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Old 06-29-2013, 07:19 AM
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I have come to the forum in hopes of finding guidance to navigate myself through the legal system while I fight my case of sole custody, child support, spousal support if possible, division of property, and division of personal/business assets accumulated during our marriage.

My ex and I have now been separated since August 10th, 2013 as a result of restraining order. There were issues of emotional, verbal and financial abuse. When my ex tried to take it to the next level, physical abuse, I went to to the police station and told them what was happening, including the recording device he had placed on the home phone etc.

He was arrested on charges of criminal harassment and possession of recording device. While the case was on going, he maintained that he didn't want divorce, he wanted to try to make things better and he would support me and the kids until we were back together. He provided financial support for two-three months, and very little child support for two more months after that, and then nothing. During this time I found a job and was able to support myself. But things were difficult because I am not making enough to maintain the house, pay for all child care expenses, living expenses, pay off debt accumulated while we were together etc. He is maintaining the position to CAS worker and other people involved in this case that he is continuously providing support , this is lie.

In the beginning I filed for child and spousal support only; at that time I wasn't working, and he hadn't been sentenced. Once he was sentenced he filed for divorce, spousal support, division of property, the works! I agreed with his claim for divorce and division of property provided there is division of his business asset, as I helped him start his business after we got married.

The following issues are at dispute:
1) He is self employed and shows he makes nothing more than 15k-17k (in reality, minimum he makes close to 65k-70k after all business expense and taxes paid off, plus cash jobs). Since I make 50k, he has filed for spousal support.
2) He wants joint custody, but because of the abuse involved I am very afraid to be in constant contact with him and if and when I were to say something that he didn't agree with I would again have to deal with a person who is being very abusive and difficult.
3) The extra expenses such as RESP, orthotics (my daughter needs them) etc. Last year I paid all of it and paying for it even this year while he has contributed nothing towards it and based on the income - he shows - he wouldn't have to contribute too much towards it anyways.
4) Since he has medical, dental, drug and other benefits through his union I am asking that he keeps on them, which he doesn't want to.
5) He wants sale of matrimonial property and his share. I am not fighting that. But I propose that either a) divide his business net worth and the house's net worth and then I will pay him any extra amount I would need to buy his share in the house from whatever I would get from a share in his business's net worth, or b)neither sells anything, he keeps the business and I keep the house and we each relinquish our right in the other person's asset.
6) He is refusing to pay any part in the debt accumulated during our marriage, even thought he contributed to no less than 80% and maintains that all the debt is on my cards and that means I accumulated the entire debt. It is true that all debt is on my cards, but the reason is because, he couldn't get CC or LOC or any loan from any institution because of bankruptcy (that is why even the mortgage is in my name, and I have paid every single mortgage payment even the down payment). So, I got supplemental cards in his name from my CC companies, which he maxed out and now refusing to pay so I make all the minimum payments.

He is fighting me on all the above mentioned points, and I am having to fight him and his very devious lawyer on my own (can't afford a lawyer and not eligible for legal aid) and therefore from time to time will posts on the forum to get advice as to how to prepare myself for the first case conference in August 14, 2013.
I will need help with how should communicate my position to the court and what I need to look out for, because my ex's lawyer is very manipulative, and he his portraying my ex is victim of circumstances and me as the abuser.
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Old 06-29-2013, 10:48 AM
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Originally Posted by marivana View Post
1) He is self employed and shows he makes nothing more than 15k-17k (in reality, minimum he makes close to 65k-70k after all business expense and taxes paid off, plus cash jobs). Since I make 50k, he has filed for spousal support.
You may have to hire an accountant to go over everything. Request his full financials/tax returns. Some expenses will be able to be written off, but anything extra will go back and count towards his income. You may be able to impute his income. However depending on how much that is, you may have to pay spousal depending on length of marriage, working history throughout marriage, etc... Don't agree to anything until he proves entitlement.

