The Last Hurdle

[Pursuinghappiness]

So the last outstanding issue for my case is equalization.

My ex has sent over a new NFS that is just ridiculous. He's gone from owing me a substantial sum of money to my owing him money (lol, as if...)

Anyway, we have an upcoming SC and then trial in late June, if this doesn't get resolved. My questions are as follows for the posters who've been through trial on financial issues:

1) Some of the assets on his list are just made-up. Ie, claiming he owned cars at date of marriage that he didn't. He provided no proof of ownership. Is the judge likely to just disregard these things at trial if he doesn't provide evidence?

2) He swore two previous financial statements with significantly different amounts...one during questioning under oath. Now he's changing all of those figures. Ie. dropped all his asset values where it favored him. How will a judge look at that?

3) He has a history of credibility problems before the court in actions to date. Will that possibly affect the trial outcome?

I've already provided an offer to settle and have also decided to stop negotiating with him...since he's obviously not going to do so in good faith. I'm going to go ahead and push to trial and stop bothering with trying to resolve the problem. I know that's a huge cost risk...but I'm determined that if I end up suffering financial loss...that we're going to suffer it together since he's racking up my legal bills to a ridiculous amount with this nonsense. Basically, you can't negotiate with someone this unreasonable and I'm going to go ahead and call him on his b.s.

Thoughts?

[DowntroddenDad]

You have to take out the emotion, and do the math.

How much would it cost you to go to trial? And yes I realize you can get costs awarded. How much are you giving up in the equalization?

My calculation, my ex owed me about $5000. She countered that I would owe her money, but refused to produce a sworn financial statement(sound familiar?). In the end, I realized she had a lawyer war chest from an inheritance, and I would spend $5000 at least fighting it, so it wasn't worth it.

But that means you would want to start up again with negotiations...

[ringettteplayer]

I hear you PH i am awaiting to see my equalization bs from him! I hope some experienced posters will have some info/advice for you.
I hope you get some validation!!!

[Tayken]

So the last outstanding issue for my case is equalization.

I will provide a more detailed response to your questions but, wanted to get this case law posted first as I think it would be VERY beneficial for you to read (in full) PH.

This is why:

I advised the parties at the outset that, from my perspective, this was primarily a math exercise;

Laurain v. Clarke, 2013 ONSC 726 (CanLII)
Date: 2013-03-27
Docket: FS-10-2356-00
URL: CanLII - 2013 ONSC 726 (CanLII)
Citation: Laurain v. Clarke, 2013 ONSC 726 (CanLII)

I think you are dealing with someone with similar patterns of behaviour as the Respondent in this matter who:

[36] Brian was an unbelievable witness at this trial. There were many examples, but I will set out a few for the record:

• Brian stated he had no credit cards. The documentary evidence disclosed that he had access to and used five credit cards at one point;

• Brian stated that his Amex card was a corporate card, was solely for his business expenses, and that he did not get the statements or pay the bills. The documentary evidence disclosed the card was in his name alone and he at times paid the expenses from the joint account; though he may have been reimbursed for true business expenses from his company;

• Brian stated he never took cash advances from the Scotialine. The documentary evidence disclosed an “unpinned” transaction by Brian of a withdrawal by him on May 13, 2008 in the amount of $8,548.63;

• Brian sent an e-mail to Lesley on November 17, 2010 stating that he was out of a job. The documentary evidence disclosed he was still employed full-time when he sent that e-mail;

• Brian stated that he had no bank accounts in his own name prior to December, 2008. The documentary evidence disclosed he did have his own bank account prior to that date and he deposited his annuity cheques and his expense cheques into that account;

• Brian first said his annuity cheques went into the joint account, then he said they went into his sister’s account to his benefit. There was documentary evidence they went into an account in his own name.

• Brian did not disclose his banking and credit card statements as he has been ordered to do by the court. He acknowledged in court that he was “lackadaisical” in failing to do so.

