Motion filed - What do I do?

[Fresh Starts]

I have been trying to get my divorce for three years. I was married for 15 years, and have three children ages: 17, 16, 11. We (my laywer and I ) have been trying to settle everything financially etc.... for the last three years. At the time we started divorce proceedings etc.... the STBX was working making about $80,000 a year.

I was awarded temporary Child support in the amount of $1315 a month. And was awarded temporary Spousal Support in the amount of $750 a month.

The first year that I moved out of the house I did not receive Child or Spousal support. Court documents state that we can still ask for this amount, we just have not done so.

The STBX lost his job back in May of this year. (He purposely got himself fired - but made it look like an accident.) His laywer and himself never petitioned the court to have the Child or Spousal support reduced. I have been receiving 1/2 of his E.I. Check ($359.00 every two weeks) He receives the same amount. His E.I. payments are not even enough to cover the Child Support that has been ordered. He claims that he can not find a job, even though I can find ad's online and in the newspaper that would prove that there are jobs out there that he can do. He is in the arrears with FRO for over $10,000.

Ok, so this is my problem.
My lawyer had a meeting with the STBX's lawyer about a month ago.
My lawyer assured me that things would be settled soon. That we were going to send over a consent form for the STBX to sign to release the money that was being held in trust from the sale of the house. (There is presently over $24,000 being held in trust by another laywer. - We are asking that the money be released and that we each receive 1/2) Which I believed was reasonable. We even offered not to ask for the year of Child and Spousal support (from when I first moved out of the house)- just to settle this and get this over with.

On October 10 @ 10:30 in the morning my lawyer was served with a motion from the ex and his lawyer. I did not receive this motion until October 10 @ 7:00 pm (Only because I picked the motion up myself) The motion was to be heard today October 13, @ 10:00 am. (I am told now by my laywers assistant that they are going to re-scedule the motion until November 3)

What makes me so mad is what is in the motion.
The motion states:

1. An order abridging the time for serviceand filing of the within motion . (What does this mean?)

2. An order varying the child support order of Judges name dated June 17, 2005 by rescinding the child support order effective May 19, 2006

3.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated June 17, 2005

4. An order that any and all arrears accumulated under the order of judges name dated June 17, 2005 subsequent to May 19, 2006 be expunged.

5. An order varying the child support order of Judges name dated June 17, 2005 by rescinding the child support order effective May 19, 2006

3.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated June 17, 2005

4. An order that any and all arrears accumulated under the order of judges name dated June 17, 2005 subsequent to May 19, 2006 be expunged.

5. An order varying the spousal support order of Judges name dated August 26, 2005 by rescinding the Spousal support order effective May 19, 2006

6.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated August 26, 2005

7. An order that any and all arrears accumulated under the order of judges name dated August 26, 2005 subsequent to May 19, 2006 be expunged.

8. Costs on a substanial indemnity basis, plus GST (What does this mean?)

9. Such further and other relief as counsel may advise and this Honorable court may permit. (what does this mean?)

He has also stated in his Affidavit (general) the following:

That he resides with his parents (which is true)
That he spends money on food ($330.00 a month - he lives with his parents... his parents don't charge him for food), gas for his car ($130), insurance - car ($80), storage- because I left the house only taking 1/2 - he had to store the other 1/2 ($72), telephone - his cell ($63.00), and clothing. (Mind you he states that he needs a $100 a month for clothing for himself.) My kids have not had clothing in a year, and all of them need new shoes.

He states that he only receives $769.00 a month (which is true) beacuse he is on E.I and I receive the other $769.

He states that he can not pay the arrears owing (he claims $7,000) but i know it is about $10,000 on the 16th of this month.

I don't know what to do.... I have tried repeatedly to get a hold of my lawyer but she does not return my calls. I call my lawyers assistant and she states that my lawyer is in court- she told me to keep trying her yesterday (which I did) but she never returned any of my phone calls.

I have e-mailed my laywer and her assistant. This is what the e-mail said.

