Judge, Witness, threat

[SheShe]

My 27 year old son was to testify at my family trial. He was witness to abuse within the family. His father left when he was 24, an adult. They never had a good relationship because his father didn't care.

The Judge said she didn't believe in having a child testify against a parent. I stated that he was an adult and his testimony would be important. She said that she would allow it, but if she didn't like what was going on, there would be repercussions for me. I was too frightened to put him on the stand.

Question: Do you think this was a threat? Any ideas how this would be perceived at Appeal? Thanks

[logicalvelocity]

What were the other outstanding issues?

[SheShe]

Other issues were - Spousal Support and self sufficiency (our son has Aspergers and I stayed home to raise the family and moved to support my husband going up the corporate ladder, as well as stay home to care for the family while he travelled), Child Support, Life Insurance, Health and Medical Care. Pretty much the basics. We had a Separation Agreement 29 pages long and we didn't have anything because of his spending. He is in arrears nearly $12,000.00 which FRO will not recover at present, even though he took a $60,000.00 severance payment, hid it in an RRSP, removed the money, told the judge he was using it to pay support and lawyers, but was secretely transferring it to a new locked in RRSP.
It goes on and on. He told our 27 yr old son that he would do this at the time he left 3 yrs ago.
My ex also said I had abused him and actually managed to get a restraining order against me when I live 500km away and with no actual proof of what he was alleging. (I had been driving to where he lives to stalk his new partner and him!!!!)
I am appealing without a lawyer as I fall into that great chasm of people who don't qualify, but don't have the money either. Justice seems to be for the wealthy.
See Chand vs Chand which is also being appealed...same judge.
Hope this answers your question.

[billiechic]

why do you need your son to testify? The fact that there was abuse does not gain anything in terms of settlement, it might just put restrictions on communication. Given that your son is an adult, there shouldn't be any pressing reasons for you and your ex to communicate.

You were a stay at home mom (consented to by both of you). I'm guessing it was a very long relationship, so he should be paying you spousal for a very long time. It doesn't sound like he has much of a case anyway.

What exactly are you appealing?

[SheShe]

Sorry, it is very complicated, as all family cases. I am appealing on the basis that the Judge did not take into account all aspects of the Divorce Act and Family Law Act of Ontario. She only focused on Self Sufficiency. My understanding through the case law is that no one factor should be of more significance than the other.
There is also a rule of 65. I can't remember right now, but I am 53, married from 21 - 50. I worked early in the marriage when boys were small to help him get ahead. I did not pursue a career with my degree because we had agreed on a traditional marriage. I only worked when we could not make the bills and they were menial jobs.
My ex played games from the start of the trial and the Judge just fell right under his spell and threw out the rules and procedures of the law it seems.
Because of the abuse I have suffered 4 major depressions since I was 40. this was documented by a psychiatric report and other evidence. She chose to believe that the Expert wasn't right. When did the judge become a Doctor? She decided it was my Ex who was experiencing all the after math of abuse!
Just on principle alone, I must pursue this.

((( ))) these are my comments.
Here are just some quotes directly from the decision: ((((they are public record I believe))))...

Mrs. McKinnon has engaged in some very disturbing behaviors over the past period ((((there was no sworn evidence or witnesses, just his lies)))

She persistently sought to provoke Mr. McKinnon to defend his past conduct, heaping blame upon his every action.

In contrast, I observed Mr. McKinnon to be flexible and accommodating.

He took no pleasure in the proceeding and asked only one question in his cross examination of Mrs. McKinnon, declining any questioning of her Financial Statement.

He is clearly litigation fatigued.

Combined with the turmoil of the past year in which he... lost that position to a younger employee, and is now establishing himself in a new position; has been too much.

He has begun to limit his participation in this proceeding, not accepting documents from the applicant.

The toil on Mr. McKinnon is apparent in his physical presentation, his evidence and his actions. He cannot tolerate this prolonged conflict. Neither could he manage it during the marriage.

Remarkably, Mr. McKinnon remains hopeful that the conflict between

My observations during this trial leave me considerably less hopeful. Mrs. McKinnon is rigid in her belief that every failing in her own life is the fault of her former spouse.

She appears to have allied at least two of her three sons in her relentless blaming of their father. I fear that she has used this Court process to continue punishing Mr. McKinnon, rather than to seek remedies.

