Self-represented at trial coming up in January

[FindingMyFeet]

I've been using this site for information for a long time now, but am at the point where I am hoping for a few specific answers from those who have successfully represented themselves at trial.

A brief overview - settlement conference was the 7th of November. We have been slotted in on the January 13th trial list, and where I am, they don't bother with Trial Management Conferences (apparently they are too understaffed to bother).


I was a stay-at-home mom for the course of our 12 year marriage. He is an engineer, who makes app $130k. I made virtually nothing the first year and a half of our separation, living off a combination of trying to sustain a business I started in 2008, but which involves using equipment that remained in the home, and cashing in RRSPs I didn't want to.. He has temporary full custody of the children, and is seeking for that to remain.

I work fulltime at Tim Hortons - Mon-Fri 2-10pm (which obviously impacts mid-week visits with the children). His lawyer was seeking an imputed income of $30000 for me, and believes spousal support in the amount of $550/month for just under 5 years to be reasonable...


That's the easiest summary. I don't know, as the applicant, how many witnesses I should call. I don't know if judges bother at all with the cause of marriage breakdown, if I believe it has effects on the children as far as potential alienation goes. I don't know how to admit text messages or emails as evidence. I need to know if evidence that was stricken at a motion can be re-admitted at trial. Also, what do I have to have filed, and by when? Do I really only have until the 13th of this month to have everything submitted??

And, is it a good idea to call yourself to the stand? Or is it better to submit your own version during your opening? What about your STBX, should I call him to the stand?

Hoping someone has answers to my somewhat vague questions, thanks in advance!

[stripes]

Maybe others can advise better than I can - but from reading over your case, it sounds like you would really benefit from the services of a lawyer. It appears that you're missing even the administrative basics of what needs to be filed when and where, never mind substantive strategy for your issues (which is not meant as a criticism - I would have no idea how to go about a trial on my own either).

Have you looked into legal aid? If your ex has a lawyer, and a lot of money, and sole custody of the kids, you need to be pretty heavily armed, or "temporary" is going to turn into "permanent", and you will lose the kids. You should be asking for 50/50 joint custody.

A couple of minor points: The cause of the marriage breakdown is irrelevant in legal tems, and you will look petty if you bring it up. The point of the trial is to set things up for the future, not to dwell on the past. Parental alienation is almost impossible to prove if you don't have psychological assessments of the kids, so probably best not to bring it up. If at all possible, you should try to get your work shifts rearranged so that you can have the kids half-time - e.g. working 9-5 rather than
2-10.

[FightingForFamily]

What are you seeking? What offers to settle have you made?

Given your work schedule, the custody being proposed sounds logical if you works weekday evenings. In which case EOW is what you are looking at. If that's not what you want, you need to be able to prove to a judge that you can manage to work while looking after the kids.

The imputed wage of 30k is also reasonable. The proposed SS package of 550/month for 5 years is a little bit low, but may be worth considering to avoid the costs of a trial.

From where I sit with very limited information, you need a good lawyer pronto, and more importantly you need to seriously consider offers to settle (both yours and his).

At this point, I don't see it going very well for you at trial.

[FindingMyFeet]

Why impute $30k if the most I can make is $21k?

I didn't qualify for legal aid bc of rrsps. Then I did qualify when I had to use them up. Now I no longer qualify, bc of my fulltime job. I can't afford to live off of $21k a year, nevermind the $15 that child support would reduce me to (how is the justice system just if paying child support puts a parent below the poverty line?) I'm helping a man who makes 6 times what I do raise the kids in the home to the detriment of me being able to afford them in mine when they are with me....

I can't afford a lawyer. Nevermind that he made a point of visiting all that offfered free consultations so that it was a conflict of interest when I did call them. I have taken advantage of duty counsel as much as possible, but that only goes so far....

[stripes]

Just a thought: have you received any offers to settle from his side? If not, have you sent an offer to settle to him? Given what you lay out here (no legal representation and a barracuda on the other side), you should seek to avoid a trial by any means possible, and the best means would be by settlement. It might not be what you want, but it would be better than a trial.