In regards to the Garbage motion that STBX's Laywer's name sent to your office on October 5th @ 10:26 am

that I received on Tuesday, October 10th @ 7:00 pm

STBX got fired on purpose. He had made claims that he was going to try to get fired so he wouldn't have to pay support.
It is NOT my fault or the fault of our kids that he got fired.
It is his responsibility to maintain support for the kids whether he has a job or not.

STBX cancelled the life insurance policy maintaining both of our policies. It was court ordered that he was to maintain this policy.
I am requesting that he get life insurance again in his name. With a policy of a minimum of $250,000 – to go equally to the kids on his death.
I would like proof that shows he has got this Life Insurance policy and that he is maintaining it.

I want to see proof that he has been looking for work. I have been looking at the papers and the job bank and I can find a number of general labour jobs that he should have been able to apply for with no problems.

It is my understanding that he is on Unemployment Insurance. I would like to know why he hasn’t tried to get his truck driving licence, or go back to school to get an education.

I would like STBX to prove that he has been considering employment in the Western Province. I do not believe this statement at all considering all of his family is in ____________.

I am requesting that if STBX does get employment outside of _____County that the kids DO NOT go with him, DO NOT visit him out there. Any time that he would like to spend with the kids MUST be in ______ County.

Requesting that NO CHANGE be made to the Child and Spousal support agreements/ Court Orders.

Requesting an even split of STBX RSP’s from last job.

Requesting that STBX sell his second car (he may only get $500 for this car) and all furnishings that were left to him in the matrimonial home in order to try to pay back the arrears owing. This will also save him the storage fee every month.

Requesting that the money from the sale of the house be given to me in full. STBX gambled away all the money in the line of credit as well as having to re-mortgage the house to pay off outstanding gambling debts.

Requesting that the arrears owing for Child and Support at FRO at this date, stay . and that STBX MUST pay this money back.

I want STBX to pay for ALL my lawyer fees that I have not been paid to date. Including this garbage motion that I received.

Requesting that STBX pay me the amount of money that we have not yet filed for or requested:
Child Support ($1315.00 a month) from January 2005- to May 12, 2005 = $6575.35
Spousal Support ($750.00 a month) from January – August 2005 = $6750.00
Great West Life Payments (Life Insurance) From January 2005 – August 2006 ($50.81 a month) = $1,016.00
In December 2004 (while I was still living in the matrimonial home – STBX agreed to pay me back for the Christmas presents that I spent on the kids that year. The total amount spent for Christmas presents and clothing was $1,989.68. I am requesting that Steven pay me back ½ of this amount = $994.84

I am requesting that you call me as soon as you get this, to let me know that you have received this. Also please let laywers name know that I need to talk to her, and that I have left her a message on her voicemail.

When I first hired laywers name as my lawyer I was told to let her know when I was not happy with her or how she was handling my case. I am not happy right now. I believe that she has ignored most of my wishes when it comes to this divorce. Including the fact that STBX has cancelled the life Insurance policy that he was ORDERED to maintain. I was told over a year ago that she was going to close this file, and here we are – worse now then when we started these proceedings.

I need laywers name to do something NOW. Not next week or next month.
Also, get me my divorce papers ASAP. I am so tired of playing all of these stupid little games. All I seem to be doing is throwing money away, and getting nothing out of any of this.

I do not want to re-schedule this court hearing on Friday, October 13, 2006. Please get whatever paperwork that needs to be done – finished today so I can sign it today. So that lawyers name can go into court on Friday, October 13th, 2006 and settle this thing.

My lawyers assistant called me 1/2 hour after receiving this e-mail and told me that they were going to have to re-schedule the motion hearing because we wouldn't have enough time to file our answer reply. They were going top re-schedule this for the 3rd of November. I have a settlement conference on the 31st of January.

Can someone please help me out here. I know this was a long posting.... but I wanted everyone to have the facts before replying to me.

I just don't know what to do anymore.

