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  #11 (permalink)  
Old 08-02-2006, 06:41 PM
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Mcbroke,

Quote:
Instead of a financial examination, can I just use Queens bench rule 35? Ask her specific questions.... What is the gross income of your partner ? Have you ever received money from your partner to help pay your lawyere retainer or bills?
If I can use bench rule 35 (can you use it Ontario) how do I go about doing it? What form would I use?
Is that rule from Sask, or Manitoba courts? I believe the equivalency would an examination under oath here. During a financial examination you could ask her those specific questions.

I would think that future court dates should be to mutual agreement and they should verify with you about availability.

lv
  #12 (permalink)  
Old 08-03-2006, 02:07 AM
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Default Thank you LV

I think its from Manitoba LV, but I found this in Civil Courts Act is this equivalent to Queens Bench rule 35 and can I use it in my case(to save on the possible expense of a motion or financial examination) Do you know a link to the forms if I can use this procedure? Thanks again LV:

PROCEDURE ON EXAMINATION FOR RULE 35 DISCOVERY BY WRITTEN QUESTIONS
QUESTIONS
35.01 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered (Form 35A) on the person to be examined and every other party. R.R.O. 1990, Reg. 194, r. 35.01.
ANSWERS
35.02 (1) Written questions shall be answered by the affidavit (Form 35B) of the person being examined, served on the examining party within fifteen days after service of the list of questions. R.R.O. 1990, Reg. 194, r. 35.02 (1).
(2) The examining party shall serve the answers on every other party forthwith. R.R.O. 1990, Reg. 194, r. 35.02 (2).
OBJECTIONS
35.03 An objection to answering a written question shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection. R.R.O. 1990, Reg. 194, r. 35.03.
FAILURE TO ANSWER
Further List of Questions
35.04 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within ten days after receiving the answer, serve a further list of written questions which shall be answered within fifteen days after service. R.R.O. 1990, Reg. 194, r. 35.04 (1).
Court Order for Further Answers
(2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination. R.R.O. 1990, Reg. 194, r. 35.04 (2).
Court Order for Oral Examination
(3) Where the court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the court may order the person examined to submit to oral examination on such terms respecting costs and other matters as are just. R.R.O. 1990, Reg. 194, r. 35.04 (3).
Additional Sanctions
(4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document that he or she is required to produce, the court may, in addition to imposing the sanctions provided in subrules (2) and (3),
(a) if the person is a party or a person examined on behalf or in place of a party, dismiss the party’s action or strike out the party’s defence;
(b) strike out all or part of the person’s evidence; and
(c) make such other order as is just. R.R.O. 1990, Reg. 194, r. 35.04 (4).
IMPROPER CONDUCT OF EXAMINATION
35.05 On motion by the person being examined, or by any party, the court may terminate the written examination or limit its scope where,
(a) the right to examine is being abused by an excess of improper questions; or
(b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined. R.R.O. 1990, Reg. 194, r. 35.05.
FILING QUESTIONS AND ANSWERS
35.06 Rule 34.18 applies, with necessary modifications, to the filing of written questions and answers for the use of the court. R.R.O. 1990, Reg. 194, r. 35.06.
TAKING EVIDENCE BEFORE TRIAL RULE 36
WHERE AVAILABLE
By Consent or by Order
  #13 (permalink)  
Old 08-03-2006, 09:27 AM
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Mcbroke,

If a matter is not covered by the family law rules,

see the applicable rule 1(7)

MATTERS NOT COVERED IN RULES

(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1 (7).

This rule gives the court discretion whether or not to refer to rules of civil procedure.

Your required questioning does not necessarily have to be in written form. You could ask those questions using rule 20 Family Law Rules in a oral capacity. The questioning session is recorded and can be entered into evidence.

http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm


RULE 20: QUESTIONING A WITNESS AND DISCLOSURE

QUESTIONING — PROCEDURE

20. (1) Questioning under this rule shall take place orally under oath or affirmation. O. Reg. 114/99, r. 20 (1).

