Battle for 50/50 - need some advice pls

Status
Not open for further replies.
H

Harold Callahan

New member
Again - This forum is a lifeline I'm sure to many many people out there. and must be one of the largest if not largest in Canada! Thx to all the contributors.

Ok - I've written a few times about my struggle to achieve a 50/50 parenting arrangement but only now understand my file a little better so I'm hoping to get some input on next steps.

Pertinent FACTS:
Separated 2008, Divorced 2011, One child (boy) 11yrs old. Original SA in 2008 Access to my son - every other weekend. NO order dealing with access or division of assets. We began this process (application) in 2008 - was asked by the judge to have a case conference and come back. We never did this. Support payment order in 2010, Divorce order in 2011

PROBLEM:
I have made the changes needed to be able to share parenting on an equal basis (50/50) i.e. stabilize my situation better after the fallout of the separation, and move down the street from my son's school. (walking distance) My ex can't seem to allow this and by the other posts I have read I don't need to go into the problems of alienation suffice it to say that seeing your child more often is a good way to try to counter act that. I have been pushing for a case conference the last 8 months but my ex is not interested and waives the "status quo" flag if I mention any changes. This past May my ex took my son on my weekend and I realized that I need to be more proactive if any changes for the better can occur. I unilaterally (with my son's agreement) changed the schedule to a 50/50 schedule since May 23. Sleep overs - Every other weekend, plus every Tues & Wed. Also my home after school until 5:30 or so. My son is very happy, My ex is not. Her Lawyer threatned to file a motion to enforce the status quo, but I would not budge and nothing has been done to this day. I am trying to create a new status quo. I have been adhereing to this schedule without falter.

The summer is ending soon and I feel that she will try something once school starts. Her thinking was that the new schedule had not meant much since the school yr was comming to a close.

I still feel that I need to do more and try to take the initiative in court (even though I cannot afford a lawyer). My plan of action is to schedule a case conference regardless of wether they agree. Then also a motion following that to get something regarding access on paper. An order so that there will be no more issues on this between me and my ex.

My file I have found out has been closed due to delay so before I can register a case conference I need to file a motion to re-open the file. Otherwise I would need to do file a new application.

Does my plan make sense? Can I ask for something in my motion like a temporary (6 months) access order or am I limited to just the issue of reopening the file first? There is also an outstanding cost order which she has not yet paid which needs to be addressed.

Any advice in terms of the direction I'm going? Any experience with this kind of Order?

thx :(

H
 
You have 50/50 access since May, you are closing on three months.

The child is happy and settled in. The ex's lawyer is full of shit, but is doing their job. They represent your ex, not the child or you.

If she takes you to court, there is no emergency. You cannot file a motion until you have had a case conference. At this point I would say you are two months until you would be in front of a judge, even if she files tomorrow.

At this point you have what you are seeking; there is actually little reason to go to court. I understand you want affirmation and protection, but you will also be playing into her hand, going into court before you have status quo.

If the child is happy, I would let things rest. You are just a few steps from the school, stay involved. If possible pre-book some time off work for the first week of school, and stay flexible for first term. Attend the school as much as possible (pick up at 3:30, volunteer on trips) stay in close friendly communication with the teacher (never mention your ex, stay child focused and approachable.) If the child is sick, take the days off work to stay home.

Assume your ex will play games. Be proactive, not reactive. Be a part of your child's school life in an active positive way. One of the worst tricks she can do is try to pick up the child after school on your days. Or keep him home Tuesdays so that you can't pick up. Don't start fights, don't argue, don't engage with her at all. Do things like inform her by email that you will be taking certain days as make up days with the child. Then pick the child up on those days.

Let 6 months go by, then the child is settled in and happy, and anything your ex does will challenging status quo. As your child approaches 12 years, their voice will start to be heard by the court. If your ex pushes for a case conference, you happily ask the judge for court ordered mediation.

The next months are the most important for you strategically. In terms of your employment, if you can make sure you are flexible and available as much as possible, making the most of this time will help solidify things.

If your ex doesn't force this to court, and I think she will be scared and intimidated to, since she didn't push for the case conference or a settlement when she had the chance, then you are getting the status quo on your side.

You have done everything right so far. She can only do two things: try to push for a case conference, or try to play games with school attendence and your schedule. The case conference would what you are suggesting now anyway. Every week that goes by is helping you and hurting her, don't rush it yourself. School attendence you can take care of if you are flexible enough with your work to counter any games she plays.
 
Lawyers threatening to file motions isn't a bad thing. Use it to your advantage and file a counter claim. Don't be so intimidated.
 
Thanks for the input and sugesstions!

Yes I am anxious to protect and solidify the current schedule but I do want to do this right. I originally wanted to let her make the next move in court since I felt that she had a tough argument to make in asking the court to not allow me 50/50 access.. Her only arguements it seems is disruption of his status quo schedule and she doesn't think I'm a good father. Typical? He's almost 12 - I think he can handle a little improvement in the arrangment at this age..

I think her lawyer got quite upset with me when I quoted Ontario Divorce law and the fact that discouraging a healthy relationship with the other parent was not allowed. How do we ever inforce that? I think 50/50 helps mitigate it at least.

I am home in fact this summer and written to her that I am here to spend time and care for our son this summer while she is at work. She however rather leave him at her farm house than drop him off which is literally on her way to work. I have no problem going to pick him up every morning. Every other week she signs him up for summer camp and if he likes going I have no problem with that also. I do go pick him up after camp at 4:30 and Tues and Wed he sleeps here and my ex does not bother to come by any more on those nights to pick him up.

I'm sure she is planning something in the fall because of various comments and the fact that she sounds quite confident that I will not get 50/50 and the "summer schedule" does not count towards anything..I'm keeping the same schedule we had since May.

But I do feel better about minding my time for the next 3 or 4 months and it looks like based on some of the comments that I would have some options if I do get called in on a motion.

She does have an outstanding cost order against her. Can I use that to slow her down if they do try something? I know judges don't like people filing motions when thay haven't obeyed previous oders..?

I may need to follow up this fall and hopefully not until late Nov..

Thanks again

H
 
Re: "She does have an outstanding cost order against her. Can I use that to slow her down if they do try something?"

Well - there can only be one motion being handled at a time. See Family Law Rules 15[9]-1.

So, you could start a Contempt Motion for failing to follow the prior order for costs, and pick a date as far into the future as possible. However, that would need to be pre-emptive, and not reactive. That is, once they start a motion, then the same rule stops you from starting your contempt motion to delay them.

Chances are that her lawyer will communicate with you before they actually file their motion, which will give you some warning - so you can start yours first, but you don't know that.

Further, it could all be a bluff, and they will not bring you to court - which gives you more and more time to change the status-quo. If you start a contempt motion, that may rock the boat enough to change the bluff to action against you.

My strategy would be to NOT file a contempt motion, and then if and when they start a motion, and you get to the point where you can ask for costs, (or they are) THEN you can bring up the point that your ex is already in contempt for costs.
 
If the status quo is in your favour, continue with it. If she tries to break what has been working since May, file a new application and make an urgent motion for temporary joint custody and 50-50 access in accordance with the schedule you have had, on a without prejudice basis.
 
Status
Not open for further replies.
Back
Top