[logicalvelocity]

Fresh Starts,

That is an difficult position to be in

As you mentioned,

“the STBX was working making about $80,000 a year”

Hence the reason why you were awarded temporary child support and spousal supports in the amounts $ 1315/ month and $ 750/month respectively.

“The first year that I moved out of the house I did not receive Child or Spousal support”

Generally, a court will order retroactive amounts only to the date of application. If you waited a year before you brought an application with the courts, I suspect you will have a very difficult time collecting amounts prior to the date of application.

“Court documents state that we can still ask for this amount, we just have not done so”.

You may be in luck with such an order in place, However, you have to remember that spousal support as a rule of thumb is to come from income rather than capital. As time goes by it becomes more difficult to establish retro amounts.

“The STBX lost his job back in May of this year. (He purposely got himself fired - but made it look like an accident.) His laywer and himself never petitioned the court to have the Child or Spousal support reduced. I have been receiving 1/2 of his E.I. Check ($359.00 every two weeks) He receives the same amount. His E.I. payments are not even enough to cover the Child Support that has been ordered. He claims that he can not find a job, even though I can find ad's online and in the newspaper that would prove that there are jobs out there that he can do. He is in the arrears with FRO for over $10,000.”

The individual lost his employment position. The onus is on the individual to vary any current support orders in place on the stance of the material change of circumstance. There is no law in place to compel the individual to bring forth a motion to vary within a certain amount of time. The individual is collecting EI and as such, part of the criteria to collect EI is to be laid off. People that quit or are fired from their employment are disqualified from collecting EI. The individual appears to be in some kind of professional position or field and as such may have a difficult time finding an equivalent position. This does not prevent the individual from working ie: in some other field for a reduced wage, however, he may collect more from EI than taking on an alternate position.

“My lawyer had a meeting with the STBX's lawyer about a month ago. My lawyer assured me that things would be settled soon. That we were going to send over a consent form for the STBX to sign to release the money that was being held in trust from the sale of the house. (There is presently over $24,000 being held in trust by another laywer. - We are asking that the money be released and that we each receive 1/2) Which I believed was reasonable.”

Yes it is a reasonable position considering the law provides for net equalization.

In regards to the motion

1. An order abridging the time for serviceand filing of the within motion . (What does this mean?)

This means that they are asking the court to shorten the times other than the rules for servicing and filing documents for use at the motion. What comes to mind is why are they attempting to railroad this motion in now?

2. An order varying the child support order of Judges name dated June 17, 2005 by rescinding the child support order effective May 19, 2006

3.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated June 17, 2005

4. An order that any and all arrears accumulated under the order of judges name dated June 17, 2005 subsequent to May 19, 2006 be expunged.

5. An order varying the child support order of Judges name dated June 17, 2005 by rescinding the child support order effective May 19, 2006

3.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated June 17, 2005

4. An order that any and all arrears accumulated under the order of judges name dated June 17, 2005 subsequent to May 19, 2006 be expunged.

5. An order varying the spousal support order of Judges name dated August 26, 2005 by rescinding the Spousal support order effective May 19, 2006

6.An order rescinding the Support Deduction order filed with FRO with respect to the Order of Judges name dated August 26, 2005

7. An order that any and all arrears accumulated under the order of judges name dated August 26, 2005 subsequent to May 19, 2006 be expunged.

They are basically asking that all arrears be distinguished and current child and spousal support orders be abolished.

8. Costs on a substanial indemnity basis, plus GST (What does this mean?)

This means that he is seeking for legal costs of the motion. There is a presumption that if a party is successful on a motion, they are entitled to costs of the motion. However, it is not a given. Other factors come into consideration such as offers to settle, parties acting in bad faith etc. I suspect under the circumstances and that there is three children involved no costs will be awarded regardless if he is successful or not.

“9. Such further and other relief as counsel may advise and this Honorable court may permit. (what does this mean?)”

This is a standard order and lawyers often throw an order just in case they forget something along the way. It gives them a loophole to do an amendment on the fly.