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Originally Posted by marivana View Post
2) He wants joint custody, but because of the abuse involved I am very afraid to be in constant contact with him and if and when I were to say something that he didn't agree with I would again have to deal with a person who is being very abusive and difficult.
Unless he abused the kids as well, then he will most likely get joint. You two are separated now, so you don't have to be around each other anymore. However courts look at best interest of children, and that is usually to have both parents equally in their lives. Access exchange can occur in safe places to give you peace of mind, and all communications should be through email only so you're both held accountable. Sole vs Joint is really only for major decisions regarding education, health, religion. You both would have to be able to work together to handle those, which don't occur too often, otherwise you would have to attend mediation or court to get a final say.

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Originally Posted by marivana View Post
3) The extra expenses such as RESP, orthotics (my daughter needs them) etc. Last year I paid all of it and paying for it even this year while he has contributed nothing towards it and based on the income - he shows - he wouldn't have to contribute too much towards it anyways.
S.7 expenses would be split according to incomes. You have to get his true income finalized and then these expenses would be split accordingly. Keep your receipts and you can ask for arrears afterwards.

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Originally Posted by marivana View Post
4) Since he has medical, dental, drug and other benefits through his union I am asking that he keeps on them, which he doesn't want to.
You should ask for that. If he had the kids on his plan during the marriage, then he should keep it the same now. Does he pay extra for it? Do you have coverage?

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Originally Posted by marivana View Post
5) He wants sale of matrimonial property and his share. I am not fighting that. But I propose that either a) divide his business net worth and the house's net worth and then I will pay him any extra amount I would need to buy his share in the house from whatever I would get from a share in his business's net worth, or b)neither sells anything, he keeps the business and I keep the house and we each relinquish our right in the other person's asset.
- You will have to do equalization. All assets will be included, including the business. Others here have dealt with the same thing, so hopefully they will provide more details, but you may have to higher someone to ensure you get your fair share of the business.

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Originally Posted by marivana View Post
6) He is refusing to pay any part in the debt accumulated during our marriage, even thought he contributed to no less than 80% and maintains that all the debt is on my cards and that means I accumulated the entire debt. It is true that all debt is on my cards, but the reason is because, he couldn't get CC or LOC or any loan from any institution because of bankruptcy (that is why even the mortgage is in my name, and I have paid every single mortgage payment even the down payment). So, I got supplemental cards in his name from my CC companies, which he maxed out and now refusing to pay so I make all the minimum payments.
- Debt will be included in equalization as well. Joint is automatic, but if there is debt in your name only that you can prove was spent for his benefit, then you may be able to claim that back as well. All assets and debts will be offset and depending on who keeps what, an equalization payment will have to be paid.

- Matrimonial home is automatically 50/50, regardless of who's name is on the mortgage or who was paying the bills.
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Old 06-29-2013, 12:55 PM
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You may have to hire an accountant to go over everything. Request his full financials/tax returns. Some expenses will be able to be written off, but anything extra will go back and count towards his income. You may be able to impute his income. However depending on how much that is, you may have to pay spousal depending on length of marriage, working history throughout marriage, etc... Don't agree to anything until he proves entitlement.
As I used to do some of his invoicing I am aware of few of his contractors. The lawyer I had for a short term had mentioned that at first case conference he would ask the court to
1) subpeona his invoices from his contractors.
2) make a court order for a full disclosure of all his accounts and tax returns for his company and himself.
3) since we have small evidence of cash work that he does (letters from people who paid him in cash and are willing to testify to that) subpeona his phone records in order to find more of his cash paying clients by directly contacting them
.

Quote:
Unless he abused the kids as well, then he will most likely get joint. You two are separated now, so you don't have to be around each other anymore. However courts look at best interest of children, and that is usually to have both parents equally in their lives.
The kids weren't abused, but the abuse took place in front of them. Uptil this point he had never paid interest towards major decisions, he refused to participate in them, because in our culture (South Asian) it is considered the sole responsibility of the mother. That being said, I don't agree with it and I think both parents should be intensly involved in the process. However, given the nature of our relationship right now where he is refusing to be reasonable and everything he wants is based on what is in his needs, I want to be able to discuss issues with him but if he starts arguing and fighting with me than I have the ability to not involve him in the process.



