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  • how to deal with ex's offer to settle

    Hi, guys,

    Two days ago I got an offer to settle from ex lawyer. a couple of issues make me headache. do not know what the proper answers are. if we can not settle, then the trial management conference will be the next step. I just want to be fair, no matter how the parties feel so that no one could complain.

    1st issue:Child support

    ex offer: i shall pay child support retroactive in the amount of $30,800 (this number is roughly correct) from the date of separation, January 2003 to December 2009.

    the fact: during January 2003 to December 2009
    1. i paid ex $12000 for the child support in four times in the lump sum way.
    (i have bank records)
    2. i paid for the child medical and dental insurance. ($6700 in total)
    3. i paid the child medical and dental care cost.

    based on the above, i would like to know some ideas about it. what is the proper counter offer i should give. if go to trial management conference, what the judge will say about child support retroactive.

    2nd issue: spousal support

    ex offer: i shall pay ex spousal support in the amount of $200 per month for four years retroactive from the date of separation in January 2003, $9600 in total.

    facts and my questions:
    (1) by law, can ex have right to trace back to 2003 in order to claim such sum of spousal support. i heard but not sure that only 3 years of spousal support retroactive, which means ex can only claim spousal support during September 2007 to September 2010. Normally how many year can ex trace back to claim spousal support.

    (2) ex and her lawyer did not serve me the Financial Support on the case conference, the first settlement conference and the second settlement conference.

    (3) during April 30, 2008 to mid September 2008, ex traveled abroad, which i believe ex is not entitled to claim the spousal support without putting efforts to look for a job.

    (4) from November 2009 to now, ex got a job and now is still working in a hospital in downtown Toronto, earning more than i do now. i believe this is part of reason ex refuses to serve me the financial support.

    (5) ex has a university degree in accounting at the Ryerson University.

    (6) should i make a move to claim spousal support from now on

    (7) give me some thoughts, anything.

    thank you very much

    Nick
    September 19, 2010

  • #2
    First I would like to let you know what the possible consequenses of not agreeing to a reasonable offer to settle can be at trial.

    If she wins, then you will be faced with having to pay her double her trial fees. This rule is there to make people think twice about going to trial over nothing.

    From what it sounds like you have done your homework, and done the math.

    I would counter the offer with a reduce the arrears by the amount that you had already paid. I would also point out that since she is working and had the ability to work all along, that you are only willing to pay for spousal support for a short period of time, and maybe the 3 years would be reasonable. I would also ask to see her financial disclosure.

    If the other side is smart, they would agree to make more discussions, and work it out without trial, since if they lose, you get double your trial fees too.

    Who had the kids when she was out of the country?

    Comment


    • #3
      I'm with rwm on the child support issue - counter offer to Settle less amounts of paid lump sums.

      With respect to spousal - The key is Need vs. Means. During the separation - they had means to travel abroad.

      I think I would be countering their SS claim with my own amended claim and seek spousal support myself with a goal of Settlement.

      Suspect at the end of the day - the strength of their SS claim in its entirety has faded.

      Comment


      • #4
        Was there any equalization payments? Did you deal with the property fairly? If she received a large amount from the sale of any assets, then you can use that as an argument to counter the spousal support issue as well.

        Spousal support is not a right. It is only suppose to assist one spouse to get back on their feet and be self sufficient.

        Comment


        • #5
          RE: Child support...

          Health and Dental benefits are S.7 expenses...and should be split by the respective incomes of the parties...so offset arrears by her share, not by the full amount.

          Lump sum ought to be taken from arrears. If you can prove that it was a child support payment.

          Therefore, counter with lump sum off, as well as what you figure your share of the health and dental. If it goes to Trial, you will not win full amount paid taken out of arrears anyway.

          Comment


          • #6
            thank you rwm1273 and logicalvelocity

            anwser rwm1273 question "Who had the kids when she was out of the country?" - she traveled together with the child

            anwser rwm1273 question "Did you deal with the property fairly" - the property issue was raised at the second settlement conference, and the judge was not happy with it and let them rethink this issue, a free duty counsel told me that after 6 years this issue should not be traced back anymore, this issue does not exist now. by the way at the time we separated I (or say we) am very poor, that is main reason she wanted to separate.


            1st issue:Child support

            based on what you guys explained, do you think whether the following calculation is reasonable or not
            CS arrear = $30800 (total i should pay)-$12000 (i paid in lump sum) - $6700 (i paid insurance for the child) = $12100
            i will pay in 3 times within 18 months


            2nd issue: spousal support

            my rough offer: $200 per month for 18 months as spousal support arrear under the condition that the other party will not claim the entitlement to spousal support.
            and i will let the other party know that if my offer were refused by other party, then i would claim for SS (because i know ex earns more than i do), which would force ex disclose her financial data.

            would you please continue to criticize so that i could learn more from you guys.
            thank you very much

            Nick
            Sept. 19, 2010

            ---------------------------------------

            by the way i would like to post my original draft counter offer as follows for forum people to criticize and reference.