• Brian’s financial statements were singularly unhelpful, and often misleading. For example, Brian put the full amount of the mortgage on the house he owns jointly with his new partner, Ms. Smith, but did not put any value for the house itself. Brian did not include accurate figures, if at all, for his bank accounts or credit cards on his Financial Statements.

• Brian did not include his annuity income. He may have “quietly” stated it on the side of the income portion of his financial statement, but he did not include his annuity amount as part of his total income. In his Financial Statement dated December, 2012, he stated his income was “0”.

• Brian listed significant expenses, including the full amount of the mortgage on the jointly held home with Ms. Smith, which lead to a significant monthly deficit. He never showed any debt incurred as a result of this deficit or offered any explanation as to how he funded this deficit.

If you are dealing with someone who has screwed up and lied on a financial statement it is easy to demonstrate because well, financial disclosures from third party banks will uncover the "unbelievable" lies...

Good Luck!
Tayken

[Pursuinghappiness]

Downtrodden:

Believe me, I am trying to do the math.

The problem is that for over 2 years, I've been dealing with the lack of disclosure. I've had rounds of questioning/undertaking and 3 motions to deal with it. He's held up this final round of "negotiations" by trying to submit more wrong documents (ie. statements that are not date of marriage, not date of separation...tell my lawyer to extrapolate the data from those). So trying to "do math" with the lack of factual number data is very, very difficult.

Now add in that he's just making stuff up. He's adding assets he didn't own. He's adding assets to my side...like my engagement ring...which I assure you I had going into the marriage...etc.

All of this is costing me money now. My lawyer is spending hours that I'm being charged for for trying to re-calculate his b.s. data.

The amount I could miss here is significant...somewhere in the 50-60k range...AND I think he's going to end up picking up costs if we go to trial because he's got zero evidence. In addition, he's on record with having credibility issues with the court.

You're right in that I'm making a risky gamble but frankly, I've honestly tried to negotiate with him in good faith and he's getting more and more ridiculous as we get closer to settling...its almost as if he's panicking. I've been through over 3 years of legal fees, court dates, and nonsense....its cost me 10's of thousands of dollars and frankly, it was all driven by him trying to ruin me financially and take my children away.

Its true that I'm definitely a bit pissed but its because of the absolute waste of time and money that this continues to be. I have zero issue with taking the emotion out of it and doing the math but I don't have the information to do that with...so I'm left with deciding whether or not I want to take this to closure. And frankly, if I end up with nothing...I guess I can deal with that a lot better if he ends up sinking his boat in the same process. In reality, I think I'll do a lot better than he will at trial due to the issues I've described...so I'm thinking that I'm going to take that gamble.

[Tayken]

1) Some of the assets on his list are just made-up. Ie, claiming he owned cars at date of marriage that he didn't. He provided no proof of ownership. Is the judge likely to just disregard these things at trial if he doesn't provide evidence?

As we see in the case law I posted, the court will order him to produce the supporting evidence. This is because these records exist and are held for years. If he can't produce them then the court will not rely upon them generally.

You should be filling out a Form 20 (Request for Disclosure) detailing out the document disclosure list for each and every element. Rule 13 and Rule 20 are very clear on financial disclosure. Serve the Form 20 prior to the conference so you can attach it to the conference brief and ask for a technical order for the disclosure of all the missing documentation pre-trial!

2) He swore two previous financial statements with significantly different amounts...one during questioning under oath. Now he's changing all of those figures. Ie. dropped all his asset values where it favored him. How will a judge look at that?

Again, if the judge is good they will notice it probably. (See the above case law.) The justices generally don't do equalization based on hearsay. This is because financial documentation in support of the claim is easy to obtain from the third parties (banks).

3) He has a history of credibility problems before the court in actions to date. Will that possibly affect the trial outcome?

Did he list his debts properly and supporting evidence that they are not made up numbers. For example if he is claiming a debt to a family member or other party, he needs to provide amortization tables or agreements for the loan. Otherwise the judge will not consider them without evidence that there is a repayment plan.

