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#2666091 09/17/12 08:26 PM
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Been a while since I've been here. Long story short - WH left me for OW, I moved on, now common law new man (SO) who was left by a WW. They share 50/50 custody of DD(currently)11. My DS is 24 & married so all issues with my WXH is not an issue. To the problem at hand. Note: we live in Canada so some of the legal things may be slightly different.

SO had a separation agreement whereby he paid all child care and related expenses (winter coats, ice skates other major items etc) in lieu of child support. In Canada, child support comes off a table drawn up every year or so. It's pretty non-negotiable unless you come up with your own separation agreement stating otherwise. Which he had. It worked fine for all the years DD was in daycare but now she's not - she takes the bus to and from school from our house and as of labour day she walks to school from her mother's. In other words, there are no more daycare costs and mom wants the money for herself.

Here's the thing. Mom is financially incompetent. She managed to blow a $53K downpayment on an $85K house to the point where she owed money and the city was going to take it way if she didn't sell. She sold, but only for $83K and she still owes money. Now she has to rent at a much higher monthly payment than her mortgage used to be and she wants money. Her money management (lack of) skills are staggering and there are witnesses just waiting for the opportunity to testify so. But since she is broke, she's asking for money.

SO makes a good income and has paid for every single child care item and beyond, including winter coats, boots, school supplies and trips, sporting equipment, sport programs, summer programs, day care (until this year) and pretty much everything any child could ever need or want. It adds up to more than the state-required child support. It is part of his separation agreement which he signed because he knew mom was too much of a deadbeat to bother with trivial things like this.

Now that daycare is over (she's 11, daycare lady quit and she's fine coming and going on her own from both houses), XWW wants money. A lot of what SO spends on DD could be considered a luxury rather than a necessity. For example, sleepover camp in the summer which is $1200 a week. It is far more than daycare but she gets so much out of it and THERE IS NO SUMMER DAYCARE AND WITHOUT SCHOOL IN SESSION THIS KID IS ON HER OWN ALL DAY!!!!!!!! Not to mention the confidence and skills she learns from this experience and the fact that she can eventually become a counsellor in training and ultimately, a counsellor (how's that for a great summer job!). This cannot be afforded if money goes to mom instead of her.

Mom doesn't have a stove and feeds her an exclusive diet of fast food. DD is overweight (clinically obese) and has tremendous issues with bullies at school because of it. No talking, discussing, yelling or fighting has made a dent in this. DD eats approximately 5000 calories a day with her mom - 50% of her life - regardless. I'm not kidding - we're talking breakfast, lunch, dinner and often snacks at Dairy Queen even on school days. The current problem is that mom can no longer afford this lifestyle and any money SO gives her will go straight to this fast food addiction of hers. He absolutely DOES NOT want to do this!!!!!

So my question is, despite geographic and jurisdictional differences, is there a case to made here? SO is considering going for full custody. Rumor has it that judges don't like to change the status quo, and at this point in time, poisoning your child with sugar isn't considered abuse so he doesn't have much to go on. We just know for 100% sure that any penny we give her will go straight to a Big Mac before it does any good for DD.

Any advice on how to approach this? Is there any precedence anywhere about parents winning/losing custody over diet? Please help!

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Yes.
Best interest of the child includes health related issues such as diet.
If you google this subject you will find cases relevant to this subject matter.

Is your boyfriend divorced or separated?

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In Canada? Over fast food consumption? No. Neglect in terms of a child not being fed? After the ministry has been involved and a child charged with child neglect/abuse, yes. That is not this situation.

And I would seriously caution you that you have fallen headfirst into a renter's situation and getting seriously involved in custody matters which are not your business.

I can assure you that far more custody battles have been lost based on an interfering partner of a parent. You are not even the stepmother at this point since you are not married to this man.

I don't say that to be rude, I say that in all honesty, you need to learn some boundaries in your new relationship. If you think your boyfriend can walk into a family court and claim that she spends every dime on a Big Mac, he'll be in some serious trouble. Child support is reimbursement to the custodial parent's overall expenses, not money which is then dividable to be spent only on the child's expenses, and one can spend it on Prada shoes if they wish.

And yes, I am in Canada.

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He has no grounds to file for change of custody if it has already been determined through the divorce.