What are the outstanding/unresolved issues, and how would you propose resolving them? What do you think would be a realistic proposal that your ex might agree to? Forum members might be able to help you out with this.

My other suggestion would be to really work on resolving your employment and financial situation. Find a job that pays better and offers more kid-compatible hours than Tim Horton's (you sound smart and educated, which should help); and/or use your SS to go back to school and retrain. Once you have that piece in place, you can seek a change in your divorce order based on a material change on circumstances.

[FightingForFamily]

You can live on 21k per year. Remember this is a divorce forum, many of us have been through what you are going through or worse. During my separation my salary was nearly 60k gross. After taxes and support, I had 22k left. It's not pretty but it can be done.

If you take the offer you will be receiving an additional 6600 per year from SS.

If you manage to get a better work schedule and are able to negotiate shared custody, you will be eligible to claim one child as a dependent on your taxes and you will receive an additional $400 per month in CCTB.

Again, if you manage to share custody, child support will be offset and you will receive child support rather than paying it.

If you do not wish to pursue shared custody, you will pay $333 per month in child support. Coming out of your SS, this will still put you ahead of where you are today.

The general rule in divorce is that whoever gets the kids gets all the money... usually way more money than is strictly fair or needed to look after the children. Having shared custody may give you the best shot at having a piece of the financial pie with respect to the children, but keep in mind it also comes with a lot of costs. Overall, shared parenting is the most expensive custody arrangement when considering all expenses from both sides.

On other hand, if you go to trial without lawyer and lose, you may be ordered to pay legal costs of up to $10000 per day of the trial, because there was a reasonable (not great but reasonable) offer on the table.

I just want to point out that you were OFFERED spousal support. This much more than most people ever get, and by definition makes it a pretty good offer.

[FindingMyFeet]

Status quo - I don't think shared will work at all. I think that is one battle I'm bound to lose. When I moved out, it was with a "separation agreement" between the two of us - we all know how those go. We agreed to 50/50, but that was quickly squashed.

My business was about to skyrocket - I was becoming a member of a very elite niche in Toronto's wedding industry, and had forked over substantial amounts to be involved in by-invitation-only shows and magazines. I was good at what I do.... I don't want to look for another job, I want my old one back. In the early weeks of our separation, while we were still trying to figure out what was going on, my husband stole my van, my phone, blocked access to my computer, and removed parts of my equipment to make finishing work, or replying to new clients impossible. It's why I ask whether or not the dissolution of the marriage can have any impact in court. The judge at the last settlement conference seemed to think so. I left the home in good faith, and lost everything in the process.... I know how many people here must be able to relate! I came into the idea of divorce thinking fairness, and equality would win the day. I'm disillusioned and overwhelmed at this point. I know there is a way to present these things factually, but I realize I can come across as the bitter "victim" in all of this if I don't mind my p's and q's - which is what lawyers are there for. It's a complicated disaster, and I guess sometimes I wish the last two years came with mulligans. We all do the same thing though - make the best decisions we can at the time with the information we have....

[DowntroddenDad]

First off, separate the issue of custody and access.

Sole custody implies sole decision making ability. Unless your ex has major life issues like addictions etc, or has decided to totally abandoned the child, then don't go there.

As for access, you will have to prove what 50/50 is not workable, as the assumption is that it is in the best interests of the child to have access to both parents. His actions towards you, the cause of the breakup do not matter. What matters is his ability to parent.

Was the agreement you had reached acceptable to you? Was it documented? That would be evidence that you were working to resolve things in good faith. If he then broke the agreement without cause it would reflect badly on him, but this will not count unless it was on paper. It wouldn't have the same weight in court as a signed and witnessed formal separation agreement, but it is better than nothing.

[Tayken]

A brief overview - settlement conference was the 7th of November. We have been slotted in on the January 13th trial list, and where I am, they don't bother with Trial Management Conferences (apparently they are too understaffed to bother).

That is a fast progression from first conference to a trial date. They may not do a TMC but, usually they will call you to attend at purge court which isn't mandatory but, a good time to make an offer to settle too.

I was a stay-at-home mom for the course of our 12 year marriage.

