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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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Old 03-22-2014, 08:01 PM
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Default Can a settlement agreement be changed/challenged?

My partner just settled his custody dispute but the whole thing was a sham and stacked against him from the onset. His lawyer did not give him proper counsel and in the end allowed the settlement agreement to be full sneaky wording in his ex's favour that we're only just realizing.

Is their ANY precedent for going back to court to have this agreement thrown out due to bad counsel?

HELP!!
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Old 03-22-2014, 08:42 PM
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When was the agreement signed? If there is a blatant error in law (agreement goes against any current legislation) then it could possibly be disputed.

What "sneaky wording" are you specifically referring to?

How and when did you decide the agreement was not to your liking?

Has your partner spoken to his lawyer about his displeasure with the agreement?
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Old 03-22-2014, 08:53 PM
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He didn't like it as it was being negotiated and even yelled at his lawyer for allowing her lawyer to write it up.

It is not in keeping with the OCL assessment for starters. They changed and omitted things they didn't like and because her handwriting is COMPLETELY illegible it was hard to decipher everything.

For example - He's entitled to 2 non-consecutive weeks with the kids in the summer but the wording seems to read (again, illegible) that he's already picked his weeks for this year which isn't true.

He felt pressured to sign it and did not get proper counsel in court or during the negotiations.

This all happened last week and his lawyer knows my partner is extremely unhappy. He's so upset and distraught over this. Do we have ANY recourse?
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Old 03-22-2014, 09:27 PM
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Yelling at one's lawyer likely won't get your partner anywhere.

I would suggest that your partner go over item by item and bring the inconsistencies to his lawyer's attention - immediately, and in writing.

I don't know about Ontario Rules of Court or the process in negotiating child custody but perhaps others who have experience can chime in here.

Was the agreement signed in the presence of a judge?

Was there any recording of the proceeding?

What specifically is your partner objecting to aside from the clause about the 2 week access date in the summer?
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Old 03-22-2014, 09:42 PM
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You partner can calm down. These agreements and the court orders worth less than the paper they are written on.

Right there: "sneaky wording". it means it can be interpreted two ways. So your partner can interpret it to his favor. His ex can interpret it to her favor. Then they can go back to the court asking to clarify. In the past 4 years I went back 4 times with a "motion to change", and with 1 "contempt motion".
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Old 03-23-2014, 12:13 AM
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It was done at the final court conference prior to pushing it to trial. His lawyer told him that they had the higher ground and that his ex would have to agree to equal custody rather than forcing trial. In the end, his lawyer back tracked on everything, misrepresented our position to the judge and in the end he was made to feel like he had no choice.

We agreed with the OCL report with the exception of adding an additional day to our time to alleviate what the OCL deemed to be long stretches away from either parent.

In the end, they reworded things, changed things and omitted things. Other examples being that on holidays and days off school we were to have them until drop off to school the next day. In the settlement we have to have them to her by 5pm. We can't even have them for dinner!

We're losing time with them.

He felt cornered and that his lawyer was all hot air. He strung us along and then did nothing but agree to everything they wanted.

We're so upset.
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Old 03-23-2014, 07:56 AM
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he could of refused to sign it. He tells a judge "He didn't like it as it was being negotiated and even yelled at his lawyer for allowing her lawyer to write it up." The judge will question him of why he signed then. He had a choice, no one was holding a gun to his head.

He get wording clarified.
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Old 03-23-2014, 09:48 AM
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hmmm I wonder if you could contact the law society about the lawyer misleading you the way you say he did??
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Old 03-23-2014, 09:49 AM
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What exactly was the end decision? 50-50/80-20 or what?
All I can glean from your post is that you are upset about a summer holiday schedule.
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Old 03-23-2014, 11:37 AM
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I realize to many, this will seem insignificant. That for many, we have far more than what your or others have been given and with seemingly less drama or hardship. This has been 3 years and it is still, for us purely out of the love for these children and want for them to be in the better home and family, very upsetting.

In essence, at dispute was a single additional day per week - 48-52 total, which would have resolved a traumatic transition period for the children and the discrepancies in the OCL disclosure and report, more below.

More back story (forgive the length) -
At initial (and not amicable) separation, they were going to go through mediation but she told him he could have the kids 39% of the time. That was not what they had agreed to earlier and obviously had been told by a lawyer what % would give her full child support. So it went to court.

She started to make up stories about him being abusive and controlling and mistreating her and the children. She called children's services but the worker said it was clear that there were no issues and even though she couldn't put it in the report she was furious for having been used by his ex in this way. I've known my partner since high school, he may have a booming voice at times but he is the most gentle, loving and reasonable person I've ever known - and I knew that before we became a couple.

