Going to trial

[Janibel]

(English is not my first language)

Our case has been ongoing for a little over 2 years now. So far I have made 3 offers to settle, suggested mediation/arbitration hoping to avoid a costly trial. Stbx and his latest lawyer have produced several motions to change our SA, claiming undue hardship - they were all denied.

We were in criminal court in January where he was convicted for several domestic violence charges and received a 3 year suspended sentence. Now we are scheduled for trial in October.

My question is this: although Canadian Family law is no fault, will the judge take into account the consequences of 'said fault'? The restraining order has made negotiations impossible - adding to the exorbitant legal bills. I feel this has caused me a serious prejudice. Shouldn't he be held accountable and have costs of trial awarded to him in light of our situation?

Your thoughts would be appreciated.

[DowntroddenDad]

Divorce is no fault from a perspective of causation. But as for going to trial, yes parties that delay, refuse to settle, make stupid motions bound to fail can be assessed costs, and that is a "fault" that is taken into account. You still need to ask for costs and demonstrate them.

Does the restraining order prevent you from corresponding by letter or email? I didn't see my ex for a year, and we did all of our negotiating by email.

[stripes]

DTD is correct - the "no fault" refers only to the reason for the divorce, i.e. you don't have to show that the other party is guilty of some transgression in order to get a divorce, you just have to show that you have been separated for a year (technically you still can request that the court grant you a divorce because of a "fault" of your spouse - adultery or cruelty - but only 5% of divorces go this way, because the one-year-separation route is generally much cleaner and easier).

"No fault" doesn't mean you can do all kinds of stupid things and get away without consequences. So if your ex has been stonewalling, refusing to negotiate, or otherwise running up expenses and being a jerk, by all means seek costs from him (properly documented, of course).

[Janibel]

Divorce is no fault from a perspective of causation. But as for going to trial, yes parties that delay, refuse to settle, make stupid motions bound to fail can be assessed costs, and that is a "fault" that is taken into account. You still need to ask for costs and demonstrate them.

Does the restraining order prevent you from corresponding by letter or email? I didn't see my ex for a year, and we did all of our negotiating by email.

His probation conditions are very strict, he cannot e-mail, write to me, telephone or send smoke signals - so can only negotiate via his lawyer. Although I may do so and have attempted to settle with him directly with many written offers to settle, nothing positive came of it.

So far he has delayed, made egregious claims and is disregarding court orders. He is also in arrears concerning SS. There seems to be no other option but going to court.

[DowntroddenDad]

His probation conditions are very strict, he cannot e-mail, write to me, telephone or send smoke signals - so can only negotiate via his lawyer. Although I may do so and have attempted to settle with him directly with many written offers to settle, nothing positive came of it.

So far he has delayed, made egregious claims and is disregarding court orders. He is also in arrears concerning SS. There seems to be no other option but going to court.

My ex decided to do everything through her lawyer for a while, so I began making offers directly to her lawyer via email.

You need to document every offer you have made to be presented to the court. If they are close to the guideline amounts, then there would be a very good chance you will get costs.

Was SS awarded by a court order?

[Janibel]

DTD is correct - the "no fault" refers only to the reason for the divorce, i.e. you don't have to show that the other party is guilty of some transgression in order to get a divorce, you just have to show that you have been separated for a year (technically you still can request that the court grant you a divorce because of a "fault" of your spouse - adultery or cruelty - but only 5% of divorces go this way, because the one-year-separation route is generally much cleaner and easier).

"No fault" doesn't mean you can do all kinds of stupid things and get away without consequences. So if your ex has been stonewalling, refusing to negotiate, or otherwise running up expenses and being a jerk, by all means seek costs from him (properly documented, of course).

By documentation that would include proof of the criminal record, motions he has filed, up to date FRO statements, copies of my offers to settle, e-mails sent to him by mediator - am I forgetting anything?

[Janibel]

My ex decided to do everything through her lawyer for a while, so I began making offers directly to her lawyer via email.

You need to document every offer you have made to be presented to the court. If they are close to the guideline amounts, then there would be a very good chance you will get costs.

Was SS awarded by a court order?

I have copies of registered letter sent to his lawyer with my offer to settle. SS was agreed upon via our one and only CC, Ex signed it willingly with his lawyer's advice. It was then court ordered. Two weeks later, Ex wanted to change it all ... As for the MH exclusive occupancy was court ordered in the interim. He attempted to change that as well.

[Berner_Faith]

I just want to add, costs would only be awarded if he is being unreasonable. If his restrictions state he cannot contact you is writing or any other way, the costs you are forced to pay doesn't automatically mean he would be responsible for them. The criminal case has little to do with the family law case unfortunately. You choosing to use a lawyer is your decision, as there is always the option to self rep, which would save you costs, but by all means if he is being unreasonable and not negotiating between the lawyers, seek costs. You can't get awarded costs without asking for them.

