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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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  #1 (permalink)  
Old 12-31-2016, 11:09 PM
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Default Organizing Evidence

Happy New Year!

Yes I should be out celebrating but I have a lot at stake in the second week of January.

I have read some posts about color coded charts and ways to organize evidence so a Judge reads it and I was wondering if someone could explain it to me?

I have about 200-300 emails. They consist of:
a) How I calculated cs based on our incomes and the table
b) My ex stating my value of her income is wrong (though not correcting the value)
c) Me asking for her income (no emails of her giving it to me)
d) Offers to mediate, and her replies stating she wants the issue in front of a judge
d) Her talk of her legal advice, speaking to her lawyer or speaking to FLIC
e) Offers I made to her by email
f) Emails explaining to her that I have to use her previous income because she won't give me her change in income
g) Emails of me telling her I need her income so I can pay the proper support
h) Other various emails that would lead me to believe that she is still making the amount she made while we were married
i) Various emails hinting to her lifestyle that would also lead me to believe that she was making a similar wage to what she made before separation.
j) Emails of hers stating that she is entitled to spousal and arrears but, not suggesting what her wage is or what I should be paying.
k) Motions where she listed ss and arrears but never dealt with them

Do I put this on a calendar? A pie graph? Timeline? Help would be appreciated. Especially those who have had to organize this many emails.

I have another post in the Financial forum that explains this, but to quickly explain; my ex, after 5 years of me paying a certain amount of cs, has made a motion for cs arrears, plus ss and ss arrears. She finally disclosed her past 5 yrs financials and made half, to up to a third her regular wages. I was WAY underpaying cs some years.

I'm trying to organize my evidence so the Judge can see that she refused to disclose her drop in wage nor file for ss but instead saved it up for a huge windfall. (Of course her lifestyle never changed which makes me wonder where she got the money to continue that lifestyle)

Thank you in advance
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Old 01-01-2017, 10:16 AM
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I'm assuming this is for trial? Not a motion for interim relief.

A lot of what you described should not be put before a Judge during a trial, but rather during costs submissions after someone has 'won'.

Anything pertaining to offers to settle, requests for mediation...etc CANNOT be disclosed prior to judgment.

Organize your evidence to support the facts you want to prove. In your case this is:

- Your income for child support / spousal support
- Her income for spousal support
- Why a retroactive award would be unjust (unjust according to the law, not your view on what is 'fair').

I can't see how the value of her home is relevant unless there a property division claim, but you stated this was a motion for CS arrears. The value of her come is not relevant to this - unless you're trying to impute income to her some how.

DO HOT throw the judge 300 e-mails. I highly doubt they're all relevant and all you're going to do is overwhelm them.

You might need help going though the evidence, hire a lawyer if necessary.
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Old 01-01-2017, 12:39 PM
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I usually have good advice for custody, denial of parenting time, false allegations, abduction, OCL, etc. Not so much with financial stuff, but Kinso gave you some pretty good advice here. Categorize and use only a few examples of e-mails to get your point across.
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Old 01-01-2017, 12:59 PM
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This is a special appointment. It started as a motion but was deemed to complicated to be a simple motion.

I don't want to throw 300 emails at a judge, that is why I need some advice on how to organize it into a chart.

As far as not showing a judge emails asking for mediation and emails with ideas to settle; can it not be shown if it is pertinent to this motion? The relief requested is cs and ss arrears.
In my offer, I listed my wage and what I thought was her wage. Her not responding, or correcting what her wage was, contributed to the underpayment of cs.
In the emails for requests to mediate, she stated she wanted this put in front of a judge to determine the proper amount but, she waited 5 years to do so.

I was basically used as a bank but I didn't know it.
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Old 01-01-2017, 09:48 PM
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Damn I wish I could edit my earlier post, typos galore. That's what I get for providing a response on January 1 in the morning after a late NYE party. But I digress.

Aghast,

I went through your other posts and I believe you need to be ready for a swift kick to the teeth at court. Your conduct has been bad in the eyes of the court (even if understandable in the eyes of people). You're not going to get far by saying 'she was blameworthy too'. It's like kids who say 'but she did it too'. You just both end up grounded.

The CS and SS issues are different and need to be addressed differently. What works for one will not work for the other.

Child Support

This is where you're really going to get hit hard.

You don't need her finances to calculate your child support obligations. Unless you have shared custody which I didn't see in your other posts. The arrears here are likely going to stand and saying 'but she didn't give you disclosure' is dumb because it's not a requirement to calculate your obligation.

My suggestion is you settle this issue and focus on SS alone.

Spousal Support

13 years of marriage with children means entitlement likely exists. Granted it's still on her to demonstrate, and the fact you were married does not alone mean entitlement, but it would be surprising if this wasn't found.

