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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 05-18-2006, 07:39 PM
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Default Does this sound right to you?

You know I really thought after the 7 years it took me to get my divorce I learned a thing or two of how it works...am I wrong in my thinking here?

My common law hubby is pursuing his divorce after many years being seperated, they share one child, and have agreed on visitation, support is by federal guidelines. There is no seperation agreement in place. She is a recipient of disability payments from the government of Ontario.

So the idea was to just formalize what they have already been doing for years. He retained a lawyer 3 months ago. We gave the history of what they've been doing..which is all well and good. The lawyer asked him to call her and see if she is agreeable to these terms etc and if so we would draft an agreement. Initially he wanted to just have her served and go about it that way, but she advised that if we could have her co-operation it would likely go a lot more smoothly as people tend to get a little touchy when served with papers. Ok, so fine, he talks to her, she's fine with it, couldn't really give a flying fig about the whole thing, doesn't even want a lawyer.

After many delays we've end up with a different lawyer in the firm, then 2 weeks after that we end up with a different lawyer yet again whom we are currently dealing with. We come up with a list of things he would like included that his ex is fully aware of. There are 2 possible annomilies..she does not receive spousal, and given her very limited income and due to the very distant possibility she will ever become gainfully employeed he agrees to pay all section 7 expenses. He informed his lawyer that he has spoken with his ex about this. The lawyer responds with ' they can not act on behalf of him and his ex as they ( the law firm) was retained by him?!?!? And futher advise she should retain her own counsel, possibly at his expense. What the heck? And she wants to request his ex's financial statement as well.

What I don't get is :
a) as he is willing to assume the cost of all section 7 expenses and she does not want spousal support why do we even need her financials?

b) why would the lawyer even bother saying that they can not represent both of them..we know that..he hired them after all..and only bothered consulting the ex on their advice..

So now this lawyer wants him to come in so she can 'explain the divorce process' to him!!!??!

Am I missing something, I have the distinct feeling that he is being milked of his retainer.....as far as I can tell this should be easy breezy...everything is agreed upon, they've had this agreement informally for years..so why all the complications? And if she doesn't want a lawyer what the heck are we supposed to do about it, and frankly why is it any of our business, she's a grown women who can make up her own mind!

Any help or thoughts would be greatly appreciated. As I mentioned in the begining, my divorce took over 7 years..and it was uncontested ( don't get me started its a very long story..lol) and I truly dread the idea of dragging this out when as far as I can see it doesn't need to be.
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Old 05-18-2006, 09:10 PM
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jlalex,

Quote:
She is a recipient of disability payments from the government of Ontario.
The party is considered a public charge and the directives of ODSP would apply. Any waiver or consent to fore go spousal support is void by the party. She has already established "need." The party has no authority to give such a waiver especially if they are a public charge.

The directives of ODSP can be found here
http://www.mcss.gov.on.ca/CFCS/en/pr.../odspisdir.htm

DIRECTIVE 5.15 SPOUSAL AND CHILD SUPPORT

http://www.mcss.gov.on.ca/NR/MCFCS/O...IR/en/5_15.doc

SUMMARY OF LEGISLATION

If a member of the benefit unit does not meet a condition of eligibility, income support can be refused, reduced, canceled or suspended.[/U]If money is due to a member of the benefit unit and such money would be treated as income, the Director may require as a condition of eligibility that income support be reimbursed when such funds become payable.

If the Director is not satisfied that a member of the benefit unit has made reasonable efforts to obtain a financial resource to which he/she is entitled, the Director may reduce income support or determine that the person is not eligible for income support.

APPLICATION OF POLICY

Pursuit of Spousal and Child Support In Relation to Eligibility for ODSP

An ODSP applicant/recipient must make reasonable efforts to obtain compensation or realize any financial resource to which he/she or his/her Dependant may be entitled. The Director must be satisfied that a person is taking action, where appropriate, to obtain support payments.

Waiver of Applicant/Recipient’s Obligation to Pursue Support

There are circumstances under which it is not feasible to pursue support. The pursuit of support may be permanently waived in the following situations:

· the whereabouts of the absent parent cannot be located after a search and there is no contact for an extended period of time;

· paternity cannot be determined; or

· the absent parent is deceased.

The pursuit of support may be temporarily waived in the following situations:

· the absent parent is in a non-reciprocating state (verification required);

· the absent parent has no ability to provide support, verification is required (e.g. a student, an inmate);

· the applicant/recipient cannot attend court for medical reasons;

· there is family violence (emotional or physical) that can be verified (e.g. by police, doctor);

· other special circumstances.

The waiver period should reflect the circumstances of the case, and is subject to review at the end of the waiver period, or at the next file review, whichever is earliest.

ODSP staff must approve the waiver and the decision must be in writing explaining the reasons for the waiver. Where a waiver is granted, the applicant/recipient should be advised in writing of the waiver and that he/she is responsible for advising ODSP staff if circumstances change.

Determining Legal Obligation to Support

To determine if an absent person has an obligation to support the applicant/recipient and/or any dependent children under the Family Law Act (FLA) or the Children’s Law Reform Act (CLRA), the following factors are to be considered:

· the marital status of the applicant/recipient;

· the length of time since the applicant/recipient has been deserted/separated. (No action or application for an Order for Support of a spouse shall be brought under the FLA after two years of separation. An application regarding support for the dependent child(ren) should still proceed);

If your common law hubby and his ex have been separated for more than 2 years, ODSP directives will not force the party to pursue spousal support.

