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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #1 (permalink)  
Old 05-28-2013, 01:15 PM
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Default Court Next Week

History:
After 5 years, I was able to obtain income information from X. (It contains self employment income that shows a loss, as well, bringing down his line 150 amount, but this is a whole other issue).

Based on the 2011 tax info (line 150), I asked X via registered mail to increase CS. This brings monthly amount up by over $200/month.

He refused to change the support without a court order.

I filed Motion to Change. A court date was set at time of filing. Unfortunately, service was not completed until 28 days before the court date. Not the required 30 days for respondent to answer.

I attended the first appearance, X asked duty council to ask for adjournment as he was unable to attend on the first date.

The judge wrote the following on the Endorsement, "Respondent still has time to answer. (Duty Council) believes he is attempting to retain council. Adjourn to (date) for uncontested hearing or case conference."

I have not received any response/answer to my Motion to Change. I was advised to file an Affidavit for Uncontested Trial, and did so.

How will I know if this appearance next week will be a CC? I have not filed any CC notices or briefs. I thought I knew what was going on, now I don't know.

Thanks for your help.
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Old 06-05-2013, 09:10 PM
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Update: X did not attend court again. Judge not pleased (asked duty council if there was some reason why respondent feels he doesn't have to attend).

X asked duty council to speak for him to say he is trying to make an appointment to see a lawyer (he called duty council yesterday). He was served 64 days ago. He has not answered my motion or responded in any way still. His new appointment is mid-June.

Judge asked me a few questions about his employment. Judge granted temporary order for the increase in CS I asked for effective today. She made clear it was temporary not final.

Adjourned until mid-July for CC or uncontested (again).

On way out, the duty council asked me if I wasn't asking for retro CS (X has NEVER paid proper table amount for his income - 5 years). I said no, I just want proper amount now, not for the last 5 years. He said "I'm just trying to figure out what this guy's doing! I have to call him now to let him know what's going on but I can't figure out what he's doing. He didnt want to have to pay for one lawyer and now he's going to have to pay for both!" I said he's stalling, I just don't know why.

Thoughts? Thanks!
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Old 06-06-2013, 10:42 AM
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You are trying to make sense of stupid. You can't. Stop trying.

CS is the right of the child. Simply exchange NOA each year prior to June 1. If your order does not have this clause in it, then make sure you get it put in.

Then, if he doesn't provide them to you, you send him a polite email by June 15th and give him until June 30th to respond.

If that gets ignored, you send him a registered letter, signature required on Jul 1 and ask him to respond within 10 days of receipt.

On day 11, you file a motion with the court for him to provide his NOA and tax information, for any adjust in CS as required, and for costs.

Rinse and repeat. Eventually the judges will get tired of him not providing his financials and will start whacking him for costs.

Adjustment of CS should be a stupidly easy thing. Exchange NOA, compare against tables, file motion on consent for new amounts, judge rubber stamps it, file with maintenance enforcement (FRO) if applicable...done.
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Old 06-06-2013, 10:50 AM
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Quote:
Originally Posted by Qrious View Post
He said "I'm just trying to figure out what this guy's doing! I have to call him now to let him know what's going on but I can't figure out what he's doing. He didnt want to have to pay for one lawyer and now he's going to have to pay for both!" I said he's stalling, I just don't know why.

Thoughts? Thanks!
Question. Was the "duty counsel" who said this to you representing you or the other party?

Good Luck!
Tayken
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Old 06-06-2013, 11:10 AM
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Quote:
Originally Posted by NBDad View Post
You are trying to make sense of stupid. You can't. Stop trying.

Adjustment of CS should be a stupidly easy thing. Exchange NOA, compare against tables, file motion on consent for new amounts, judge rubber stamps it, file with maintenance enforcement (FRO) if applicable...done.
NBdad - I actually lol'd at your opening line. You're right. I AM trying to make sense of stupid!

We do have a clause in the SA about sharing our NoA by June 15 every year. This is just the first time in 5 years he actually shared with me. I don't know how hard it will be to get 2012.

Thanks for the advice - I will take it!
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Old 06-06-2013, 11:17 AM
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Quote:
Originally Posted by Tayken View Post
Question. Was the "duty counsel" who said this to you representing you or the other party?

Good Luck!
Tayken
He was representing the other party. He was shaking his head and frowning as he verified the information, asked what this guy's doing, and when he said the line about respondent having to "pay both." I am assuming (projecting feelings) this could have been a sign of disbelief, confusion, or maybe even disgust on the part of the duty counsel lawyer.

