Offer to Settle - Motion

[FB_]

I just wanted to comment on this post again and say that one of the main reasons my case eventually got negotiated instead of litigated was because of the many offers to settle I had sent. In all of them I was very consistent with exactly what I was asking for and they were all used as the basis for our final agreement. I think it is important to point out that the threat of litigation and the fact that she knew we were proceeding with it was also a very big factor in my case.

[FB_]

Had a very good meeting with my lawyer today. Gave him a little bit more of an update on some things I wouldn't normally email him about.

In the end we decided to go with a higher child support number instead of spousal for the offer as there is currently no spousal claim on the motion. We also decided that it would be hard to take it off the table if we were actually going to try and negotiate this at some point.

We spent about 20 minutes discussing the what if's regarding my case since we still have no idea what she is planning to do with her new bf etc.

I asked him what if they wait to the 4 day deadline to give us their info. He said considering it's a long motion they should get it to him a week before, but if they waited he would be on top of it immediately.

His concern now is that if she does want to move with the kids to Orangeville that the judge may not order the house sold until trial.

I asked him about when we would find out about the judge we get and he said probably not until we show up at court. I said that I had heard different things about judges. He confirmed my fear....Some of the judges can be pro mother and also pro spousal support.

I am once again impressed with my lawyer. He seems to have a clear grasp on my case and my expectations along with telling me what might happen in front of a judge.

[FB_]

What's all this crap? I thought you were going with the offers you listed below this? I wouldn't put in all this "deemed" stuff at all. It just makes it look like you are open to having someone else make a decision.

This is the motion paperwork and was provided to give more context and to show everyone what I was trying to settle. So yes it will be having someone else make the decision.

Personally I would still go with an offer that uses straight offset for CS and makes no mention of spousal support. From what you've described, her entitlement to it seems unlikely, so even mentioning it at all makes it look like you agree that there is some entitlement.

Thanks for you input. I will have that discussion with him tomorrow. He seems to think there is a risk of entitlement during the motion and thus his recommendation.

As for 11, maybe it's worth 14k to get this agreement and avoid court. If it were me, I'd be willing to give more on equalization than I would on spousal support.

You make a very good point here.

And for 3, I thought you were going to word it as the children must reside in Peel? Dictating where the parents live is much harder than agreeing that it's in the best interests of the children to remain in their familiar environment.

I will have it reworded thanks.

Here's how I would reword your offer:

This breaks it down into simple language any ex can understand. You probably want to spell out the amounts involved in each step of the equalization part, to make it clear that there really is no money remaining to be divided once you get to 14. And do you have a pension? Are there any RRSPs? You haven't mentioned where those fit in.

RRSP's are very minimal and make almost no difference in the NFP. I do have a pension which is already included in the NFP as is hers but it is worth significantly less than hers almost by 1/3.

A little more history. I previously sent her 3 offers to settle. She was given the choice to accept any of them. All three offers included the following on a FINAL basis

Custody
1. Shared Custody

Acess
2. 50/50 access 2-2-3

Support
3. Set-off child support
4. S7 expenses split 60-40
5. No spousal support

The property is what split them into three offers.

Property
The first offer had me buying her out and her owing me $1257.00
The second offer had her buying me out and her owing me $79,000.00
The third offer had the house sold and her owing me $40,000.00

At the time she was not thinking of moving in with her new bf so she ignored all three offers. These offers were discussed at the DRO case conference and her lawyer said none of them were acceptable. My lawyer asked her for an offer and she told him that their response to my application was their offer and they were not going to budge. It included the following

1. Sole Custody
2. EOW access to me...
3. I pay table Child support to her (~1150/month)
4. I pay $750 / month in spousal support (Divorcemate calculated $0 - $154 - $517 / month with high end equal to 50/50 NDI) These numbers are with set-off child support of $454.00 not table @ $1150. So basically totally ridiculous.
5. An additional lump sum spousal support payment (amount not specified) Yup more support above and beyond point 4.
6. Any equalization payment would be held as security for child and spousal support. Plus she wants to hold all the money as security.
7. Exclusive possession of the home
8. An order requiring me to pay ALL carrying costs of the home while she has exclusive possession. So $1150 / month in CS $750 a month in spousal, lump sum spousal and I pay for all her expenses..... NICE DEAL.