However, One must remember there is no time limit for spousal support claims under the Divorce Act(Canada). Corollary relief survives beyond Divorce.

Quote:
a) as he is willing to assume the cost of all section 7 expenses and she does not want spousal support why do we even need her financials?
To validate the Separation agreement, exchange of full financial disclosure MUST occur between the parties of the agreement. If this does not occur the agreement is VOID and isn't worth the paper it is written on.

Quote:
b) why would the lawyer even bother saying that they can not represent both of them..we know that..he hired them after all..and only bothered consulting the ex on their advice..
To validate the Separation agreement, both parties must have independent legal advice in regards to what they are signing. If this does not occur the Separation agreement is VOID. ie: "conflict of interest"

The Family Law Act R.S.O 1990 c. F.3 has this to say in regards to Separation agreements.

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK58

PART IV

Separation agreements

54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).

Form and capacity

Form of contract

55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).


Provisions that may be set aside or disregarded

Contracts subject to best interests of child

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1); 1997, c. 20, s. 10 (1).

Contracts subject to child support guidelines

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement. 1997, c. 20, s. 10 (2).


Setting aside domestic contract

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).



Contracts made outside Ontario

58. The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract
, except that,

(a) a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law;

(b) subsection 33 (4) (setting aside provision for support or waiver) and section 56 apply in Ontario to contracts for which the proper law is that of a jurisdiction other than Ontario; and

(c) a provision in a marriage contract or cohabitation agreement respecting the right to custody of or access to children is not enforceable in Ontario. R.S.O. 1990, c. F.3, s. 58.

The lawyer has an onus and legal duty to make the Separation Agreement a valid Contract. The lawyer is following the correct procedure to prevent a VOID contract and avoding a conflict of interest.

LV
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Old 05-18-2006, 10:30 PM
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Default point taken...but...

ya had to know there was going to be a but in there..lol..


They have been seperated well over 5 years...she has never tried to pursue spousal support and has been fully aware of his whereabouts the entire time, including full contact information of his employeer..not to mention his address and phone numbers. I don't know what she's been telling the government all these years..but he surely hasn't been in hiding trying to duck anything. Also I think its worth noting that she is living with another man the last 3 years herself..

And I do understand the responsibility of the lawyer doing their level best to make sure the contract is solid..but isn't the whole purpose of serving someone to inform them of impending legal proceedings..and therefore it would be wise to obtain counsel? Are you supposed to wait around indefinitely if the person chooses not to obtain counsel? Please tell me there is some level of personal responsibility applicable to all persons in the court system if not life in general? If the person chooses not to take any action..something must happen after the time period lapses...

LV I very much appreciate your input and the information you gave, I've noticed in many posts I've read in the past that you seem to be and endless supply of legal information and advice..thank you for taking the time to respond.

One thing I wish is that all of these points were explained in the very first meeting. He was definitly left with the impression that this will be very straight forward affair. But now more than 3 months later there has yet to be any kind of paper work drawn up..except for our invoice that is.

Perhaps it is my own personal situation that has me a little teed off, 7 years is a very long time to wait for an uncontested divorce....,and I may be paranoid in thinking history is about to repeat itself..I just wish I knew of a way to make sure things are proceeding in a reasonable manner..and 3 months passing without a thing to show for it seems pretty excessive but then what do I know? We are both rather frustrated at the idea of having yet another meeting with the lawyer to explain a matter that we were under the impression we covered the first time. So now we are going in and spending yet more money to repeat ourselves and get a different answer...it just doesn't sit right with me.
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Old 05-18-2006, 10:52 PM
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jlalex,

I can understand frustration at the process. and the costs involved.

I suspect there won't be any problems with a future spousal support claim under the divorce act.

Both parties can do the Financial exchange of information themselves. Take a standard financial statement, print a few and give it to the other party to complete. This may speed up the process. Be sure exchange last 3 years income tax returns and final assessments. Each party have their respective financial statement sworn.

The parties must have an idea of the content of the agreement already. Perhaps a draft could be drawn up between the parties then submit it to one lawyer for language content. This might save some time.

One a good draft is completed , submit to other party for consideration. If all approved, have a final separation agreement drawn up. Have both parties sign and each have 2 independent witness's.

You could have a term in the agreement, this agreement survives divorce etc something to that effect. If everything is agreed, it is a straight road to Divorce.

LV
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Old 05-18-2006, 11:27 PM
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One of the reasons for needing financial disclosure (at least in Alberta) is that if the court is not satisfied that financial disclosure has been completed, the divorce will bounce - heck, the clerk at the court will bounce it...
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Old 05-18-2006, 11:37 PM
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Default do-it-yourself style divorce

My ex and I drafted our own terms, had a paralegal draft it ($300) and then we went together to the courthouse and filed.

The people at the FLIC were very helpful ... it was very simple, actually.

We did not provide financial statements - nor tax assessments, although our agreement does state that we will exchange assessments by June 1 of each year, and support will be adjusted if required.
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Old 05-18-2006, 11:42 PM
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Default to continue ...

No one ever suggested during our process that I was required to request spousal support, although our division of property does include a clause that says basically, even though I refused it, that isn't legally binding.

of course, it could be that I wasn't obligated to request S/S because I wasn't dependent on the gov't ... but I would have to think that because she hasn't requested it for 5 years, and she is in a new common-law relationship, she wouldn't necessarily be awarded it anyway.

Don't let these lawyers snow you - it doesn't have to be difficult ... people do their own divorces all the time - and the money saved from lawyers bills makes for a nice new car or tution for university!!!
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