CROSS-EXAMINATION

(2) The right to question a person includes the right to cross-examine. O. Reg. 114/99, r. 20 (2).

OTHER CASES — CONSENT OR ORDER

(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,

(a) with the other party’s consent; or

(b) by an order under subrule (5). O. Reg. 114/99, r. 20 (4).

ORDER FOR QUESTIONING OR DISCLOSURE

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5).

QUESTIONING ABOUT AFFIDAVIT OR NET FAMILY PROPERTY STATEMENT

(7) The court may make an order under subrule (5) that a person be questioned or disclose details about information in an affidavit or net family property statement. O. Reg. 114/99, r. 20 (7).

QUESTIONING OR DISCLOSURE — PRECONDITIONS

(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

(a) has served and filed any answer, financial statement or net family property statement that these rules require; and

(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained. O. Reg. 114/99, r. 20 (8).

NOTICE AND SUMMONS TO NON-PARTY

(9) The court may make an order under this rule affecting a non-party only if the non-party has been served with the notice of motion, a summons to witness (Form 23) and the witness fee required by subrule 23 (4), all by special service (subrule 6 (3)). O. Reg. 114/99, r. 20 (9).

PENALTY FOR FAILURE TO OBEY SUMMONS

(10) Subrule 23 (7) (failure to obey summons to witness) applies, with necessary changes, if a person summoned under subrule (9) fails to obey the summons. O. Reg. 114/99, r. 20 (10).

PLACE OF QUESTIONING

(11) The questioning shall take place in the municipality in which the person to be questioned lives, unless that person and the party who wants to do the questioning agree to hold it in another municipality. O. Reg. 114/99, r. 20 (11).

OTHER ARRANGEMENTS FOR QUESTIONING

(12) If the person to be questioned and the party who wants to do the questioning do not agree on one or more of the following matters, the court shall, on motion, make an order to decide the matter:

1. The date and time for the questioning.

2. The person responsible for recording the questioning.

3. The method for recording the questioning.

4. Payment of the expenses of the person to be questioned, if a non-party. O. Reg. 114/99, r. 20 (12).

NOTICE TO PARTIES

(13) The parties shall, not later than three days before the questioning, be served with notice of the name of the person to be questioned and the address, date and time of the questioning. O. Reg. 114/99, r. 20 (13).

QUESTIONING PERSON OUTSIDE ONTARIO

(14) If a person to be questioned lives outside Ontario and will not come to Ontario for questioning, the court may decide,

(a) the date, time and place for the questioning;

(b) how much notice the person should be given;

(c) the person before whom the questioning will be held;

(d) the amount of the witness fee to be paid to the person to be questioned;

(e) the method for recording the questioning;

(f) where necessary, that the clerk shall issue,

(i) an authorization to a commissioner (Form 20A) who is to supervise the questioning outside Ontario, and

(ii) a letter of request (Form 20B) to the appropriate court or authorities outside Ontario, asking for their assistance in getting the person to be questioned to come before the commissioner; and

(g) any other related matter. O. Reg. 114/99, r. 20 (14).

COMMISSIONER’S DUTIES

(15) A commissioner authorized under subrule (14) shall,

(a) supervise the questioning according to the terms of the court’s authorization, these rules and Ontario’s law of evidence, unless the law of the place where the questioning is to be held requires some other manner of questioning;

(b) make and keep a copy of the record of the questioning and, if possible, of the exhibits, if any;

(c) deliver the original record, any exhibits and the authorization to the clerk who issued it; and

(d) notify the party who asked for the questioning that the record has been delivered to the clerk. O. Reg. 114/99, r. 20 (15).

ORDER TO BRING DOCUMENTS OR THINGS

(16) An order for questioning and a summons to witness may also require the person to bring any document or thing that is,

(a) relevant to any issue in the case; and

(b) in the person’s control or available to the person on request. O. Reg. 114/99, r. 20 (16).

