Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
LinkBack Thread Tools
  #1 (permalink)  
Old 07-05-2012, 03:14 PM
Senior Member
 
Join Date: Jul 2010
Posts: 504
frustratedwithex is an unknown quantity at this point
Default Responding to Affidavit

Is it necessary to respond to ex.'s affidavit?

He has some items that I think are pointless and irrelevant and actually will back fire on him. In my opinion they speak more to how irrational he is.

If the arbitrator does not receive a response from me refuting this information, do they take it as truthful facts of our case? or do they understand he is blowing smoke out his a**?

My lawyer has only indicated that a response is not critical.
Reply With Quote
  #2 (permalink)  
Old 07-05-2012, 04:16 PM
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,452
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

Quote:
Originally Posted by frustratedwithex View Post
If the arbitrator does not receive a response from me refuting this information, do they take it as truthful facts of our case? or do they understand he is blowing smoke out his a**?
This is exactly where people go wrong. What judges and arbitrators are exactly NOT SUPPOSED TO DO is assume that something is false, when you don't respond to it.

The only reason why something would not be "critical" is if it has no relevance to the issues being decided. Even so, it should be answered.

If there are tons of irrelevant claims, expecting your lawyer to sift through it and write it all up will cost you a lot of hours. The best thing to do is to go through the other party's submission, answer each claim in a professional, logical way in clear point form and give it to your lawyer to process into a formal answer. You can save hours of billing, thousands of dollars, if you do an even half decent job, as long as it is organized - make sure you answer the points in the same sequence that the other party makes them, so the two documents can be read side-by-side.

Here is an example. My ex made the claim that she was the "primary care giver."

My reply, as I wrote it up for my lawyer:
- Both parents worked full time throughout the marriage and the children were in daycare or school each day;
- Neither parent was primary, parenting was shared equally by both parties;
- Both parents attended doctor, dentist, and teacher appointments;
- Both parents took time off to care for the children when they were off sick at school;
- Since separation, for the last two years, parenting and access has been shared 50/50, so the issue is irrelevant.

Now if I had sat down with my lawyer, said all that out loud, had her write it down, compose it, along with my answers to a dozen other points, there is hours of billing, and notice that my last point was "It is irrelevant."

I still answered all the irrelevant points, but wrote it up myself so my lawyer just handed it off to the law clerk to type up. When she read my response she said "You just saved yourself a few thousand dollars." Or the other way, we could have just not replied to the irrelevant stuff and kept our fingers crossed. In the end the judge accepted my side completely and disregarded all of my ex's claims.
Reply With Quote
  #3 (permalink)  
Old 07-05-2012, 06:08 PM
Senior Member
 
Join Date: Jul 2010
Posts: 504
frustratedwithex is an unknown quantity at this point
Default

Quote:
Originally Posted by Mess View Post
This is exactly where people go wrong. What judges and arbitrators are exactly NOT SUPPOSED TO DO is assume that something is false, when you don't respond to it.
Thank you.

Arbitrator has already recieved a copy of both of our affidavits and we are to present responses in the next 2 weeks. Does this mean she won't read the affidavits until she recieves both of our responses?

When my lawyer forwarded my ex.'s affidavit, he included his thoughts on some of the items in my exs affidavit. So my lawyer has already sifted through it. I have not responded to my lawyers e-mail yet.


Quote:
Originally Posted by Mess View Post
If there are tons of irrelevant claims, expecting your lawyer to sift through it and write it all up will cost you a lot of hours. The best thing to do is to go through the other party's submission, answer each claim in a professional, logical way in clear point form and give it to your lawyer to process into a formal answer. You can save hours of billing, thousands of dollars, if you do an even half decent job, as long as it is organized - make sure you answer the points in the same sequence that the other party makes them, so the two documents can be read side-by-side.

Here is an example. My ex made the claim that she was the "primary care giver."

My reply, as I wrote it up for my lawyer:
- Both parents worked full time throughout the marriage and the children were in daycare or school each day;
- Neither parent was primary, parenting was shared equally by both parties;
- Both parents attended doctor, dentist, and teacher appointments;
- Both parents took time off to care for the children when they were off sick at school;
- Since separation, for the last two years, parenting and access has been shared 50/50, so the issue is irrelevant.

Now if I had sat down with my lawyer, said all that out loud, had her write it down, compose it, along with my answers to a dozen other points, there is hours of billing, and notice that my last point was "It is irrelevant."