Many people list personal loans from their parents on their Financial Statements and never provide any supporting evidence to the agreement or even the transfer of funds. Judges see this kind of stupidity all the time and I have seen some lose it on the grandparents and parents for trying to pull this stunt ("truism"). You can't "create debt". You either have it or you don't. You can't just make them up and expect the court to accept them as "fact" without supporting evidence other than "your word".

I've already provided an offer to settle and have also decided to stop negotiating with him...since he's obviously not going to do so in good faith. I'm going to go ahead and push to trial and stop bothering with trying to resolve the problem. I know that's a huge cost risk...but I'm determined that if I end up suffering financial loss...that we're going to suffer it together since he's racking up my legal bills to a ridiculous amount with this nonsense.

Remember, that you won't be able to claim costs for the custody and access as you have settled the matter. More than likely it was settled with both parties assuming their own costs. It is rare to see any costs agreement in a custody and access agreement but, that isn't to say it doesn't happen though.

So, you probably will only be able to claim costs from the point of serving your offer to settle on the equalization stuff. (Just to warn you.) Check with your lawyer though.

Basically, you can't negotiate with someone this unreasonable and I'm going to go ahead and call him on his b.s.

Thoughts?

Well, if there is a place to call B.S. on someone... It is on equalization as it is just a matter of math. Math doesn't lie and the disclosure Rules (13) are very clear on what evidence is required. 1+1 != 1000. It is always interesting to see how many possibly highly conflicted people believe in their lies in their financial statements when it is easy to demonstrate.

Any good lawyer will tell you not to screw up your Form 13/13.1 with nonsense and unprovable allegations of debts.

Often, the "buck stops here" at "equalization" with the lies. Because well, it is easy to demonstrate them and request the financial statements that prove them.

It is amazing how often financial disclosure can be the death knell to a highly conflicted litigants case built on a house of cards and false allegations...

Good Luck!
Tayken

[DowntroddenDad]

Downtrodden:

Believe me, I am trying to do the math.

The problem is that for over 2 years, I've been dealing with the lack of disclosure. I've had rounds of questioning/undertaking and 3 motions to deal with it. He's held up this final round of "negotiations" by trying to submit more wrong documents (ie. statements that are not date of marriage, not date of separation...tell my lawyer to extrapolate the data from those). So trying to "do math" with the lack of factual number data is very, very difficult.

Now add in that he's just making stuff up. He's adding assets he didn't own. He's adding assets to my side...like my engagement ring...which I assure you I had going into the marriage...etc.

All of this is costing me money now. My lawyer is spending hours that I'm being charged for for trying to re-calculate his b.s. data.

The amount I could miss here is significant...somewhere in the 50-60k range...AND I think he's going to end up picking up costs if we go to trial because he's got zero evidence. In addition, he's on record with having credibility issues with the court.

You're right in that I'm making a risky gamble but frankly, I've honestly tried to negotiate with him in good faith and he's getting more and more ridiculous as we get closer to settling...its almost as if he's panicking. I've been through over 3 years of legal fees, court dates, and nonsense....its cost me 10's of thousands of dollars and frankly, it was all driven by him trying to ruin me financially and take my children away.

Its true that I'm definitely a bit pissed but its because of the absolute waste of time and money that this continues to be. I have zero issue with taking the emotion out of it and doing the math but I don't have the information to do that with...so I'm left with deciding whether or not I want to take this to closure. And frankly, if I end up with nothing...I guess I can deal with that a lot better if he ends up sinking his boat in the same process. In reality, I think I'll do a lot better than he will at trial due to the issues I've described...so I'm thinking that I'm going to take that gamble.

Well if it is $50 K, or even half that, it is worth fighting for. And the fact that he is being more unreasonable as time goes on is a sign that negotiations will not be fruitful.

So in your case, I would say, prepare for court. Perhaps make one final "offer" with the communication that if this isn't accepted it is court time.

[Pursuinghappiness]

Thank you Tayken. Its not surprising that in the end, it all comes down to money. Money = Control.

You should be filling out a Form 20 (Request for Disclosure) detailing out the document disclosure list for each and every element. Rule 13 and Rule 20 are very clear on financial disclosure. Serve the Form 20 prior to the conference so you can attach it to the conference brief and ask for a technical order for the disclosure of all the missing documentation pre-trial!

