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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 04-10-2014, 09:22 AM
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Default Lawyer wants me to sign...not sure I should.

I, the undersigned, ***, hereby acknowledge and confirm the following matters related to my meeting on ** with my solicitors, ***, including my instructions to my solicitors on a go forward basis:

1. In the course of our meeting, my solicitors again advised me that my Answer & Claim in this matter does not specifically contain a claim for unjust enrichment. Accordingly, my solicitors indicated to me that, should I wish to proceed with a claim for unjust enrichment, it is imperative that my solicitors forthwith secure an amendment to my Answer & Claim.

This can be effected with the consent of ** and if consent is forthcoming via a motion to the court. I was advised that ** may consent to a request to amend my pleadings given that my solicitors have only recently been retained on the file. Nevertheless, there is a real possibility that ** would request the payment of a sum as costs that the other side would incur in responding to my amended pleading. I have also been made aware of the fact that ** could refuse to consent and that my solicitors would then be required to bring on a motion on my behalf, requesting this relief from a judge.

2. My solicitors also advised me that there is an applicable limitation period relating to the claim for unjust enrichment. Specifically, there is a 2-year limitation period for an equitable claim that does not relate to land, such as mine. Given that the date of separation in my matter is March 1, 2012 and that ** did not include a claim for unjust enrichment in my Answer & Claim, my solicitors advised that, should I wish to amend my pleadings to include a claim for unjust enrichment, this request should be made as soon as possible. (My solicitors also noted that while ** did not include a claim for unjust enrichment in the Answer & Claim, she did include this claim in the Settlement Conference materials, executed on January 27, 2014).

3. My solicitors discussed the complexity involved in making an unjust enrichment claim, given that ** and I are married and that there will be an equalization of net family properties. My solicitors clearly explained that while I do have a case on this issue, it is uncertain as to whether or not I would be entitled to share in the monetary equivalent of the accumulation of ** pension from 2000 to 2007. Also, my solicitors explained that the outcome of a claim for unjust enrichment in a situation where the parties are married is uncertain and that there is a reasonable possibility, that a trial (and quite possibly an appeal) would be required to finally resolve the issue.

4. I confirm that at the conclusion of the meeting and having considered this matter carefully I clearly instructed that my lawyers that I do NOT wish to amend my pleading to include a claim for unjust enrichment. I understand that my decision to firmly instruct my solicitors NOT to attempt to amend my Answer & Claim will very likely prevent me from pursuing an unjust enrichment claim as against my spouse in the future.
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Old 04-10-2014, 09:26 AM
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You need to split this into paragraphs...it is really hard to read.
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Old 04-10-2014, 09:56 AM
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We don't have all the information. But from what I read, and sometimes between the lines, you feel you have a claim to unjust enrichment, but your lawyers don't agree that it makes sense to pursue it. If you sign this and then decide to pursue it, you would have to find new lawyers and end up paying more legal fees just to get them up to speed, and then more legal fees to take it to the inevitable trial.

As for advising you, trials costs tens of thousands of dollars, and have uncertain outcomes, and if you lose, you will be assessed with his legal fees. Only you can decide whether it is worth it. What is his pension worth? Unless he is a high salaried executive, there isn't enough there to justify the expense.

What is the basis for your unjust enrichment claim?
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Old 04-10-2014, 10:43 AM
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Quote:
Originally Posted by DowntroddenDad View Post
We don't have all the information. But from what I read, and sometimes between the lines, you feel you have a claim to unjust enrichment, but your lawyers don't agree that it makes sense to pursue it. If you sign this and then decide to pursue it, you would have to find new lawyers and end up paying more legal fees just to get them up to speed, and then more legal fees to take it to the inevitable trial.

As for advising you, trials costs tens of thousands of dollars, and have uncertain outcomes, and if you lose, you will be assessed with his legal fees. Only you can decide whether it is worth it. What is his pension worth? Unless he is a high salaried executive, there isn't enough there to justify the expense.

What is the basis for your unjust enrichment claim?

The difference in pension amount is approx. $40,000 as per the estimated split.
My basis for UE is that I gave up many job opportunities, moved from province to province, quit jobs to move etc. and for the last 10 years was the primary care giver for the children.
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Old 04-10-2014, 11:21 AM
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Do you, or do you not, wish to pursue an UE claim?

This direction (Par 4) infers that you are instructing them not to amend your original Answer and are waiving any UE claim.
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Old 04-10-2014, 11:23 AM
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Quote:
Originally Posted by chapter2 View Post
The difference in pension amount is approx. $40,000 as per the estimated split.
My basis for UE is that I gave up many job opportunities, moved from province to province, quit jobs to move etc. and for the last 10 years was the primary care giver for the children.
That sounds like a claim for spousal support, not unjust enrichment. Have you sought spousal support?
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Old 04-10-2014, 12:17 PM
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It would be UE in relation to division of assets. Including pension, on top of SS.
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Old 04-10-2014, 12:22 PM
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That sounds like a claim for spousal support, not unjust enrichment. Have you sought spousal support?

No. We went to Case Conference (useless in my opinion), then went to settlement, he failed to provide any financial disclosure - another fail on my lawyers part. Spousal support was never sought after, not sure why.
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Old 04-10-2014, 04:30 PM
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From the little that I've seen about unjust enrichment, and bearing in mind that I am an anonymous stranger on the internet and not a lawyer, my understanding is that it applies mainly when there has been an unexpectedly large increase in the value of an asset belonging to one party as a result of the actions of another party (e.g. if you paid off someone else's enormous consumer debt or signed over a huge insurance settlement you received).

I also understand that it's mainly applied in the case of cohabiting couples rather than married ones, because married people are expected to provide a higher level of assistance to each other as part of the marriage, in a way that cohabiting couples are not. So I can understand why your lawyers are iffy about the wisdom of pursuing such a claim.

From what you've written here, it sounds like you might be better off seeking spousal support, if you believe that your actions as a spouse provided economic benefit to your ex, at the cost of your own financial well-being.

Nonetheless, it does strike me as a little bit weird that your lawyers would want you to sign a document saying you will *not* pursue a particular claim which you have a right to pursue, even if it's likely to be unsuccessful. So if it were me, I would probably not sign this document, or at most, sign it only if the last paragraph is removed.
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Old 04-11-2014, 09:44 AM
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Quote:
Originally Posted by stripes View Post
From the little that I've seen about unjust enrichment, and bearing in mind that I am an anonymous stranger on the internet and not a lawyer, my understanding is that it applies mainly when there has been an unexpectedly large increase in the value of an asset belonging to one party as a result of the actions of another party (e.g. if you paid off someone else's enormous consumer debt or signed over a huge insurance settlement you received).

I also understand that it's mainly applied in the case of cohabiting couples rather than married ones, because married people are expected to provide a higher level of assistance to each other as part of the marriage, in a way that cohabiting couples are not. So I can understand why your lawyers are iffy about the wisdom of pursuing such a claim.

From what you've written here, it sounds like you might be better off seeking spousal support, if you believe that your actions as a spouse provided economic benefit to your ex, at the cost of your own financial well-being.

Nonetheless, it does strike me as a little bit weird that your lawyers would want you to sign a document saying you will *not* pursue a particular claim which you have a right to pursue, even if it's likely to be unsuccessful. So if it were me, I would probably not sign this document, or at most, sign it only if the last paragraph is removed.

Thats what I was thinking. Thanks.
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