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-   -   Thought it was over. (https://www.ottawadivorce.com/forum/showthread.php?t=16491)

Lava 11-11-2013 06:45 PM

Thought it was over.
 
Here is my situation.

My ex left the marital home in the spring of 2012 to follow her path in life. In the fall she asked for a divorce said she will sign all of our assets over to me and not seek any financial support. So I never prepared a financial statement since there was to be no division of the assets.

A couple of months into negotiating our SA dealing with other issues including child custody she said she wanted a financial statement before signing anything. I told her that I didn't prepare one since there was to be no division but if she wanted me to prepare one that it would take time since I would have to value everything at the separation date. I told her that she would also have to prepare her own financial statement.

She replied that since I didn't want to provide a financial statement (not the case) that she would accept $XXXXX in lieu of. I agreed on the dollar figure and it was included in our SA.

Once everything was finalized we both signed off on the SA. A year later I have a final court order, the divorce is done and the house transferred to my name. Now her lawyer files an application claiming that the SA is not valid because I didn't provide a financial statement. I have everything we negotiated in emails as proof.

My question; is there a chance that the judge would overturn the final court order even though we agreed to not provide financial statements?

Thanks

arabian 11-11-2013 06:52 PM

Did she have independent legal advice at any time leading up to the divorce?

If not, she could simply state that you "duped" her. I know it's shitty but she obviously found a lawyer who sees $$$$$ and/or someone has convinced her she got ripped off.

Lava 11-11-2013 10:36 PM

She didn't get ILA but she was advised by my lawyer to get ILA, I mentioned it to her a couple of times. She stated in several emails that her lawyer will look over the SA so she was aware. I also have an email from her saying that after going over the SA she felt a lawyer wasn't necessary.

We both negotiated the SA and all of her demands are in it. Before the final version was written up by my lawyer the details were sent to my ex in an email and she agreed to all the terms.

mcdreamy 11-11-2013 11:21 PM

- was the dollar figure you paid a reasonable approximation of the equalization you would have paid if disclosure was exchanged?
- when she asked for full financial disclosure, and you indicated there would be a delay, was she under time constraints to settle or under duress?
- was your lawyer at the time aware she asked for disclosure?
- is she well read, educated, etc - aware of the nature and consequences of the separation agreement?

A court can set aside a domestic contract under s. 56(4), which are:
(a) if a party failed to disclose significant assets, or significant debts or other liabilities, existing when the contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.

Not having received the benefit of ILA is not in itself a reason to set aside a contract, but it is certainly one step closer to having a valid argument to do so.

advice needed 11-11-2013 11:55 PM

I hear what you are saying, however if the deal is too one sided, and if she claims she signed under duress, in all probability the judge may give her another chance to come back into court. Its shitty, but honestly no one can give you a definite answer on this one.

Lava 11-12-2013 06:05 AM

Quote:

Originally Posted by mcdreamy (Post 154888)
- was the dollar figure you paid a reasonable approximation of the equalization you would have paid if disclosure was exchanged?

No. She came up with the figure though.

Quote:

Originally Posted by mcdreamy (Post 154888)
- when she asked for full financial disclosure, and you indicated there would be a delay, was she under time constraints to settle or under duress?

Not really. She wanted our son who, as part of the SA would join her, she was overseas at the time. But she didn't have a problem walking out on us in the first place.

Quote:

Originally Posted by mcdreamy (Post 154888)
- was your lawyer at the time aware she asked for disclosure?

He had copies of all the emails. She also didn't want to provide disclosure. She thought it was only one sided.

Quote:

Originally Posted by mcdreamy (Post 154888)
- is she well read, educated, etc - aware of the nature and consequences of the separation agreement?

She has some university and does understand the consequences.

After she left her life didn't turn out as she planned. Now she is coming back making false claims to try and undo what has been done. Some of her claims make no sense at all.

stripes 11-12-2013 01:44 PM

I'm only guessing here ... but if you have a court order, signed by a judge, apportioning assets as you and your ex agreed, I think the likelihood of another judge overturning it is pretty small. If the original order (without the financial disclosure) was clearly unfair or one-sided, the judge whose desk it landed on should have sent it back or withheld his signature.

However, if the discrepancy between what you paid her and what she would have received in a standard equalization is very large, OR if you yourself provided no financial disclosure at all, (as in mcdreamy's s.56(4) a) ) you may have to renegotiate the agreement. Best to be prepared for that (i.e. get your disclosure documents ready, but don't offer anything unless ordered to do so).

This sounds like a fishing expedition by the ex and her lawyer. My ex tried something similar with our separation agreement (prior to the divorce order) - he signed it, and then a year later decided he didn't like one of the financial provisions and tried to get more money out of me. The response (from *his* lawyer) was: it's not unfair, you agreed to it at the time, suck it up. And this was before it turned into a divorce order and went before a judge.

Lava 11-12-2013 05:59 PM

The judge signing the final order didn't have an issue with anything and didn't even question it.

The things she is now making claims against are all things she put forth, doesn't make much sense.

stripes 11-12-2013 06:30 PM

Still, if there's a big discrepancy between what she actually got and what she would have gotten if you had gone the standard equalization route, OR if you didn't provide her with financial disclosure (regardless of what she provided or didn't provide), you may be in for a battle.

Lava 11-12-2013 07:22 PM

I have a case conference coming up. I will see what the judge says.

I will see if the judge accepts the emails where we negotiated everything. Besides, it's not like we had a hidden fortune, she knew the value of what we owned. The house, a piece of land and spousal RRSPs which she cashed.

Her plans didn't work out like she thought and is now using this as an excuse a year after the fact to try to get some money. When she did ask for disclosure I told her I would do it but I needed time to put it together, she didn't want to wait.


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