Now that I have said all that I am trying to be very cooperative here and come to a resolution. I was not even going to send any more offers but my lawyer recommended that I send one for the motion. So this is where we are at. Previously she was not planning on moving in with her new bf so she wanted to keep the house and that is why she had not agreed on me buying her out. Now that she seems to have changed her mind I would still like to buy her out. This is why I was going to include a "Property" settlement only. I do not want it to include anything about custody/access as we clearly don't agree. So the first offer again is only a property settlement on a FINAL basis.

Now in regards to the Motion, that is what the second offer will include.

[Rioe]

1. Interim Shared Custody or Sole as deemed in the best interest of the children
2. 50/50 access 2-2-3 or any other 50/50 schedule or Primary residence as deemed in the best interest of the kids
3. Set-off child support or Full table to me if deemed in the best interest of the children.
4. Sale of Mat home or Exclusive posession if deemed in the best interest of the children.
5. Payment of all joint debt from proceeds if Mat home sold.
6. Remaining proceeds to be held pending further agreement if Mat home sold.
7. S7 expenses

What's all this crap? I thought you were going with the offers you listed below this? I wouldn't put in all this "deemed" stuff at all. It just makes it look like you are open to having someone else make a decision.

Offer 1 - Property only on final basis
1. I buy her out of the house
2. Pay all joint debt including mortgage by getting a new mortgage
3. split contents of house
4. Transfer both vehicle ownership's. I keep my car she keeps her van
5. Under this proposal the NFP shows very small or no equalization payment
6. Offer expires May 8th 1 minutes after start of motion.

Offer 2 - Settle issues for Motion
1. Interim Shared Custody
2. Interim Shared access 50/50 2-2-3
3. Both of us must reside in Peel.
4. OCL involvement
5. Child support. (Need some advice as per above question) currently worded as $500.00 when set-off would be $454.00.
6. Sec 7 expenses 60-40
7. I will maintain current benefits for children.
8. I will maintain life insurance policy
9. Sale of house
10. Payment of all joint debt on closing
11. net proceeds from house will be release and split equally.
12. All issues shall be adjourned to settlement conference and interim motion dismissed
13. No costs
14. Offer expires 1 minutes after motion on May 8th.

My last question is your thoughts and experience on point 11. Equally splitting net proceeds from the house. According to both her and my submitted NFP's she owes me ~40K as an equalization payment. I can get up to 26k from her pension. So basically I am risking 14k by releasing half the house funds. I wanted my lawyer to hold the money pending further agreement but he said that wouldn't look good as she would have no money to get herself settled in a new place. If she gets the money I highly doubt I will ever see it. Although it could be used as a lump sum spousal if she does prove entitlement.

Personally I would still go with an offer that uses straight offset for CS and makes no mention of spousal support. From what you've described, her entitlement to it seems unlikely, so even mentioning it at all makes it look like you agree that there is some entitlement.

As for 11, maybe it's worth 14k to get this agreement and avoid court. If it were me, I'd be willing to give more on equalization than I would on spousal support.

And for 3, I thought you were going to word it as the children must reside in Peel? Dictating where the parents live is much harder than agreeing that it's in the best interests of the children to remain in their familiar environment.

Here's how I would reword your offer:

Child Custody
1. Joint Custody.

Child Access
2. 50/50 access 2-2-3 to continue with established status quo
3. Equitable division of holidays
4. Children's residence to remain in Peel.