Quote:
You both would have to be able to work together to handle those, which don't occur too often, otherwise you would have to attend mediation or court to get a final say
By the way we are attending family mediation this coming Thursday, any advice on how I should prepare for it?

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You should ask for that. If he had the kids on his plan during the marriage, then he should keep it the same now. Does he pay extra for it? Do you have coverage?
He had the kids and me on the plan during our marriage, and he doesn't pay any extra, it goes through his union dues. Plus, if he had us as his beneficiaries during our marriage, does he have the right to remove us from it now?
I have no coverage and I am not entitled on the compay plan, until after one year and even at that time I would have to pay 60% while the company pays 40%.

Quote:
You will have to do equalization. All assets will be included, including the business. Others here have dealt with the same thing, so hopefully they will provide more details, but you may have to higher someone to ensure you get your fair share of the business.
My previous lawyer had requested business evaluation, but since my ex didn't provide it I think my lawyer had said that either he was going to ask the court to order a business evaluation or ask the court to order that he provide all information that is needed for business evaluation and that I would have to get it done and ask the court for cost at a later hearing. What would senior member of the forum recommend that I do?
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Old 06-29-2013, 01:31 PM
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Originally Posted by marivana View Post
The kids weren't abused, but the abuse took place in front of them. Uptil this point he had never paid interest towards major decisions, he refused to participate in them, because in our culture (South Asian) it is considered the sole responsibility of the mother. That being said, I don't agree with it and I think both parents should be intensly involved in the process. However, given the nature of our relationship right now where he is refusing to be reasonable and everything he wants is based on what is in his needs, I want to be able to discuss issues with him but if he starts arguing and fighting with me than I have the ability to not involve him in the process.
A couple of points about this.

The father may pick up the kids after school/daycare/camp, and drop them off the next morning. You may never have to see him again, even though there are regular exchanges. This is by far the best solution to any problems between the parents.

What decisions do you have to discuss? Each of you makes daily decsions while they are in your care. If there are health problems, either of you should be free to go to the doctor or the hospital. The children have a right to medical care, they don't need a parent's permission to be healthy.

Similarly with the dentist. The school system may be an issue over whose home is the primary residence for the purpose of school district. This is something to discuss with a mediator if necessary. Again, the best solution is if the parents each live in the same school district. Over the years the children will have friends, activities, birthday parties, sports, etc. all centered around the school area. If one parent lives across town, the children will end up wanting to be elsewhere.

My point is that any possible conflict or inconvenience can be eliminated if you simply arrange the logistics properly. I don't see or speak to my ex for weeks at a time. We have joint legal custody and 50/50 residence.

People are at their worst when they are unhappy and in a toxic relationship with their spouse. That is when emotional states sour and tempers flare. People are different when they are out. That doesn't mean they become perfect people or perfect parents, but it means they shouldn't be judged by when their lives were at their worst. We all should get a chance to make the best of ourselves.
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Old 06-29-2013, 03:20 PM
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What decisions do you have to discuss? Each of you makes daily decsions while they are in your care. If there are health problems, either of you should be free to go to the doctor or the hospital. The children have a right to medical care, they don't need a parent's permission to be healthy.
Let me shed a little more light on the subject, to explain my position a little better.

