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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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  #31 (permalink)  
Old 02-05-2006, 11:07 PM
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godknowsthe truth,

:"THIS COURT ORDERS THAT the Respondent shall take out life insurance in the amount of $ 50,000, naming (children) as his beneficiaries".


That is a clear order to me. I would take the matter back to the court by way of a case conference and possibly contempt motion.

Let him explain it to the Judge his game playing.

Seems to me the Judge was specific in the order as with my suggestion as whomever is the guardian of the children if they are minors would control the intent of the proceeds of the life insurance.

Keep in mind that support orders bind estates as listed in the family law act Ontario. You do have this protection, but creditors I think would have an equal binding. There may not be enough estate left to support the children.

I would get this straightened out through the courts and seek costs as to me he is acting in bad faith
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Old 02-05-2006, 11:42 PM
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He is hugely in debt, so if he dies and his sister-in-law was the executor, the life insurance would be thrown into the assets pile to be divied out to creditors b/f the legal family obligations were met?
I don't get how you go through an issue(among many) in the courts, and inevitably I have to back track and clean up the dirty trash that my ex leaves. Why am I constantly revising, enforcing etc. things that are supposedly resolved.--Each time it';s more mental , pohysical, and emotional energy, not to mention money.
Please tell me how I'd go about starting this motion(or whatever I have to do). I don't want to hound you too much, but I REALLY appreciate your help and advice. I just want to get this over with. Where do I start NOW!!!!
tHANKS SO MUCH.
I owe you.
Also, in my previous posts, I asked about Breach of fudiciary duty, do you have any info on this; i.e how to start process, in which division etc. Anything you know about it would really help. Grace has given me what I think is solid information. She said we're the blind leading the blind,( ha) but I'm hoping her info .can lead me in correct direction. Do you have any information to add, or any opinion on what Grace has listed. Thank you to both of you. If I knew your p.o. boxes, I'd send you both a thank-you card (ha)--I'm big on thank- you cards.
  #33 (permalink)  
Old 02-06-2006, 11:29 AM
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gk2t,

It's not clear to me whether you've even seen your ex's life insurance policy. A motion for contempt may be premature. I think the first step is to request in writing a copy of the life insurance policy. If that's not given, follow that up with a case conference in which you ask for a court order for disclosure of the life insurance policy. Normally, that should be enough to get the proper policy in place.

I agree with logicalvelocity that breach of fiduciary duty is not the way to go with this.

I've never seen breach of fiduciary duty used in a divorce context. So, I'm certainly no expert.

This is because the legislatures have worked hard to devise a comprehensive scheme for dealing with issues of family breakdown, support, custody and access, and property division. Unless you have a pretty novel situation, you are going to be covered by the legislative scheme, which is much easier to use than to argue a breach of fiduciary duty. The legislative scheme is quite clear whereas a breach of fiduciary duty is pretty vague.

This is what the Supreme Court of Canada says about fiduciary relationships:

"There was no precise test, but that certain characteristics were so frequently found in relationships which had been found to be fiduciary, that they serve as a guide."

The Court goes on to say that some of these characteristics are:

(1)"The fiduciary has scope for the exercise of some discretion of power.

(2)The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3)The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power."


The Court goes on to say that you don't need all of these 3 characteristics, but #3 is indispensible.

Husbands and wives have been held in certain circumstances to be in a fiduciary relationship. So have parents and children.

Once it's determined that there's a fiduciary relationship, the next question is the content of the fiduciary duty between the parties.

In the husband-wife relationship, courts have found there to be a breach of fiduciary duty for failure to disclose financial information.

In one case, a dad sued a mom for breach of fiduciary duty when the mom went to extremely extensive lengths to deny access (moving away unannounced several times, changing the children's names, etc). The court held that there was no fiduciary duty between the parents in this case.

In the parent-child relationship, I don't think that the fiduciary duty would rise as high as that of acting in a child's best interests. Rather, it would be something more like the parent needs to make sure that they don't do anything that harms the child. So, for instance, it would be a breach of a parent's fiduciary duty to assault / abuse a child or not to do anything if they knew that their child was being assaulted / abused.

I hope that answers what you were asking. However, as I said before, I'm not sure that this is relevant to your situation.
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  #34 (permalink)  
Old 02-06-2006, 01:59 PM
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Interestingly enough, I just stumbled upon an Ontario case in which the court found that the wife did not have a fiduciary duty to disclose to the husband that she was having an extra-marital relationship.
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  #35 (permalink)  
Old 02-06-2006, 06:59 PM
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Hi jeff
Thanks for getting back to me; I REALLY appreciate it. This may seem simplistic but I've been dealing through the courts for SO much ( alot of it is nonsense, in my opinion) that to even think of researching , filing affidavits, putting it all together, figuring out the best way to present it(in some instances, affidavits of service ) that I'm just fed up. I would be in bliss if I could have two weeks of not thinking like a 'chess game' i.e....'if he makes this move, then I'll have to do this, but then he could do this' etc.
To answer your question of whether or not I've seen a life insurance policy---No,I haven't, and in my heart I believe he doesn't have one. I think I will start with a priority post letter asking for a copy of life insurance policy. Is that the best way to approach this?
Also if he has one through his work, shouldn't the work legally have to give me a copy?
Also, Logicalvelocity said that if it's thrown into his estate probate fees and creditors will eat most, if not all of the children's money. What is your opinion of this?
Also ,the Breach oif Fudiciary is not relevant to the life insurance issue--it's regarding something else. From the criteria you listed, I have a solid chance--all , and more, have been met. I'm just not sure if I want to follow through. If I don't, I'll kick myself down the road, but fight now I'm trying to deal with a million things.
My ex will use anyone's money (whoever will lend it to him) for court purposes, if it makes my life unpleasant. Of course, if he's pumping cash into the court system, they won't deny him.
Thank you doesn't seem like enough to say to you, logicalvelocity and Grace for your input. I really appreciate it.
Any questions you can answer regarding above situations, or advice is SOOOO appreciated.
Thank you
Gk2t
  #36 (permalink)  
Old 02-06-2006, 10:09 PM
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Quote:
Originally Posted by god knows the truth
To answer your question of whether or not I've seen a life insurance policy---No,I haven't, and in my heart I believe he doesn't have one. I think I will start with a priority post letter asking for a copy of life insurance policy. Is that the best way to approach this?
Yes, a letter is the best way to start.