I still answered all the irrelevant points, but wrote it up myself so my lawyer just handed it off to the law clerk to type up. When she read my response she said "You just saved yourself a few thousand dollars." Or the other way, we could have just not replied to the irrelevant stuff and kept our fingers crossed. In the end the judge accepted my side completely and disregarded all of my ex's claims.
I'm glad you used this example. I was a SAHM and my ex has basically said in his affidavit that he was primary care giver. He didn't use that term, however, how he describes his involvement would lead someone to think he was. And in other points of his affidavit he talks about the hours he spent at work.

This was not one of the facts my lawyer commented on.

Ex. contradicts himself all over the place. It's ridiculous. 21 pages of stuff. Basically he is trying to say that he can't afford to pay support and if he is ordered to at the guideline levels, he will be destitute. He makes mid 6 figures.

This is not new information to anyone. He talked at great length like this during mediation.

He also says in his affidavit that it is my fault we are now in arbitration, and he has had to spend considerable amounts of money because of me. What he fails to say is, he filed his statement of claim last year with an offer to settle. I accepted 99.5% of his offer when I counter offered. He did not respond to my counter.

He hired a new lawyer and instructed the new lawyer to proceed to court. No new offer was submitted.

I offered mediation because based on our 2 formal offers to each other we were very close to settlement. Then we get into mediation and crazy comes out. We ended up being so far apart, although I was agreeing to as much as I could throughout the mediation, that I called for the arbitration.

Can I address this by attaching his formal offer?

Quote:
Originally Posted by Mess View Post
The only reason why something would not be "critical" is if it has no relevance to the issues being decided. Even so, it should be answered.
Is this something that is critical?

I also submitted another offer to him after I called for the arbitration, but, before the process actually started. He did not respond. He neither accepted or declined and did not send an offer of his own.

Last edited by frustratedwithex; 07-05-2012 at 06:12 PM.
Reply With Quote
  #4 (permalink)  
Old 07-05-2012, 08:55 PM
Senior Member
 
Join Date: Mar 2012
Posts: 186
nogoingback is on a distinguished road
Default

Quote:
Originally Posted by Mess View Post

Here is an example. My ex made the claim that she was the "primary care giver."

My reply, as I wrote it up for my lawyer:
- Both parents worked full time throughout the marriage and the children were in daycare or school each day;
- Neither parent was primary, parenting was shared equally by both parties;
- Both parents attended doctor, dentist, and teacher appointments;
- Both parents took time off to care for the children when they were off sick at school;
- Since separation, for the last two years, parenting and access has been shared 50/50, so the issue is irrelevant.
Sorry to hijack this thread, but this is quite helpful to my case and something written in affidavits I have to respond to. However, my STBX has a stronger case to claim she is the primary care giver, which she is vigorously fighting for. She did not work and was therefore able to take care of my two girls when I was at work and she handled most of the doctor's and dentist appointments.
I took time off from work to care for my girls when my STBX got sick. And I hired a full time Nanny for close to 2 years to help out. Since our separation, parenting and access have been shared, but it feels as though I have less that 50/50, certainly in terms of overnights (8 per month).
How is the primary parent defined or determined and how can I suggest that neither parent is primary?
Reply With Quote
  #5 (permalink)  
Old 07-05-2012, 09:46 PM
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,452
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

You are at about 27% custody, your ex stayed home with the child while you were married. I'm not putting you down, but the reality is you don't have a strong argument that you were equal caregivers all along.

That doesn't have to be the end of it, and you can certainly demonstrate that you care for your child a quarter of the time now and everyone survives and thrives, but you can't show that status quo was equal all along, because it wasn't.

You can make arguments why you believe that 50/50 will be better for your child in the long run. Your ex will challenge it. You can only do your best.

Being a primary parent all along isn't the only issue, but if she can show that, you are trying to show why things should change, which is an uphill battle compared to her having show that they child is happy and healthy and therefore things should stay the same.

Does your ex work full time now, is the child in school or daycare? You could point to something like this to say, things have changed, we are now on equal footing in terms of providing care for the child, the reason for things being one sided before is now gone.
Reply With Quote
  #6 (permalink)  
Old 07-05-2012, 10:50 PM
Senior Member
 
Join Date: Mar 2012
Posts: 186
nogoingback is on a distinguished road
Default

Quote:
Originally Posted by Mess View Post
You are at about 27% custody, your ex stayed home with the child while you were married. I'm not putting you down, but the reality is you don't have a strong argument that you were equal caregivers all along.

