Ex Kept Proceeds from Sale of Home

[minefield]

My ex and I seperated 2 years ago. We went to mediation almost immediately and came to an agreement. However, during the mediation process the ex complained that she couldn't afford to buy out my share of the assets, so we came up with a payment plan. Shortly after that she sold the house (it was in her name) and kept and spent all the money (bought a new, more expensive house).

I've reluctantly stuck to the original agreement just to avoid court, however the ex has now filed in court to change custody. We've had joint/shared custody (within the 60/40 formula) and now she wants full custody.

My question is: has anyone come across a case where one party gets to keep the proceeds from the sale of the matrimonial home and just do a payment plan? Or, if we do make it to court and I request the full payment of what she owes me on the house, will a judge agree that the outstanding balance should be paid?

Obviously, since she is changing our agreement (significantly) I shouldn't have to stick to the terms either, that would seem rather unfair and it puts me at a significant disadvantage financially.

[Janus]

Did you have independent legal advice? (Did a lawyer sign off on your agreement)? If not, it probably has almost no force. She has filed in court, the time for playing nice is over. Get a lawyer, and get ready to fight.

Don't temporarily agree to reduced custody for any reason, especially not until you have talked to a lawyer.

[minefield]

No independent legal advice yet. We were working on having the minutes of settlement written up but were never finalized. The ex got herself into financial trouble, hence why she's seeking sole custody - to get child support.

I pushed, and got her to agree to another mediation session in December and I've told her and her lawyer that if we reach the case conference in January I will consider the terms of the agreement null and void. I have an appointment with a lawyer shortly after the mediation session.

And I will never give up custody, even though my ex has tried to withhold the kids from me.

I am ready to fight.

[Mess]

Your agreement isn't void, it is a contract that you signed. Unless the terms of the contract were not in accordance with the Family Law Act or other legislation it will stand. You should have the option of filing the existing agreement with the courts. That gives some legal force to your exisitng custody and also to seeking payment for the home.

You can state that it is "null and void" but that is just hostile negotiations. When you enter the court process you need to show that you have been willing to co-operate in the negotiation process in order to avoid ending up responsible for costs. That doesn't mean you have to give in or be forced into mediation, but it means you should have a reasonable offer to settle with your ex open, and you should avoid making hostile, arbitrary statements.

Normally when there is court order for equalization payments if there is no date or arrangement for a payment plan, the amount is due within 30 days. Most often there is a date or conditions, such as "when the house is sold" or similar.

In your case the house was sold and your ex kept the money. You will be asked at some point why you didn't take action. You should avoid saying things like you were going to forgive the debt for whatever reason. This gives credibility to your ex. Make a simple statement that you were in the process of exploring your options, and then the issue of custody came up and you were going to court anyway. Period. No other details are necessary.

She certainly owes you the money and you can make any arrangements you want for payment. If you don't agree to a payment plan she will have to pay immediately, that is a fact of life when you reneg on a financial contract. She may ask the court for some time and the judge will decide if it is reasonable.

Your question isn't about the custody challenge but I am curious what her basis is for justifying it.

[Janus]

Your agreement isn't void, it is a contract that you signed. Unless the terms of the contract were not in accordance with the Family Law Act or other legislation it will stand.

If it was not signed with ILA, and there are children involved, I would not say that it is so cut and dry.

I agree, a contract should be a contract, but that is not how family law works in practice.

In your case the house was sold and your ex kept the money. You will be asked at some point why you didn't take action.

Yeah, the two year delay seems... unwise. We've seen this story before, doormat tries to be nice and keep things civil, court interprets being nice as acceptance of status quo.

Your question isn't about the custody challenge but I am curious what her basis is for justifying it.

I am curious as well. Also, that seems (to me) to be the bigger issue.

[Mess]

If it was not signed with ILA, and there are children involved, I would not say that it is so cut and dry.

I agree, a contract should be a contract, but that is not how family law works in practice.