Was it 12 years on the date of separation or 12 years to the current date? What a court is concerned with is the time that you and the other party lived together as partners. A judge will look at the length of the relationship based on the time you lived in a relationship. So, if you were together for 8 years when you separated then, it will be an 8 year marriage. They will generally not accrue the time from your separation. Make sure you count your years "together" as a "couple" properly.

He is an engineer, who makes app $130k.

So, the other party/parent made wise investments prior to the marriage in their education so that they would have a secured future.

I made virtually nothing the first year and a half of our separation,

So you are one of the "mom" who has fallen victim to the often over sold concept of being a small business owner also known as a "mompreneur".

Even after a year and a half of effort you didn't realize that your "dream" of being a "mompreneur" wasn't going to be successful.

living off a combination of trying to sustain a business I started in 2008,

If the business was started in 2008 why hadn't it reached success by 2011? (You mentioned you have been separated for a year and a half and it is 2013.) In 3 years of operating as a "mompreneur" you didn't realize that the business wasn't profitable enough to sustain your personal needs?

but which involves using equipment that remained in the home, and cashing in RRSPs I didn't want to..

But, you had been operating a business for three years and you didn't realize that you couldn't sustain yourself on the income earned from this business? You drew from personal retirement savings from previous employment to sustain your career objectives?

He has temporary full custody of the children, and is seeking for that to remain.

So, you operated a failing business for a year and a half and the other parent obtained sole custody and majority access. Were you just focused on your business and personal "career" objectives?

I work fulltime at Tim Hortons - Mon-Fri 2-10pm (which obviously impacts mid-week visits with the children).

You could claim that the marriage impacted your income ability but, you have alledged that you owned and operated a successful/potentially successful business. So you can't claim you were a "stay at home mom" all while running a business. Do you understand why this argument will fail? You can't claim you had a successful business that was growing or just about to grow, then seperate only to find it fail and then working at Tim Hortons.

The concept is "you can't blow hot and cold at the same time" or "you can't suck and blow air at the same time". You will look like a silly goose if you bring up the business and the "potential" success that never came to reality... All while the other parent was acting as the primary caregiver and you have ample time to do this...

His lawyer was seeking an imputed income of $30000 for me, and believes spousal support in the amount of $550/month for just under 5 years to be reasonable...

That is standard. Depending on your educational background and potential for employment... It could be higher.

That's the easiest summary.

Or how you want to project the story to readers of this forum.

I don't know, as the applicant, how many witnesses I should call.

It isn't about numbers but, relevance of the evidence they will give. Based on your story and postings... I would guess you have very little understanding of the key concepts of relevance. So, you may want to really think hard about the witnesses you call and if they are relevant. Remember, they will be cross examined... Friends are rarely if ever a good idea unless they have material evidence that they can give. Family is also questionable at times. The justice will already see them as biased to your position.

I don't know if judges bother at all with the cause of marriage breakdown, if I believe it has effects on the children as far as potential alienation goes.

No, the justice won't care about the breakdown of the marriage. The justice doesn't care who slept with who or who wasn't sleeping with who. Remember, you are dealing mostly with a custody and access dispute from the sounds of it. Your business etc... is all immaterial to a custody and access dispute.

I don't know how to admit text messages or emails as evidence.

Again, you have to consider the relevance. Based on your questions... They probably are not very relevant at all.

I need to know if evidence that was stricken at a motion can be re-admitted at trial.

Generally no. The question is what evidence was struck from the record and for what purpose. Striking the record is rare stuff. Doesn't sound like you are on a very good track. YOu really need to get a lawyer. Also, a lawyer who is not going to believe your "story" and who is going to challenge you. One that is not a negative advocate who will believe everything you say. One who is experienced in family law. Not one who "dabbles" in family law and primarily hears criminal or other areas of law.

Also, what do I have to have filed, and by when? Do I really only have until the 13th of this month to have everything submitted??

You are the Applicant. You have a lot to do! Trial record, etc... Book of Authorities, documents brief, opening statement, etc... Witness list... LOTS. YOU NEED A LAWYER!

