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LV-Is this substance for disputing a Draft Order

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  • LV-Is this substance for disputing a Draft Order


    I will be disputing the approval of the Draft Order for my separation agreement for the following reasons.

    1) Undue Hardship.
    2) New information that I have come privy too.

    Under 1) The Draft Order as it is written makes a demand for a large sum of money (based on the valuation of my pension that I cannot access until I retire), it was accompanied by a letter drafted by the exes lawyer demanding said sum or collection procedures would follow. The sum includes retroactive spousal support and Net Family Property and Costs. The letter scares any possibility of a lender away from me as well as my R7 credit rating. My revised draft Order suggested that Costs and NFP be settled by an attachment on my pension, and I settle the retroactivity of spousal support either by monthly payments or seek out a loan to pay them off. Either way my income would be reduced by 50%, far below that of my exes. Also as a result I will not be able to pay for any medicines required for me to maintain employment.

    Under 2) I have since found out that the Applicant’s new bf submitted a falsified tax return to the court stating an income of $11,000. His residence and rent are wrongfully stated making him look poor, this gained sympathy from the Judge.

    Rent at false address as stated on his T4 $6895
    Rent he paid to the ex as sworn to in court $4800
    Total $11,695
    Net income on his T4 for the same year$11,264.81

    This doesn’t add up!!!!

    LV, question

    1) Does the circumstance in paragraph 1 signify undue hardship?
    2) Should paragraph 2 be brought up, ie. Is this relevant to challenging the Draft Order?

    I live in a very small condo with little or no equity, as I cannot afford to rent, I purchased it. I have no other assets.

    Do I have any meat in my argument and is there any relevant cases to support it?

    Thanks LV,

  • #2

    If an order was obtained by fraud ; The Family Law Rules has this to say:

    Rule 14


    (14) The court may, on motion, change an order that,

    (a) was obtained by fraud;

    (b) contains a mistake;

    (c) needs to be changed to deal with a matter that was before the court but that it did not decide;

    (d) was made on a motion without notice; or

    (e) was made on a motion with notice, if through accident or inadequate notice an affected party did not appear on the motion. O. Reg. 114/99, r. 15 (14).


    (15) Rule 14 applies with necessary modifications to a motion to change a final order or agreement. O. Reg. 89/04, s. 7 (5).


    (16) A motion under rule 14 may be made on a motion to change a final order or agreement. O. Reg. 89/04, s. 7 (5).

    The enforcement process that they are referring to is the FRO. If they go ahead with same, you could negotiate with FRO a payment schedule.

    1) Does the circumstance in paragraph 1 signify undue hardship?
    It is difficult to say. The onus is on you to prove the hardship. Your health is a significant factor. You do require medicine and it not reasonable to go without medicine! What the Judge recognize is a demonstration that you are working. If you were on DR. approved sick leave or some sort of disability from employment, this I believe would be a material change of circumstance.

    You could appeal the final order or bring forth a motion and submit the evidence under rule 14. Question is , how much weight would the court give. I find it hard to believe that an established person in live most likely with numerous assets in life only earns 11K per year.

    Somewhat off topic, but as an example: I do know a contractor who makes in excess of 180K per year. After all the expenses, depreciation of equipment he only makes 20K per year on paper. The individual has 5 different vehicles - all less than 3 years old! Creative Accounting at its best and all perfectly legal. This individual also collects a GST rebate - go figure.



    • #3
      Thank you LV


      The Judge had also stated that the Support Payments would continue "until a review in 2008 or until either party could establish a material change in circumstances. I would like to argue that the Order as Drafted would create a material change in circumstance for me and should thus force a review of the spousal support awarded.

      Is this plausible?

      In regards to Motions as you previously Mentioned are thes in written form and seek a court date for the Motion to be heard or would these be orally mentioned if the Order goes back before the same judge.
      (As you can see I am not well versed on motions)

      Thanks LV
      All the best MCbroke


      • #4
        One more thing LV...

        In my original answer Form 10 at the beginning of all this my attorney( when I first could afford one) had asked for child support but this was not covered in the trial nor the Order? Is this grounds for ammending the Order? Just curious?

        Thanks LV


        • #5

          the Judge should of addressed all the outstanding issues between the parties at trial. I believe you could bring forth a motion to address that issue solely since it was not dealt with at trial. Best way is to schedule a case conference then subsequent motion.

          If you have to vary any existing final orders on the grounds of a material change, you will also have to schedule a case conference then subsequent motion on the issue.



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