OTHER RULES APPLY

(17) Subrules 19 (2), (4) and (5) (right to examine document and obtain copy, documents protected by legal privilege, use of privileged documents) apply, with necessary changes, to the documents mentioned in the order. O. Reg. 114/99, r. 20 (17).

SCOPE OF QUESTIONS

(18) A person to be questioned may be asked about,

(a) the names of persons who might reasonably be expected to know about the claims in the case and, with the court’s permission, their addresses;

(b) the names of the witnesses whom a party intends to call at trial and, with the court’s permission, their addresses;

(c) the names, addresses, findings, conclusions and opinions of expert witnesses whom a party intends to call or on whose reports the party intends to rely at trial;

(d) if it is relevant to the case, the existence and details of any insurance policy under which the insurance company may be required to pay all or part of an order for the payment of money in the case or to pay back to a party money that the party has paid under an order; and

(e) any other matter in dispute in the case. O. Reg. 114/99, r. 20 (18).

REFUSAL TO ANSWER QUESTION

(19) If a person being questioned refuses to answer a question,

(a) the court may, on motion,

(i) decide whether the question is proper,

(ii) give directions for the person’s return to the questioning, and

(iii) make a contempt order against the person; and

(b) if the person is a party or is questioned on behalf or in place of a party, the party shall not use the information that was refused as evidence in the case, unless the court gives permission under subrule (20). O. Reg. 114/99, r. 20 (19).

I suspect your required disclosure is covered by the family law rules, no need to refer to rules of civil procedure. I believe you won't be able to question in written form now because of the stage of your case but I think you could bring forth a motion to question your ex in a oral capacity under oath. You would have to be successful in your motion if they don't consent to questioning.

lv
  #14 (permalink)  
Old 08-03-2006, 11:22 AM
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Default Thank you LV.

I think I understand. It says

5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

Does that mean that I can request a motion to question the boyfriend, if questioned she could say that she does not know how much he makes. I would like to put forward a motion to question both of them. SInce he is not represented I might have a better chance of getting full and frank disclosure from him? Just to put pressure on both of them to comply with family rules.
Reason: The Applicant imay say she is unable to reveal information that she may not be privy too (bf's income). Therefore the bf is the one who is not complying in providing the information

It was stated in court before the judge by the Applicant's lawyer that " it is my understanding that Mr. X does not want to be involved." Question: Has the Applicant's lawyer now represented the Applicant 's bf in court? Does that raise any new issues, such as third party involvement? I would think that the lawyer should not have stated this in court at all. I expected " Your Honor, I cannot speak on Mr X's behalf however it is my understanding that the Applicant does not want him involved in this matter...or something to that effect.

Could I argue that the Financial Statement as it is written does involve the Applicants bf the way it is written and therefore the form itself is reason enough to add the Applicant's bf as a third party, and hence the completion of said form with full and frank disclosure as the form itself does not specify duration of cohabitation.I therfore require this information. (Weak concept or valid point?)


Just trying to find a loophole as cheaply and effectively as possible.

Thanks LV
Yours truly,
MCbroke
  #15 (permalink)  
Old 08-04-2006, 12:47 AM
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mcbroke,

you do have a valid point. To me the boyfriends income is relevant as your ex's need may not be as great as she put forth in her financial statement.
Her expenses are shared. Quite frankly, the bf may be paying the full shot.
Who really knows. Questioning your ex alone may disclose some of her expenses.

The Judge made a good point, the bf could leave at anytime and since they are less less than 3 years of continuous cohabitation and no child is born to them while cohabitating, there is no obligation by the bf to support your ex. You do have a right to disclosure of information part 6 of the financial form. Your ex should be disclosing his income here and the contribution to same.

Time is of the essence to your ex's claim, hence the current urgency by them.
I suspect they realize this and why they are expedited their claim. Try to schedule the trial as far into the future as possible. Not sure how much backlog there is. If the trail date is set, both parties are expected to attend, no ifs and buts.

lv
  #16 (permalink)  
Old 08-04-2006, 01:13 AM
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Default Thanks LV

Right after the TMC the exes lawyer ran into the office and checked for available date. They called me and said if it was not agreeable that we would meet on the 11th.