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Divorce settlements in Canada are virtually always determined via the separation agreement. It's extremely rare to make it all the way to court and that is usually only if one parent is trying to declare the other parent unfit. That didn't happen in this case - they have a regular separation agreement. Their agreement was written the way it was so that he would be able to fully provide for DD's needs and so she wouldn't do without. He knew at the time(and so did she) that money in her hands wouldn't last and ultimately DD would suffer as a result. She (the mom) had already been "fired" by one daycare for bounced checks and it was clear from the beginning that the situation wouldn't function unless he took care of all the costs directly. These costs far exceeded the child support requirements.

The difference today is that DD no longer goes to daycare from either home. Summer, March Break and Christmas break programs are expensive, but not quite the same as 50 weeks a year of daycare. These things should be deducted from any CS payment (there's a provision in the Divorce Act for this) but SO will still end up owing something. It won't be nearly as much as XWW thinks but it will be something. He would prefer not to give her anything and he's just looking at ways this might be possible. I understand legally she can spend the money however she wants but that's the actual tragedy here. Most likely this won't go to a judge but the probable opinion of a judge is a strong negotiating factor.

And thanks Alis, I understand the renter/buyer difference. If you are in Canada you should know that second marriages can adversely impact the "next of kin" status of children of the first marriages. We both have children from our first marriages and have a duty to protect them. And also, I do have full step-mom status under the law here. I have legal guardianship and she is covered under my benefits. Canada doesn't discriminate against different types of families. Believe me, we are both very committed.

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The downside is that you live by example.
You think you are married so your kids will seek out renter relationships (or marriage relationships - what Is the difference since you say it's all the same in Canada?) they will be taught that tax benefits, welfare benefits, any monetary benefit is more important than a marriage commitment

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Then your common-law husband must consult an attorney because right now there is no precedent in Canada that states excess fast food consumption is a justifiable reason to remove physical custody of a child from their mother. If he "plays nice" then perhaps he could try and convince her to agree to such a change (on the basis of bullying and perhaps a geographical change being in the child's best interest) but so far there is no reason to do so against status quo.

If he is concerned about money then he should again speak to his attorney about modifying prior financial agreements, which is not unusual when a child ages. Obviously the child was not going to require daycare until age 18 so that would have needed to have been done anyways at some time.

However, you asked what a judge would do. Modify finances, sure. Change physical custody, very doubtful. If he tries to do all this with you trying to make input in the courtroom then most probably a judge will see this as an interfering stepparent trying to push for custody change because she can be a "better mother". I understand you care for this girl - but to the average person reading this (and certainly an experienced family judge), it does absolutely appear to be new wife bashing ex-wife as a parent, sorry.

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Originally Posted by Tabby1
If you are in Canada you should know that second marriages can adversely impact the "next of kin" status of children of the first marriages. We both have children from our first marriages and have a duty to protect them. And also, I do have full step-mom status under the law here. I have legal guardianship and she is covered under my benefits. Canada doesn't discriminate against different types of families. Believe me, we are both very committed.
If Canada treats cohabitation the same as legal marriage, then how can being legally married make your position in regard to the first set of children - worse? Isn't it already worse?

If cohabitation is the same as legal marriage, then why hasn't your "next of kin" status vis-a-vis your son already changed, and the same for your partner and his daughter? Aren't you already each other's next of kin, over and above the children?


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I'm not sure what province Tabby1 is in, but the idea that common-law marriage and legal marriage are equal in Canada certainly does not apply to my province (Quebec), it in fact is not legally recognized at all. I am originally from British Columbia and there are quite a few differences there in comparison.

It is not that the courts "discriminate" against different families, it's that marriage does carry it's own legal status which other unions (whether common-law, cohabitation, de jure status), does not.

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I wonder if the situation in Canada isn't in fact similar to a lot of other places, including the UK.

When you remarry, your spouse becomes your next-of-kin. That would give the spouse a say in things like life-or-death hospital decisions, and also, they would inherit at least some of the assets when you die. So, on marriage, a spouse gains a legal relationship with you, along with your children of the first marriage.

A way round this might be to have a pre-nuptual agreement covering divorce, and a will covering the assets in death, but these can be challenged and things can become very messy.

By not legally marrying, you are saying that you do not want your partner to become your next-of-kin. You could draw up a pre-nup and a will to protect your son, but there is some sense in which you do not want your partner to be of a similar status to your son.

This must be a problem for anyone who enters a new relationship. I have a widowed sister-in-law who met a wonderful man about ten years after losing her H, but she won't marry him because of the wish to protect the assets which she feels were provided by her late husband to go to her in her lifetime and their daughter after her death - and not to be enjoyed by a new husband and possibly left to his adult children should my SIL die first.