And, is it a good idea to call yourself to the stand? Or is it better to submit your own version during your opening? What about your STBX, should I call him to the stand?

YOu better be prepared to give testamony in chief and be cross examined. If you have submitted affidavits they will all be tossed if you do not go on the stand.

You need a lawyer and fast.

Hoping someone has answers to my somewhat vague questions, thanks in advance!

The best advice is to hire a good lawyer. A respectable one. One who will advocate positively on behalf of the children. One who will tell you to let go of your business and personal dreams to the side and put your children first.

Good Luck!
Tayken

[stripes]

The issue of your ex stealing your van and phone might be relevant to the distribution of assets (assuming you have police reports and/or evidence that he currently has the phone and the van), but it's irrelevant to custody and access. What happened to your business is very unfortunate, but it's also water under the bridge. Small businesses and start-up enterprises are notoriously risky - you will have difficulty convincing anyone that your ex caused your business to fail, so I wouldn't even try.

You say your ex has "full custody". Do you mean that he has sole custody - i.e. that you have agreed that he will make all decision concerning education, health, medical care, residence, etc? Or do you mean that he has primary residence - the kids live with him more than 60% of the time? If you aren't able to have shared parenting (where the kids live half the time with you, half the time with him), you can still have joint custody (you have input into decisions affecting the children). Don't give up joint custody, regardless of residence arrangements, or you'll lose all influence in your kids' lives.

What do you want to see in a divorce order? How would you like to see child custody, parenting access, division of assets, and spousal support handled? Have you proposed this to your ex (in the form of an offer to settle)? If not, how far is your ideal from the offers you have received from him? The answers to these questions will help you decide whether you want to risk the dangers of going to trial.

[FindingMyFeet]

Thank you so much! Lots of great thoughts.

The business was successful. It sounds pretty immaterial, but I made about $3500 year one, $9000 year 2, and $13,500 year three - but the money was all reinvested in equipment. The equipment I was using was in the garage at the matrimonial home. My stbx had very limited parameters for my access to it, which negated most opportunities.

I don't have family on my side. I was disowned for initiating divorce, and for some of the events that lead up to it.... He still attends my family's functions with the kids, with girlfriends (the last gf he had slept over at my parent's house as she was from out of town, and they wanted to keep up appearances). My father won't acknowledge me (or the kids, if they are with me should we run into one another at random)

I married out of highschool. He is six years my senior, was already done university. And the 12 years was 12 years of marriage, not 12 since our marriage till today.

Not sure what else I'm missing... The alienation by my family is seriously affecting the kids, but perhaps that isn't relevant?

[stripes]

The information you're giving here is really not relevant. It's sad that you're on the outs with your family of origin, but it has no relevance to divorce. Ditto the age difference between you and your ex, the point in life when you got married, the location of the equipment for your business, etc. If you bring these things up in court, you are shooting yourself in the foot. You're in danger of coming across as very scattered. If this is how you argue, do NOT go into a trial without a really good lawyer.

The point here is to look forward rather than backwards, and think strategically. Where are you at now, in terms of existing agreements with your ex? What is the status quo? What have you proposed to your ex by way of an offer to settle? What has he proposed to you?

[Tayken]

Status quo - I don't think shared will work at all.

Why not? Because you work at Tim Hortons?

I think that is one battle I'm bound to lose.

Why? The status quo of a year and a half doesn't define the future of these children and your relationship to them as a parent! Request 50-50 full joint custody with equal access. But, you are going to have to be prepared to change. (See my comments below.)

When I moved out, it was with a "separation agreement" between the two of us - we all know how those go.

Do you mean like this: Your Social Worker - Gary Direnfeld, MSW, RSW

Parental separations can be messy matters. When parents see their lawyers, they learn that the one who leaves the home first, in the absence of a separation agreement, forfeits legal custody (decision making) to the parent who remains with the children, pending a settlement on the matter. As per the Children’s Law Reform Act (Ontario, Canada), governing custody and access issues between separated parents:

Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

In view of this statute, some parents trick the other parent into leaving the home under the ruse of a trial separation. Once having learned of the fallout from such action, the parent who leaves feels undermined with respect to their relationship and parental authority with their children. From there, the conflict between the parents escalates and the children, subject to parental hostilities, surface with problems in their own.