“He has also stated in his Affidavit (general) the following:
That he resides with his parents (which is true)
That he spends money on food ($330.00 a month - he lives with his parents... his parents don't charge him for food), gas for his car ($130), insurance - car ($80), storage- because I left the house only taking 1/2 - he had to store the other 1/2 ($72), telephone - his cell ($63.00), and clothing. (Mind you he states that he needs a $100 a month for clothing for himself.) My kids have not had clothing in a year, and all of them need new shoes.”

Those are all reasonable expenses, and you could question him under oath under rule 20 of the family law rules. You could also ask him to bring receipts for the claimed expenses on his sworn financial statement.

“He states that he can not pay the arrears owing (he claims $7,000) but i know it is about $10,000 on the 16th of this month.”

On the face of it appears that he may not be able to pay the arrears, However, what did he do with his severance, lump sum pension contributions, or equivalent if received. Moreover, one has to ask what did he do with the net equalization. I noticed that you never mentioned that he had expenses for legal fees in his financial statement. With that said, is his lawyer paid for by legal aid? If so, they only cover so many hours.

“I don't know what to do.... I have tried repeatedly to get a hold of my lawyer but she does not return my calls. I call my lawyers assistant and she states that my lawyer is in court- she told me to keep trying her yesterday (which I did) but she never returned any of my phone calls.”

This time of year lawyers are extremely busy and takes longer than usual to get dates for motions, case conferences etc. However, the lawyer should of got your message and returned your call.

“In regards to the Garbage motion that STBX's Laywer's name sent to your office on October 5th @ 10:26 am that I received on Tuesday, October 10th @ 7:00 pm STBX got fired on purpose. He had made claims that he was going to try to get fired so he wouldn't have to pay support. It is NOT my fault or the fault of our kids that he got fired. It is his responsibility to maintain support for the kids whether he has a job or not.”

You will have to prove that he did get fired. It appears on the face of it that it may be difficult as he is collecting EI and as such people that quit or are fired from their employment, do not receive EI. Moreover, his employer would be breaking the law by indicating a false statement on his separation statement. Do you have a copy of this employment separation statement? You are correct that he has an obligation as a parent to support the children and the law provides for same. See section 31 subsection (1) of the Family Law Act R.S.O 1990 c. F.3

continued

[logicalvelocity]

continued from last post



http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK34

Obligation of parent to support child

31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

“STBX cancelled the life insurance policy maintaining both of our policies. It was court ordered that he was to maintain this policy.”

He may be in contempt, but you will have to prove willful to be successful on a contempt motion. If he is found to be in contempt of the order, the penalty could be a fine, prison time etc; neither of which he cannot afford. If he is in jail, he cannot collect EI. Ultimately, considering his financial circumstances he may not be able to afford the periodic premium for the life insurance. Did he receive any cash value when the life insurance was collapsed, If so, how much?

“I am requesting that he get life insurance again in his name. With a policy of a minimum of $250,000 – to go equally to the kids on his death.”

That is a reasonable request if he has regular earnings, At this point in time, he may not be able to afford same.

“I would like proof that shows he has got this Life Insurance policy and that he is maintaining it.”

That is another reasonable request along with if at any time the insurance is collapsed you are to be notified within 30 days.

“I want to see proof that he has been looking for work. I have been looking at the papers and the job bank and I can find a number of general labour jobs that he should have been able to apply for with no problems.”

He appears to be some kind of professional considering his previous income and as such, I suspect he is applying for positions, as part of the criteria to collect EI is to be available and actively seeking employment. Regular statements are filed with EI before EI issues a cheque. You could also request information such as where he has applied etc.

“It is my understanding that he is on Unemployment Insurance. I would like to know why he hasn’t tried to get his truck driving licence, or go back to school to get an education.”

Part of the criteria for collecting EI is to be available and actively seeking employment. It is against EI directives to attend school and collect EI. EI has special sponsored courses and training available to a select few individuals. EI sometimes extends benefits to facilitate an individual to upgrade their education but these initiatives are special programs only available to a select few.