She has been in this new relationship (never living together) for 20 years now and they are both approaching 70 years old, but she doesn't call it marriage and is clear that for her, since she isn't prepared to offer all she has to this man, she isn't "as good as" married.


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It could very well be linked to UK law - our laws our generally based off UK law (not US law like many laymen believe), with the exception of Quebec provincial law.

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Originally Posted by SugarCane
This must be a problem for anyone who enters a new relationship. I have a widowed sister-in-law who met a wonderful man about ten years after losing her H, but she won't marry him because of the wish to protect the assets which she feels were provided by her late husband to go to her in her lifetime and their daughter after her death - and not to be enjoyed by a new husband and possibly left to his adult children should my SIL die first.

Dr. Harley sometimes recommends a legal trust made prior to marriage in such situations. But that's a threadjack...


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Originally Posted by SugarCane
Originally Posted by Tabby1
If you are in Canada you should know that second marriages can adversely impact the "next of kin" status of children of the first marriages. We both have children from our first marriages and have a duty to protect them. And also, I do have full step-mom status under the law here. I have legal guardianship and she is covered under my benefits. Canada doesn't discriminate against different types of families. Believe me, we are both very committed.
If Canada treats cohabitation the same as legal marriage, then how can being legally married make your position in regard to the first set of children - worse? Isn't it already worse?

If cohabitation is the same as legal marriage, then why hasn't your "next of kin" status vis-a-vis your son already changed, and the same for your partner and his daughter? Aren't you already each other's next of kin, over and above the children?

Marriage is a shared jurisdiction in Canada. The federal government decides what counts AS marriage (for example, it is possible for two men or two women to get "married") and how "divorce" is obtained. But the provinces determine the obligations that apply to any sort of "family" which includes people who are in a common law (unmarried)spousal relationship. This includes spousal and child support. It is unconstitutional in Canada to discriminate against people because they are a "common law" as opposed to a "married" couple. If they are a couple, they must be given the same access to benefits etc (of course, this is at the election of the relevant party and they always are free to contract out of their obligations to each other - not to children). Thousands of federal and provincial statutes have been changed to reflect this over the last twenty years. The most important remaining difference is regarding property division after a relationship breaks down (or property allocation if a party dies intestate) and different provinces have different rules. alis is correct that the situation in Quebec is different but that largely is because of the continued existence of the French civil code which is unique to that province. In fact there is a current appeal before the Supreme Court of Canada examining precisely the question of the difference, in Quebec, between "married" and "unmarried".

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Originally Posted by alis
It could very well be linked to UK law - our laws our generally based off UK law (not US law like many laymen believe), with the exception of Quebec provincial law.

This once was true for the common law, but is not really the case in modern times. And, certainly, it is not at all true for statutes.

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Sugar Cane has it basically right. Upon death of one spouse, the other spouse automatically gets everything unless there are wills or other legal documents in place. These documents aren't difficult to get but can be challenged. There are many many examples of estates and businesses that belonged to a family for generations that were instantly passed on to the new spouse and it can be very difficult for even adult children to fight for, let alone younger ones. As I understand things, it's a result of an oversight when they redid the Divorce Act but as things stand, that's the current law. I'm in Ontario by the way and there are differences from province to province. Quebec tends to be the most different but I really don't know about their system in these matters.

Back to the original question, SO spoke to his lawyer today. As several of you said, XWW's financial incompetence doesn't matter. However, if he pays her CS, she becomes responsible for her share of child care expenses and her failure to meet these could have an impact. SO doesn't really want to go for full custody - it would be way too traumatic on DD. In a couple of years, she'll have a say in where she lives and it will be better if she makes her own choices than having something like this thrown at her. However, he would certainly like to be able to influence the lifestyle she leads over there (referring to the fast food diet) because it is adversely affecting her health (and her happiness as she does take her share of bullying at school for this). Obviously a judge wouldn't rule on anything but perhaps he can use it as part of a negotiation?

The way they do things here is they try to get everyone to sort it amongst themselves without wasting time in court. The laws are very clear regarding child support and splitting assets that there really isn't much excuse to take it as far as court. I highly doubt this particular incident will go to court, but you always have to negotiate based on what might happen if it did. SO would really like to negotiate diet into this but I agree it's really unlikely and probably impossible to enforce anyway.

I'm sorry I come off as bashing the other parent. I'm just trying to gather as much info as I can just in case something like this has ever happened before.