My partner ate all the marital expenses and debt, gave more than he should have on equalization and paid out everything monetary that she asked for to prove that for him it was never about money. It was always only about being with the kids. And she continued to show that it was only ever about the money, refusing to discuss custody until there were no more money matters to discuss. In the end, her lawyer admitted that it was only about money for her - if we gave her full child support she would agree to 50/50. And while some of you may say "okay, so why didn't you agree and have it done with?", we are barely making ends meet with all the marital debt and expenses plus the child care and extraordinary expenses. Bankruptcy is looming and his mother has covered his legal costs. We couldn't agree to that even if we wanted to.

The Judge, from day one, made telling and prejudicial statements against fathers in general and leaned in her favour constantly. We were disheartened from the beginning but were told we were stuck with that judge.

We asked the judge for the OCL to be assigned multiple times and he refused it saying it was an unnecessary expenditure for the court system. We submitted multiple offers and rarely if ever were they even acknowledged. When it was clear that there would be no movement, the judge finally granted the OCL.

The OCL offices misplaced our request so it took almost three times as long for the whole process. Prior to the disclosure conference, the OCL verbalized to my partner that it should be completely shared and that she saw absolutely no issues with him as a parent. We made a very specific point that the children, under the temporary agreement, DO NOT fair well with the single nights - it is very hard for them transitioning and they are very upset, sometimes inconsolable when they're reminded they're only with us for a single night. At the disclosure the OCL verbalized the same and laid out her findings but then backtracked and suddenly started to shift to the ex's favour when questioned to clarify points. We submitted an offer based on what was originally represented by the OCL - she has two days, we have two days, and weekends alternate. Christmas, summer and March break are to be shared equally, we have them on school holidays (due to a more accommodating schedule) and stat holidays go to the parent with the weekend. They refused it. We tapered back to only that second day per week when the schedule forced the children to be away from us for more that 5 days - which the OCL said was bad for kids this young. They refused.

After the OCL, we sent a follow-up of that same offer and they refused saying that they would only go with the exact wording of the OCL. They sent back an offer that was not the exact wording of the OCL with a number of changed times and omissions that played to giving her that 61% that she wanted. His lawyer said it was all BS and the judge would tell them no less than the OCL and we would likely get at least those extra 16-20 days per year.

And then he got to court, his lawyer changed his stance on everything leaving my partner to stand there in awe of what he was hearing.

In the end, she has 3 days per week, we have 1 with weekends alternating - again these single nights have proven to not be good for the children. They "graciously" agreed to 6 additional days for a portion of the long stretches. The school and stat holidays now have us returning the children by 5pm rather than the overnight as indicated in the OCL (solely to maintain her %). It notes that for this year, we've already chosen our vacation, which is confusing and untrue. Other times were changed to give her more time and us less. We always have to bring the kids to her, she never has to bring them to us which is nitpicking I know, but that's an hour we lose. That's not everything but you get the overall picture. If everything is worked in our favour it's about 41%-59%.

The single additional night per week was to ease those transitions that leave them in tears and clinging to their father not wanting to leave. It was also noted by the OCL that stretches over 5 days are bad for them. She doesn't care, she just wants to sit above 60%.

One of the children sees a Counsellor, at her request because she didn't want to deal with him and yet we are the only ones taking him. The counsellor has said that all of his issues stem from his time with mommy and that he feels happiest and safest with daddy.
This child also has been established with a learning disability and he only gets the extra help with us and only shows gains after being with us. We struggle to get him back on track every time after he's with his mother. She was refusing to allow further assessment for him because she didn't want to go out of pocket $200. Meanwhile we scraped together all we could to pay out the $$$$ for the initial cost of the assessment and are on Kraft dinner until the money comes back through the benefits.

Is she physically abusing the children - no.
Is she emotionally neglecting them - yes.
Is she neglecting them on other basis - yes.

Did we get a horrible, completely unreasonable, totally cut out of their lives custody agreement - no.
Are many of you reading this and saying "suck it up, it's not so bad" - possibly

Living in the situation and seeing the continuing impact on the children, and having been led by a lawyer who seemingly fumbled and misrepresented our way through the process in front of a judge who seemed prejudicial from the outset and an OCL who said one thing twice, backtracked and then wrote something different and an ex who's only concerned about money...
It's all very upsetting to us. We trusted a system that seemed to let us down at every turn.

I go back to my questions-
Is there any recourse?
Can we site the lawyer not advising us properly and misrepresenting our position?
Is there a point or age when the kids can ask for a change?
What is a parenting coordinating and what can they do?

Thanks for the ear, I know this was long.
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