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Urgent!!! Please!!Need some quick insight LV

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  • Urgent!!! Please!!Need some quick insight LV

    Judge read his transcript back to both I and the Applicant, and addresses the Spousal Support issue and NFP.

    1) He awarded back support from 2004 (total of 14,500)

    2) He also awarded the Applicant a larger sum of money to resolve the NFP difference)

    All I have is my pension that cannot be cashed in until I retire.

    How do the courts deal with this. Do they just take my pay? I can barely afford to live with the spousal support issued.

    We are to return to court on Wednesday.

    Probably to assess costs.

    I won on the NFP issue.
    The spousal support issued was closer to my offer than his (more than what I offered but substantially less than what he asked or offered).
    But apparently he won on retroactive support.

    How do I deal with costs? How do I ask that we pay our own costs.
    How do courts deal with this. I cannot borrow any money

  • #2
    Part 2 of previous message thread

    Is there a possibility that the judge would reverse retroactive spousal support tomorrow. He has not ordered anything but it sounded like his final decision.

    Thanks LV

    Mcbroke

    Comment


    • #3
      mcb,

      tough day for you, as you mentioned,

      1) He awarded back support from 2004 (total of 14,500)
      Was this an order, opinion or recommendation? If it was a recommendation it may be the Judge's way of giving you a heads up on what will happen tomorrow. Make another offer to the other party in regards to fulfill the ruling/opinion etc. Hand them the offer tomorrow morning.

      One thing to keep in mind is that it may perhaps be retro-active but is it retro-active lump sum or retro-active periodic dating back to 2004. If it is periodic, you would get the tax advantage. If it is Lump sum - no tax advantage. The other thing to keep in mind is if you don't have the funds and a support deduction order is issued only get a piece at a time until the amount is fulfilled plus applicable interest. This may give you some bargaining power. You mentioned previously that you are close to retirement. Have you considered that you may be coming into a severance pay for years of service.

      on your other question

      Probably to assess costs.

      I won on the NFP issue.

      The spousal support issued was closer to my offer than his (more than what I offered but substantially less than what he asked or offered).
      But apparently he won on retroactive support.

      How do I deal with costs? How do I ask that we pay our own costs.
      How do courts deal with this. I cannot borrow any money
      I would think the Judge is giving you a final opportunity to make another offer, IE: no order in place yet If you offer everything that was recommended today, I suspect you may perhaps avoid a cost award.

      One way to ask that each pay their own costs is

      Success is divided, each party to bear their own costs.

      lv

      Comment


      • #4
        Thank you so much LV

        I believe it is a very strong warning LV, No Orders in my hands as of yet. What if I offer 550 a month and earmark $27,000 of my pension+ interest until retirement. ie her share would earn interest inside my pension plan, a quasi pension if you would payable to her upon my retiremnet or death, the judge alluded to the fact that she has no pension ?He also side barred in away and said quietly as he left for chambers (You should talk, and looked at me)

        I can't even afford $350 a month but anything to avoid retroactivity.
        Do I make the judge aware of the offer or just give it toi her lawyer before court?
        Thanks for coming through Mcbroke, it makes sense
        Mcbroke.

        Comment


        • #5
          Mcb,

          Do I make the judge aware of the offer or just give it toi her lawyer before court?
          The Judge was giving you a cue

          If it was me I would do up a formal written offer and give it to them first thing in the morning. Address the Judge verbally that you consent to what he recomended and made a formal offer to the party. The Judge will see you are more than reasonable and if they attempt to litigate for more beyond what the Judge has mentioned, I suspect they won't get more, they may even get less and the Judge may award costs against them.

          You do have the tax advantage if the retroactivity is periodic payment. If FRO garnishes your wages, they will take 50% of your pay until the retro amount is paid in full. This is a bargaining chip for you as they won't receive ie 14K of retroactivity in one shot.

          good luck tomorrow

          lv

          Comment


          • #6
            How does this sound LV as far as the spousal support

            The term of the spousal suport offered by the judge was the retroactive and after two years go under review. What if I offered the $500/ month for 4 years no review. This ropughly equates to the arrears and guarantees them additional two years.

