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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 11-20-2013, 12:19 AM
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Default Leverage when applicant does not pursue in a timely fashion

I'm trying to do some research on my own in order to minimize the mounting cost of my legal bill. I have a few questions and would appreciate your support, wisdom and advice on a few things.

I'm wondering if there is any case law which favours the respondent (me) in a spousal support case whereby the applicant not only waited 8 years to pursue spousal support but after my initial offer to settle my ex wife and her legal aid lawyer not only did not acknowledge the offer but then went on to make no contact or even a counter offer for an entire year.

Do you think I have any leverage due to not only how long ex waited to pursue ss, but then ignored my offer to settle and pretty much disappeared for an entire year..to the point where I actually started to assume that ex and lawyer simply dropping their pursuit for SS. Imagine my surprise when more than 12 months later, out of the blue, they counter offer.

Which brings me to my second question;

If this goes to trial, does the fact that SS was NOT pursued in a timely fashion, and they waited a whole year to counter, give me any leverage? Can the judge be told that the counter offer was not made for an entire year after my original offer to settle?

Much appreciated
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Old 11-20-2013, 12:29 AM
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8 yrs? Wow.

There are many things to consider I believe. First of all, in your initial offer to settle did you state the standard clause stipulating they had 30 days to respond and after that time the offer was withdrawn?

A justice would likely hear the other side's reason for why they did not respond for 12 months and why they did not pursue SS for 8 yrs. Unless it is a valid reason (she was convalescing in an asylum or held hostage somewhere) I wouldn't be terribly concerned.

This is, of course, just my personal opinion and I believe if you have been legally served with a Notice of Motion you should seek legal counsel. The amount of judgement (8 yrs) would be substantial if she were successful.

There are cases on CanLII which deal with this sort of matter. Do not limit your research to just cases in your Province. I believe I read about a similar situation in Manitoba or Saskatchewan not too long ago.

Perhaps you should simply ignore it and make your own response in 12 months.
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Old 11-20-2013, 12:30 AM
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I don't want to use the term 'leverage'.

It's not really what I want to think these things should come down to, 'leverage'.

But in my (admittedly limited) understanding - that ship has already sailed on her.
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Old 11-20-2013, 01:00 AM
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Quote:
Originally Posted by wretchedotis View Post

It's not really what I want to think these things should come down to, 'leverage'.
Hopefully I'm not derailing the thread and I apologize if I am but I think "leverage" is very important in many cases that have yet to be settled.

I will "leverage" the fact that I have my daughter on Mother's Day next year.
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Old 11-20-2013, 01:05 AM
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Quote:
Originally Posted by firhill View Post
Hopefully I'm not derailing the thread and I apologize if I am but I think "leverage" is very important in many cases that have yet to be settled.

I will "leverage" the fact that I have my daughter on Mother's Day next year.


I'm sure you will.
I'm sure lots of people are looking for 'leverage' to help their case.

Myself, I don't want to be that guy anymore.
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Old 11-20-2013, 01:47 AM
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The amount of judgement (8 yrs) would be substantial if she were successful.

Hi Wrechedotis, I'm not sure I understand what you mean by your above comment. Can I take from what you say above that she may get back SS dating back 8 years? In other words, I could get hit with 8 years worth of arrears?

My ex and I have been in and out of court every 6 months for the past 8 years dealing with custody issues, yet despite ex having constant access to council and making many, many appearances in court for same, she simply chose not to pursue the claim. I can't see where there would be any legitimate reason on her part that would lead the judge to believe she didn't pursue due to some crippling inability. As a matter of fact, we (lawyer and myself) believe that she waited all those years and then suddenly jumped up to pursue when she discovered I was finally doing quite well financially. My Lawyer seems to think that basically sat back and waited for my income to increase.

From what I can see, to lay in wait for years as she did, is unfair to me as the entire time I had no idea she would eventually seek SS and as such, I had no concerns about making TOO much money by working 70 hours per week at two different jobs. Clearly I wouldn't have chosen to work that much if I thought for one second she would eventually benefit from my hard work.
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Old 11-20-2013, 02:32 AM
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I'm not lawyer, but don't think she would be successful in such a claim with the facts as you present them.

As for the whole 'leverage' bit, I just mean I'm no longer interested in 'gaining the upper-hand', and then using that for my benefit when it comes to Family Law.

I admit, however, it can be a worthwhile tactic.
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Old 11-20-2013, 02:37 AM
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Default Supporting Case Law

Thanks for your reply Wretchedotis. Im interested in reading up on some case law which may be similar to my case. Having a bit of a difficult time navigating the research. Can anyone be of assistance to me in finding relevant and support case law? Much appreciated!
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Old 11-20-2013, 09:08 AM
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I would simply reject their offer on the basis that she hasn't proven entitlement to SS. She has been self-sufficient for the past 8 years and can't expect to share in the proceeds of your advancement post divorce.

If she was a SAHM and sacrificed her career advancement for the family, she may have some argument. But your rebuttal is that she waited for an unreasonable length of time to seek SS and has been self-sufficient during that time.

But I'd simply put it on them to prove entitlement. They need to prove is entitled to compensatory (she sacrificed her career for the marriage) or non-compensatory (you made tons more money than her during the marriage) to be awarded SS. And again, she waited too long.

Yes, there has been recent case law where SS has been awarded a significant amount of time after divorce. However, the details were due to a significant illness which I believe started at some point during the marriage. But again, that person had to prove entitlement.
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Old 11-20-2013, 09:24 AM
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Quote:
Originally Posted by rainman View Post
The amount of judgement (8 yrs) would be substantial if she were successful.

Hi Wrechedotis, I'm not sure I understand what you mean by your above comment. Can I take from what you say above that she may get back SS dating back 8 years? In other words, I could get hit with 8 years worth of arrears?

My ex and I have been in and out of court every 6 months for the past 8 years dealing with custody issues, yet despite ex having constant access to council and making many, many appearances in court for same, she simply chose not to pursue the claim. I can't see where there would be any legitimate reason on her part that would lead the judge to believe she didn't pursue due to some crippling inability. As a matter of fact, we (lawyer and myself) believe that she waited all those years and then suddenly jumped up to pursue when she discovered I was finally doing quite well financially. My Lawyer seems to think that basically sat back and waited for my income to increase.

From what I can see, to lay in wait for years as she did, is unfair to me as the entire time I had no idea she would eventually seek SS and as such, I had no concerns about making TOO much money by working 70 hours per week at two different jobs. Clearly I wouldn't have chosen to work that much if I thought for one second she would eventually benefit from my hard work.
I believe I made the statement that you should seek legal advice but I believe you have - over the past 8 yrs. no less.

In and out of court every 6 months for the past 8 yrs? Sometimes when there is a family law application in the courts, and one party is in contempt, other applications can not be brought forward until the contempt has been purged. Would there be a procedural reason why your ex simply couldn't bring the matter of SS to court?

In my opinion, your ex would have been smarter to have brought SS up right at the start rather than leave it 8 yrs. However, we are not privy to all the details of your case and she probably has a very good reason for doing this. It could be that she is simply trying to recover her legal costs, particularly if you haven't been cooperative throughout the 8 yrs of litigation. Only you would know the answer to that.
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