Over the two and a half hours of her cross examination of Mr.
McKinnon, Mrs. McKinnon aggressively questioned her former spouse... She poured over details in his banking records.

This may have caused sorne confusion in that Mr. McKinnon's 2009 income shows as the $83,794 of earned income, plus the $59,448 of severance monies. In actual fact, only one eighth of the severance monies is attributable to 2009, bringing his income for support purposes to $91,225 for 2009. The balance are funds attributed to 2010 for the purposes of determining support.

Neither do I accept that she has been the victim that she portrays.
His income for the relevant years is thus:
2007 $103,312
2008 $104,045
2009 s 91,225
2010 $115,451 (projected)
20ll $63,000 (per current employment contract)

The period of time in which he eamed in excess of $91,300.00 is relatively brief: January 1,2010 - when the husband had two sources of
income, his severance package and employment - to July 31st

Child support effective June 1, 2010 would be $807 per month based on income of $91,225. (((( The law includes Severance Pay in Income for Child Support Guidelines and case law...$143,000.00+ line 150 on his 2009 tax return)))))

This manner of calculating child support is the usual approach

39. Order to go varying the table amount of child support to $807 per month commencing June lst 20l0, based on 2009 income of $91,225.

I would not have been surprised were Mr. McKinnon to agree to her budget as he is not opposed to contributing to Nathan's expenses, rather to the barrage of fault, blame and accusations that accompany such requests'........She was unable to tell me the amount sought. Once again, the claim appeared to be a vehicle for denunciation of her former spouse, rather than a remedy of enforcing the payment of certain expenses

46- Order to go that the respondent father shall contribute 45% of the after tax costs of, any section 7 expenses.

First, that Mrs. McKinnon ought to be imputed with an amount of income as she has an obligation within the Divorce Actand the Separation Agreement to take steps to be self sufficient, and the ability to do so.

Although not well articulated by the parties, the wife in her pleading asks for an increase in spousal support as a result of the receipt of the severance package ((((case law and Severance is to be included))))

a variation of spousal is far more discretionary and flexible
If I take the same approach as that set out in the Agreement, and adjusting for the relevant time periods, the average income over the period of time from the signing of the agreement to the review period remains in the range of $92,000. In calculating this, I have used the three income figures of $91,225, $115,451 and $63,000 as set out in
paragraph 24 above.

Mrs. McKinnon appears to have overinvested herself in her son's life, perhaps out of a sense of obligation and guilt, perhaps out of necessity, but with the certainty that it shields her from moving forward in her own life.

In doing so she is modeling dependency, bitterness and
rigidity. Encouraging self sufficiency is not only a statutory requirement in the Divorce Act; it is also a moral imperative and essential component of responsible parenthood.

I have considered the applicable ranges with table child support as ordered within these reasons, and as projected to commence June 2011. This presents a difficult scenario for the father

He seeks the amount of $18,100 in costs. He was represented by counsel through most of this proceeding, up until the time of trial. This trial was three full days. I grant the amount of $6,500, as apartial recovery. Costs are payable forthwith.

Need I go on???

[dadtotheend]

Just on principle alone, I must pursue this.

That will get you nowhere on appeal. Appeals are heard based on judicial errors on points of law, not on your principles.

Need I go on???

No thanks, the judge laid out her impression of you quite clearly there.

That statement by the judge and your willingness to involve your child, adult or otherwise, in these proceedings tells me all I need to know.

You should give it up. Something tells me you won't though. Don't worry the Appeal Court will tell you nada.

You're down a slow bitter road and headed straight for the cliffs.

[billiechic]

you have to prove that there was an error in the use of the law.

You have not shown whether you were awarded spousal support, but I am guessing you are getting a fair amount.

The judge is correct in expecting you to provide some income on your own. Your son is an adult, but it is not clear whether he is a dependant or not. If he is, then it seems that the judge decided that his dependancy does not preclude you from working and that you should be responsible for seeking some emplyment. There is nothing wrong with that and it does follow the law as the judge pointed out.

I just have to ask, why should you get an increase in SS because he got a severance package? Weren't you already separated by then? If you believe you are entitled to that, then you should also have a decrease in SS when his income goes down becasue he can't find a comparable job.