            Thanks for your tremendous insight.
            Mcbroke

            Comment


            • #7
              mcb,

              it does appear reasonable and generous. The point you want to emphasize is that you have made several reasonable offers. You want to avoid having a cost award against you.

              500/month is approximately 350/month considering tax deduction for periodic spousal support.

              In essence your basically offering them 24k fixed but in periodic style. Perhaps they may accept same.

              Keep in mind that Offers to settle will come into the equation if costs are awarded.

              lv

              Comment


              • #8
                The day is over

                The judge heard on costs plus pretrial interest for the matters before him .
                On costs the Applicant wanted 19000 and pretrial interest.

                On costs I argued inability to pay, the behaviour of the Applicant lack of Full and Frank disclosure until the beginning of trial.

                He argued loser pays.

                Award to Applicant on cost only $5000 no pretrial interest awarded.

                Question LV

                I had faxed the offer to the Applicant in the am, was not even addressed by the Applicant. I mentioned in court that an offer had been put before the other party embracing the suggestions that His Honour had put down but the judge had apparently already made his decision the previous day. He remarked that "the offer was a little late in the day so to speak"

                What happens now:

                I owe $14,500 retro support
                $500/ month
                $22000 NFP
                and now $5,000 legal fees.

                Question:
                Is there a waiting period for appeal before the judge issues and signs the order? How long would that be?

                You mentioned that the FRO could take 50% of my wages . Is this always done? On the retro support would I still get a tax credit for it or is it considered a lump sum award? Who collects the legal fees? Any more info about this would be greatly appreciated. Does the Net family property just sit there and collect interest until I pay it or can the FRO collect on that from my wages as well?

                Spousal support I can handle, the NFP if they can wait, but the killer is the retroactive support?

                My suggestion to anyone if there is disparity in your wages while going through separation, if you make a written offer include an offer for some support.


                Thanks LV, I felt that I was a righteous man in that courtroom, nothing to hide, and I stood up for my family. I know what I did was simply for a just and fair decision, and with your help and support I felt honoured by how you made this even possible. I was not nervous nor fearful, because I felt that this was a fight for honesty and for anyone who has to go it alone, but I did not feel
                I was by myself. I am not an arguer and in no way ambitious to be a lawyer or in the legal field, but I always try to help as you and others in this forum have done, the weak and the desparate and righteous.


                Triying to pay it forward.
                Thankyou LV.
                MCbroke

                Comment


                • #9
                  mcb,

                  sorry to hear how things went today.

                  I had faxed the offer to the Applicant in the am, was not even addressed by the Applicant. I mentioned in court that an offer had been put before the other party embracing the suggestions that His Honour had put down but the judge had apparently already made his decision the previous day. He remarked that "the offer was a little late in the day so to speak"

                  What happens now:

                  I owe $14,500 retro support
                  $500/ month
                  $22000 NFP
                  and now $5,000 legal fees.
                  The court will issue a support deduction order to the FRO. Fro can take 50% of your pay until the amounts are paid. It will take a few months to get this garnishment flowing. The FRO is very slow. I am still not clear on the 14.5K, if it was periodic. I seem to think it is as it is classed as retroactive.

                  The successful party is to write up the order and issue you a draft for approval. If you remain silent, approval is given by default. To ensure the wording is correct, you should obtain a copy of the Judge's hand written endorsement to compare the draft order with the written order.

                  To appeal the Judgment or parts thereof it all depends what court your recent hearing was heard

                  For orders originating in the Ontario Court of Justice - An appeal rests with the Superior Court of Justice

                  For orders originating in the Superior Court of Justice - An appeal rests with the Court of Appeal for Ontario

                  See this Court of Appeal Ontario Guide
                  http://www.ontariocourts.on.ca/court...lp/civil.htm#4


                  #5 of same - 5. How do I apply for leave to appeal?