An aside: neither of us qualify for legal aid, so I'm not sure why they can speak on our behalf, but I'm not complaining.
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Old 06-06-2013, 12:21 PM
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Originally Posted by Qrious View Post
He was representing the other party. He was shaking his head and frowning as he verified the information, asked what this guy's doing, and when he said the line about respondent having to "pay both." I am assuming (projecting feelings) this could have been a sign of disbelief, confusion, or maybe even disgust on the part of the duty counsel lawyer.
If this is a truthful statement, it was incredibly unprofessional of the duty counsel to disclose this information to you directly about their client and to make these kinds of comments. It may possibly be misconduct for the professional to do this, make these comments and expose their client in such a manner.

Rules of Professional Conduct | The Law Society of Upper Canada

I highly recommend you bring the conduct of this "professional" to the attention of the ethics investigations office of Legal Aid Ontario for further investigation.

Legal Aid Ontario: Getting Legal Help

Quote:
Originally Posted by Qrious View Post
An aside: neither of us qualify for legal aid, so I'm not sure why they can speak on our behalf, but I'm not complaining.
Technically, they shouldn't be appearing if neither of you qualify for their services financially. If the justice requested the parties consult with duty counsel then it shouldn't be a problem.

Finally, I wouldn't recommend you take anything from what this "professional" stated and how they conducted themselves as factual or evidence that your position is better than the other party. In my personal opinion it was incredibly unprofessional for them to conduct themselves in this manner. I caution you to take what was communicated to you with a grain of salt and to not build any "false confidence" on the statements made by this "professional".

There are great people working for LOA as duty counsel but, based on your description of the events, this individual in my personal opinion doesn't put that organization in the best professional light.

Good Luck!
Tayken

Last edited by Tayken; 06-06-2013 at 12:24 PM.
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Old 06-06-2013, 01:20 PM
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Oh my goodness. I'm sorry - I guess I've probably said this wrong.

I suppose the duty council technically "represent" neither of us - one of the duty counsel lawyers spoke on his behalf, in his absence. The judge verified with him that he does not represent the respondent as he is seeking counsel and has an appointment in a few weeks (I can't remember the judge's exact words in the question) to which the lawyer responded "no." The words said afterwards are accurate, but my saying he was representing him was probably inaccurate.

I must be careful with my words.

Thanks Tayken!
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Old 06-08-2013, 05:01 PM
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Quote:
If this is a truthful statement, it was incredibly unprofessional of the duty counsel to disclose this information to you directly about their client and to make these kinds of comments. It may possibly be misconduct for the professional to do this, make these comments and expose their client in such a manner.
Duty counsel are amicus curiae. While they are often speaking for one party, or providing them with advice, their standing to make submissions comes from their office, not because they are agents for a party.

Quote:
I highly recommend you bring the conduct of this "professional" to the attention of the ethics investigations office of Legal Aid Ontario for further investigation.
While the comments appear to be otherwise unhelpful in the context of the litigation, they do not prejudice either party. Nothing prevents two parties from independently obtaining legal information from duty counsel; the take home message may have been, "amend your pleadings to seek retroactive support, oblige your ex to settle or be compensated with a whack of arrears which rain down on the head of someone wasting the court's time". Which, admittedly, would be inappropriate coming from duty counsel.

In any event, reporting a friend of the court for comments that help or support you, and don't otherwise impact the litigation, seems to be both a poor way to repay friendly counsel and unlikely to have any impact other than to make them more likely to follow the letter, as opposed to the spirit, of their job.

The law in general, and family law in specific, is best served when individual cases have the attention and care of analytically capable and intellectually honest people, whether from the bench, the bar or (dare one hope) in parties.

Quote:
I wouldn't recommend you take anything from what this "professional" stated and how they conducted themselves as factual or evidence that your position is better than the other party.
This is true. Commentary is worth the paper it is written on.

Quote:
Technically, they shouldn't be appearing if neither of you qualify for their services financially.
While it is surprising that duty counsel would appear when the client can't be bothered to come personally, their job is to facilitate the equitable administration of justice. Prima facie, I see no fault in their appearance.
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Old 06-08-2013, 05:28 PM
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OrleansLawyer - Thank you so much for weighing in about the duty counsel who may have said too much to me the other day. (It wasn't even supposed to be the main point of my story, I just thought it was interesting. I probably saw his words as validation that I'm not asking for anything unreasonable)

I have no intention of "turning" this guy "in". I think maybe he saw how scared I was and was probably just trying to help. I would never hope to punish someone for trying to be helpful.

Initially saying that the counsel represented the respondent, though, was inaccurate on my part, so I see why Tayken offered the advice he did.

Thanks again.
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