Ordered 38.7% Custody/Access

[helenj]

Hi Everyone,

I saw the below on another forum and I'm hoping to understand why a judge would give one parent 38.7% access versus 41% or even 50%. Like what's the logic?

As I'm heading into court with the aim of 50/50, what can be done to prevent this outcome? Would love some CanLii articles or anything.

"I’m in a similar situation - all of the allegations against me were found to be baseless and deemed unfounded by the evaluator. The evaluator’s report indicates heavy manipulation by my ex spouse and her family towards my three children. During one of the child to evaluator interviews my daughter said her mother and family told her to lie to the judges, the evaluator and the lawyers that I was a bad dad and they ( the children) shouldn’t be with me. This is in writing by the evaluator.
Yet, here I am $160k in lawyers fees ( my portion of the house sale proceeds)and I have my children 38.7 % of the time and paying full table support and Section 7’s based upon my T4 income ( which now 48% of the net income goes to her).
The system is unfair and needs to be updated to reflect the modern day where both spouses earn the same or similar incomes as opposed to earlier days when one spouse made the income only.
Terrible system and in the end by one spouse paying full table support and seeing the children nearly half the time only hurts the children."
"

 

[shellshocked22]

The reason the father got only 38.7% rather than at least 40% is that IF he had been given 40% then the mother would have had to also contribute to child support to the Dad. That is, in theory Dad would give Mom a cheque each month and Mom would give Dad a cheque each month based on their respective earnings.



Since Dad got below 40% (which many Dads end up getting) this way Dad has to pay Mom child support and Mom has to pay Dad ZERO. Even if Mom makes a million dollars a year and Dad earns minimum wage.


The government assumes that any access below 40% (whether 39.9% or he never sees the kids) then the father does not deserve any child support help. Yes, it makes no sense - welcome to family law !!!!

 

[helenj]

Yes I completely understand that.

How do you make sure this doesn't happen to your case as a Father?

What can be done to ensure you're at the cut-off?

 

[Janus]

Yes I completely understand that.

How do you make sure this doesn't happen to your case as a Father?

What can be done to ensure you're at the cut-off?

Generally, the court will avoid giving you 40%. If a parent has less than 50%, then the court wants them to pay child support. 40% is ambiguous and causes strife... 38.7% provides clarity.

The way to avoid that is to get 50%.

 

[Brampton33]

Having 38% of the time is literally a terrible situation to be in. You are forking over full table amount to the other side, AND you are expected to be able to accomodate having the kids over for a decent amount of time such as 5/14.

The problem is that the system is set up thinking that mom is uneducated and never worked before, and now has to enter the workforce for the first time, only being able to land part-time retail jobs or receptionist jobs at low pay. The reality is that MANY moms out there are earning just as much, if not more, than their ex-spouses, and still raking in full CS that is often gravy money. The system leaves many moms feeling like lottery winners, and dads barely scraping by, even when they have reputable careers.

So what happens is that dad has kids 38% of the time and he is barely scraping by, and mom has kids 62% of the time and is able to afford to take kids on holidays, vacations, buy elaborate toys, afford a bigger house, etc.. Then kids get old enough and say they want to live exclusively at mom's, unknowing that it was dad all along funding the other side's lifestyle.

Family Law needs to change, and desperately. Child support should be based on a sliding scale of how often each parent has kids, and correlated with each sides financial situations. For me, my ex does not need the added money each month, it is seen as a monthly windfall. Rather, CS is solely spent on funding a lavish lifestyle.

I'll repeat actual statements made in my own court proceedings:
Ex: "I don't want him to have access anything over 5/14"
Judge: "Why?"
Ex: "Because it has to be 5/14!!"
Judge: "If you accept 5/14, what is so wrong with 6/14?"
Ex: "Because it HAS to be 5/14, your honour, PLEASE!!!!!!!"

It was so obvious the issue was always about money, and my ex receiving an uninterrupted windfall for as long as possible. In other words, milk me for as much as possible, as long as possible. Very obvious to everyone, including the judge.

OP: You seek joint custody and 50/50 parenting. You want joint custody. You want to be involved in the decision-making relating to your kids. It is your responsibility. You don't just say to ex "you take care of the decisions". Further, with joint custody, it is much harder for your ex to pick up and move, throwing off your access. And you want 50/50. You want your kids 1/2 the time. It is fair. Mom gets half, dad gets half. I am not sure why some moms (including my ex) feel like you are "taking away the kids from them" by seeking 50/50. You are simply evening off balance scales. Kids deserve to have relationships with both parents. Not every other weekend. Both parents should have ability to help kid with homework, pack school lunch, and enjoy weeknights together. That is quality time. Don't go into a courtroom telling judge you are OK with less time. The norm is a maximum contact principle. Unless you live 2 hours away from kids, or are a threat to their well-being in any way, you should have 50/50. That is the norm in 2021. Not EOW as some people (ie: my ex) are led to believe.

 

[helenj]

Thank you for your in-depth explanation. Everything makes more sense now.

I live 20 minutes away from my ex but during separation she made a bunch of false allegations against me. It's been almost couple years that she's had a false status quo based on her false allegations.

I do want 50-50 but she's making it very difficult. Essentially throwing every allegation in the book. My fingers are crossed so let's see what happens.

Honestly, I don't know why Men get married/have kids any more with this kind of system where men are literally set-up to fail with the false allegations, CS, alimony, supervised access, therapists, etc, all because the woman made a few allegations. I think many men just get married blindly. Never again!

Thanks again for the in-depth explanation.

 

[Brampton33]

I live 20 minutes away from my ex but during separation she made a bunch of false allegations against me.

If they are indeed false, they will end up backfiring on your ex in court. Judges see bs every day where the ex cries how horrible their spouse is. Interestingly, there are many court decisions out there that state that a parent is abusive towards the child for trying to restrict or deny a relationship with the other parent. Remember, Family Court is always about best interest of the child, and children have the right to equal relationships with both parents, unless it is not feasible to do so (ie: you live 2 hours away) or there is a real (not perceived) threat to the well-being of the child.

It's been almost couple years that she's had a false status quo based on her false allegations.

Unless there is a court order in place, there is no status-quo in place. The status-quo is that parenting time of your child is in dispute. A parent cannot unilaterally monopolize all of the parenting time during a child's infancy (restricting equal access to other parent) and then claim thats the way its always been, and therefore should perpetuate similarly into the future. There is plenty of case law on false status-quo and judges are fully aware of this tactic. Judges give it no credence. If anything, in 2021, this tactic backfires on the restricting parent where judge gives other parent make-up time with kid.

I do want 50-50 but she's making it very difficult.

Of course she is, there is alot of money at stake. She is fighting for you to provide a monthly cheque for the next 20 or so years.

Essentially throwing every allegation in the book.

That is normal in acrimonious custody and access battles. There is a section in the law that says that judges will give consideration on whether there is a history of abuse or mental illness that would impact the parent's ability to parent. Litigants latch onto that section of the law. Many file false police reports in hopes of having something stick. It just backfires on them in the end.

, all because the woman made a few allegations.

Again, false allegations always end up backfiring on the parent making the false allegations. It is frustrating, and many have gone through it, but ultimately if they are indeed false, they will actually benefit you in the court proceedings.