We had questioning 2 years ago now. The undertaking list was provided, ignored...then went to motion 3 times. So a form 20 isn't required. There's a long history of the requested documents. The document request has been in every court filing we've had up until now incluing the last SC brief..and will be in this week's SC brief.

He just keeps supplying new crap every time he's compelled by the court. My lawyer has basically told me that we've more than met the request requirement and will stop bothering and proceed with the crap he's provided because it isn't credible and he has the burden of proof.

So, you probably will only be able to claim costs from the point of serving your offer to settle on the equalization stuff. (Just to warn you.) Check with your lawyer though.

That would be ok. I'm mainly concerned about the costs associated with the trial only on this particular issue. I'm aware that I'll still have a huge outstanding legal bill to get the other issues resolved. Another part of the reason that I can't afford to settle for made-up financials...I need to actually pay my legal bill.

Well, if there is a place to call B.S. on someone... It is on equalization as it is just a matter of math. Math doesn't lie and the disclosure Rules (13) are very clear on what evidence is required. 1+1 != 1000. It is always interesting to see how many possibly highly conflicted people believe in their lies in their financial statements when it is easy to demonstrate.

Very true and another thing I didn't mention is that he swore the previous financial statement under oath at questioning. So he's either lying on one...or lying on the next. In addition, at one of the disclosure motions...he lied about having representation to the court and then didn't show up (nor did the lawyer that wasn't retained)...so it went on record that my ex has "issues with deceiving the court." Now I know our trial judge will not be the same as our motion judge but I'm going to have my lawyer attach that to my trial brief so that I can ensure the trial judge reads it.

Basically, he's saying he cannot get statements from his American retirement accounts. He also double-dipped the accounts on marriage date to pump up the numbers. Some of the stuff he has is very easy to rip apart...some he just numbers on there with statements that don't apply to the correct dates. I'm just really wondering how the court will deal with "partial or missing" information.

The missing stuff is that he said he owned a car at date of marriage that he didn't. He just added it to his new statement...but provided no ownership, etc. To me, that crap should just be thrown out...but I don't know how that works.

All I know at this point is that I really, really didn't want to go to trial and was hoping that we could come to a reasonable conclusion to get this over with...but you cannot negotiate with someone like my ex.

[Pursuinghappiness]

Well if it is $50 K, or even half that, it is worth fighting for. And the fact that he is being more unreasonable as time goes on is a sign that negotiations will not be fruitful.

So in your case, I would say, prepare for court. Perhaps make one final "offer" with the communication that if this isn't accepted it is court time.

Thank you for the advice.

I think what I'll try to do is make reasonable assumptions with the latest crap he's provided. I've asked my lawyer to bring me copies of everything. I'll complete my own double-checked spreadsheet including a column headed "evidence" which will detail what problems each number has...so that he knows what I'm gonna hit him with at trial. I'm fairly good at being objective (when I'm not ticked off)...so I'll try to consider the same things the court might consider and then, I'll produce one further offer based on that. If he ignores that, I'll just move into trial and hope that my reasoning wasn't totally screwed.

[HappyMomma]

I realize that usually 'doing the math' makes a lot of sense, however, when you are dealing with an HCP sometimes I think you need to just bite the bullet and take the loss.

I ended up legal fees much higher than what my ex was entitled too but I didn't have a choice. If I did not push things through the system and obtain a court order he would have continued to file one piece of crap after another. I spent the money for closure and let me assure you it is worth EVERY PENNY. Now when he starts spewing garbage about all the money I owe him I just point to the court order and say 'done'.

Thankfully, the judge at the TMC managed to get him to settle before we reached trial so my legal fees didn't end up even worse. Hopefully that will be the case for you as well.

Good luck!

[Tayken]

Thank you Tayken. Its not surprising that in the end, it all comes down to money. Money = Control.

As you would suspect my equation for the "conflict of money" is not as simple as yours. Although, yours is probably appropriate in your situation. But, here is mine in a more generic wider ranging approach.

