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Old 03-21-2012, 10:01 AM
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Default I may have just stepped on my dick (Amending SA)

Background: SA done in 2007 with the expectation of a typical "reside with mom, visit dad EOW" scenario. Gave her pretty much everything, including the kitchen sink (because I believed that what was good for her was good for the kids). Turns out that the kids never lived with her, but she tried to enforce the SA (CS & SS) anyway via FRO - which is what originally brought me to this forum.

Today: STILL trying to amend SA so that she can't do anything nasty again. Have been pissing around with lawyers, went broke, and now self-repping. Every proposal comes back with a tweak or two, as her lawyer attempts to wring every possible dime out of her. This is OK with me, as all it is now costing me is time. Their latest proposed tweak ties CS (she's supposed to be the payor) to SS (I'm the payor) such that she only has to pay CS for as long as I pay SS. Should I object, this would never fly. Pretty much immaterial, BUT...

The problem: I received an email today from her lawyer (ca-ching: another $40 from the ex's pocket (grin)) inquiring if I had had a chance to review their proposed tweak. I answered (email pasted below) factually and reasonably, but then allowed myself a little rant. Obviously, I should have waited a day (and had lots more coffee) before replying.

My question: What damage have I done, and how can I fix it? Those of you to whom I address this question know who you are

The dick-stepping occurs in the self-admitted ill-advised candidness

Thanks,

Cheers!

Gary


The emails:

From: [me]
Sent: Wednesday, March 21, 2012 9:28:37 AM
Subject: Re: Agreement

Without Prejudice

Good morning [ex's lawyer], and thank you for your email.

I have indeed received and reviewed the proposed amendment.

Although largely acceptable, there are significant concerns with some items, such that I will have to seek legal opinion before deciding on how to proceed in this matter.

One example would be the clause that ties CS to SS and terminates entitlement to CS concurrent with the termination of SS. As you are aware, CS is a right of the children and is not something I can sign away, no matter how inclined I might be to do so. CS is payable until the child(ren) are no longer children as defined by the Guidelines; I would think that an acceptable clause would indicate that CS is payable in accordance with the amended Agreement until the termination of SS -at which time it shall revert to Guideline amounts/application based upon the age and status of the child(ren) and the payor's annual income.

I will be candid and advise you that I am not very inclined to continue with this course of amending the SA. I feel that I have been extremely generous in my attempts to settle this matter and become more discouraged that it is even possible to settle with every change and delay. With the passage of time and some recent case law, I am confident that the system would look most unfavourably upon a parent who has avoided supporting her children while continuing to attempt to extract money from the their only caretaker despite that she neither hosts nor visits the children, that she's sitting on a pile of money, that she's living in a house her parents bought, and that she's driving a car her parents bought, while the custodial and 100% residential parent scartches and scrapes just to pay the bills. I have been advised that I would likely be successful in a motion to find that there is no entitlement to SS at all. Although almost certainly ill-advised, I offer you that glimpse of my thought process not to be provocative or argumentive, but rather to give you a feeling for the "other side of the coin."

Thank you again for your correspondence. I will be in contact again as soon as I receive sufficient legal advice on the best way for me to proceed. In the meantime, I am certainly open to any comments and/or suggestions you may have. I am reasonable and my sole goal is to simply put all of this behind me and move ahead with raising the children such that they have the best possible chance of enjoying a successful life.

Yours,
Gary
----------------------------------------------

From: [her lawyer]
Cc: [the ex]
Sent: Wednesday, March 21, 2012 8:21:58 AM
Subject: Agreement

Good Morning, Mr. Madore,

I am writing to inquire as to whether you have had an opportunity to review the draft Amendment to Separation Agreement that was forwarded to you. If you could please advise as to a time frame for a response it would be appreciated.
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Old 03-21-2012, 10:47 AM
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Quote:
Originally Posted by Gary M View Post
Their latest proposed tweak ties CS (she's supposed to be the payor) to SS (I'm the payor) such that she only has to pay CS for as long as I pay SS. Should I object, this would never fly. Pretty much immaterial, BUT...
If brought to application I highly doubt any judge would allow the child support to end when the spousal support ends. Child support is a non negotiable for judges. Both parents have to support their children. While you are paying spousal support there is a deduction from the CS the other parent is paying you to equalize but, once SS ends the child support is owed by the other parent.

The purpose of child support is to support the right of the children to be supported. If you are the primary access parent then child support has to be paid by the other parent.

What is good for the goose is good for the gander.
They can't blow hot and cold.

This is why on a 60-40 split child support is split on an "Offset Method" generally.

Furthermore, child support before the court is non negotiable. No judge is going to overthrow presidence with anything relating to child support and the right of the child to be supported by both parents. You support the children as they reside with you but, the non resident parent is expected to pay child support.