I don't know what priority post is. You *don't* wan't to use a service that requires your ex to sign for delivery or else he may not sign. The post office has a service called XPresspost which we usually use if we need proof of posting. You can get this service with no signature required.

Quote:
Originally Posted by god knows the truth
Also if he has one through his work, shouldn't the work legally have to give me a copy?
No, they're not a party to the litigation, nor are they in any sort of relationship with you. You could drag them into it if all else failed, but that would be a last resort.

Quote:
Originally Posted by god knows the truth
Also, Logicalvelocity said that if it's thrown into his estate probate fees and creditors will eat most, if not all of the children's money. What is your opinion of this?
I don't think I've ever known logicalvelocity to be wrong!

If your ex's life insurance goes to his estate and his estate is probated (likely if he owns a house), then there will be probate fees on the life insurance proceeds.

If your ex's life insurance goes to his estate and he's greatly indebted, his creditors would have a claim on the money. I'm not an estates lawyer, but I don't think you'd have a priority over other creditors.

Normally, life insurance doesn't go to an estate for just these two reasons.
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  #37 (permalink)  
Old 02-06-2006, 10:22 PM
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Just a suggestion. My lawyers had my ex sign a Authorization & Direction to the insurance company giving me access to information regarding the insurance policy. This can be done through the lawyers or at a case conference.
  #38 (permalink)  
Old 02-06-2006, 11:24 PM
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Godknowsthetruth,

what Grace suggested is a great idea!

Authorization & Direction from the insurance company directly.

If your ex canceled the policy or changed beneficiaries the insurance company has an obligation to notify you formally.

This process would be similar to having fire insurance on a mortgaged house and if the policy was collapsed or canceled, by default the insurance company notifies the lien holder.

In regards to what I mentioned with having an estate as a named beneficiary for a life insurance policy - probate tax would apply as the life insurance policy would be seen as an asset and the will if any in place would direct how the proceeds of the estate would be disbursed. If there is no will the provincial trustee steps in!

As general rule, creditors, funeral expenses, testamentary expenses income tax's, lawyer's fee's and don't forget the executor fee of 5% of estate are paid first.

The remaining proceeds if anything would be disbursed as the will directs at the discretion of the executor. If the executor decides to sit and wait 6 month or a year there is not much you can do. Also if you disagree with the executor methods of settling the estate and take the matter before civil court - superior court of justice, the executor's legal fees are paid for by the estate. You would have to pay for your own legal fees. If litigation was started, this would freeze the estate up even longer.

As I mentioned, as provided in the family law act Ontario, a support order does bind the estate but only after everything else has been paid.

I don't think your ex is too child centered to have set up the life insurance in this manner. It makes things so complicated.

Settling estates take many months maybe years. Maybe this is his intent to make thinks difficult for the children or done honestly out of mistake.

Either way you have to get this straightened out.

Send a letter, request a photocopy of the policy to your ex. If your ex fails to comply with the request especially since there is an order in place that deals with it, I think you would have the court's full support at a case conference. The Judge may order disclosure of the policy or may amend its own order that the life insurance beneficiaries SHALL be the children and not the estate. The Judge may warn him that he could be found in contempt also if the previous order is not complied with.

I think if you expressed concerns of involving estates, a Judge will most likely support your stance as it appears it is not in the children's best interest to have the life insurance set up in the manner as your ex has done.
  #39 (permalink)  
Old 02-07-2006, 11:50 PM
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Logicalvelocity, jeff, Grace and everyone else who's helped thank you so incredibly much.
Lv to answer your question my ex is not a very child centered person , he is making my life difficualt because it gives him 'kicks'. When I swallowed my pride and called him at work, a few weeks ago, to ask him about this, I could see him smirking on the other end, as he sai" nope, you're not getting a copy and (sister-in-law) is beneficiary. It made his day. What kills me is that I have to do this again.
Logicalvelocity, you stated civil court (I'm going to attempt this on my
own) Do I file, not in Family law division, but at the civil law counter? Which paper do I file. Just affidavit, or motion of some sort? How lomg would I give him to respond to my xpress post letter b/f filing with court. Do I have to do an affidavit of service just to prove that I've sent him something or will the serial no. from post offiuce be sufficient?
Sorry if I'm sounding dense but I just want to get every step done perfectly, cover all grounds so I'm not re-doing this in six months again.
This could be so easy for him to remedy but this is his entertainment.
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Old 02-08-2006, 09:04 AM
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Quote:
Originally Posted by Jeff

I don't think I've ever known logicalvelocity to be wrong!
Well, in that case LV, what are this Fridays Super 7 numbers!

Hubby
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