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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 01-06-2006, 01:47 AM
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Default Matromonial Home

My wife moved out with my kids back on March/05. In her Case Conference Brief she is asking to return back to to home and have me removed.
My house was purchased 6 years prior to my marraige and is owned 50% by my father's estate. My mother still hasn't probated the will, and from my understanding she does not need to. In my dads will which was done back in 1984 it states that everything he own's goes to my mother. I have supplied my wife's lawyer with this information along with a copy of the will. His reply was we want to know if it's the Last Will and Testament. Well how can we do that without probating? I agreed to have my mother sign an affidavit stating it's the Last Will and Testament. Her Lawyer is requesting a Certificate of apointment. Those the burden fall on me to prove my father's estate belongs to my mother, or those it fall on my ex to prove that thier's another will? Which thier isn't..
This will make a big difference on equalization.
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Old 01-06-2006, 03:39 AM
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FPI,

I think the reason why your ex's lawyer has formally asked if the will is the LAST WILL and testament to confirm that there isn't any other wills.

It is strange that the will has never been probated after 6 years. I realize that there is probate fees involved when probating an estate. This may be your mother's reason.

I believe the courts would accept you mother's affidavit and should state her reason for not probating the estate earlier etc.

The one thing I would look at is who's name is currently on the deed of the house? Currently this would be the legal owner or joint owners.

Gifts from estate's are generally not up for division and excluded.

If your ex just picked up and left the house without any abuse involved, It is apparent that she is attempting to back pedal her legal stance.

It is worthwhile to read the following statute that applies in Ontario. It can be found here.

Succession Law Reform Act R.S.O. 1990 Chapter S. 26

http://www.e-laws.gov.on.ca/DBLaws/S...sh/90s26_e.htm
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Old 01-06-2006, 12:19 PM
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In My father's case he passed on two years ago not the six years has mentioned. My realtor lawyer has said to me that some lawyers do not probate after 3 years have gone by. This could save my mother thousands of dollars. She hasn't probated up till now because there’s been no reason to. As far as the house I co-owned it with my dad, is name is still on the deed. We had it registered as tenancy in common, not joint tenants. As tenancy in common it automatically goes to the estate, as joint tenants it goes to myself, which would be called right's to survivorship. I will try doing this by just having my mother sign an affidavit, if that doesn't satisfy her lawyer than maybe my mom will have to probate.
As far as my wife trying to come back to the matrimonial home after 10 month's i'm not sure what is going to happen. You mentioned if she left because of abuse. This is what she's been claiming. However, there are no police records to back her up. In August 2003 I went to the police because of something my wife had done. They questioned my ex and myself. They then escorted my ex and my kids out of the house. They ended up sleeping at her brother’s house that evening. She came back because I begged her to the next day. I guess that’s when I should of known it was over for good. Yes we had our battles, but never did it get violent. Our problem was more along lack of communication. There wasn't any in years. Can she go to court now claiming abuse without any evidence? I could go to my Doctor and say what ever I want; it doesn’t necessarily mean it's true.
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Old 01-06-2006, 03:10 PM
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FPI,

As you mentioned I believe the house belongs to the estate currently. Under these circumstances I do not think the courts would rule in your ex's favor. Is your spouse willing to pay rent to the estate? The estate is a third party. This amount of rent could be set by the estate and be any amount etc. A subsequent family law matter cannot force probating of an estate. That decision lays with the Executor and Trustee. The family law issue would have to be stayed until the estate is settled. Settling of estates takes time and the Executor and Trustee should not be coerced into settling matters on notions. The onus is on them to prove their stance and claim.

Without any evidence to support abuse it is basically heresay. It is your word against hers. Sounds like the police were involved to keep the peace to remove belongings etc. If there was no charges laid, this in itself clearly shows that the incident was not serious enough. At the request of a person Police will often attend a residence on relationship breakdown to keep the peace. This is normal procedure and this in itself is not is it a bad thing. Police are not bad people!

However, if I were you, I would request a copy of all police notes, records, log of calls made and applicable police reports. By law they have to black out names etc that do not pertain to yourself unless you have a waiver to disclose information from them. If the applicable police force was the Ontario Provincial Police you can request this information by way of this form which can be found here in the link below. They will release of your particulars in accordance to Freedom to Information and Protection of Privacy Act. Cost of this is $ 5 and can be used as evidence to rebut your ex's assertions etc.

http://www.mpss.jus.gov.on.ca/englis...access_cor.pdf

http://www.mpss.jus.gov.on.ca/englis...t_min/foi.html

Make sure you state in your form police records, officer notes etc.