                  In most civil appeals that require leave to appeal, a notice of motion for leave to appeal must be served within 15 days from the date of the order being appealed and filed within 5 days of service. There is a fee for filing of the notice of motion, payable at the time the notice of motion is submitted for filing. If leave to appeal is granted, a notice of appeal must then be served and filed within seven days.

                  Thanks LV, I felt that I was a righteous man in that courtroom, nothing to hide, and I stood up for my family. I know what I did was simply for a just and fair decision, and with your help and support I felt honoured by how you made this even possible. I was not nervous nor fearful, because I felt that this was a fight for honesty and for anyone who has to go it alone, but I did not feel
                  I was by myself. I am not an arguer and in no way ambitious to be a lawyer or in the legal field, but I always try to help as you and others in this forum have done, the weak and the desperate and righteous.
                  I believe you did well and there is no fault in trying. You could of spent 20-40K on your own litigation fees and ended up with same result or worse. Kudos for you for taking the bull by the horns and representing yourself.

                  The duty of the appeal court is not to retry the matter but to analyze if any errors were made by the presiding Judge.

                  lv

                  Comment


                  • #10
                    Thank you LV

                    Again I defer to you LV, your help and guidance in my time of need has been a godsend. Two things not covered by the appeal information.
                    1) Is the original Order suspended pending the outcome of Appeal.
                    2) Is there a Reference to which I might find for grounds for Appeal?

                    Again: For those who go through this emotional rollercoaster of Family Court. The one thing I found beneficial throughout the entire proceedings was to refer to my ex-spouse as the Applicant, this made it much easier to be objective. Any communication and or court filings I would recommend this practiseand refer to your ex partner as Applicant or Respondent whatever the case may be.If you ge too close to the case you lose sight of the financial issues and complicate matters with emotional ones. Every judge I stood before had requested a number, that was provided and in due course promotes settlement.

                    Sorry to editorialize LV and thank you once again
                    MCBroke

                    Comment


                    • #11
                      mcb,

                      Is the original Order suspended pending the outcome of Appeal.
                      I believe you would have to seek leave from the current court to appeal the order.

                      2) Is there a Reference to which I might find for grounds for Appeal?
                      Grounds for appeal can be a number of things - but usually if a Judge made an over- riding error in their Judgement - ie: If per say in a custody adjudication of a child, the Judge did not apply the best interest test or did not give reasons why an order was made. If reasons aren't given, a party has no idea why the order was made hence an over- riding error. Sometimes a Judge will refer to the law as reasons. If a Judge put great weight to a one sided report, this could be considered an error.

                      To get further idea for grounds of appealing an order, it is good to read appeal cases. The grounds are always listed. The appeal court will not retry the case , but will re-exame the facts.

                      Currently the clock is ticking away for you. You have a limited amount of days from when the order was made to file a notice of appeal.

                      A recent appeal case that just happens to be about spousal support and contempt

                      DICKIE v. DICKIE 2006

                      http://www.ontariocourts.on.ca/decis...ary/C41501.htm

                      Paragraph 2 - the grounds for appeal as listed in the Judgement

                      [2] The appellant seeks to set aside the order of Stewart J. dated January 28, 2004, finding him in contempt, and the order of Stewart J. dated February 26, 2004, imposing a sentence of forty-five days in jail for that contempt. The appellant’s position is that the motion judge erred in law by finding him in contempt for failing to pay a court ordered “payment of money”. The appellant also submits that the contempt proceedings were conducted in a manner that did not respect the requirements of fundamental justice.

                      The other side stance

                      [3] As a preliminary matter, the respondent submits that this court should refuse to entertain this appeal because of the appellant’s wilful disregard for orders of the court. On the appeal, the respondent submits that the orders in question are not orders for the “payment of money” and that the contempt proceedings were conducted in accordance with the principles of fundamental justice.

                      The court's decision on whether they will hear the appeal.

                      [4] I would find that this court should entertain the appellant’s appeal. In so doing, I would allow the appeal on the basis that the underlying orders with which the appellant failed to comply were orders for “the payment of money”.