Child Support
5. Offset child support based on difference between table values for each parent's income, currently $454 per month paid from FB to Ex, to be adjusted annually in June
6. Section 7 expenses, agreed upon in advance, to be divided proportional to income, currently 60% by FB and 40% by Ex, to be adjusted annually in June
7. Children remain on FB benefits
8. Both parents maintain life insurance policies

Equalization
9. FB keeps the marital home ($Y asset value)
10. FB pays all joint debt ($~Y liability value)
11. contents of home divided by mutual agreement
12. FB keeps car ($A), Ex keeps van ($~A)
13. FB gets half of Ex pension ($26k)
14. No further equalization payment

This breaks it down into simple language any ex can understand. You probably want to spell out the amounts involved in each step of the equalization part, to make it clear that there really is no money remaining to be divided once you get to 14. And do you have a pension? Are there any RRSPs? You haven't mentioned where those fit in.

[FB_]

I have a meeting with my lawyer tomorrow and would like to get an update to him today. I would like all of your input on a couple of things.

1. With what you know do these offers sound fair and reasonable.
2. Your thoughts on offering a Higher Child support amount vs. Set-off support and Mid SSGA spousal support even though entitlement has not been proved.
3. Anything else that should be included in any of these offers that I have not thought of.


So just to put it all back in context and on a very high level I am asking for the following at our Motion on May 8th. I do not yet have her response.

1. Interim Shared Custody or Sole as deemed in the best interest of the children
2. 50/50 access 2-2-3 or any other 50/50 schedule or Primary residence as deemed in the best interest of the kids
3. Set-off child support or Full table to me if deemed in the best interest of the children.
4. Sale of Mat home or Exclusive posession if deemed in the best interest of the children.
5. Payment of all joint debt from proceeds if Mat home sold.
6. Remaining proceeds to be held pending further agreement if Mat home sold.
7. S7 expenses

Offer 1 - Property only on final basis
1. I buy her out of the house
2. Pay all joint debt including mortgage by getting a new mortgage
3. split contents of house
4. Transfer both vehicle ownership's. I keep my car she keeps her van
5. Under this proposal the NFP shows very small or no equalization payment
6. Offer expires May 8th 1 minutes after start of motion.

Offer 2 - Settle issues for Motion
1. Interim Shared Custody
2. Interim Shared access 50/50 2-2-3
3. Both of us must reside in Peel.
4. OCL involvement
5. Child support. (Need some advice as per above question) currently worded as $500.00 when set-off would be $454.00.
6. Sec 7 expenses 60-40
7. I will maintain current benefits for children.
8. I will maintain life insurance policy
9. Sale of house
10. Payment of all joint debt on closing
11. net proceeds from house will be release and split equally.
12. All issues shall be adjourned to settlement conference and interim motion dismissed
13. No costs
14. Offer expires 1 minutes after motion on May 8th.

My last question is your thoughts and experience on point 11. Equally splitting net proceeds from the house. According to both her and my submitted NFP's she owes me ~40K as an equalization payment. I can get up to 26k from her pension. So basically I am risking 14k by releasing half the house funds. I wanted my lawyer to hold the money pending further agreement but he said that wouldn't look good as she would have no money to get herself settled in a new place. If she gets the money I highly doubt I will ever see it. Although it could be used as a lump sum spousal if she does prove entitlement.

Thanks for your opinions.

[FB_]

So the question is should I offer set off child support and mid SSAG of $152.00 / month just to be safe for costs.

I've had others tell me that it's unlikely costs will be awarded during a first Motion anyway.

I highly doubt she would accept mid of 152.00 and set off support anyway so maybe I should include it just to look that much better IF costs are looked at.

Personally from what I've read I don't feel she has any entitlement as 53.9 and 46.1 are certainly within acceptable ranges. However I also have to consider this is what my lawyer does for a living and his guess is probably much better than any of mine.

[billm]

... He also went on to say with a shared parenting arrangement, the court may want to see a 50-50 division of net disposable income to ensure a similar standard of living for the children in each household.

...

Does anyone know if this the way the system actually works? That with 50/50 parenting determining SS entitlement and calculating quantum go out the window.

