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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 11-15-2010, 09:54 AM
dad93 dad93 is offline
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Default Amend or add to an Application

Hi

I have put an Application into the court to help determine a dispute over access. It's a long story but in a nutshell my ex is not agreeing to allow me to have my two son's overnight during the week (I already have them for two nights as "visits". She had been breastfeeding and I wasn't living close. In August, she stopped breastfeeding (she claimed she was going to until April) and I know live 10kms away. I believe she is fighting because of the child support issue - even though this is nothing about that for me; it's about quality time.

I filed an application on October 27 and served her. A first appearance is set for December 14. I have not received a response. I have a couple of questions:

1) Since Oct 27, I have purchased a home 3kms away from her home in the same city which closes Feb 25. I am renting in the adjacent city 10kms away. Does this make a difference and should I/can I amend the application before the first appearance?

2) The application asks for two nights a week and every other weekend - this is around the 40% mark. Is this considered 50/50 by the courts? If not, can I change to request 50/50?

Thanks for your help.
Adam
  #2  
Old 11-15-2010, 10:33 AM
Mess Mess is offline
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You are unclear about your intentions. Do you intend to move into this house you puchased close to their existing home? You should certainly disclose this, you don't win points for hiding things and the case is unlikely to be resolved before you move, so you will have to show this at some point.

You should argue that you are going to be living within a reasonable distance of their existing neighbourhood so any additional time they spend with you will work well with school attendence, after school lessons and activities, visits with friends, sports, etc. Their lives will not be disrupted by an overnight, which previously would have been "out of town". Moving closer is to your credit here, I thnk you are worried that if you live close then the courts would say the overnights are unnecessary? That should not be a worry. This is part of having a parenting plan, you have to have a long term vision of how you will raise the children and how it will all work. What goes against you is if you don't have a plan and do things as they come up.

The appication gives you 6 nights in 14, this is within 60/40. DO NOT DO THIS FOR FINANCIAL REASONS. The courts won't support a custody fight over money. The courts will support a situation that is in the children's best interest. You will argue that you want to be fully active in the children's life, that you would be happy with 100% but of course you recognize that the mother should be equally important in their lives so they deserve both parents equally. You will argue that they will have the attention and time and upbringing of two parents who care for them, and that this is much better than having one parent and visting stranger. You will argue that bonding with both parents and having a full, healthy, ongoing relationship with both parents is the healthiest for them.

Focus on the child having the benefits of two parents, that you and the mother are equal and should remain equal. This is what you focus on if you want 50/50 custody. Don't seek any change from the Guidelines, the Guidelines already have the set-off built in. Let the mother complain about money, if she accuses you in her answer of doing this for money, you respond that you didn't bring up the issue of money and she is obviously the one seeking full custody for financial reasons.
  #3  
Old 11-15-2010, 12:00 PM
dad93 dad93 is offline
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Hi Mess

Thanks for your input. Let me clarify:

I want to disclose the purchase of the house - it only benefits me. I live close now but I am renting...the purchase only solidifies me in the area of the kids and their mom - and is closer. I just want to know when I should disclose it and/or does it matter? Should I do it before the first appearance? And if so, how? I technically haven't taken possession yet so does that need to happen first?

In no way shape or form am I doing this for money. I have never mentioned that as a consideration. My ex is wanting to allow 8 nights but not 12 - that sounds to me that SHE is doing this for money. I finally did email and told her that I am not requesting any variance from the table amount set at full custody. She is being unreasonable for reasons I can only think are money or control.

I have sent her four different access schedules and a parenting plan that I did up - she refused to even consider the plan calling it "irrelevant and incorrect"

I really hope she gets a wake up call on this.
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Old 11-16-2010, 09:36 AM
dad93 dad93 is offline
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I suppose what I am asking is at what point in this process can I submit new information and/or documents? Can I do it before the first appearance or wait until the case conference?
  #5  
Old 11-16-2010, 11:08 AM
representingself representingself is offline
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If you do it before the first appearance, you have to file an ammendment, and it restarts the 30 day response allocation.... You will be given a new "first appearance" date.

I would bring the new information forward in your affidavit in support of your case conference brief, when you get to that step... otherwise, you are just dragging it out.

A first appearance takes all of five minutes, and is basically a waste of time...

Last edited by representingself; 11-16-2010 at 11:09 AM. Reason: spelling...
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