            Offer to Settle

            Court file number:

            Applicant:

            Respondent:

            Respondent’s representative:


            The Applicant now offers to settle all outstanding issues on the following terms:

            1. Divorce
            The applicant consents to a divorce.

            2. Child custody
            The respondent shall have sole custody of the child of the marriage, namely yt born 1999

            3. Child Access
            1) The applicant shall have access of the child Yt every other Saturday from 11:00 am to 8:00 pm. The Applicant shall be responsible to pick up and drop off the child.
            2) The applicant shall have access of the child Yt every other Sunday from 10:00 am to 5:00 pm. The applicant shall pick up and drop off the child at the lobby of the Respondent’s residence.

            4. Custody and Access exceptions
            The parties agree that the below Holiday/Vacation schedule shall supersede and take precedence over the normal custody/access already laid out above.
            1) Christmas holiday – Hereby defined as December 23rd to December 26th. The applicant shall have access of the child Yt twice.
            2) New Year’s Eve/Day – Hereby defined as December 31th to Jan first, the applicant shall have access of the child Yt once.
            3) Yt ’s birthday - Hereby defined as June 18, the applicant shall have access of the child Yt on the odd numbered years.
            4) Father’s day - Hereby defined as the Third Sunday in the month of June, the applicant shall have access of the child Yt .
            5. Child support
            The applicant shall pay ongoing child support in the amount of $387.00 per month based on his 2009 annual income of $42137 in accordance with the Child Support Table Guideline until the age of 18 of Yt .

            6. Child extraordinary expenses
            1) The applicant shall maintain Yt’s health insurances, including medical and dental coverage for the benefit of yt .
            2) The applicant shall pay 50% of the child’s uninsured health care costs, of child care costs, and of other extraordinary expenses for the child, including but not limit to summer school, summer camp, Saturday school. The respondent will pay 50% of such costs and expenses.

            7. Spousal support
            Neither party claims entitlement to spousal support.

            8. Assets
            Neither party claims assets to the other party.

            9. Debts
            Neither party will incur any debt or liability on the other party's credit at any time and any circumstance whatsoever.

            10. General provisions
            1) The parties agree that the child's health card will travel with the child for all access and vacation visits; and the child's passport and birth certificate will be made available upon request.
            2) That both parties as well as immediate and extended family may attend the child's special events (eg, concerts, competitions, recitals, etc.) without restriction and without regard to whose care the child is in at the time of the event. The respondent agrees that the applicant will be permitted to speak with the school, coaches, or organizations in order to remain informed of such events in the child’s life.
            3) The major decisions regarding the health, education, and religion of the children shall be made jointly
            4) In order to facilitate prompt and efficient payments of child support, both parties agree to provide the other, copies of their notice of assessments no later than June 30 of each year.
            5) Both parties agree that they are not allowed to take the child out of the province of Ontario, Canada, without the other party’s consent.
            6) The parties agree that travel outside of Canada will require the express written consent of the other party, and that a travel itinerary, including contact information as well as a consent to travel document will be required. The parties agree to provide the other with written notice at least 45 days in advance of plans to travel outside of the country.



            Date of signature Signature of applicant


            -------------------------------------------------------

            Comment


            • #7
              by the way i would like to post a version of separation agreement from other website for poeple to reference


              SEPARATION AGREEMENT

              THIS SEPARATION AGREEMENT dated this of August, 2010

              BETWEEN:

              name
              of toronto,
              in the Province of Ontario

              ("Husband")

              -and-

              name
              of toronto,
              in the Province of Ontario

              ("Wife")


              BACKGROUND:

              The Husband and Wife were lawfully married on ---, in ---. Due to certain differences that have developed between the Husband and the Wife, they agree to live separate and apart from each other, subject to the terms and conditions in this Agreement.
              The Husband and Wife have made complete, fair and accurate disclosure to each other on all financial matters reflected in this Agreement.
              The terms of this Agreement are intended to settle the matters addressed and may be incorporated into a final decree of divorce, unless specific matters are amended or addressed in a subsequent Separation Agreement.
              The Husband and Wife have each consulted an attorney with regards to his or her legal rights arising out of the marital relationship and the terms of this agreement.
              The Husband and Wife have each voluntarily entered into this Agreement and have not been forced by anyone to sign this Agreement, and both the Husband and the Wife confirm that they are in sound mental health.