Focus on SS on a go forward basis and that her lifestyle hasn't changed, along with her injury occurring after your separation.

The Rules of Evidence

As stated above, you CANNOT put offers to settle before a judge before judgement has been made. NEVER. Doing so is contrary to the rules of evidence.

Now, some of your emails which contains offers might be used to show you were asking for her income to calculate your support obligations. If you're going to rely on these you need to black out the actual offer to settle, but leave the fact that you were asking for disclosure in. Read them carefully.

Your original list

I'm just going to replicate your list here and give my 2cents on the value of them, :
a) How I calculated cs based on our incomes and the table - The emails here are irrelevant, what you need is your income and the tables, the fact that you sent this to her is irrelevant
b) My ex stating my value of her income is wrong (though not correcting the value) Irrelevant - her position at trial is what matters
c) Me asking for her income (no emails of her giving it to me) Relevant for Spousal Support so undermine an arrears argument - pick the earliest 2-3 examples and stick to that
d) Offers to mediate, and her replies stating she wants the issue in front of a judge Irrelevant - do not include
d) Her talk of her legal advice, speaking to her lawyer or speaking to FLIC Irrelevant - do not include
e) Offers I made to her by email NO NO NO - Do not include prior to judgement - only useful for costs arguments after someone has 'won'
f) Emails explaining to her that I have to use her previous income because she won't give me her change in income Not relevant - repeats the gaols of item c
g) Emails of me telling her I need her income so I can pay the proper support Repeats the goals of C
h) Other various emails that would lead me to believe that she is still making the amount she made while we were married Evidence of good faith - repeats the goals of C
i) Various emails hinting to her lifestyle that would also lead me to believe that she was making a similar wage to what she made before separation. Hard to say without reading them, only value would be if she confirmed her lifestyle was ok
j) Emails of hers stating that she is entitled to spousal and arrears but, not suggesting what her wage is or what I should be paying. Repeats the goals of C
k) Motions where she listed ss and arrears but never dealt with them Not relevant at all
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Old 01-02-2017, 02:33 AM
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Hi Kinso,

We have split/shared custody. I have 1 child full time and the other 2 50% of the time.

I don't know if that changes any of your comments to my list or not.

I have read a few case law on retro child and they pretty much say this:
https://www.canlii.org/en/ca/scc/doc...&resultIndex=1

Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns.* The first is the payor parent’s interest in certainty.* Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling.* Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent.* A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable:* compare C. (S.E.) v. G. (D.C.).* In this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met. para.106

I reported my initial wage. My wage went up the next year and I served and filed it. My wage went down the next couple of years but I didn't report it. My wage went up again one year and I served and filed it as soon as I received my T-4.
I continued to pay a cs amount that was what I thought was higher than I should, I continued to ask for her financials (split/shared custody), and I continued to buy our children outerwear, clothes, sporting equipment, and paid for all their sports.

The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children.* From a child’s perspective, a retroactive award is a poor substitute for past obligations not met.* Recipient parents must act promptly and responsibly in monitoring the amount of child support paid:* see Passero v. Passero, 1991 CanLII 8165 (ON SC), [1991] O.J. No. 406 (QL) (Gen. Div.).* Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children. para. 103

This is where I feel my emails asking for her income come in.
By refusing to tell me her income she was not prompt nor responsible in seeking the proper amount of support for our children. I would have increased the amount, I had increased it once already. (I have the email and the cancelled cheques that show where it was increased)

Then I read:
https://www.canlii.org/en/on/onca/do...nlii41868.html

The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A [page723] party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion. Brett v. Brett (1999), 1999 CanLII 3711 (ON CA), 44 O.R. (3d) 61, 46 R.F.L. (4th) 433 (C.A.); Hoar v. Hoar (1993), 45 R.F.L. (3d) 105 (Ont. C.A.). para.53

This is where I thought emails pertaining to her lifestyle come in. Emails of trips she is taking, emails of trips she is taking the children on. I would say that it would be hard to say your children were suffering if you are jetting off to vacation, because if you do argue that, I would think a custody change based on neglect would be in order. no?

There is also case law that talks about valid reasons for delaying asking for child support. One of the reasons is not having proper legal advise and not being able to afford to take the issue to motion. (as well as other things that don't pertain here)

This is why I brought up the emails about legal advice and speaking to her lawyer. To show that she did receive legal advice. And the proper advice because she would state that her lawyer told her I owed her more money, she just wouldn't disclose the amount I owed her.

The past motions showed that she attended and negotiated an order on consent as a self rep, so she can't say that she was intimidated or couldn't afford to make a motion.

Does this change anything?

Those cases are older so I don't know if the ideas have changed. Its a slow process reading all this case law.
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