                      [20] Adjourning or staying an appeal is preferable to dismissal because it gives the appellant an opportunity to comply with the support orders or provide some evidence of inability to comply. After satisfaction of either of these conditions, the appeal could proceed. This approach would recognize an appellant’s statutory right to appeal and the traditions of procedural fairness in our justice system.

                      [21] It is worth noting that requiring an appellant to comply with outstanding support orders, as a condition of proceeding with an appeal, does not make an appellant’s appeal pointless. If the appellant is successful on appeal, the court’s disposition can take into account the extent to which the support payments made have exceeded the level of support ordered on appeal.

                      [22] In my view, care should be taken that the preliminary motion does not overtake the hearing of the appeal itself. Where the basis of the appeal is that the appellant is unable to make the payments, deciding the issue on a preliminary motion is of questionable utility. If the court on the preliminary motion has been persuaded that the appellant is unable to make the payments, the respondent would embark on the hearing of the appeal knowing that the appeal will be allowed. Since it is preferable that the substantive issues be decided on the appeal itself, it should be sufficient for the appellant on the preliminary motion to persuade the court there is a genuine issue regarding his or her inability to pay.

                      [23] Turning to this appeal, the appellant does not attack the validity of the support orders with which he has not complied. Rather, the appellant seeks to set aside a finding that he was in contempt of court and his sentence for that contempt. As Dubin C.J.O. observed in Ontario (Attorney General) v. Paul Magder Furs Ltd. (1992), 10 O.R. (3d) 46 at 53 (C.A.):

                      [24] While the appellant has not filed affidavit material regarding his ability to make the payments, I would conclude that the principle referred to in Brophy does not apply to this appeal because the appeal concerns the legality of the contempt proceeding against the appellant and not the validity of the underlying support orders.

                      Conclusion
                      [63] As the contempt power was not available to enforce either paragraphs 2 and 3 of the order of Greer J., I would allow the appeal and set aside the orders of motion judge finding the appellant to be in contempt and imposing a penalty for contempt. As a result, I find it unnecessary to consider the appellant’s additional arguments that the contempt proceedings were conducted in a manner that did not meet the requirements of fundamental justice.

                      [64] I would grant costs to the appellant on a partial indemnity scale in the amount of $15,000.00 inclusive of disbursements and G.S.T., to be set off against the outstanding support arrears.


                      You can find the Ont Court of appeal cases dating back to 1999 here
                      http://www.ontariocourts.on.ca/appeal.htm

                      lv

                      Comment


                      • #12
                        mcb,

                        the rules of civil procedure will apply in the appeal courts.

                        http://www.e-laws.gov.on.ca/DBLaws/R.../900194a_e.htm

                        Rule 63 is relevent to your situation


                        RULE 63 STAY PENDING APPEAL

                        AUTOMATIC STAY ON DELIVERY OF NOTICE OF APPEAL

                        Payment of Money

                        63.01 (1) The delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order. O. Reg. 465/93, s. 8.

                        -and-

                        STAY BY ORDER

                        By Trial Court or Appeal Court

                        63.02 (1) An interlocutory or final order may be stayed on such terms as are just,

                        (a) by an order of the court whose decision is to be appealed;

                        (b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken. O. Reg. 465/93, s. 8.

                        Expiry of Trial Court Stay

                        (2) A stay granted under clause (1) (a) expires if no notice of motion for leave to appeal or no notice of appeal, as the case may be, is delivered and the time for the delivery of the relevant notice has expired. O. Reg. 534/95, s. 7.

                        Setting aside or Varying Stay

                        (3) A stay granted under subrule (1) may be set aside or varied, on such terms as are just, by a judge of the court to which a motion for leave to appeal may be or has been made or to which an appeal may be or has been taken. O. Reg. 465/93, s. 8.

                        Support Order

                        (4) A party who obtains a stay of a support order shall obtain a certificate of stay under subrule 63.03 (4) and file it forthwith in the office of the Director of the Family Responsibility Office. O. Reg. 292/98, s. 2.