I sometimes get the feeling that with 50/50 parenting, everyone (except the higher income earner!) wants 50/50 NDI.

I would prefer the simple concept that SS and CS are independent. Why the stupid CS/SS guidelines don't FIRST calculate SS (if any) and THEN calculate CS based on the post SS incomes is something that really strains my mind. To me it reaffirms that governments and 'the system' can be quite inept at keeping things simple and sensible.

[FB_]

If you're proposing to pay 60% of section 7 expenses, then your incomes are not that far apart. How can spousal support even be considered? Disappointing attitude from your lawyer. Maybe he expects your ex to reject it and wants it to look like a very nice offer later in court for costs purposes?

Our Income split was 60/40 (don't have her 2012 yet and my income did go up). I am also disappointed with this and will be discussing it with him at our meeting. According to Divorcemate using older income numbers (2011) after child support of $454.00. SSAG Low - $0 NDI would be 53.9%-46.1%. SSAG Mid - $154.00 NDI would be 52.8%-47.2% SSAG High - $517.00 NDI would be 50/50. Low of $0.00 is within the 42-48% and actually at the very high end.

Anyways, I'd frame it as table amount for CS, plus $80 a month in SS. Call it what it is, and that way as incomes fluctuate, CS gets adjusted but SS can never change. And put in strict end conditions for the SS part, such as X years and/or cohabitation with a new partner. Blending it all together as $500 CS is asking for trouble over time, I think.

I like this idea especially since that appears to be her intent to move in with her new bf.

Many people on here recommended not even mentioning spousal support however so I'm a little confused.

Your property settlement also sounds less than ideal and kind of vague. You intend to pay off the entire mortgage? Or just assume the mortgage solely?

I intend to refinance the house with a mortgage of my own and pay off the existing mortgage. (Currently an open mortgage)

You intend to pay off all joint debt, or joint debt as of separation date?

Yes, I plan on paying off all joint debt with the refinance.

Why would you agree to pay all legal fees? That sounds like you could end up paying her legal fees! Who knows how much her lawyer has been costing you? She could really drive that up, too, if she actually accepts your offer. If you mean fees related only to property transferral, you should spell that out.

I would pay all of my own real estate legal fees not her lawyer's legal fees. My high level overview was not as clear as the actual offer.

And I wouldn't say no equalization payment in 12, when there is clearly a house buyout in 1. You should probably say "no FURTHER equalization."

Basically with me paying off all the debt and keeping the house our NFP is within $1000.00 so this just simplifies it.

Lastly, I don't know how well the contingency for her to remain in Peel will work. What kind of consequences could there be if she decides to move out a few months after signing the agreement? Maybe put in a line about the children must remain in Peel, and the access arrangement would change to her having EoW, should she move away.

It basically said that the parties shall reside in Peel to ensure the above shared parenting arrangement can be implemented.

We will know more what her plans are once we get her response. However an offer must be made 7 days before and her response is only required 4 days before.

I do like the idea of changing it so that the party that moves away would end up with EOW.

Thanks for all your input.

[Rioe]

If you're proposing to pay 60% of section 7 expenses, then your incomes are not that far apart. How can spousal support even be considered? Disappointing attitude from your lawyer. Maybe he expects your ex to reject it and wants it to look like a very nice offer later in court for costs purposes?

Anyways, I'd frame it as table amount for CS, plus $80 a month in SS. Call it what it is, and that way as incomes fluctuate, CS gets adjusted but SS can never change. And put in strict end conditions for the SS part, such as X years and/or cohabitation with a new partner. Blending it all together as $500 CS is asking for trouble over time, I think.

Your property settlement also sounds less than ideal and kind of vague. You intend to pay off the entire mortgage? Or just assume the mortgage solely? You intend to pay off all joint debt, or joint debt as of separation date? Why would you agree to pay all legal fees? That sounds like you could end up paying her legal fees! Who knows how much her lawyer has been costing you? She could really drive that up, too, if she actually accepts your offer. If you mean fees related only to property transferral, you should spell that out. And I wouldn't say no equalization payment in 12, when there is clearly a house buyout in 1. You should probably say "no FURTHER equalization."