If this is what you are referring to. Yes, this is a common pattern of behaviour in obtaining the status quo. If you present your argument properly, you can demonstrate this pattern of behaviour and the status quo was obtained improperly and NOT in the benefit of the children.

We agreed to 50/50, but that was quickly squashed.

How? That is a key question in your matter. You mentioned you are the applicant. So, it is confusing as to how this got squashed.

My business was about to skyrocket - I was becoming a member of a very elite niche in Toronto's wedding industry, and had forked over substantial amounts to be involved in by-invitation-only shows and magazines.

This is how you "feel" but, reality has hit you square in the head. Your business is not successful, your website, Twitter and all the social media responses that you probably got that made you believe your business was about to "skyrocket" is just noise. You need to come to a realization that your business was and is a failing venture.

I was good at what I do....

Or was this what your shallow social media friends told you on your Facebook, MySpace, Twitter and other feeds told you? That your business was awesome and that you were awesome? Clearly the "goodness" that you expressed in your business did not translate to the bottom line of profits and sustainability. I suspect you are a very "creative" person and mostly a "feelings" person. Based on the fact that you stated that your ex is an engineer it is safe to assume he is a "math" person.

Read this article and it may help you significantly in understanding your challenges:

When Math People and Feelings People Negotiate - High Conflict Institute

I don't want to look for another job, I want my old one back.

I hate to be the person to tell you this but, the old one is not coming back. It was a failed venture and you need to come to realize this and move on in your personal life. If it was a success you would be doing it still and not working at Tim Hortons.

There is nothing bad about this at all. I am not trying to be mean. But, I suspect that you lack objective people that are brave enough to state this to you because you are a "feelings" person. (Coloured hair? Tattoos about emotional times in your life? Idealized view of marriage possibly impacted by strong religious beliefs?)

I have read thousands of messages on this forum... The above statement is just a guess based on similar content and patterns related to those past posters.

... continued ...

[Tayken]

In the early weeks of our separation, while we were still trying to figure out what was going on,

Maybe you were trying to figure it out. But, if you are dealing with a "math" person, they may have it figured out, have legal counsel early and be very well informed about what could and will happen. They may have even been planning the separation for quite some time.

my husband stole my van

Careful with wording like this. You will not be greeted with a smile from a judge hurling an allegation like this. If his name was on the title of the van then, he didn't steal it. Or if a court ordered him exclusive use then, it wasn't steeling. If it was theft then he would have been charged.

my phone,

Again, who's name is the phone registered in. No doubt if you were not working, he had credit and got the phone. Probably even paid for it and you probably racked up "expenses" on it for your "business". If he was the primary account holder it was legally *his* phone.

blocked access to my computer,

Again, if he purchased it on his credit card even if you were using it... It is technically his computer. So he can remove it from your use.

and removed parts of my equipment to make finishing work, or replying to new clients impossible.

Again, was your business operating out of the house? Doubt you had a license to operate out of a residence and were even permitted to operate a company from the residence. So, his removal of the equipment was probably done in compliance of the local bylaws from the city. He was no longer willing to take the "risk" possibly of you operating an illegal business from the residence.

It's why I ask whether or not the dissolution of the marriage can have any impact in court.

Again, your business has NOTHING to do with the family law proceeding. In fact, you argue on these points and you will truly be slaughtered. Your business failed, was operating from a residence possibly illegal, consumed possibly a lot of your time and has failed. How does this evidence benefit you?

If you considering an attempt to make the "emotional abuse" argument on the above. I caution you NOT to. You will be eaten alive by a good lawyer and made to look silly. Your business is not material to a custody and access dispute and actually is negative evidence against you as you can't maintain yourself even from the income.

Child support is to benefit children... Not to support your personal dreams to have a business.

The judge at the last settlement conference seemed to think so.

I doubt it.

I left the home in good faith, and lost everything in the process....

