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  • Sale of Matrimonial Home

    I go to court on Monday to ask for an order for sale. The Ex obtained exclusive occupancy and I was ordered to pay the entire mortgage, all utilities, and 100% of the taxes on the MH. In addition, I was ordered to pay retro child support of 575/mo. We were in way over our heads with this house. PIT of 2350/month. I'm now under water trying to pay for it and behind in support and utilities. How did you convince the judge to sign the order for sale? I am also asking on Monday that she pay 1/2 the cost of the MH while she occupies it as she is opposed to paying anything. The first judge I encountered in family court gave the Ex everything she wanted. She got the guideline support amount for our 2 year old daughter and I got completely shafted by being ordered to pay the full cost of the MH. We separated in April /13 and I continued to pay the mortgage (house is in my name) and the ex paid the Utilities. However, the Ex had me in court in June for child support and exclusive occupancy. She literally cried in the courtroom and claimed that I had abandoned her. She didn't mention that she physically abused me for the past year and that she was online and had a new bf within a week. Her mother cares for our 2 year old in the MH while she's at work but the kicker is that the ex also came with 3 kids from her ex husband. Her 3 kids are nice and I was polite to them but they never once called me Dad nor did I have anything to do with their discipline or school. However, she's claiming I "stepped in" as their parent. The judge gave her a special court date on Sept 11 to decide if I should be ordered to pay support for her 3 kids. My 1st experience in family court was a complete loss on my part. Duty council represented me and failed me miserably. I didn't even get to speak before the judge made the order. Any advice would be appreciated on how to convince the judge that the ex should pay 1/2 the MH costs and that the MH is too expensive for either party to carry and needs to be sold. I haven't been able to get a lawyer to take my case yet as it's summertime and everyone is on holidays or not taking new cases. My monthly bills now exceed my take home pay and I'm in a small apartment and can't even afford access to my child. I thought leaving a DV situation would reduce my stress but I can't even sleep at night. I also support my 16 year old from outside the marriage and my 20 year old lives with me. Any input on how to proceed would be appreciated. The Ex is very savvy to deal with and has no issues swearing false affidavits. Her Ex husband lost everything to her and after she alleged DV he fled back to the US and has disappeared so that he won't have to pay child support for his kids. I'm really concerned as she won round one so decisively and would like to know if anyone else has experienced a similar situation and bounced back.

  • #2
    Originally posted by EdmDad View Post
    I go to court on Monday to ask for an order for sale....... I'm really concerned as she won round one so decisively and would like to know if anyone else has experienced a similar situation and bounced back.
    EdmDad, you need lots of good advice. Perhaps you can ask the moderators to move this to your own thread so that posters can help you directly.

    I am sorry that I do not know much about your issues but I am sure someone here can help.

    Hang in there.

    Comment


    • #3
      Originally posted by EdmDad View Post
      I go to court on Monday to ask for an order for sale. The Ex obtained exclusive occupancy and I was ordered to pay the entire mortgage, all utilities, and 100% of the taxes on the MH. In addition, I was ordered to pay retro child support of 575/mo. We were in way over our heads with this house. PIT of 2350/month. I'm now under water trying to pay for it and behind in support and utilities. How did you convince the judge to sign the order for sale? I am also asking on Monday that she pay 1/2 the cost of the MH while she occupies it as she is opposed to paying anything. The first judge I encountered in family court gave the Ex everything she wanted. She got the guideline support amount for our 2 year old daughter and I got completely shafted by being ordered to pay the full cost of the MH. We separated in April /13 and I continued to pay the mortgage (house is in my name) and the ex paid the Utilities. However, the Ex had me in court in June for child support and exclusive occupancy. She literally cried in the courtroom and claimed that I had abandoned her. She didn't mention that she physically abused me for the past year and that she was online and had a new bf within a week. Her mother cares for our 2 year old in the MH while she's at work but the kicker is that the ex also came with 3 kids from her ex husband. Her 3 kids are nice and I was polite to them but they never once called me Dad nor did I have anything to do with their discipline or school. However, she's claiming I "stepped in" as their parent. The judge gave her a special court date on Sept 11 to decide if I should be ordered to pay support for her 3 kids. My 1st experience in family court was a complete loss on my part. Duty council represented me and failed me miserably. I didn't even get to speak before the judge made the order. Any advice would be appreciated on how to convince the judge that the ex should pay 1/2 the MH costs and that the MH is too expensive for either party to carry and needs to be sold. I haven't been able to get a lawyer to take my case yet as it's summertime and everyone is on holidays or not taking new cases. My monthly bills now exceed my take home pay and I'm in a small apartment and can't even afford access to my child. I thought leaving a DV situation would reduce my stress but I can't even sleep at night. I also support my 16 year old from outside the marriage and my 20 year old lives with me. Any input on how to proceed would be appreciated. The Ex is very savvy to deal with and has no issues swearing false affidavits. Her Ex husband lost everything to her and after she alleged DV he fled back to the US and has disappeared so that he won't have to pay child support for his kids. I'm really concerned as she won round one so decisively and would like to know if anyone else has experienced a similar situation and bounced back.
      I'm in a similar boat however I eventually forced the sale of the house and made a deal to buy her out to end the shenanigans - coming to an end in November. I am going to ask the court to credit me for the net benefit she got over what she is entitled to via child support and spousal support (occupational rent for example....)