That doesn't have to be the end of it, and you can certainly demonstrate that you care for your child a quarter of the time now and everyone survives and thrives, but you can't show that status quo was equal all along, because it wasn't.

You can make arguments why you believe that 50/50 will be better for your child in the long run. Your ex will challenge it. You can only do your best.

Being a primary parent all along isn't the only issue, but if she can show that, you are trying to show why things should change, which is an uphill battle compared to her having show that they child is happy and healthy and therefore things should stay the same.

Does your ex work full time now, is the child in school or daycare? You could point to something like this to say, things have changed, we are now on equal footing in terms of providing care for the child, the reason for things being one sided before is now gone.
Thanks for the response (and once again, sorry for not starting my own thread). I did not explain clearly. While I have just 8 overnights, they all occur on weekends. I have my girls on 3 out 4 weekends. In addition I see my daughters every Tue and Wed evenings 5:30 to 8:30. So it is not 50/50, but it is not far off if I were to count "quality" time. Hence we are closer to an equal footing in terms of providing care. No my STBX is not working. And the children are in Gr. 1 and JK (half day).
Based on this current arrangement and other factors related to our pre-separation situation I am arguing that neither of us is the primary parent.
I know this is an uphill battle to get to 50/50, especially considering my STBX is trying to reduce my contact with my girls to the 27% you allude to. Going to trial over this.
Reply With Quote
  #7 (permalink)  
Old 07-05-2012, 10:58 PM
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,452
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

Your ex isn't working, one child is only in school a half day. As a parent I'm well aware that children at that age are sick at home an average of 2-3 days a month with the latest virus going around the school. Your ex must be caring for them then, not you.

I understand why you would want to count your weekends as 48 hours of "quality time" but the courts won't see it that way.

I'm not saying don't try, but don't kid yourself either, and don't overreach with your arguments. Express the positive, how much you do for them and how much your are willing to do.

Would you be able to miss 40 or 50 days of work a year to deal with colds and flu?
Reply With Quote
  #8 (permalink)  
Old 07-06-2012, 12:24 AM
MrToronto's Avatar
Senior Member
 
Join Date: May 2012
Posts: 981
MrToronto is an unknown quantity at this point
Default

it's too bad that the guy that works his arse off to feed a family is penalized for it when a divorce happens...and has to fight for the right for 50-50 because of some stupid theory that a stay at home mom is best for kids that doesn't work....if the kids are at school all day issn't the teacher the stay at home mom(in reality).. I say the money maker should get the kids until the stay at home couch potato gets a job and is able to do 50-50...thats the science fiction angle
Reply With Quote
  #9 (permalink)  
Old 07-06-2012, 06:37 AM
blinkandimgone's Avatar
Moderator
 
Join Date: Feb 2010
Location: Lucknow
Posts: 4,186
blinkandimgone has a spectacular aura aboutblinkandimgone has a spectacular aura aboutblinkandimgone has a spectacular aura about
Default

Quote:
Originally Posted by MrToronto View Post
it's too bad that the guy that works his arse off to feed a family is penalized for it when a divorce happens...and has to fight for the right for 50-50 because of some stupid theory that a stay at home mom is best for kids that doesn't work....if the kids are at school all day issn't the teacher the stay at home mom(in reality).. I say the money maker should get the kids until the stay at home caouch potato gets a job and is able to do 50-50...thats the science fiction angle
Couch potato? It is clear to me from your bitter, ignorant ramblings that you've never actually parented in any meaningful capacity nor been a significant contributing partner to the workings of a household. You, Sir, are an ass.
Reply With Quote
  #10 (permalink)  
Old 07-06-2012, 10:56 AM
Senior Member
 
Join Date: Apr 2011
Posts: 342
winterwolf7 is on a distinguished road
Default

Some stay at home parents ARE couch potatoes, but one would hope they are in the minority.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Hearsay Rules Grace Divorce & Family Law 19 01-09-2013 03:58 PM
Motion: Replying Affidavit smart_dummy Divorce & Family Law 0 10-22-2011 01:22 PM
Affidavit as Exhibit smart_dummy Divorce & Family Law 5 10-19-2011 08:57 PM
Tips on responding to ex's Motion affidavit jezabelmom Divorce & Family Law 7 11-19-2010 02:21 PM
When/ how to use Ex's Affidavit inlimbo Divorce & Family Law 9 02-06-2008 12:14 AM


All times are GMT -4. The time now is 01:33 AM.