If the police force involved was a municipal police force, The records may be kept locally and I would contact them directly to find out the procedure to obtain these records. I suspect the process is similar.

It is surprising what officers scribble in their notes such as comments etc.

As an extra precaution, go to your nearest OPP detachment and get yourself a security clearance check. Cost of this is $25 - $35. This check is basically certification that you have no criminal record etc. They do a search against the federal police database.

Best to be prepared up front and cover your back side. You don't really know what stance the other party is going to take and what assertions and allegations they will make upfront.

Credibility is everything in family law matters
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Old 01-06-2006, 03:13 PM
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FBI,

If the Police attended your home and escorted your ex and kids from the home there would have been a report made. You can obtain a copy by getting in contact with the Officers that attended the call, or the Police Station.
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Old 01-06-2006, 03:25 PM
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Often in Domestic Abuse situations, if charges are laid, the Crown will subpoena the affidavits from Family Court to be evidence in Criminal Court. Best always to make sure you are totally honest with your lawyer.
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Old 01-06-2006, 05:01 PM
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I have done what you have said. I went to the local peel Police station and requested my file. It only showed two calls one by me and one by my ex. No charges were laid in either case. It's strange when one of the police officers said to me, You will look back at this day ten years from now and say to yourself thanks God you moved on. They could not get across to my ex.
Still it worries me because she has been going to abuse centres, such as interm place, EAP her doctor and so on. She has been trying to make me out to be a monster. In my opinion all so she can look well in court and take my kids from me. I recieved a couple of nasty letters from her lawyer saying I'm acting eractic when she won't let me see my kids. It seems to be she wants total control. I'm not sure what will happen in the future when we finally end up in court, but I do know the loss of my children is killing me. I was such a big part of thier lives before they left, and now because I only see them every other weekend I feel like a visitor. It's so unfair, she can remain at home and unemployed and I have to work long hours. There's no way I can give them the time she can. I guess this is why she has no intention of getting a job. Why would she I soon will have to pay her spousal support which will be much more than minimal wages, it would make no sense for her to go back to work. Thinks need to change...
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Old 01-06-2006, 06:32 PM
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FPI,

Submit these police records at the appropriate time, including officer notes, official police reports etc. Make sure they are certified. It certainly will rebut their allegations. Making numerous false allegations to discredit the other party will not help them. Seems like they are attempting to push your buttons and get you riled up. Don't fall for this trap and be sure to stay out of the mudsling. Play it cool, smile and be smart

If the allegations and assertions are found to be false, it sure makes you wonder what to believe from the other party. Credibility is everything in family law disputes and especially when there is children involved

Please see this post for tips on shared custody

http://www.ottawadivorce.com/forum/f4/being-single-parent-kids-386/

In regards to the nasty lawyer letters. This is also considered hersay as the lawyer did not see the event to occur but it does document an event. I would respond back to the lawyers letter with a very PLEASANT formal reply the REBUT the assertions made in their letter. You also have the same ability to send a PLEASANT letter to her lawyer at each event.

In regards to access pickup of the children, send a formal letter advising them that access pickups and telephone conversations MAY be recorded. I would indeed record them. You can get a mini digital recorder for under $100 at Staples with the ability to upload to PC as wave file and archive. Another option is to bring your own witness also. I bet you will have very little problems in the future, as once they have been advised formally of same, they cannot say you provoked the incident. This could be introduced into evidence. Its a win win situation for all concerned as this nonsense will be sure to cease during the access pickup times of the children.
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Old 01-06-2006, 11:54 PM
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False domestic charges, what a trump card for those persons willing to go to such lenghs in cases of separation. I'm certain it is a very rare circumstance where a person will fabricate such issues in order to gain financially, but I can attest to the fact this does happen in our system. Number one the "victim" is garunteed exclusive pocession of the matrimonial home, interim custody of the children creating status quo, (Full child support and spousal support included) while it goes through court which will take minimum one year. This all with out any prooof what so ever. Once charges proved false through criminal trial, again an uphill battle to get back onto level playing field on the issues of separation. But fear not this only proves the other person not to be credible once you get past this and fairness will prevail. Yes it is very costly so document everything, evrything, everything to ensure fair equal treatment in our court system. Be honest don't get down to the other persons level. Don't play the game, honest straight forward is the way to go even when you feel like going down to thier level, don't do it.
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