Lastly, I don't know how well the contingency for her to remain in Peel will work. What kind of consequences could there be if she decides to move out a few months after signing the agreement? Maybe put in a line about the children must remain in Peel, and the access arrangement would change to her having EoW, should she move away.

[FB_]

I just received the offers from my lawyer.

One to resolve our Property issues only on a final basis.

The other an offer for the motion.

My lawyer has a concern that she has a high probability of getting interim spousal support.

Basically he is saying that on motion at this early stage and given the fact that we both will be potentially moving out of the mat home soon, there is a risk the court could err on the side of a higher spousal support payment at this stage or alternatively a higher child support payment. He basically said the court will not dig too far into the matter other than looking at current incomes and the property. He also went on to say with a shared parenting arrangement, the court may want to see a 50-50 division of net disposable income to ensure a similar standard of living for the children in each household.

A 50/50 NDI would put spousal at $402/month including set-off child support of 420/month.

So to get to the point he is suggesting I offer more than set-off payment in child support. He says the more non-taxable child support she receives the less her need/claim for spousal support. He is currently recommending $500.00 / month in child support instead of $420.00.

I have not had a discussion with him yet regarding her moving in with her bf and if that would affect the potential claim.

The offer is contingent on her residing in the "Region of Peel". Which Orangeville does not so maybe that's why the offer is expecting her to get her own place.

I am scheduling a meeting with him to discuss and sign the offer hopefully tomorrow or Friday.

I would appreciate your thoughts on this matter.

Here are the details of the offer to settle the motion.

1. The issue of custody will be adjourned to trial
2. 50/50 access 2-2-3
3. Reside in Peel
4. OCL involvment
5. Child support from me to her in the amount of $500.00
6. 60% towards the net costs of all discussed and agreed upon special and extraordinary expense upon verification by way of documentary evidence.
7. Maintain children's benefits
8. Life insurance for the benefit of the children
9. Sale of the home
10. Name xxxx as real estate agent
11. fully cooperate with the sale and real estate agent
12. Name xxxx as real estate solicitor
13. Payment of all joint debt
14. equal split of remaining money.
15. All issues of interim motion to be dismissed
16. All issues to be adjourned to mutually convenient settlement conference date.
17. There shall be not costs payable
18. This offer is open for acceptance until one-minute after the commencement of arguing the long motion on May 8th.


Here are the details to settle the property.
1. I will buy out stbx of the house for $xxx
2. I will pay off the mortgage and all joint debt
3. I will pay all legal fees and registration costs
4. We will each be responsible for our own debts and liabilities
5. on or before may 31 all other joint accounts shall be divided and closed
6. on or before may 31 I transfer my interest in her vehicle
7. on or before may 31 she transfers her interest in my vehicle.
8. on or before may 31 equally divide household contents
9. up complete the applicant shall have exclusive possession of the home and the respondent shall immediately vacate the property along with her share of the goods and contents
10. upon complete I shall be responsible for 100% of all expenses related to the home.
11. Pending transfer the parties shall be each 50% responsible for all household expenses
12. No equalization payment. All property claims for an unequal division of net family property shall be dismissed. All claims each has to property of the other, including all pensions shall be waived. The parties shall sign all documents and pension waivers necessary to give effect to this agreement.
13. There shall be no costs payable with respect to property issues
14. All other issues including custody, access and support remain for resolution.
15. This offers remains open until one minutes after.........May 8th.

[FB_]

So I just want to know if everyone thinks my offers are reasonable?

Does anyone have any more suggestions?

I'd like to get this info to my lawyer today.

Thanks

[mom2three]

The 'one minute after' is part of the criteria for making and withdrawing offers; an offer must not be withdrawn and must not expire before the commencement of the hearing.