He is more than likely very upset at the outcome of the criminal case, so he is not negotiating, If that is the case, ask for costs and you may stand a good chance at getting some of those costs back, if your offers were reasonable and a Judge awards similar to what your offers stated.

[Janibel]

I just want to add, costs would only be awarded if he is being unreasonable. If his restrictions state he cannot contact you is writing or any other way, the costs you are forced to pay doesn't automatically mean he would be responsible for them. The criminal case has little to do with the family law case unfortunately. You choosing to use a lawyer is your decision, as there is always the option to self rep, which would save you costs, but by all means if he is being unreasonable and not negotiating between the lawyers, seek costs. You can't get awarded costs without asking for them.

He is more than likely very upset at the outcome of the criminal case, so he is not negotiating, If that is the case, ask for costs and you may stand a good chance at getting some of those costs back, if your offers were reasonable and a Judge awards similar to what your offers stated.

So far he is on his third lawyer, the unreasonable factor is clear -this latest one is telling him what he wants to hear as opposed to what would likely happen in court?

My offers to settle were reasonable - I suspect his lawyer knows this but sees potential $$$ dealing with a HC client. With the amount of animosity involved there won't be anything left by the time we go to court. I'm really fed up!!

[Links17]

Are you in Qc or Ontario?

My question is this: although Canadian Family law is no fault, will the judge take into account the consequences of 'said fault'?

I thought you were referring to the domestic abuse.
I have read cases where abusive conduct has entitled people to extended SS that even includes situations where the spouse was so broken up over the divorce they couldnt work due to depression....

Btw, very sorry to hear about the abuse, breaks my heart actually.

[stripes]

I know very little about this - but my instinct is that you need to document the dollars and cents that you spend because he was being a ^!%#!. How much did the CC cost you? How much did the lawyer's letters with offers to settle cost you? How much have you paid out of pocket to lawyers because he either wouldn't negotiate or wouldn't adhere to the agreements he signed? How much has it cost you to get to this point where you're going to court?

If you're seeking costs, I don't think the criminal record and documentation of him being an ass (the "why" of his behavior) really matters much. The question is "did you end up spending money which would not have been spent if he had negotiated and stuck with his agreement?". Stick with the "what happened" rather than "why it happened". Of course, I am a random stranger on the internet and may be completely wrong about this.

[Janibel]

Are you in Qc or Ontario?

I thought you were referring to the domestic abuse.
I have read cases where abusive conduct has entitled people to extended SS that even includes situations where the spouse was so broken up over the divorce they couldnt work due to depression....

Btw, very sorry to hear about the abuse, breaks my heart actually.

I'm in Quebec Links, so it's no fault divorce same as in Ontario. Concerning extended SS I am well beyond the rule of 65 as far as entitlement is concerned. My question was more about if the abuse conviction (restraining order) would have any bearing on costs of going to trial. A trial which I have done all I could to avoid.

[Links17]

The rules are pretty different....

In Quebec, the wealthier party will generally always pay the legal costs of the poorer party EVEN though there is no fault (i.e: unreasonable behaviour in settling etc....).

If one of the parties is being unreasonable that FURTHER encourages the payment (or non-payment) of costs.

Just the fact there is an income or asset disparity will entitle you to costs. The costs can be anything including experts. In Quebec this is called "Provision for Costs". The idea is that justice shouldn't be at the end of the dollar.

[Janibel]

I know very little about this - but my instinct is that you need to document the dollars and cents that you spend because he was being a ^!%#!. How much did the CC cost you? How much did the lawyer's letters with offers to settle cost you? How much have you paid out of pocket to lawyers because he either wouldn't negotiate or wouldn't adhere to the agreements he signed? How much has it cost you to get to this point where you're going to court?

If you're seeking costs, I don't think the criminal record and documentation of him being an ass (the "why" of his behavior) really matters much. The question is "did you end up spending money which would not have been spent if he had negotiated and stuck with his agreement?". Stick with the "what happened" rather than "why it happened". Of course, I am a random stranger on the internet and may be completely wrong about this.

Actually you make a very good point. I need to find some case law where the judge takes into account , not the fault; but the consequences of the fault ... in other words what it has cost me to deal with this unusual situation. Had the ex not been proven guilty of DV and not received an extended restraining order, there would have been mediation, negotiation and possibly early settlement. This is where I feel there has been a prejudice and extra costs involved.

[Janibel]

The rules are pretty different....

In Quebec, the wealthier party will generally always pay the legal costs of the poorer party EVEN though there is no fault (i.e: unreasonable behaviour in settling etc....).

If one of the parties is being unreasonable that FURTHER encourages the payment (or non-payment) of costs.

Just the fact there is an income or asset disparity will entitle you to costs. The costs can be anything including experts. In Quebec this is called "Provision for Costs". The idea is that justice shouldn't be at the end of the dollar.

I'm very relieved to hear that! very relieved. One less thing to worry about.