[logicalvelocity]

Fresh Starts,

That is an difficult position to be in

As you mentioned,

“the STBX was working making about $80,000 a year”

Hence the reason why you were awarded temporary child support and spousal supports in the amounts $ 1315/ month and $ 750/month respectively.

“The first year that I moved out of the house I did not receive Child or Spousal support”

Generally, a court will order retroactive amounts only to the date of application. If you waited a year before you brought an application with the courts, I suspect you will have a very difficult time collecting amounts prior to the date of application.

“Court documents state that we can still ask for this amount, we just have not done so”.

You may be in luck with such an order in place, However, you have to remember that spousal support as a rule of thumb is to come from income rather than capital. As time goes by it becomes more difficult to establish retro amounts.

“The STBX lost his job back in May of this year. (He purposely got himself fired - but made it look like an accident.) His laywer and himself never petitioned the court to have the Child or Spousal support reduced. I have been receiving 1/2 of his E.I. Check ($359.00 every two weeks) He receives the same amount. His E.I. payments are not even enough to cover the Child Support that has been ordered. He claims that he can not find a job, even though I can find ad's online and in the newspaper that would prove that there are jobs out there that he can do. He is in the arrears with FRO for over $10,000.”

The individual lost his employment position. The onus is on the individual to vary any current support orders in place on the stance of the material change of circumstance. There is no law in place to compel the individual to bring forth a motion to vary within a certain amount of time. The individual is collecting EI and as such, part of the criteria to collect EI is to be laid off. People that quit or are fired from their employment are disqualified from collecting EI. The individual appears to be in some kind of professional position or field and as such may have a difficult time finding an equivalent position. This does not prevent the individual from working ie: in some other field for a reduced wage, however, he may collect more from EI than taking on an alternate position.

“My lawyer had a meeting with the STBX's lawyer about a month ago. My lawyer assured me that things would be settled soon. That we were going to send over a consent form for the STBX to sign to release the money that was being held in trust from the sale of the house. (There is presently over $24,000 being held in trust by another laywer. - We are asking that the money be released and that we each receive 1/2) Which I believed was reasonable.”

Yes it is a reasonable position considering the law provides for net equalization.

In regards to the motion

1. An order abridging the time for serviceand filing of the within motion . (What does this mean?)

This means that they are asking the court to shorten the times other than the rules for servicing and filing documents for use at the motion. What comes to mind is why are they attempting to railroad this motion in now?

2. An order varying the child support order of Judges name dated June 17, 2005 by rescinding the child support order effective May 19, 2006

3.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated June 17, 2005

4. An order that any and all arrears accumulated under the order of judges name dated June 17, 2005 subsequent to May 19, 2006 be expunged.

5. An order varying the child support order of Judges name dated June 17, 2005 by rescinding the child support order effective May 19, 2006

3.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated June 17, 2005

4. An order that any and all arrears accumulated under the order of judges name dated June 17, 2005 subsequent to May 19, 2006 be expunged.

5. An order varying the spousal support order of Judges name dated August 26, 2005 by rescinding the Spousal support order effective May 19, 2006

6.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated August 26, 2005

7. An order that any and all arrears accumulated under the order of judges name dated August 26, 2005 subsequent to May 19, 2006 be expunged.

They are basically asking that all arrears be distinguished and current child and spousal support orders be abolished.

8. Costs on a substanial indemnity basis, plus GST (What does this mean?)

This means that he is seeking for legal costs of the motion. There is a presumption that if a party is successful on a motion, they are entitled to costs of the motion. However, it is not a given. Other factors come into consideration such as offers to settle, parties acting in bad faith etc. I suspect under the circumstances and that there is three children involved no costs will be awarded regardless if he is successful or not.

“9. Such further and other relief as counsel may advise and this Honorable court may permit. (what does this mean?)”

This is a standard order and lawyers often throw an order just in case they forget something along the way. It gives them a loophole to do an amendment on the fly.

“He has also stated in his Affidavit (general) the following:
That he resides with his parents (which is true)
That he spends money on food ($330.00 a month - he lives with his parents... his parents don't charge him for food), gas for his car ($130), insurance - car ($80), storage- because I left the house only taking 1/2 - he had to store the other 1/2 ($72), telephone - his cell ($63.00), and clothing. (Mind you he states that he needs a $100 a month for clothing for himself.) My kids have not had clothing in a year, and all of them need new shoes.”

Those are all reasonable expenses, and you could question him under oath under rule 20 of the family law rules. You could also ask him to bring receipts for the claimed expenses on his sworn financial statement.

“He states that he can not pay the arrears owing (he claims $7,000) but i know it is about $10,000 on the 16th of this month.”

On the face of it appears that he may not be able to pay the arrears, However, what did he do with his severance, lump sum pension contributions, or equivalent if received. Moreover, one has to ask what did he do with the net equalization. I noticed that you never mentioned that he had expenses for legal fees in his financial statement. With that said, is his lawyer paid for by legal aid? If so, they only cover so many hours.

“I don't know what to do.... I have tried repeatedly to get a hold of my lawyer but she does not return my calls. I call my lawyers assistant and she states that my lawyer is in court- she told me to keep trying her yesterday (which I did) but she never returned any of my phone calls.”

This time of year lawyers are extremely busy and takes longer than usual to get dates for motions, case conferences etc. However, the lawyer should of got your message and returned your call.

“In regards to the Garbage motion that STBX's Laywer's name sent to your office on October 5th @ 10:26 am that I received on Tuesday, October 10th @ 7:00 pm STBX got fired on purpose. He had made claims that he was going to try to get fired so he wouldn't have to pay support. It is NOT my fault or the fault of our kids that he got fired. It is his responsibility to maintain support for the kids whether he has a job or not.”

You will have to prove that he did get fired. It appears on the face of it that it may be difficult as he is collecting EI and as such people that quit or are fired from their employment, do not receive EI. Moreover, his employer would be breaking the law by indicating a false statement on his separation statement. Do you have a copy of this employment separation statement? You are correct that he has an obligation as a parent to support the children and the law provides for same. See section 31 subsection (1) of the Family Law Act R.S.O 1990 c. F.3

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