                        EFFECT OF STAY

                        Generally

                        63.03 (1) Where an order is stayed, no steps may be taken under the order or for its enforcement, except,

                        (a) by order of a judge of the court to which a motion for leave to appeal has been made or an appeal has been taken; or

                        (b) as provided in subrules (2) and (3). R.R.O. 1990, Reg. 194, r. 63.03 (1).

                        Entry of Order and Assessment of Costs

                        (2) A stay does not prevent the settling, signing and entering of the order or the assessment of costs. R.R.O. 1990, Reg. 194, r. 63.03 (2).

                        Writ of Execution

                        (3) A stay does not prevent the issue of a writ of execution or the filing of the writ in a sheriff’s office or land registry office, but no instruction or direction to enforce the writ shall be given to a sheriff while the stay remains in effect. R.R.O. 1990, Reg. 194, r. 63.03 (3).

                        Certificate of Stay

                        (4) Where an order is stayed, the registrar of the court,

                        (a) that granted the stay; or

                        (b) to which an appeal has been taken,

                        shall issue, on requisition by a party to the appeal, a certificate of stay (Form 63A) and, when the certificate has been filed with the sheriff, the sheriff shall not commence or continue enforcement of the order until satisfied that the stay is no longer in effect. R.R.O. 1990, Reg. 194, r. 63.03 (4); O. Reg. 288/99, s. 22 (1).

                        (5) A requisition for a certificate of stay under subrule (4) shall state whether the stay is under subrule 63.01 (1) or by order under subrule 63.02 (1), and if by order, shall set out particulars of the order. R.R.O. 1990, Reg. 194, r. 63.03 (5); O. Reg. 288/99, s. 22 (2).

                        (5.1) If an order of the Ontario Rental Housing Tribunal is stayed under subsection 25 (1) of the Statutory Powers Procedure Act, the registrar of the court to which an appeal has been taken shall issue, on requisition by a party to the appeal, a certificate of stay (Form 63B) and, when the certificate has been filed with the sheriff, the sheriff shall not commence or continue enforcement of the order until satisfied that the stay is no longer in effect. O. Reg. 288/99, s. 22 (3).

                        (5.2) A requisition for a certificate of stay under subrule (5.1) shall state that there is no order of the Ontario Rental Housing Tribunal that would prevent the automatic stay pending appeal. O. Reg. 288/99, s. 22 (3).

                        Setting Aside Writ of Execution

                        (6) A judge of the court to which a motion for leave to appeal has been made or an appeal has been taken may set aside the issue or filing of a writ of execution where the moving party or appellant gives security satisfactory to the court. R.R.O. 1990, Reg. 194, r. 63.03 (6).



                        lv
                        Last edited by logicalvelocity; 11-30-2006, 09:57 AM.

                        Comment


                        • #13
                          mcb,

                          I came across this Court of Appeal handbook at the Pro Bono site

                          http://www.pblo.org/public/library.c...w=folder&print

                          lv

                          Comment


                          • #14
                            Content

                            LV,

                            I believe that the decision rendered by the judge would have been the outcome anyway, I believe if I was represented the judgement may have been reduced, but I still would have incurred extensive legal fees. I think in an Net Sense I am further ahead and with only 20% of the legal epenses being paid by me I feel I actually did well. A lot of I should haves LV, I could have pressed some questions in court that may have made some impact, but at what cost? Too aggressive and the judge may have been sympathetic towards the Applicant. Who knows? It is the judgement now I must forge ahead and wait for the Orders to be issued. And resolve them as best I can. Sorry for taking so long to respond, I was helping a friend of mine whose wife left him and the three kids after a 30 year relationship. I named this forum as an excellent resource for him.

                            I will continue to visit and offer my 2 cents to someone who may not have any, a little help by someone who has been through this is incredible.

                            LV,

                            A commendable resource I would like to share is a site that I found: It is called changingminds. org. This may benefit people and open their eyes to see how lawyers craft their trade. It's a worthwhile read, with examples from the fallacies of Aristotle on up.

                            Thanks, LV
                            For who you are and what you have done,
                            Thankyou
                            MCBroke

                            Comment

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