Your first mistake was leaving the home. You should have hired a lawyer and put aside your personal aspirations for your business and the fame you were seeking from it in the elite Toronto Wedding industry and put the needs and well being of the children first.

Most of your postings have been about your business... Not the children involved which should be the primary concern.

I came into the idea of divorce thinking fairness, and equality would win the day.

Life is not Elizabeth Gilbert novel sad to say...

I'm disillusioned and overwhelmed at this point.

This is why you need a lawyer to assist you. Please, I beg you, to retain a lawyer. You must have family who can help you obtain proper legal counsel.

I know there is a way to present these things factually,

But, most if not all your "evidence" ("facts") are irrelivant to a custody and access dispute... Do not use our public court system as a theraputic means to try and have someone listen and tell you how good your business was and how awful the other parent is for destroying your "business", "dreams" and "wishes". The reality is that this horrible person is the primary caregiver to the children... something the court will hold in high regard despite your allegations of the other parent being awful for being possibly realistic about your business.

but I realize I can come across as the bitter "victim" in all of this if I don't mind my p's and q's

I suspect you are the "emotional" victim of your own emotional state. You seem to project blame at all this on the business and the other parent.

It's a complicated disaster, and I guess sometimes I wish the last two years came with mulligans. We all do the same thing though - make the best decisions we can at the time with the information we have....

It does come with mulligans!! The first place you should turn to for help is the mental health community. There are clinicians who are out there that can help you sort out why you are so concerned about your business... Your feelings are not probably benefiting you and you may want to seek additional support in managing and understanding your feelings. I suspect that your argument in court will be hampered by your emotions.

Good Luck!
Tayken

[Tayken]

The business was successful.

I hate to say it but, only to Coconut Joe. What you state below is not "success" in terms of business.

It sounds pretty immaterial, but I made about $3500 year one, $9000 year 2, and $13,500 year three - but the money was all reinvested in equipment.

How much was the rent for the location, electrical and other expenses? You were operating a home based business and those expenses were probably being paid by your partner and not out of the small revenues that resulted in no profitable income. From your partner's salary from an engineering job... Money that should have went to supporting the children and not your failing business.

The equipment I was using was in the garage at the matrimonial home. My stbx had very limited parameters for my access to it, which negated most opportunities.

Well, if "The business was successful" as you stated then why didn't you have the equipment moved to another location that you rented? Surely the revenue you generated and the "success" would have allowed you to move the equipment to a location where you could operate legally and not from a residential garage.

I don't have family on my side. I was disowned for initiating divorce, and for some of the events that lead up to it....

Maybe, have you considered, that you are not listening to the good advice that your family may be giving you about how you are living your life? You are very obsessed with the business. I suspect you were probably an avid Twitter/Facebook user and spent the majority of your time on social media promoting your business.

Look at yourself in the mirror. Hold up a picture from before your marriage with your ex. Then one (if you have one) just before the separation. Do you look different? Did becoming a parent change you? How? How did the change impact how you present yourself to others? Did you dramatically change your personal appearance in any way?

He still attends my family's functions with the kids, with girlfriends (the last gf he had slept over at my parent's house as she was from out of town, and they wanted to keep up appearances).

Your family is supporting the children and not your ex-partner. You need to come to realize this.

My father won't acknowledge me (or the kids, if they are with me should we run into one another at random)

What changed in your relationship with him? It sounds like a moral objection to something you did at the end of the marriage.

I married out of highschool. He is six years my senior, was already done university. And the 12 years was 12 years of marriage, not 12 since our marriage till today.

I suspect you are going through a transition (mid-life crisis) and finding yourself. This happens to people whom had suppressed adolescence by over bearing (very religious) parents. Some times something triggers a change in a person and they go searching for themselves, change dramatically and try to become a different person.

Both emotionally (depressed/anxious) and physically (tattoos, dye their hair, etc...).

Not sure what else I'm missing... The alienation by my family is seriously affecting the kids, but perhaps that isn't relevant?

It is only relevant if the adults in their lives are saying negative things about you that are influencing their personal opinions about you. Otherwise, the courts will let adults be total dolts to each other so long as the kids are not impacted.

Good Luck!
Tayken