“I would like STBX to prove that he has been considering employment in the Western Province. I do not believe this statement at all considering all of his family is in”

It is a known fact that it is booming out in Alberta right now with all the oil sand projects underway. It is a catch 22 situation; there is an abundance of good paying jobs but no place to live. It is not advised to go out there for employment unless you have a place to live in advance.

“I am requesting that if STBX does get employment outside of _____County that the kids DO NOT go with him, DO NOT visit him out there. Any time that he would like to spend with the kids MUST be in ______ County.”

That is an unreasonable position to take unless the children were in harm. As you mentioned your children are older and the law provides that it is the children’s right to have a meaningful relationship with both parents and as such to visit and be visited. I suspect you won’t be successful in that order as the situation has yet to occur.

“Requesting that NO CHANGE be made to the Child and Spousal support agreements/ Court Orders.”

The onus is on your ex to prove a material change of circumstances before any support order will be varied. It is going to be a roll of dice.

“Requesting an even split of STBX RSP’s from last job.”

RSP’s contributions made during the time of the relationship from his last employment would be the only part subject to divisions. Contributions made after separation or before the relationship are not subject to division.

“Requesting that STBX sell his second car (he may only get $500 for this car) and all furnishings that were left to him in the matrimonial home in order to try to pay back the arrears owing. This will also save him the storage fee every month.”

I suspect the court will not force him to sell his personal possessions.

“Requesting that the money from the sale of the house be given to me in full. STBX gambled away all the money in the line of credit as well as having to re-mortgage the house to pay off outstanding gambling debts.”

You will most likely require a financial questioning marathon under oath, by applying rule 20 of the family law rules to prove this on the balance of probabilities.

“Requesting that the arrears owing for Child and Support at FRO at this date, stay . and that STBX MUST pay this money back.”

This is all going to be Dependant on the evidence. One thing is certain, he cannot collect EI forever and as such, at some point in time he will obtain alternate employment and in doing so, and support orders will be Dependant on his new income.

“I want STBX to pay for ALL my lawyer fees that I have not been paid to date. Including this garbage motion that I received.”

For this to occur you will have to be the more successful party and offers to settle would come into consideration in awarding of costs.

Requesting that STBX pay me the amount of money that we have not yet filed for or requested:

“Child Support ($1315.00 a month) from January 2005- to May 12, 2005 = $6575.35 Spousal Support ($750.00 a month) from January – August 2005 = $6750.00”

Generally, courts only order back to the date of application, but as you mentioned you have some sort of order in place already from the court that endorses that you can seek to the date of separation.

“Great West Life Payments (Life Insurance) From January 2005 – August 2006 ($50.81 a month) = $1,016.00”

You may difficulty persuading the court for this. It is hard to say without knowing all the facts.

“In December 2004 (while I was still living in the matrimonial home – STBX agreed to pay me back for the Christmas presents that I spent on the kids that year. The total amount spent for Christmas presents and clothing was $1,989.68. I am requesting that Steven pay me back ½ of this amount = $994.84”

You might have some difficultly to prove this arrangement unless it was done so in writing. It is basically your word against his.

In all, it is a complicated situation and it does appear that he may be working the system. It does appear that he knows the ins and outs. Worst case scenario, the Judge may give him some slack, but not for long. A Judge will not give him a permanent pass from his support obligations. The Judge may have the matter return back in a few weeks. EI only lasts so long and as such, the Judge will want to know what steps he has taken to actively seek employment or even a substitute employment and as such your lawyer should be requesting disclosure before the motion is heard to obtain a complete understanding of his financial situation and his employment situation. When and if he does obtain new employment which I suspect will be very soon as it appears that he has almost exhausted half way through the EI claim period. What is looking bad for him is if he received any lump sums of cash from collapsing the life insurance, what was done with these funds and moreover, what was done with his severance pay etc. To his benefit he has been sharing 50% of his EI benefit with you for the children.

lv

[Fresh Starts]

Hi LV, thanks for the reply:

The individual appears to be in some kind of professional position or field and as such may have a difficult time finding an equivalent position. This does not prevent the individual from working ie: in some other field for a reduced wage, however, he may collect more from EI than taking on an alternate position.