If that is indeed what happened, then the awarding of partial costs to your ex is justified. You should not be applying to increase SS based on things that have happened after marriage, that only works with CS. You are not married anymore and his gains/losses are none of your business

[SheShe]

Hmmmm, lots to think about, right? My Ex has made a conscious effort not to see one son for nearly 2 years since he was 14. Is it our son's fault that Mom and Dad don't get along? I wish the courts could order a father to step up to the plate other than just financially.
Our adult son wanted to testify because his father involved him long before I even knew there was a separation in the works.
Anyway, it isn't only about money. Has anyone here ever heard of sociopaths? They are unbelievable at manipulating people and systems.
I have been doing what I need to do to become employable. Too bad jobs aren't just banging on the door. And no, my sons and I live day to day without much support, while Dad goes on many vacations to the Caribbean each year and has the best of everything. I cannot even take out son to the dentist or buy prescriptions even though the judge ordered the medical for our son...Dad just won't give any information on the plan for his son.
Sorry, but not all fathers are Dads and not all mothers are Moms. It's the children who suffer, isn't it? I would die for my children.
Thanks for all your comments.

[Mess]

I wish the courts could order a father to step up to the plate other than just financially..

This is not what you or anyone else should wish for. The courts are not there to contol us. You can't get a court order to change someone into a different person. You are coming across like someone addicted to litigation. You are looking for the courts to deal with any and all issues.

Some things cannot be solved. You are very likely getting plenty of support, certainly more support than I get and more support than many families get. Going back to the courts time after time isn't helping you, your children, it isn't making your ex a different person, it isn't helping society, it isn't helping period.

You cannot change other people. The only thing you can change is how you approach them or appoach the situation. Your approach of using the courts isn't working. Doing the same thing over and over and expecting a different result? How much sense does that make? Step back and look in the mirror and realize that your ex is history, your ex isn't "doing" anything to you anymore, you are doing it to yourself.

[dadtotheend]

Methinks there is a huge "woe is me" thing going on there.

[SheShe]

Thank you for all the insight. I am not opposed to the information and thoughts of others. It gives me pause to reflect. I guess I just wish that families never came to this end. I think that is what I need to let go of, the lost dream of Happy Ever After...I was raised on these fairytales...Time for a reality check.

[standing on the sidelines]

Thank you for all the insight. I am not opposed to the information and thoughts of others. It gives me pause to reflect. I guess I just wish that families never came to this end. I think that is what I need to let go of, the lost dream of Happy Ever After...I was raised on these fairytales...Time for a reality check.

reality checks suck sometimes but in the end it helps.

[NBDad]

re: the severance. You are correct in the regard that it affects line 150, however the judge DID account for that. 1/8 attributed to 2009, the remainder to 2010.

As long as he can back up his losing the position to a younger person, and then having to get a new job, you are boned. You cannot request an increase in spousal support just because he got a severance package.

Transferring the severance package to an RRSP is financially smart. Locking it is even better, since it precludes the temptation to cash it out. He's earning what? 60% of what he was? at best?

You do have an obligation to try and be self sufficient. If you aren't making any effort at all, then you are not doing everything you can to move forward.

Against what points of law are you contesting the judges ruling?

[dadtotheend]

Against what points of law are you contesting the judges ruling?

Can't wait for that answer.

[SheShe]

Dadtotheend, why do you sound sarcastic and bitter? I think I got off on the wrong foot here somehow. Maybe I misunderstood the purpose of this forum?
At any rate the Appeals Court will not allow the appeal if I do not have any valid concerns.
My original question was probably worded wrong. I just wanted to know if a Judge has the authority to interfere with having adult witnesses testify.

We had a comprehensive Separation Agreement which my ex broke as soon as it was signed in spring of 2008. I tried to negotiate without the court's involvement for over 6 months to get him to abide by the agreement. We were each to pay 50% for S7 expenses such as Summer Camp for our son. He refused to even for our son's sake and it was in the agreement. Unfortunately things took a turn for the worse once I held him to the agreement. I never knew that a legal agreement is only as good as the paper it is written on.

I am guessing your marriage was a short one and your children were quite young when you separated?

Long term marriages (over 20 yrs) are seen differently than short term ones, in that the consequences of the roles within the marriage become more entwined financially.