[FB_]

Surely you meant FB on Mon and Tues overnight, Ex on Wed and Thurs overnights.....both parties alternating weekends which starts on a Fri afternoon?

This will give 50-50

I am in the same boat and FB will tell you we are married to the same person

FB....That is a lot of offers to settle you have lined up, and the 1 minute timeline?

How much is does it cost to bring a motion anyway?

I'll let you know when I get the bill. ~$5000.00 just a guess

The motion is at 10:00 am. So if I get to be heard first only a couple of hours of work. If it's heard at 4:00 pm then it could get expensive sitting and having coffee with my lawyer all day.

The 1 minutes after the start of the motion is pretty standard, otherwise they could accept the offer after getting their butts kicked in court lol.

[FB_]

Just going a little deeper into the offer.

Here is where I'm at.

I'm planning on making several offers which shows I am willing to do a complete shared access arrangement assuming she stays in Brampton.

If she decides to move to Orangeville I would take on the primary parent responsibilities allowing her to have the kids eow and one weeknight every two weeks. I would also be open to her having 2 weekends then me 1.

Just looking for your thoughts.

Offer 1 - She stays in Brampton
1. Interim Joint Custody
2. Interim Shared Access 2-2-3 stbx Mon Tue me Wed Thur alternating Fri Sat Sun
3. Equal sharing of all holidays
4. Neither parent can change the city of residence wo/ consent or court order. I could say 10km from our Matrimonial home or current school.
5. Child support we both pay table to each other recalculated annually
6. Sec 7 expenses 61/39.
7. Sale of Matrimonial home held in trust until further order or agreement
8. This offer expires 1 minute after the commencement of motion
9. No costs

Offer 2 - She Stays in Brampton
1. Interim Joint Custody
2. Interim Shared Access 2-2-3 stbx Mon Tue me Wed Thur alternating Fri Sat Sun
3. Equal sharing of all holidays
4. Neither parent can change the city of residence wo/ consent or court order. I could say 10km from our Matrimonial home or school
5. Child support we both pay table to each other recalculated annually
6. Sec 7 expenses 61/39.
7. I buy her out of her share of the matrimonial home
8. This offer expires 1 minute after the commencement of motion
9. No costs

Offer 3 -She Moves to Orangeville
1. Interim Joint Custody
2. Interim Access - She gets EOW and Wednesday after school to drop off at School Thursday one week and Wednesday 3:30 - 7:30 the next week.
3. I have primary residence in Brampton.
4. All agreed upon kids extracurricular activities are to be registered in Brampton.
5. Equal sharing of all holidays and summer vacation
6. Child support she pays me table
7. Sec 7 expenses 61/39.
8. Sale of Matrimonial home held in trust until further order or agreement
9. This offer expires 1 minute after the commencement of motion
10. No Costs

Offer 4 -She Moves to Orangeville
1. Interim Joint Custody
2. Interim Access - She gets EOW and Wednesday after school to drop off at School Thursday one week and Wednesday 3:30 - 7:30 the next week.
3. I have primary residence in Brampton.
4. All agreed upon kids extracurricular activities are to be registered in Brampton.
5. Equal sharing of all holidays and summer vacation
6. Child support she pays me table
7. Sec 7 expenses 61/39.
8. I buy out her share of Matrimonial home.
9. This offer expires 1 minute after the commencement of motion
10. No Costs

[mom2three]

FB_:

I am assuming that you will be having your lawyer draft the offer to settle?

Typically in a offer, each party assumes their costs up to the time of the offer, after which the offeror will seek costs should the offer not be accepted. With just 'costs' down there I would be thinking "He wants me to accept AND pay his costs?"

As for her agreeing to your offer, that is irrelevant. The purpose of the offer is to mitigate expenses by not bringing it before the courts. Let her NOT accept it and if the order is equal to or better than your offer you are presumed to have costs awarded in your favour.

You have nothing to worry about (except her sheenanigans). Your offer is exceptionally reasonable.