H812 using Tapatalk

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                        • #13
                          Originally posted by Janus View Post
                          Yeah, I missed that. tunnel is right, without a separation agreement you do not need a material change.
                          They don't apply it in the same way but, the OP will still need to demonstrate why the status quo no longer works. Using the rules of material change is not a bad idea in this kind of situation with a long status quo that has never been challenged.

                          The test is still pretty good on helping guide the argument even if it is not directly applied.

                          Originally posted by Janus View Post
                          I still think you're swimming upstream though. Now instead of an agreement you have a status quo that you accepted for many years. Your situation is slightly better, but it is still really tricky.
                          It is mostly a lost cause. 5 years is generally 1/4 of a child's life with their parents. (Well where they get support generally speaking.) It is also 1/2 of the most important years of parenting. After 10 children are very different and their needs from parents change. If this is about participating in a child's life then the OP has missed half of what is REALLY important.

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