My older daughter being the youngest in her class (DOB 27 December, 2007) was not at same emotional, social and cognitive level as the rest of her peers in JK. I discussed this issue with her teacher, and she recommended I apply for an evaluation by a Speech and language pathologist (SLP) and based on her finding, my daughter would become eligible for a special program. This program was offered at a school not in our home district, but if my daughter was accepted in the program there would be a school bus picking and dropping her off. I discussed this with my ex, he said I was being paranoid, my daughter is just shy but in any case he doesn't care because he would not have pick her or drop her off. So I applied for my daughters assessment, and it was found that her language and communications skills were under developed enough for her to be considered for the program. She got accepted into program for the whole year, her progress has been exemplary. Throughout her senior kindergarten (sk) year, her teachers and I worked tirelessly with her and now she is above the level of development as most children in SK. Now she will be moving back to her school in our home district.
My ex is using this situation - changing my daughter's school every year since she has been in school system - to say I am incapable of sticking to something. This will not be a huge issue when I show my daughter's progress report to the court.
But based on his attitude and our history of interaction where he is always manipulating, lying, delaying etc I think this would become very difficult if and when my daughter needs to be enrolled in other educational programs and I need to obtain his permission and he is just wanting to make things difficult for me and not thinking about how this is hurting his own children.
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Old 06-29-2013, 08:57 PM
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I assume your stated separation date of August 2013 was a typo - did you mean to say 2012?
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Old 07-01-2013, 09:28 AM
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I assume your stated separation date of August 2013 was a typo - did you mean to say 2012?
correct. it was august 10 2012.
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Old 07-01-2013, 01:15 PM
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My ex and I have now been separated since August 10th, 2013 as a result of restraining order. There were issues of emotional, verbal and financial abuse.
I caution you on what constitutes "emotional", "verbal" and "financial" abuse before the courts. Most litigants I see bringing these arguments forward have no idea for what grounds and evidence need to be presented to constitute "violence and abuse" in accordance with Rule 24.(4) of the Children's Law Reform Act of Ontario.

Quote:
Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
An argument/disagreement may not constitute "violence and abuse" on the balance of probabilities.
A one time disagreement/push/shove may not constitute "violence and abuse" on the balance of probabilities.
Not giving you money for which one parent earns through employment themselves may not constitute "violence and abuse".

It is very easy to apply the generic definitions you are reading on the internet and in other books (for example Lundy Bancroft) and "feel" you have been abused based on these poorly written definitions.

I caution you that the justices presiding over your matters may have a very different view on Rule 24.(4) as they apply it every day in their court room. Just because you disagree with someone does not constitute "emotional abuse".

Litigating for sole custody on a claim of "abuse" is not easy, will destroy whatever little parental relationship you have with the other parent and will force the matter to a full trial if the other parent counter claims against you.

Also, I recommend you learn and understand the concept of "hearsay" and its weight (very little) it has in court generally.

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Originally Posted by marivana View Post
When my ex tried to take it to the next level, physical abuse, I went to to the police station and told them what was happening, including the recording device he had placed on the home phone etc.
Again, this matter has nothing to do with the family law matter. Although a justice in the family court will consider the matter the decision on a criminal charge lies with the crown attorney and a criminal proceeding where evidence beyond reasonable doubt is presented. Family Law matters are weighted different and on the balance of probability.

I recommend you read the following articles regarding the matter of Shaw v. Shaw:

http://blog.separation.ca/?p=51

Winning family battles in criminal court

Domestic abuse law blasted | Toronto Star

Here is the case law on Shaw v. Shaw:

Shaw v. Shaw, 2008 ONCJ 130 (CanLII)

Date: 2008-03-25
Docket: 34/08
Parallel citations: 62 RFL (6th) 100
URL: CanLII - 2008 ONCJ 130 (CanLII)
Citation: Shaw v. Shaw, 2008 ONCJ 130 (CanLII)

I highly recommend you read the case law at minimum to get a better understanding of "domestic violence" and how a one-time occurrence is often viewed.

In addition, I recommend you purchase the book "Tug of War" from your local Chapters. It is written by the Honourable Harvey Brownstone. Read it cover-to-cover about 4-5 times. Read it to understand it... Which is different than just "reading it".

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Originally Posted by marivana View Post
He was arrested on charges of criminal harassment and possession of recording device.
Being charged with something and convicted are two VERY DIFFERENT things. Has their been a trial concerning the criminal charges?