Equalization was either within the requirements of the FLA, in which case there is nothing to reopen, or it was not and my statement stands.
Custody is by now status quo and cannot be opened unless material change can be shown, and won't change unless it is in the children's best interest. This is true whether there was ILA or not. My statement stands.
Child support is either being paid in accordance with the FLA and CSG or it is not. If not, my statement stands. If yes my statement stands.

What exactly do think would not stand if all was in accordance with the law? Typically the only issue that can be reopened is spousal support, and really an agreement with ILA isn't always that ironclad either.

[minefield]

Thanks Mess, that was very helpful. I have been extremely reasonable with my ex and our current agreement shows that, and in reality I've been too much of a push over.

In our agreement, I allowed the ex to pay the money she owes me over an 8 year period, interest free. She owes me about $150 per month in childsupport, which I haven't enforced, though we agreed to pay according to the Ontario tables. Lawyers would eat up all that money with a couple of meetings, so nobody would really win if, at the time, I persued it in court. The ex also took $2500 in child tax benefits by claiming sole custody on her tax forms, even though our agreement specifically stated we each got to claim one child.

In our mediated agreement (the mediator filed it with the court) the ex had a payment plan, which begins in 2014, after our daughter finishes daycare and starts school. It's not that I have ignored the money, and in fact the mediator advised that I just maintain the current agreeement with regards to repayment.

My ex claims that I violated the agreement by not bringing our daughter to daycare on a Wednesday, though our agreement states that I have the kids from Sunday to Wednesday. The ex claims that I have to drop our daughter off at 9AM for daycare. Though in the summer I have the kids until 4PM on Wednesday. Also we had agreed that it is best that the kids spend time with the parents, not a third party. I had returned from a business trip, missing a day with my kids, so I thought I'd spend Wednesday with my daughter. My ex works all day, and I had been polite enough to inform her and the daycare a week earlier of what I was doing.

As for justification for sole custody: I live 29 minutes from the kids school/daycare. For two years I have driven my son to school three days a week, never once have I been late and all the report cards from school say my son is doing excellent.

My ex now claims that 30 minutes is too far and that my son is tired on Wednesday evening. I disagree, obviously.

[Mess]

IMHO she doesn't have any kind of case and I would love it if my ex took me to court with shit like that.

Regarding your comment about the cost of lawyers, collecting child support should not cost you. You do have to be firm with lawyers to not send endess letters back and forth and run up the bill. The whole point of the system, as flawed as it may be, is exactly to avoid the scenario of not pursuing child support because you can't afford the lawyer. Child support is the right of the child, there is nothing to prove. The tables are mandatory unless there are very extreme situations of undue hardship. For the most part you can file for child support yourself. Duty counsel at every courthouse will help you with the forms. As I (and I notice from another thread, Hammerdad) mentioned, you can file your agreement with the court. You then have a simple situation of child support being owed and not paid. You file for enforcement, you shouldn't even need a lawyer to just file the application. If you do use a lawyer, you seek to have your legal costs paid because there is no excuse for to not pay support.

Your position on the custody challenge is reasonable, your 30 minute trip is not unusual, and missing a day at daycare is an insane reason to go to court and it is not at all grounds for a custody challenge. She is obviously just being hostile and jumping at the first fake excuse that comes up.

This is a case where you should certainly make thorough arguments and especially be very positive about the current situation, how the children are doing well, have friends, activities, good grades, etc. and have good relationships with both parents. If you fall into your ex's trap and start slagging her, then you are both showing the judge that shared custody isn't working. Play nice and act puzzled that she is even considering this challenge.

[minefield]

Thanks. I have a "line in the sand" which is that I always maintain shared custody of the kids. As you might have read in a previous post my ex has PTSD and can be extremely volatile, and reacts extremely badly to little things. Her lawyer seems to empower this, as many people in these forums have noted. My ex sees our agreements as a list of ways she can still control me, not as method to live cooperatively in peace.

As for childsupport, I agree it should be easy, but to my ex that would be a declaration of war. Dealing with a person who has a mental illness can be scary, even for a 40 year old man like me.

As for acting puzzled, I don't even need to act. I actually sent her lawyer a letter saying "going to court over this matter is silly", and yes I used the word silly. I asked for another mediation session and we have that coming up.