Furthermore, the purpose of SS is to help support the other parent so they can reach a point where they are self supporting. SS in some situations can end up being forever but, your situation doesn't sound like that if they made an offer to settle where there is a termination date.

The only time child support terminates is when the children finish school (university, et all...) and both parents are expected to support their children.

Quote:
Originally Posted by Gary M View Post
My question: What damage have I done, and how can I fix it? Those of you to whom I address this question know who you are
Here is my perspective on the correspondence sent:

Quote:
Originally Posted by Gary M View Post
From: [me]
Sent: Wednesday, March 21, 2012 9:28:37 AM
Subject: Re: Agreement

Without Prejudice
Without Prejudice makes it hard (to near impossible) for any of the content of the letter to be used in a motion or at trial. So, although you may have felt you did something the clause prevents the materials from being directly used against you.

They do know your position but, they can't directly quote it. All you have provided is some insight into your concerns.

Quote:
Originally Posted by Gary M View Post
Good morning [ex's lawyer], and thank you for your email.

I have indeed received and reviewed the proposed amendment.

Although largely acceptable, there are significant concerns with some items, such that I will have to seek legal opinion before deciding on how to proceed in this matter.
"Largely acceptable" and "significant concerns" can often be miss interpreted by others as conflicting statements. But you clarify and provide detailed particulars to some of the concerns. My recommendation would be to provide the direct paragraph number that you are referencing in the SA.

You should have notified them of the exact "acceptable" clauses by paragraph number. As the correspondence is marked properly (without prejudice) and is regarding an offer to settle it can't be used against you until something happens before the court and it comes to costs time.

Quote:
Originally Posted by Gary M View Post
One example would be the clause that ties CS to SS and terminates entitlement to CS concurrent with the termination of SS. As you are aware, CS is a right of the children and is not something I can sign away, no matter how inclined I might be to do so. CS is payable until the child(ren) are no longer children as defined by the Guidelines; I would think that an acceptable clause would indicate that CS is payable in accordance with the amended Agreement until the termination of SS -at which time it shall revert to Guideline amounts/application based upon the age and status of the child(ren) and the payor's annual income.
100% correct and better put than the vast majority of "family law" solicitors would state it.

Quote:
Originally Posted by Gary M View Post
I will be candid and advise you that I am not very inclined to continue with this course of amending the SA. I feel that I have been extremely generous in my attempts to settle this matter and become more discouraged that it is even possible to settle with every change and delay.
You may want to consider attaching or identifying the case law in support of your position. Lawyers generally don't do this in correspondence between another lawyer because they expect the other solicitor to be schooled in their area of practice and up-to-date. But, as a self represented litigant in the matter, you can demonstrate to the other lawyer they are dealing with someone educated in case law.

Just "for example" the supporting case law and provide the CanLII details. Make no inferences as to the particular elements of the case law. It is the job of the other solicitor to see the relevance in the case law being presented. It is there job...

Quote:
Originally Posted by Gary M View Post
With the passage of time and some recent case law, I am confident that the system would look most unfavorably upon a parent who has avoided supporting her children while continuing to attempt to extract money from the their only caretaker despite that she neither hosts nor visits the children, that she's sitting on a pile of money, that she's living in a house her parents bought, and that she's driving a car her parents bought, while the custodial and 100% residential parent scratches and scrapes just to pay the bills.
This is where your left brain took over a little bit in your correspondence. It is evident in the length of the sentence. Not that your position is incorrect or "mean" per-say.

The correspondence could draw some conflict but, in comparison to other materials I have read in continuing records attached to affidavits it really isn't all that bad.

When you review your correspondence check the length of the sentence. The facts presented are not incorrect but, you could have stated them in a more cogent way. Break the facts down into numbered items. i.e.

Being confident and saying you are confident in your position isn't necessary at all. You can demonstrate your confidence without stating it. Talk about your position in the matters versus the "confidence" you have in the position. Make the other lawyer do their job and force them to provide the particulars on their position.

For example:

It is my experience after reviewing case law and other materials that the courts do not look favorably on a parent who:

1. Currently does not exercise their children's right of access to that parent generally.

2. Avoids the important issue of child support and the payment of child support in accordance with the Guidelines.

3. Has access to sufficient assets to draw from to insure their children are receive the support they are entitled to.

4. Has sufficient support from their family which provides them a means to provide for the needs of the children.

(Those are four key relevant issues and you addressed them but, with possible some emotion but, it wasn't horrible in my opinion.)