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Originally Posted by marivana View Post
While the case was on going, he maintained that he didn't want divorce, he wanted to try to make things better and he would support me and the kids until we were back together.
Irrelevant and is a hearsay statement. He can say all the things he wants but, the reality is now that criminal charges have been laid and things are this far gone it is highly unlikely that there will be a reunion between you and the other parent in a romantic relationship. Both you and the other parent need to focus on the next steps and understand what needs to be done now that you are both separate and apart and will be getting divorced eventually.

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Originally Posted by marivana View Post
He provided financial support for two-three months, and very little child support for two more months after that, and then nothing.
You can bring an application to court to have the proper child support calculated but, custody and access of the children will have to be determined and ordered to get this resolved. Either parent can bring an Application forward and the other gets a chance to respond.

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Originally Posted by marivana View Post
During this time I found a job and was able to support myself. But things were difficult because I am not making enough to maintain the house, pay for all child care expenses, living expenses, pay off debt accumulated while we were together etc.
This is simply a realization that it takes quite a lot to live seperate and apart. You will probably have to sell the house if you are unable to maintain it. The house is split 50/50 as well as the joint debts accumulated while married.

You should seek financial advice from a qualified adviser on your budget and what needs to be done financially to support yourself.

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Originally Posted by marivana View Post
He is maintaining the position to CAS worker and other people involved in this case that he is continuously providing support , this is lie.
CAS can't do anything about the child support that should be paid. It is not in their jurisdiction to even evaluate or comment on it. The reality is if child support is required only a court can order it be paid and have the FRO enforce it.

Lamenting to CAS about child support isn't going to resolve the problem. CAS is only concerned about abuse and/or neglect and/or maltreatment of the children involved.

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Originally Posted by marivana View Post
In the beginning I filed for child and spousal support only; at that time I wasn't working, and he hadn't been sentenced. Once he was sentenced he filed for divorce, spousal support, division of property, the works!
Which he has every right to do. In fact, this was the proper thing to do. He is seeking a divorce now and all those issues will have to be resolved for a divorce order to be made.

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I agreed with his claim for divorce and division of property provided there is division of his business asset, as I helped him start his business after we got married.
Not really relevant unless you are claiming ownership of the business for the purposes of equalization. The family court doesn't divide "sweat equity" of small businesses generally.
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Old 07-01-2013, 01:16 PM
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Originally Posted by marivana View Post
The following issues are at dispute:

1) He is self employed and shows he makes nothing more than 15k-17k (in reality, minimum he makes close to 65k-70k after all business expense and taxes paid off, plus cash jobs). Since I make 50k, he has filed for spousal support.
You will need a forensic accountant to investigate the matter generally to make a claim that he is hiding money. This costs money as the forensic accountant is a independent third party and they charge their time to do this work on an hourly basis. (120-260$/hour)

Also, you will need an order for the forensic accountant to investigate his financial disclosures and standing. They can't do anything without a court order.

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Originally Posted by marivana View Post
2) He wants joint custody, but because of the abuse involved I am very afraid to be in constant contact with him and if and when I were to say something that he didn't agree with I would again have to deal with a person who is being very abusive and difficult.
The resolution the family court will more than likely put in place in a situation where one parent alledges they are "fearful" of the other is a form of joint custody known as "parallel parenting".

To learn about "parallel parenting" I recommend you read the following case law:

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09
Docket: DF 2217/09
URL: CanLII - 2011 ONSC 4305 (CanLII)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII)

(Paragraphs 77 to 96.)

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Originally Posted by marivana View Post
3) The extra expenses such as RESP, orthotics (my daughter needs them) etc. Last year I paid all of it and paying for it even this year while he has contributed nothing towards it and based on the income - he shows - he wouldn't have to contribute too much towards it anyways.
The court more than likely will not order anything about RESP at this time. The court doesn't make future orders and only deals with the matters in the current situation. It is not known of the child will actually go college/university. At the time the child goes to school the matter of paying for education will have to be dealt with. It is too far in the future (possibly) for a court to do anything.