              IN CONSIDERATION OF the mutual promises and covenants contained in this Agreement, and as well as the condition, means, needs and other circumstances of each spouse has been taken into consideration and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties agree as follows:
              LIVING SEPARATE AND APART

              The Husband and Wife have lived separate and apart since January 1, 2003. Neither party will attend the other's home or work without invitation or approval.
              CHILDREN

              There is 1 child of the marriage, namely:
              Name:
              Date of Birth:

              name
              date


              CHILD CUSTODY

              The Husband and Wife agree that sole legal custody is in the best interests of the child. The Husband and Wife agree that the Wife is granted sole legal custody, and has the primary right to decide matters regarding matters of health, education and welfare in the child's best interests. The parent who has not been granted sole legal custody may make emergency decisions affecting the health or safety of the child when the child is in that party's physical care and control. The Husband and Wife agree that the grant of sole legal custody to one party does not deprive the other party of access to information regarding the children.
              The Husband and Wife agree that the husband shall have the following visitation schedule with the child:

              Regular Visitation Schedule: Husband will have visits on every Wednesday from 5:00 pm to 9:00 pm and every second weekend from Friday 7:00 pm to Sunday 7:00 pm. If that weekend is a long weekend, Husband will have the Thursday or Monday from 7:00 pm onward.

              Pick up/Drop off Schedule: Wife will drop off the children at the beginning of each visit and Husband will return the children to their primary residence at the conclusion of each visit.

              Holiday and School Vacation Visitation Schedule: Husband will have visits on Christmas Day, Easter and spring break on odd years and all other statutory holidays on even years. Summer vacation time will be split equally between Husband and Wife.


              CHILD SUPPORT

              The Husband will pay child support in the amount of $---.00 monthly to the Wife. Child support payments will commence on ---- and will be paid on the 28th day of each and every month.
              The Husband will pay 50.00% of the child's uninsured health care costs, of child care costs, and of other extraordinary expenses for the child, including summer school, summer camp, Saturday school, and the Wife will pay 50.00% of such costs and expenses.
              The Husband will maintain health insurances, including medical and dental coverage, for the benefit of name
              Child support payments, contributions to uninsured health care costs, child care costs and extraordinary expenses, and the maintenance of health insurance will continue as long as a child is under the age of majority and financially dependent on the parents.
              SPOUSAL MAINTENANCE

              Neither party claims entitlement to spousal maintenance at this time although neither party is expressly waiving his or her right to spousal maintenance in the future.
              ASSETS

              The parties acknowledge that they have agreed upon a division of all assets, owned or possessed by them as marital property or separate property. The parties are in possession of all of those assets to which he or she is respectively entitled. Accordingly, neither makes any claim to any assets in the possession of the other.
              DEBTS

              The parties agree that any indebtedness secured against, or attributable to, any item of property that either party is receiving under this Agreement will be the sole responsibility of the party receiving the particular property.
              Neither party will incur any further debt or liability on the other party's credit. Any debt
              accumulated as of the date of this Agreement is the debt of the individual party,
              regardless if the debt was incurred as a result of joint credit.
              GENERAL PROVISIONS

              The Husband and Wife will promptly sign and give to the other all documents necessary to give effect to the terms of this Agreement.
              This Agreement contains the entire agreement between the Husband and Wife about their relationship with each other. It replaces any earlier written or oral agreement between the parties.
              Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
              The Husband and Wife may only amend this Agreement in writing after both parties have obtained legal advice on the changes.
              In the event that a dispute arises regarding this Agreement, the parties will try to resolve the matter through negotiation or mediation, prior to initiating a court action.
              Notwithstanding that the parties acknowledge and agree that their circumstances at the execution of this Agreement may change for any reason, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
              This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
              The parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each terms of this Agreement.
              The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
              This Agreement will be binding upon and will enure to the benefit of the parties, their respective heirs, executors, administrators, and assigns.
              If the Husband and Wife reconcile, the terms of this Agreement will remain in effect unless the parties revoke it in writing.
              This Agreement may only be terminated or amended by the parties in writing signed by both of them.
              The law of the Province of Ontario will govern the interpretation of this agreement, and the status, ownership, and division of property between the parties wherever either or both of them may from time to time reside.


              IN WITNESS WHEREOF the parties have duly affixed their signatures on this ___ day of _______________, ________.

              Comment


              • #8
                thank you InerprovincialParents for your advice.

                you are right that S.7 expenses should be split in proportion to both incomes
                this way seems more reasonable.

                thanks a lot

                Nick
                Sept. 19, 2010

                Comment


                • #9
                  a-you are not entitled to claim full cost of health and dental to offset arrears in CS

                  b-I would not put 50% of S. 7 expenses. It should be proportionate, which is more fair, especially if she earns a better wage than you.

                  c-child support is payable until the child is no longer a child of the marriage...which may or may not be 18...it could be sooner, if s/he becomes a parent, or later if they attend university or college...or any other post-secondary education...

                  d-you have an 11 yr old, yet you only have only sought daytime access and limited access? Why? What is it you are not saying? A standard agreement will have parents take child every second weekend from Friday 8pm to Sunday 6pm, as well as one weeknight from 5-8pm. Holidays are split equally...usually one week to each parent, including Christmas, Spring Break, and Summer holidays...

