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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 05-05-2022, 06:52 PM
MarkSwayCanada MarkSwayCanada is offline
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Hi,

we have two girls (5 and 1.5 years old). I've moved out of the house a year ago. This will be our third mediation that just deals with the parenting time.

Currently I have the 5 year old 5 nights over two weeks. And I have the little one just one night over two weeks. And I see the little one about 4 times over two weeks for short times as apparently she is still being breastfed.

I just want 50/50 but she is refusing. Mediation is next month. The little one just started having an over night recently. And its been fine. My oldest doesn't like it as I think she just wants me all to herself.

There has been no abuse and we stay close to each other and no infidelity either. She just doesn't want to

Is there any case law that I can rely on? I have a lawyer and have already spent so much.

Please help me. I miss my kids so much. I'm worried about the bonding time. I'm worried how this is affecting my oldest too.

Thanks
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Old 05-05-2022, 07:08 PM
Hide on Bush Hide on Bush is offline
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There are definitely more qualified people here to answer this question but a judge doesn’t care what either parent wants. They care about what is in the best interest of the children, which, outside of specific circumstances, is to have a full relationship with both parents.

IMO Case Law on standard parenting-time and decision-making in a situation as simple as you expressed (no abuse, kids are young) isn’t really needed. But to give you some peace of mind: Huess v. Surkos, 2004 CarswellOnt 3517, at para. 30 has the judge stating:

“I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children. What I glean from these cases are the following principles: First, it is important to maximize the contact between access parents and young children. Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish. Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits. And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.”

As for breastfeeding I remember seeing a recent case where a judge ruled against the mom saying that breastfeeding isn’t a guarantee of majority parenting-time. I’ll see if I can find that.

Edit: here you go Holomey v. Hillis, 2020 ONSC 6299 (CanLII) that deals a lot with breastfeeding and parenting time

Last edited by Hide on Bush; 05-05-2022 at 07:17 PM.
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Old 05-05-2022, 07:19 PM
MarkSwayCanada MarkSwayCanada is offline
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Thanks. I agree whatever is in the best interests of the children.

I should add that my stbx has hired a very combative lawyer. It’s very contentious- but really all that matters is the kids. She is very wealthy (family money) and I am not.

I’m just wondering if I should have gone straight to court. The past two mediations have not been collaborative. I just take whatever she is willing to give. My lawyer advised that she only gave a bit as strategy as else I could don’t an emergency court hearing.

I’m mentally exhausted. But know I have to fight for the kids
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Old 05-05-2022, 09:07 PM
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Janus Janus is offline
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The bad news:

You probably should have never left the house, or accepted less than 50% parenting time of the 5 year old. That dug a big hole.

The good news:

Kids are still young, this is a reversible situation


What to expect:

Right now the mother can get a lifetime of free money. 5/14 is the perfect "fuck you" schedule, because it puts you under 40% which means you have to pay full table support.

There is no chance she will give you that extra day willingly. It would cost her tens of thousands of dollars. Depending on your income this could easily be a $200,000 difference over the lifetime of the child.

This will require court. Mediation is costing you money and time, neither of which you can afford. Again, there is no chance she will willingly move from 5/14, no chance at all.

What you need to do

You need to explain why it would be better for the child if you had 50% of the time. What would the kid get that kid is not getting already with the 5/14? As previous poster said, your desires are irrelevant. You have to be able to create the tapestry that shows how much more awesome life will be if the kids are with you 50% of the time.

You also need to become insanely involved with the kids. Sign kid up for activities and be there. Attend every single doctor or dentist appointment. Try to take days off work when the kid is sick so you can show your availability as a parent.

Super sucky thing

You might need a lawyer, you're in a hole. Tough to get out of it.

Edit: Just read that you have a lawyer. Why the fuck is the lawyer not moving this to court? Have the lawyer send an offer to settle, and then stop negotiating. Negotiating is expensive. Tell your lawyer if they want to negotiate they can send an offer to settle back to you.

Last edited by Janus; 05-05-2022 at 09:10 PM.
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Old 05-06-2022, 08:55 AM
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Tayken Tayken is offline
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^^^^ This.

I am just going to further emphasize that you won't get anything changed in Mediation.
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Old 05-06-2022, 10:57 AM
Bogdan Bogdan is offline
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From my very similar experience, I’ll say that getting things changed in mediation is unlikely but not impossible.

I made the similar (mistake?) of excepting less than 50/50 interim agreement which made it an up hill battle.

Ultimately after multiple days of mediation (high conflict) we agreed to a progressive schedule that moved up to 50/50 over 2 years. Expensive, but still cheaper than court.

Indefinite 5/14 access with a high conflict ex a horrible situation you can be in - full child support plus Section 7, the same at home child expenses as the mother, and 18+ years of conflict, contention and even more legal fees. Advice that I’ve received (including legal), is at that point the consideration needs to be made to just move on with your life. Sad I know.
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Old 05-06-2022, 12:39 PM
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On the breastfeeding front, you have the youngest overnight, how are you feeding them at that time? Whatever that is, would certainly be acceptable for more overnights. If mom insists that breast milk is vital she can pump and provide.
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Old 05-06-2022, 01:35 PM
Brampton33 Brampton33 is offline
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5/14 is a high conflict ex's dream and a horrible situation to be in financially. You basically have children enough to require you to spend as though you have 50/50, BUT you must also pay Table CS. It is literally a gravy train for your ex who will receive a monthly windfall.

I know I repeat this in threads related to 50/50...but here is a snippet of what I saw in my case:

Ex to judge: "It has to be 5/14 your honour"
Judge to ex: "Why not 6/14, what is one extra overnight gonna do?"
Ex to judge: "Because it HAS to be 5/14 your honour!!"
Judge to ex: "Why exactly?"
Ex to judge: "Because it HAS to your honour!!!!!"

In my case, the judge was quite aware that my ex was solely motivated by money and maximizing the amount and duration of support.

The legislation favours a maximum contact principle being that the children have the right to equal access to both parents, provided it is in their best interests. Unless it is unsafe for the kids to be around you, or you live an unreasonable distance away where it affects schooling, the law favours 50/50. PS- there is plenty of case law reflecting 50/50 as best interest for kids. Just search Canlii
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Old 05-08-2022, 11:34 AM
Bogdan Bogdan is offline
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Sure the legislation on paper probably says that it prefers maximum contact from both parents… but the actual outcomes are still very lopsided, and the default is not 50/50 even with recent changes.

The following quote summarizes the current system based on my experiences, discussions with lawyers, and dad's in similar positions as myself.

Canada is similar to the U.S. in that it has moved from a "mom always wins custody" system to an "officially we can't tell you who will win" system in which parents spend hundreds of thousands of dollars to litigate and, at the end of it all, mom usually wins.
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Old 05-08-2022, 06:53 PM
Brampton33 Brampton33 is offline
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Quote:
Originally Posted by Bogdan View Post
Canada is similar to the U.S. in that it has moved from a "mom always wins custody" system to an "officially we can't tell you who will win" system in which parents spend hundreds of thousands of dollars to litigate and, at the end of it all, mom usually wins.
Unless there is a legitimate reason for you not to have 50/50, such as there be potential harm to kids or you live 200km away, you should be fighting for 50/50 and be successful. Moreover, your lawyer should be confident in his/her ability to get you that outcome. If not, you may wish to seek alternative opinions.
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