Also, the medical expenses are S.7 (Section 7 - Special and Extraordinary). Both parent's supplementary medical insurance should be leveraged first and any residual is split based on the difference in incomes.

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Originally Posted by marivana View Post
4) Since he has medical, dental, drug and other benefits through his union I am asking that he keeps on them, which he doesn't want to.
The court will order him to keep them on the medical and dental benefits.

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Originally Posted by marivana View Post
5) He wants sale of matrimonial property and his share. I am not fighting that.
But, you are... The business and the house are two different assets to the family and shouldn't be mixed in your proposal (option A and B).

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Originally Posted by marivana View Post
But I propose that either a) divide his business net worth and the house's net worth and then I will pay him any extra amount I would need to buy his share in the house from whatever I would get from a share in his business's net worth, or
Are you listed as a shareholder in the business? You first have to establish entitlement to the claim on the business in question. You mentioned that the other parent is in a union. I am going to assume it is a trade union and that the other parent is a plumber/electrician/similar. The business is a shell to their skills and they simply can fold it and open a new business in a matter of minutes. There is probably no equity in the business other than the other parent's skills unless the business owns inventory (significant) and a justice won't make the other parent split the tools and other elements they need to perform their job... Unless you are employed in the same field and need them to do your job?

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Originally Posted by marivana View Post
b)neither sells anything, he keeps the business and I keep the house and we each relinquish our right in the other person's asset.
The justice presiding will probably not go for this. You first have to establish that you have a right to claim anything on the business. Considering the claim on income that the other parent put forward, the business clearly isn't worth anything other than that parent's skills in something labour related. (Just assuming here.)

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Originally Posted by marivana View Post
6) He is refusing to pay any part in the debt accumulated during our marriage, even thought he contributed to no less than 80% and maintains that all the debt is on my cards and that means I accumulated the entire debt.
Is it a joint account? If not, it is going to be more difficult to claim that the debt is incurred because of the other party and is a "family debt". Like all financial things credit cards have history and if you can demonstrate a pattern of usage to support family needs etc then, you have a case possibly. But, you need evidence... NOT HEARSAY... Evidence like all of the past 3 years worth of credit card bills... Full disclosure of how the debt was accumulated.

Quote:
Originally Posted by marivana View Post
It is true that all debt is on my cards, but the reason is because, he couldn't get CC or LOC or any loan from any institution because of bankruptcy (that is why even the mortgage is in my name, and I have paid every single mortgage payment even the down payment).
Again, the court orders on EVIDENCE and not HEARSAY. Get the fininancial records in detail. Every bank statement that shows every purchase against the accounts and give actual insight into how the debt was accumulated.

Evidence... evidence... evidence...

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Originally Posted by marivana View Post
So, I got supplemental cards in his name from my CC companies, which he maxed out and now refusing to pay so I make all the minimum payments.
Again, have your CC company identify which were purchases by you and wich were by the other parent. It isn't rocket science and they are from different numbers generally.

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Originally Posted by marivana View Post
He is fighting me on all the above mentioned points, and I am having to fight him and his very devious lawyer on my own (can't afford a lawyer and not eligible for legal aid) and therefore from time to time will posts on the forum to get advice as to how to prepare myself for the first case conference in August 14, 2013.
"Devious lawyer". Not that I disagree but, remember this is a registered professional and the other parent has every right to have legal counsel represent them. You may want to seek out the same for yourself... If you waste the courts time with irrelevant evidence and irrelevant requests you could end up paying the other parent's costs to defend themselves against bogus claims.

Quote:
Originally Posted by marivana View Post
I will need help with how should communicate my position to the court and what I need to look out for, because my ex's lawyer is very manipulative, and he his portraying my ex is victim of circumstances and me as the abuser.
I wouldn't worry about the posturing but, the facts... Facts built on cogent and relevant evidence.

Good Luck!
Tayken
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