                  Comment


                  • #10
                    Never agree to sole custody. It means you are not able to get any information about the child.

                    All you people need to learn this. It is important. Sole custody has nothing to do with access!

                    <dl><dt>Sole Custody </dt><dd> The children live with one parent, and that parent has the right and responsibility to make major decisions about the child's care, education, religious instruction and welfare. The other parent usually has access to the child. </dd><dt>Joint Custody </dt><dd> The children live primarily with one parent and the other parent spends regular time with the children. However, the parents jointly make decisions about the children. </dd></dl>We all know that in the big scheme of things, the one who has primary care makes all the decisions and is supose to consult with the other parent. Works some times, but only with reasonable parents.

                    Here is why it is important for all parents to have joint custody:
                    Custodial parent refuses to tell you about the child's health. You know the child is very sick, and the custodial parent put the kid on medication. Won't tell you, so you go to see the doctor and discuss it. Doctor says "can I see court order that shows you are entitled to this information?" You show court order that shows other parent has sole custody but you have access. Doctor says "sorry you are not entitled to this information" You say but I am the parent and have access. Doctor again says "sorry you don't have any rights to know about the child, go ask the other parent".

                    You should always demand joint custody.
                    Last edited by rwm1273; 09-19-2010, 02:13 PM.

                    Comment


                    • #11
                      You will also want a clause that states;

                      The parties shall exchange income tax on or before ** (date) of each year. The parties shall forward any Notices of Assessment or Reassessment received from Canada Revenue Agency within 30 days of receiving said Notices.

                      This takes her hiding her income and S. 7 expenses right off the table.

                      Also, add an "anniversary date" (usually Jan or Sept) for re-evaluating CS...it is the payor's responsibility to remain in line with the Guidelines Table amount at all times...

                      Comment


                      • #12
                        thank you rwm1273 for your advice about the joint custody.

                        i know that the joint custody is the best interest to the child. however my daughter has been living with ex all the time. i quite often worry that my claim to have the joint custody may not be seen as reasonable by a judge or court.

                        In your experience, if i insist the joint custody, how the court or the judge will see my claim, reasonable or not?

                        thank you

                        Nick
                        Sept. 19, 2010

                        Comment


                        • #13
                          A lot of it depends on how long you have been separated, your access you do have, and what was written in the original court orders, what kind of day the judge has had, and a few other things.

                          Basically there is no harm in asking, unless you have been an absentee parent and just came back recently.

                          Comment


                          • #14
                            Thank you rwm1273

                            a few facts are
                            1) jan 1996 married
                            2) june 1998 the child born
                            3) jan 2003 separated to now
                            4) i phone my daughter 3-7 times each week for many years since she could pick the phone. i have been trying to let my daughter feel that she has a dad who care her all the time.
                            5) the visit was regularly, but the visit now is not under regular basis, sometimes the child does not want to stay home, i guess my daughter grow up and does not want to go out with her father. i just do not know, she is changing.

                            i represent myself and do not have enough money to hire a lawyer, so if the things go to the trial management conference, i really hope the judge see the joint custody as the interest of the child. if not so, then i hope the judge will not punish me for the cost of the court expense because i insist on the joint custody.

                            thank you and i appreciate all the responses from you and others.

                            Nick
                            Sept. 19, 2010

                            Comment


                            • #15
                              I think that you first need to respond to the offer to settle. I would reply with credit for your past support you had paid. I also would contest the spousal support. Your marriage was for 7 years, and normally there is grounds for spousal support. But did she work in the marriage? You say she now earns more than you, which clearly shows that there is no need for ongoing support. What you may be forced to do is pay for a few years at most. You mentioned earlier $200 month, and I would not be willing to pay for more than 3 years or $7200. But I would only do this if you can afford this, and if there was need for it. There is no need to give her money that she does not need. If you two sold property and each got paid out, was that equal? Who paid for the down payment? These are issues to use to argue the need for spousal support.

                              I would specify that you will have joint custody, with her maintaining primary residential care and if you want you can let her have final say in all issues. I would also specify what you would like for access. Just because the child does not want to always visit, does not mean that there should not be an order for it. You can word it so that it is not binding on the mother and will help keep the emotions from taking over and being difficult.

                              As was mentioned before, I would specify that both parties are to provide financial information on a yearly basis. And given her income, then no section 7 expenses to be paid by you.

                              Comment

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