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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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  #11 (permalink)  
Old 08-17-2015, 07:05 AM
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Arabian, Thanks for your reply. I felt that I wasn't getting disclosure, and am frustrated with it. I didn't get it the first time it was requested in 2012, which is why income was imputed, I haven't gotten it since 2012, which has been court ordered on him to provide, and I didn't get it this time with the motion to change being filed (Form 13)or when I requested more disclosure with my response to the MTC. I know he is hiding info, but I can't prove it. However I am now finding more information the more I research, and I realize the onus is on the EX to prove there is enough of a material change to warrant a change in support amounts. Thanks to your CAN LII links, I have also found that an imputed income cannot be changed without lots of evidence that it warrants a change. I felt this whole MTC was a waste of time to begin with, and didn't want to go to court for it at all. My response to the MTC states " I would like it be known to the courts that I am content and satisfied with the current final order, and request that the order remain status quo. I request that this motion to change be dismissed due to lack of material change." The ex is playing games at the word of his new wife.....I don't have the time for games, nor can I afford to take the time off work to play these games. I know if I dig deep enough I could have a new income imputed to have CS increased, but I don't care enough to dig anymore, which is why I have requested to have no changes made. It's not the amount of support...it's the principal of the whole matter now. The first time we were in court the judge started case conference by saying to me "What do want from Mr Ex. What number are you looking to receive in means of support?" My response was I'm not looking for a certain number, I am requesting an honest representation of financials so we can base support on that according to CSG". I want the same thing this time. Court imputed income, lower than what the potential could have been and said "If we have to come back here for lack of financials again we will go straight to trial." We are wasting the courts time AGAIN, and I want to find a way to stop him....before we waste more time.
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Old 08-17-2015, 09:26 AM
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"We are wasting the courts time AGAIN, and I want to find a way to stop him....before we waste more time"

You can stop wasting time very easily by filing a motion for summary judgement.

The moment after you file your response to the motion to change, you can file your own separate motion for summary judgement. It is very quick. The court clerk offered me a motion hearing date for six days later. Six days.

There are no conferences required for summary judgement.
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Old 08-17-2015, 09:57 AM
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I agree with Winter about the summary judgement. A very useful process to stop reckless litigation.

What I am unsure about, and concerned about, is your ex's refusal to submit full financial disclosure. C/S being a right of the child and all. Can you convince judge that you have done everything you can do legally to effect financial disclosure? Something to pause and think about. Consider steps that the court takes for non-disclosure.

I agree with winter that summary judgement is the way to go if you just want to stop your ex's motion in its tracks. What I am concerned about however is if judge will agree as full financial disclosure has not been realized. If Judge asks that question then your motion for summary judgement may very well be dismissed.
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Old 08-17-2015, 10:10 AM
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Sometimes it is impossible to get full financial disclosure. If the party is invested in not disclosing, and has no qualms about defying court orders, it can take years of adjournments and multiple disclosure orders and contempt motions and you still don't get the information.

Cases go forward without it. All the time. That is why judges have the power to impute income. If a party refuses to disclose, an adverse inference can be made against them.

In this situation, the payor has already had an income imputed due to lack of disclosure. He has filed a Motion to Change the imputed income -- and still refuses to give proper financial disclosure. The onus is on him to prove a material change. Under the Rules, he was required to file all his evidence supporting his motion with his motion. All Busch has to do is ask that his motion be dismissed for lack of proof of a material change.

Chasing after disclosure he has withheld for years is a losing game. She will waste her life away. If her ex is determined not to disclose, he won't.
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Old 08-17-2015, 10:23 AM
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Winter, you have my attention!! I would really like to stop it all. does the EX need to be at summery judgement? He lives in US, and hasn't been in court once for anything since filing the MTC.

I honestly feel that having all dismissed would be best.....but I also agree with Arabian, full financial disclosure should be made....but at the same time, it's like getting blood from a stone.


With the summery judgement, can I ask for the judge to create an order for back owed CS, and S7 expenses that the EX has in arrears? Oh and for costs too for wasting my time?


My next question will be how details does this motion request need to be? And is it From 14B?


Soo many questions and soooo much thinking and researching to be done! If a 14B is all that I need, then I will be ecstatic!!