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I forgot - coincidentally this article appeared in CBC news today: http://www.cbc.ca/news/canada/story/2012/09/18/statistics-canada-census-family-data.html. I guess we'll know the definition of a Canadian family on Wednesday.

Quote
Definition of family wide open, census may show
The Canadian Press Posted: Sep 18, 2012 9:14 AM ET Last Updated: Sep 18, 2012 9:25 AM ET Read 56 comments56
The cover of the 2011 census package is seen in Ottawa on May 5, 2011. On Wednesday, Statistics Canada's third tranche of data from the 2011 census - this one focused on families and their living arrangements - will make it clear that in this country, family can mean almost anything at all. (Sean Kilpatrick/Canadian Press)

To hear the politicians tell it, there's a typical Canadian family out there that is the justification for many an election promise, tax break or new policy.

It's a central theme of every party platform and speech. Last spring, Stephen Harper was "here for hard-working families," the late Jack Layton offered "to give families a break" and Liberal hopeful Michael Ignatieff touted "your family, your future, your Canada."

On Wednesday, Statistics Canada's third tranche of data from the 2011 census � this one focused on families and their living arrangements � will make it clear that in this country, "family" can mean almost anything at all.

For the data collectors, there is no such thing as a generic Canadian family. Rather, there are at least eight different 'family' categories, some so complex that officials had to develop a flow chart just to start explaining what they're talking about.

At its most basic level, Statistics Canada defines a family as a couple � with or without children, married or common-law � or a lone parent with at least one child in the same house.

In other words, it takes at least two people to make a family. Beyond that, almost anything goes.

There are skip-generation families, intact families, simple step families, complex step families, opposite-sex families and same-sex families.

Tracking foster children
The census will go further than ever before in counting and describing stepfamilies and how their households are set up.

And for the first time, the census will be tracking the number of foster children � to the delight of child welfare researchers.

"The fact that it's national data � data being collected through a national statistical organization � helps to bring focus on the question of foster care and foster children, at a national level," said Nico Trocme, director for McGill University's Centre for Research on Children and Families.

"Foster children are one of the most vulnerable groups in Canada. We need to be shining a light on them more often, rather than less. So I'm thrilled."

For now, there remains no sure-fire way of knowing how many foster children there are in Canada, Trocme said � let alone where they are from, what their challenges are, and what kinds of supports they need.

Trocme, who has spent a career cobbling together estimates based on various strains of provincial data, isn't sure the census will tell him exactly what he needs to know to take his research further. But he said the new data will establish a baseline that will propel solid work in the coming years.

Blended families
Wednesday's data will also reveal just how commonplace divorce and so-called blended families have become.

On the marriage front, it will show how many same-sex couples have formalized their relationships since gay marriage became legal in Canada.

As for kids, are more couples having them? Were those couples actually married? The 2006 census showed that for the first time, there were more childless couples than couples with children in Canada. Was it just a blip, or an enduring trend?

And do the kids ever leave home? Have multi-generational households become more common?

Those are questions that fascinate Nora Spinks, who heads the Vanier Institute of the Family in Ottawa.

Spinks has been handling research on all those topics, and the census will give her the data she needs to validate conclusions and update her numbers � leading to more relevant research in the months to come.

Spinks said she's particularly keen to see who is living with whom inside Canadian households. She suspects that with an aging population, she will see evidence of children living with grandparents and even great-grandparents as families look for efficient caregiving arrangements that work for multiple generations.

Like many social scientists, Spinks has been watching the trend of young adults staying at home with parents, or moving back in after a time away. The census data will clarify how entrenched that pattern is, she said.

"Are young people truly returning home in large numbers, and to what extent? Is it a passing phenomenon?" she pondered. "When they return home, are they starting families?"

The census should also detail how seniors are living: in group homes, with relatives, or alone.

But much of the focus on the census analysis will be on blended families. For the first time, Statistics Canada has counted and quantified stepfamilies, delving into the dynamics of re-marriage.

The data will be of more than just passing interest, said Spinks. Armed with solid data about how old most children are when their families split up or reformulate, social scientists will be better able to design supports and counselling programs.

"There may be different kinds of supports needed if it's mainly pre-schoolers or adolescents," Spinks said.

"It will gives us some insights into the kinds of stresses families face today."

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I would suggest you let SO handle all his issues with his ex and that you just focus on your relationship with him in other areas.

It sounds like you are too involved in brainstorming with him on this.








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