1. Money can be used for control.
2. Money can cause fear (anxiety).
3. Money can lead to someone being stupid.

Money can lead someone to be all three of these before the Family Courts.

Now, if we come down to money it is about being able to control what you want in life. Money can provide security over your life ("control") and it can also it can cause you to be anxious (lack of money or having too much money). Then there is being stupid with money (e.g. going to trial over non-issues, irrelevant things and making false allegations, etc...)

When you try to control someone else's money and are seeking an unequal division of assets in Family Court, you are demonstrating to the court, by arguing counter to the standard practices that you may be the "controlling" person. This is being "greedy" basically. Justices read greed in all sorts of interesting ways. Basically any time a litigant tries to not split assets equally (debts and assets) they are demonstrating themselves potentially as "greedy". They may be attempting to "gain control" over the party whom they should be equally dividing things with.

Often though, the reason that people are seeking an unequal division of assets is that they are anxious (fearful) of the future. They fear the future, they are possibly dependent on people to make decisions for them and they may possibly not have been equipped as children to be independent thinkers and "doers". They operate on an anxiety and often "live in the now" of money issues. These are the same people who live pay check to pay check. They may "appear" to have things (cars, fancy homes, etc...) but, in reality they have nothing other than their items. They quell their "fear" with "today items" which have no value. They use their money to "gain control" of their fears that they have nothing and will not have anything.

When faced with family court these dependent (anxious) people are losing their support structure (emotional) and are having to take on the added responsibility, which they either consciously or subconsciously assigned to their partner. These are the people who make over the average Canadian household income themselves, have done so for their entire marriage and yet, make an Application to the court for "spousal support".

They will ask for a small amount to be paid (e.g. $300 a month) not because the "need" it but, they want the security of it. What security does $300 a month give someone? None... But, remember, we are before the family court, and if you get $300 a month and lose your job, you have way better EI than the government is going to give you on a change in circumstance!

Suffice to say, Justices are equally wise to the "emotional greed" of these possibly anxious and dependent parties are. Remember, separation and divorce is about living your own life. Not trying to set-up an employment insurance program through the SS guide lines should you lose your job.

It is their underlying anxieties that drive them to litigate this kind of nonsense. They are driven by fear and not "need". The court Rules on "needs" not "fears" (emotions).

Then there is just the stupid people when it comes to money. These are a mix of those who think they are smarter than everyone else (the true definition of stupidity), the people who will lie about money for personal gain, and will try to deceive the court willingly. I am not talking about the undereducated people here... I am talking about the truly stupid. These are the same people who will go an buy a useless car that they can't afford and doesn't meet the needs of their family with any money they do get out of settlement etc... Or will blow the settlement on a trip to Europe and/or the Bahamas. These are the same stupid people who throw elaborate "divorce parties" and get bottle service for all their friends at the top night clubs... They will always be stupid as - stupid is what stupid does.

When you combine any two (or three) of these combinations you end up with a high conflict trial on financials. If you just are dealing with 1 of the three, usually you can settle matters but, when dealing two or more... Expect to see a court room.

PS: PH you are possibly dealing with a #1 and #3 person. A stupid controlling money person. Their stupidity will insure that no one will end up with any money and all the assets will be wasted on stupidity. Any money they do get they will just waste on stupid stuff...

Good Luck!
Tayken

[frustratedwithex]

I think what I'll try to do is make reasonable assumptions with the latest crap he's provided. I've asked my lawyer to bring me copies of everything. I'll complete my own double-checked spreadsheet including a column headed "evidence" which will detail what problems each number has...so that he knows what I'm gonna hit him with at trial. I'm fairly good at being objective (when I'm not ticked off)...so I'll try to consider the same things the court might consider and then, I'll produce one further offer based on that. If he ignores that, I'll just move into trial and hope that my reasoning wasn't totally screwed.

This sounds like the best approach for you.

I realize that usually 'doing the math' makes a lot of sense, however, when you are dealing with an HCP sometimes I think you need to just bite the bullet and take the loss.
Good luck!