The onus is on the EX to prove material change, enough so to reduce CS...but it would be on me to prove that more income is being made if I was claiming that I wanted an increase in CS?
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Old 08-17-2015, 10:23 AM
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I agree with you Winter.

I guess my thinking on this was that it would be nice for lawyer representing her ex be taken to task. Probably wishful thinking on my part.

Idiotic that someone files a MTC without providing disclosure.
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Old 08-17-2015, 10:42 AM
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You use a Form 14: Notice of Motion and request summary judgement dismissing his Motion to Change on the basis that he has not met the onus of showing a material change in circumstance.

Then you need to file an affidavit with your Form 14 addressing each point he raised in his Motion to Change and showing how it is not a MATERIAL change.

Choose a motion date a couple of weeks away as if you choose one too soon, the lawyer will just ask for an adjournment. You could call the lawyer's office and ask when he is available for a motion hearing if you want beforehand. The courthouse will hear motions on a specific day of the week, for example Wednesday. Ask what is the earliest Wednesday he is available.

Then drop your motion off at his lawyer's office (I am assuming that while he is in the US, that his lawyer is in your city) to serve your motion.

My advice would be to simply argue there is no material change. If you want to argue for an increase in support, then you would need to agree there is a material change. You have no factual information to prove an increased income (from what I understand from your posts). It is much simpler and quicker to simply keep your current order. Yes, he is probably underpaying. It is unfair. But nothing about this process is particularly fair.

If he is currently in arrears, you absolutely can ask for the court to set an arrears payment schedule. If you are registered with FRO, request a statement from them and attach it to your affidavit. Ask the court to order a monthly arrears payment amount. Pick a number that is reasonable. How much is he in arrears?

For Section 7, you quote what your current order says you each pay (I assume a percentage) and attach your receipts proving what the total amount owing is and what his share is. Make certain what you are asking for is indeed Section 7
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  #18 (permalink)  
Old 08-17-2015, 10:49 AM
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I found this case which you guys might find interesting:

https://www.canlii.org/en/on/onsc/do...&resultIndex=6
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  #19 (permalink)  
Old 08-17-2015, 11:01 AM
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Thanks Arabian

Another that may help Busch is also very recent --


Citation: Fewster v Fewster, 2015 ONSC 4816 (CanLII),

[39] The Minutes of Settlement and Divorce Order attribute income to Mr. Fewster. They do not explain the relationship between the attribution of the income and Mr. Fewster’s actual income at the time. The attribution may be based on other factors such as the fact that some of Mr. Fewster’s personal expenses are also expenses of the business, or the possibility that Mr. Fewster’s actual income is greater than his declared income, or that Mr. Fewster is capable of earning a much higher income than he earns and is intentionally underemployed. Regardless, I find that Mr. Fewster’s change in income is not material and cannot support a variation in spousal support.
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Old 08-17-2015, 01:03 PM
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OMG!! The two of you have made my Monday!! If I wasn't sitting at work I would be doing a happy dance right now!! Thank you both so VERY much for your help!! To answer some of your questions Winter....


You asked "If he is currently in arrears, you absolutely can ask for the court to set an arrears payment schedule. If you are registered with FRO, request a statement from them and attach it to your affidavit. Ask the court to order a monthly arrears payment amount. Pick a number that is reasonable. How much is he in arrears?"

We agreed to sign off on FRO as per the judges suggestion. (no employer to do garnishment with) However, when ex filed MTC he had to update address and get a certified copy of our Final Order. That in turn sent it to FRO without the documents that we had signed refusing FRO. I have been trying to contact FRO and will continue to do so to get a statement that no payments had been made. He is 3 months in arrears almost $2,000.00, plus S7, (child care) costs.

I know I don’t have proof of extra income greater than what was originally imputed, hence the reason I wanted to keep everything status quo. Under paying or not….just keep things the way it has been for 3 years and leave well enough alone. That’s my thought anyway. I will be looking into Form 14 for sure, and I’m pretty sure my affidavit that I included in my response to the Motion will suffice in showing no Material Change. I included everything from the fact that tax deductions are lower in the US and that he didn’t apply an exchange rate to the 23K he was claiming. I just need a judge to look at the request and say YA um NO.

Last thing I need to figure out is the laws and Rules that warrant my request to dismiss. I know Rule 16 and then 19. I also believe that I can request costs for this.

Thank you again Winter and Arabian!! I greatly appreciate you help and efforts on this!
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