He has a grade 7 education. Doing only General labourer work for all of his life.He claims that because of his lack of education he can not find work. But has made no moves to upgrade his education or go back to school.

On the face of it appears that he may not be able to pay the arrears, However, what did he do with his severance, lump sum pension contributions, or equivalent if received. Moreover, one has to ask what did he do with the net equalization. I noticed that you never mentioned that he had expenses for legal fees in his financial statement. With that said, is his lawyer paid for by legal aid? If so, they only cover so many hours.

There is $24,000 left in trust from the sale of the house. If we agree to split the proceeds in 1/2 that will give both of us $12,000. With his share of the money what are the chances that he will be ordered to pay the arrears owing (About $10,000) Or will the judge give him a break (so he could pay his lawyer fees etc...)

I am under the understanding that he did not recieve a severence package. He did receive his vacation pay (which I received some of because he was in the arrears at that time.)

Legal fees are not mentioned in his financial statement. He also never mentioned the fact that he still buys cigarettes. His lawyer refuses to accept legal aid.

Did he receive any cash value when the life insurance was collapsed, If so, how much?

there was no cash value on the term life insurance. I paid for the insurance for over a year (even after the court ordered that he maintain the policy) When I found out that I could not change the beneficary on the life insurance (mine) I asked if they could just cancel my portion of it. They told me that I did not own the policy and I could make NO changes on the policy. So I stopped payment on the policy. I did let the insurance guy know I was going to do it.... and gave him the info on how to contact the STBX. He informed me later that the STBX refused to maintain the policy.

To his benefit he has been sharing 50% of his EI benefit with you for the children.

Only because FRO has been doing so. Not in any kindness of his heart.

[logicalvelocity]

Fresh Starts,


as you mentioned

He has a grade 7 education. Doing only General labourer work for all of his life.He claims that because of his lack of education he can not find work. But has made no moves to upgrade his education or go back to school.

That is a reasonable excuse, However nothing prevents him from obtaining his high school diploma through correspondence while still be able to fulfill the EI criteria of be available for work. He really can't attend school during the day or night without sacrificing his EI benefit unless he had the EI's permission. He could participate in correspondence courses.

There is $24,000 left in trust from the sale of the house. If we agree to split the proceeds in 1/2 that will give both of us $12,000. With his share of the money what are the chances that he will be ordered to pay the arrears owing (About $10,000) Or will the judge give him a break (so he could pay his lawyer fees etc...)

It all depends on the Judge and whether the Judge will accept his stance. If the court accepts that through no fault of his own he was laid off, technically any amount of support accumulated from the point of lay off may be wiped. Any amounts of support before the layoff that are in arrears would still be owing. The court could apply the arrears against his share of net equalization. Everything will swing on the facts and the particular Judge's view. Regardless, most Judges do hold the view that child support is paramount and if by chance he does get some relief from the obligation, it won't be very long.

I am under the understanding that he did not recieve a severance package. He did receive his vacation pay (which I received some of because he was in the arrears at that time.)

As you mentioned in regards to the EI, you received some of this because FRO garnished same.

Legal fees are not mentioned in his financial statement. He also never mentioned the fact that he still buys cigarettes. His lawyer refuses to accept legal aid.

Legal fees expense even in a pending nature should of been mentioned. Cigarettes are considered a luxury and if he had tobacco and booze listed it wouldn't look good on him considering he is trying to get out of his child support obligation. You may have to question him under rule 20 to verify his financial statement as you do raise some good points.

In all, the children support is paramount consideration for the court and everyday I drive by and I see signs in front of establishments looking for help. There are jobs available if you really want to work.. I am sure the courts are aware of this. The court may ask where has he applied for positions. You could also ask for disclosure to his weekly employment reports that he files with EI in the interim.

lv