I agree, sometimes you need to bite the bullet. His financials may be out by $50k-$60k, however, in my opinion, by the time you are done with court and applying for costs, you will have spent close to, or at least that much. And don't forget the emotional toll it will take on you.

At the end of the day, my ex. and I basically had equalization and support to settle. Although he was not as bad as your ex., he did try and exclude some property and some income and had me owing him over $100k.

We agreed on med/arb instead of court. The mediator was able to quickly conclude that his exclusions were unwarranted but we could not settle matters through mediation.

What I don't often see explained when asking for costs, is that it costs money to ask for costs. You have to pay your lawyer to review the decision, advise you and make the application. Lawyer time costs money.

Ask your lawyer how many hours he/she expects for this.

Not all applications for costs are successful. Judge may see "success" different than you and your lawyer.

Sometimes the ruling is not clearly in favour of one side and the decision is split. Sometimes you get some of the issues you ask for, sometimes the other side does.

In my opinion, the thought of going for costs is far too often tossed around as the best way to feel justified.

[Rioe]

1) Some of the assets on his list are just made-up. Ie, claiming he owned cars at date of marriage that he didn't. He provided no proof of ownership. Is the judge likely to just disregard these things at trial if he doesn't provide evidence?

2) He swore two previous financial statements with significantly different amounts...one during questioning under oath. Now he's changing all of those figures. Ie. dropped all his asset values where it favored him. How will a judge look at that?

3) He has a history of credibility problems before the court in actions to date. Will that possibly affect the trial outcome?

My suggestion would be to pull together from all the sources he's provided, and do up his financial statement FOR him. If it's not a documented item, don't include it. If something has been sworn to, keep that amount, and if it was sworn twice and the amounts are different, use the one that is most advantageous to you.

Provide this to the judge as a helpful summary of his repeated partial disclosures, necessary due to his history of deceit, and ask that these figures be used for equalization and support purposes rather than wasting further time, both the court's and yours, by ordering disclosure yet again.

If he wants to keep arguing, maybe this will be the incentive he needs to provide proper disclosure to avoid imputation.

[Rioe]

As you would suspect my equation for the "conflict of money" is not as simple as yours. Although, yours is probably appropriate in your situation. But, here is mine in a more generic wider ranging approach.

1. Money can be used for control.
2. Money can cause fear (anxiety).
3. Money can lead to someone being stupid.

Very interesting analysis, Tayken, but I’d say that rather than three money/conflict items, there are four (or more). The fourth one I am thinking of is related to control, but for a punitive purpose rather than greed. This is the person that says “I will get unequal division, fight to either get SS or not have to pay it, harass about CS and s7 expenses to punish you for breaking up with me.” This desire for financial retribution may be motivated by misplaced blame and anger, by truth, or by false perception. It can even be done by the person initiating the separation, to punish the other person for not having been the ‘perfect’ spouse. But it isn't for greed, as they are willing to spend their whole savings in court and end up with nothing, happy as long as their ex also has nothing.

I think unequal division of assets reflects as much as, if not more, on the flaws of our no-fault divorce system, that one spouse is financially punished for the crazy spending or relative unemployability of the other, by strict equalization, when they had nothing to do with either, long after the marriage is over.

[FightingForFamily]

Tayken,

Your post about the ways money contributes to conflict was very insightful and made my day after reading a ridiculous e-mail from my ex...

We have spent the last few months discussion how to transition her off of spousal support and come to an agreement (through e-mail). I am offering an extra year of "transitional support" at a reduced rate rather than "cold turkey". I reduced our discussions and agreement to written form and sent it to her and now... she refuses sign.

She has always been a #2 person, very anxious about money and very insecure. She seems terrified by the idea of signing away her "safety net" of spousal support in any way. Although she agreed in principal, when she read the legalese it just freaked her right out.

However we are not together, I have paid her full child spousal support for 3 years for a 6 year marriage, she has started working already (home daycare) and it's not fair for me to continue to be the sole financial contributor for her as our son will also be in school full days in the fall.