Quote:
Originally Posted by Gary M View Post
I have been advised that I would likely be successful in a motion to find that there is no entitlement to SS at all. Although almost certainly ill-advised, I offer you that glimpse of my thought process not to be provocative or argumentive, but rather to give you a feeling for the "other side of the coin."
I am of the personal opinion and have been advised that should your client bring this matter forward on application and motion that child support would continue beyond the date at which spousal support would end. I base my opinion on the Rules regarding the payment of Child Support outlined in the Guidelines, Family Law Rules and Children's Law Reform Act which govern both parties conduct in these matters.

There is significant risk involved for both parties if this matter would be brought forward for judgement on motion and ultimately trial. As the case law and Rules regarding Child Support and payment are clearly stated and followed. There is a potential risk of having to pay my costs on such a matter if it were brought before the court and I would request costs in accordance with the costs awarded in --Insert WorkingDad's Costs Decision Here---.

Furthermore, it is questionable if your client is indeed entitled to spousal support continuance in accordance with the time frame you and your client have proposed. Spousal Support can be agreed upon but, should the matter escalate and require the assistance of the court to determine this your client again risks costs being awarded against her. Spousal Support Guidelines (SAG) are guidelines and generally followed but, they require intense investigation both on motion and potentially at trial to determine if both parties cannot come to an agreement.

Quote:
Originally Posted by Gary M View Post
Thank you again for your correspondence. I will be in contact again as soon as I receive sufficient legal advice on the best way for me to proceed. In the meantime, I am certainly open to any comments and/or suggestions you may have. I am reasonable and my sole goal is to simply put all of this behind me and move ahead with raising the children such that they have the best possible chance of enjoying a successful life.
Excellent! This paragraph cleans up a lot of what you were worried about in your correspondence in my opinion. You are demonstrating you are cooperative and reasonable and giving them an opportunity to provide supporting particulars to their position.

Good Luck!
Tayken

Last edited by Tayken; 03-21-2012 at 10:53 AM.
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Old 03-21-2012, 10:55 AM
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"Tayken"

Thank you so much for your thoughts - most importantly the advice therein.
(Of course, I am thrilled with the validation but would have been equally appreciative should your comments have been negative).

After reading your reply I am much less worried about irreperable damage (to my case, as it were) and will chalk this up as a lesson-learned in keeping emotions out of business.

Thanks again for taking (Tayking?) the time to respond,

Cheers!

Gary
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Old 03-21-2012, 11:05 AM
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You didn't really step on your dick. You just let your emotions get into the conversation. The lawyer will likely see your frustration and then filter it as fluff. If you get a reply it will likely be on point to the meat of the issue.

IMO, stick to the issue of c/s as it is in the best interests of your kids. Should you have to file a motion to enforce c/s (and request arrears) you know where you can find help.

And try not to let your frustration show next time. Had you stopped at the second paragraph you would likely be a lot less stressed right now.
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Old 03-21-2012, 11:26 AM
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Thanks Brother - lesson learned.

Cheers!

Gary
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Old 03-21-2012, 11:34 AM
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I am not as learned as Tayken or some of the others on here but I think your six inches lol is safe on this one. Sounded ok to me.
PS: IMO most lawyers are without a conscience and not unlike robots. Write to them in similar fashion; like a machine.

Last edited by hadenough; 03-21-2012 at 11:37 AM.
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Old 03-21-2012, 11:39 AM
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Quote:
Originally Posted by hadenough View Post
I am not as learned as Tayken or some of the others on here but I think your six inches lol is safe on this one. Sounded ok to me.
Well played, Madame!

Of course, I don't want to brag, but we're talking 14 (man) inches here - minimum

Quote:
Originally Posted by hadenough View Post
PS: IMO most lawyers are without a conscience and not unlike robots. Write to them in similar fashion; like a machine.
You're right: The lawyer doesn't give a hoot about MY kids - she's worried about supporting her own. As it should be, I guess.

Cheers!

Gary

Last edited by Gary M; 03-21-2012 at 11:42 AM.
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Old 03-21-2012, 11:47 AM
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...another way to look at it ->

It was a hell of a lot better than just replying the lawyer, "go f--- yourself and your amendment!!"

LOL!!
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Old 03-21-2012, 11:55 AM
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Quote:
Originally Posted by Gary M View Post
You're right: The lawyer doesn't give a hoot about MY kids - she's worried about supporting her own. As it should be, I guess.

Cheers!

Gary
I do not think I am in position to give any advice regarding subject. But I do not think that "supporting her own" at cost of "other kids" by doing something what she would be able to do for lets say $1000 and a week for $5000 and a year.

As Tayken said somewhere lawyer has a duty to advise their client not be stupid and give real info and not wasting time and monies dragging something what they know from very beginning has 0.01% for success...

Just my 10c.
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Old 03-21-2012, 12:00 PM
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Gee Gary that's enough to put your foot in your mouth. hahahahah (pardon the pun) lol lol
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