      Comment


      • #4
        Get your own agent, have the agents suggest prices and let them come back to you guys with a suggestion and if she refuses go to court and say the agents agreed on X, I agree on X, crazy doesn't agree on X - what do we do judge!

        Comment


        • #5
          EdmDad, you seem to have a lot of different issues going on. Have you talked to the Family Law Information Centre at the Edmonton law courts? I've found them very helpful if you *phone* (not walk-in - they can be pretty crabby and given some of the behavior of clients I've seen there, not to be blamed for it) and if you have a short list of *specific* questions (e.g. "What steps do I need to take to request that the marital home be sold?").

          I believe the number is 780-644-8217. I usually have no trouble getting through. If you get the name of the person you talk to, you can call back and ask for him/her by name, if you don't want to go through the entire list of your questions at one time.

          I suggest you break your situation down into a list of questions to which you need answers, and then go from there.

          Comment


          • #6
            Firstly EdmDad, paragraphs and structure to your postings will help everyone in assisting you with a response and suggestions.

            Originally posted by EdmDad View Post
            I go to court on Monday to ask for an order for sale.
            You have a motion for which you are seeking an order for the sale of the matrimonial home to be sold?

            Originally posted by EdmDad View Post
            The Ex obtained exclusive occupancy and I was ordered to pay the entire mortgage, all utilities, and 100% of the taxes on the MH.
            The other party to your matter has "exclusive possession" or is there a restraining order preventing you from residing at the matrimonial home. Exclusive possession and a restraining order (mutual or single sided) is different than exclusive possession. Exclusive occupancy could be obtained by getting a restraining order against the other party. Occupancy and possession are very different concepts in law.

            Originally posted by EdmDad View Post
            In addition, I was ordered to pay retro child support of 575/mo.
            Child support is the right of the child/ren and not of the parents. Just always remember that.

            Originally posted by EdmDad View Post
            We were in way over our heads with this house. PIT of 2350/month. I'm now under water trying to pay for it and behind in support and utilities.
            Most people's marriages end because of these reasons and it continues for several years quite often for a number of years. On top of that financial challenge comes legal expenses.

            Originally posted by EdmDad View Post
            How did you convince the judge to sign the order for sale?
            You don't have to "convince" a judge. Both parties to the matter are required in accordance with Rule 13.1 to present full financial disclosure. (Form 13.1.) You have to fully disclose the current financial situation independent of each other. Just list all the joint debts and assets. It becomes quite clear that the matrimonial home needs to be sold as no one party can support owning/carrying it. Just present the financial evidence on the Form 13.1. You may want to provide an additional affidavit supporting the financial breakdowns.

            If you are going to court today and only asked this question a few days ago... one would question how you would be asking this question only a few short days prior to the hearing?

            Originally posted by EdmDad View Post
            I am also asking on Monday that she pay 1/2 the cost of the MH while she occupies it as she is opposed to paying anything.
            What you should be seeking is occupational rent. Not an easy request to make so hopefully you have legal counsel advising you.

            Originally posted by EdmDad View Post
            The first judge I encountered in family court gave the Ex everything she wanted.
            Or did you just fail to present the counter arguments to the claim or fail to accept a reasonable offer to settle on the matter served in accordance with Rule 18. Judges are neutral in the matter and will review evidence if presented and relevant to the matter. They don't give one party or the other anything. They operate on a the balance of probabilities. You possibly failed to on the balance provide any counter argument as to why the request made by the other party should not be ordered and ordered otherwise.

            Originally posted by EdmDad View Post
            She got the guideline support amount for our 2 year old daughter and I got completely shafted by being ordered to pay the full cost of the MH.
            Did you retain a lawyer to represent you at the motion for the matter? Did you cross motion the motion? Did you present relevant and cogent evidence counter to the claims of the other party? If you didn't, the shaft given to you was possibly the result of your own conduct, poor planning and failing to understand the basic principals of evidence and relevance.

            Originally posted by EdmDad View Post
            We separated in April /13 and I continued to pay the mortgage (house is in my name) and the ex paid the Utilities. However, the Ex had me in court in June for child support and exclusive occupancy.
            How did you respond to the Application made by the other party? Did you file the appropriate materials, retain counsel, respond appropriately? The courts are not setup to 'shaft' people... People often do this 'shafting' to themselves with not understanding the process, seeking out legal counsel and thinking their arguments have relevance when they don't...