Can I go before the court and file a motion requesting an Order on the BF for full and frank disclosure even though he is not a party?

News:

Contacted Revenue Canada and they are interested in the BF for unreported income, secondly request to admit with her signature would be of interest to Revenue Canada as unreported benefits.And in turn the exes employer (he claims expenses for her benefits therefore they should be reported by the employee, hence implicating her employer) Can this be used as a bargaining chip. ie not reporting in exchange for a favorable settlement or would this be a settlement under duress if they accept and not binding.

Thanks LV
Please take care
  #17 (permalink)  
Old 08-04-2006, 10:18 AM
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mcbroke,

Quote:
They called me and said if it was not agreeable that we would meet on the 11th.
What are you meeting on the 11th for? Are you available for the 11th? If not advise them of such.

Quote:
Can I go before the court and file a motion requesting an Order on the BF for full and frank disclosure even though he is not a party?
You could bring forth a motion for questioning. However, if you are unsuccessful in the motion your could be ordered to pay their costs. If you are successful, what will the questioning reveal. Is it worth the risk?

Quote:
News:

Contacted Revenue Canada and they are interested in the BF for unreported income, secondly request to admit with her signature would be of interest to Revenue Canada as unreported benefits.And in turn the exes employer (he claims expenses for her benefits therefore they should be reported by the employee, hence implicating her employer) Can this be used as a bargaining chip. ie not reporting in exchange for a favorable settlement or would this be a settlement under duress if they accept and not binding.

In essence, I wouldn't waste too much time on what the BF is reporting to revenue Canada on his income tax. That matter is between CCRA and the BF. Don't lose focus of needs and means. Be careful what you assert without absolute proof. You could use the information in a closed session back room private negotiation. They may not care.

lv
  #18 (permalink)  
Old 08-04-2006, 01:36 PM
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Default My goal is credibility and needs and means

Thank you so much LV. I'm sorry LV,the 11th is the date in court to decide the trial date. Is there anything I should prepare. They will go before the judge and state that they have a date secured in November with the Registrar while I have no more time available off work until at the earliest end of February. I am also having injections over a three week span in November and possibly into December. They will argue that that their client is anxious to resolve the issue, will this have a bearing on the judge. Should I prepare anything?

The reason I contacted Revenue Canada, is because all three parties are involved or are going to testify at the trial have either committed tax evasion, or fraud as I contacted the investigations branch already. This I think would reduce the credibility of the exes Financial Statement and anything that her employer would testify as to her benefits.With this in mind Revenue Canada determines her income to be higher that benefits me as the truth is revealed. She did not report her benefits on her income tax I have a copy, but in all probability the owner of the franchise can deduct the cost of the benefit to reduce his taxes.

My son worked for the BF before the split, on weekends and was paid in cash. The BF works on weekends for cash, something that Revenue Canada is interested in cracking down on. I know the address of one of the houses he built on the weekend and will report that. All it takes is one and it opens the investigation.

In regards to a motion, what are my best chances of success?
1)FInancial Examination of ex
2) Full and Frank Disclosure from the ex
3)Full and Frank disclosure form the BF.

What are costs involved in a Motion? Are they expensive?
What can I expect them to argue?

Should I try another request to admit to obtain further information before I file a motion?


Thanks LV,
Please take care
  #19 (permalink)  
Old 08-04-2006, 03:23 PM
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Default One more thing....

As stated in the Applicants request to Admit the bf is paying her 50% of her living expenses. Should this not be included as Income. As stated in the exes FInancial statement it does not include Part 1 Income #9 Rent, Board received, the amount is zero. It stipulates Include all income and other money that you get from all sources, whether taxable or not. She has not included money that she has received from him. Is the a reach? or sustainable for a motion of full and frank disclosure.

Thanks again everyone.
Mcbroke going over with a fine tooth comb
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