            ... continued ...

            Comment


            • #7
              Originally posted by EdmDad View Post
              She literally cried in the courtroom and claimed that I had abandoned her.
              Again, divorce is no fault and so is seperation process. No fault. She can claim all she wants that you 'abandoned' her... It has no weight other than the emotional reaction it causes you. Thousands of people today are in various court houses in family law matters crying with no impact today and tomorrow there will be a thousand more.

              Originally posted by EdmDad View Post
              She didn't mention that she physically abused me for the past year and that she was on-line and had a new bf within a week.
              Did you present the cogent and relevant evidence that you had been phsycially assaulted? Did you ever contact the police? Are there police incident reports beyond your hearsay statement that this happened. If not, not many people are going to believe you. It isn't because you are a "man" it is because you didn't act on any the incidents of violence. You can't cry wolf in court years after something happened. Read and research "shaw v. shaw".

              The only place that "violence and abuse" has any weight is in the CHildren's Law Reform Act of Ontario section 24.(4). That is for the determination of custody and access of the children.

              I would caution you to really understand what defines "violence and abuse" to the courts prior to making an allegation of such. You will need strong evidence and not just a random statement from you that some incident happened. That is known as "hearsay" or "he-said-she-said".

              Originally posted by EdmDad View Post
              Her mother cares for our 2 year old in the MH while she's at work but the kicker is that the ex also came with 3 kids from her ex husband.
              What is the "kicker" in that statement? A family member is providing child care. You can argue that it should be a neutral third party like a daycare. If the grandmother has any opinion that is beyond that both parents are equal parents it is easy to have the grandmother removed and a daycare put in place. Just argue that the grandmother is not a neutral party and that the child's best interests are to be in a neutral child care facility not aligned to either parent's "interests" and only the "best interests of the child".

              Originally posted by EdmDad View Post
              Her 3 kids are nice and I was polite to them but they never once called me Dad nor did I have anything to do with their discipline or school. However, she's claiming I "stepped in" as their parent.
              This is called in loco parent. Look up the term. She is saying you acted in place of the other parent in their lives. Hard argument for her to make generally. Hopefully the other parent in their lives is a joint custodial parent and regularly accessing the children.

              Originally posted by EdmDad View Post
              The judge gave her a special court date on Sept 11 to decide if I should be ordered to pay support for her 3 kids.
              Has the other parent of those 3 children been notified that a court might order that they are not a parent or not acting as a parent and that it might order that you are acting in their place? Your lawyer should be seeking out the court file for the previous relationship and any agreements made between those parents or any court materials.

              Originally posted by EdmDad View Post
              My 1st experience in family court was a complete loss on my part. Duty council represented me and failed me miserably.
              Ever consider retaining counsel to represent you on a full retainer? Self representing is very hard to do. It takes a very strong will and strong understanding of the complex concept of relevance.

              Originally posted by EdmDad View Post
              I didn't even get to speak before the judge made the order. Any advice would be appreciated on how to convince the judge that the ex should pay 1/2 the MH costs and that the MH is too expensive for either party to carry and needs to be sold. I haven't been able to get a lawyer to take my case yet as it's summertime and everyone is on holidays or not taking new cases.
              Yes, retain a lawyer to assist you. You seem to be very lost and are in need of a lawyer to present your argument. If your affidavit material at all looks like this posting... you are going to get slaughtered in court.

              Originally posted by EdmDad View Post
              My monthly bills now exceed my take home pay and I'm in a small apartment and can't even afford access to my child.
              I highly recommend you attend access visits despite your financial circumstances.

              Originally posted by EdmDad View Post
              I thought leaving a DV situation would reduce my stress but I can't even sleep at night.
              DV is a criminal offence in Canada. Has the other party even been charged and prosecuted? If not, your claims of "DV" need real weight... and not just an allegation.

              Originally posted by EdmDad View Post
              I also support my 16 year old from outside the marriage and my 20 year old lives with me. Any input on how to proceed would be appreciated.
              Retain a lawyer.

              Originally posted by EdmDad View Post
              The Ex is very savvy to deal with and has no issues swearing false affidavits. Her Ex husband lost everything to her and after she alleged DV he fled back to the US and has disappeared so that he won't have to pay child support for his kids.
              I call BS on this. All the agencies can collect CS from someone in the USA. That is our closest partner in the global economy and you can't "run to the US" to hid from child support obligations. The Family Responsibility offices in each province will find you and collect.

              Originally posted by EdmDad View Post
              I'm really concerned as she won round one so decisively and would like to know if anyone else has experienced a similar situation and bounced back.
              You look at family court as "win/lose" you will surely "lose". I recommend you retain a lawyer.

              Good LucK!
              Tayken

              Comment


              • #8
                I appreciate your constructive feedback and have been referred to a family lawyer through my workplace. Your comments are very professional and well taken. Thanks so much.

                Comment

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