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-   -   Pushing for costs a conflict of interest? (https://www.ottawadivorce.com/forum/showthread.php?t=319)

sasha1 12-20-2005 05:02 PM

Pushing for costs a conflict of interest?
 
I want to push for my ex to have to pay at LEAST half of my legal costs, as he initially and continually forces this issue to go through lawyers and courts unneccessarily, and has repeatedly had me put my lawyer to work on this issue or that, only to find he and his lawyer don't even reply, causing my legal bill to continue to mount. I know he thinks that as long as he keeps the kids and I in poverty, he's in control (he's actually told me that).

My lawyer keeps acting like my insistance that we push for costs is a nuisance to him, and I can't help but wonder if that isn't because the last thing he'd want is for my ex to be responsible for the legal bill. Among other things, the lawyer is now well aware of my ex's completely irresponsible and shady tactics (not to mention that he's likely to be incarcerated soon for a fourth impaired driving conviction), and I'm sure it must be occurring to him (the lawyer) that while I'm not working, I've still been paying him something whenever I can and I'm probably a better credit risk than my ex, whose pulling in anywhere from $75K to $95K per year.

So, realistically speaking, what are the chances my lawyer will fight for what's in my best interest, when it's not in his? Do I need a separate lawyer for the cost issue, or what? My ex has shown himself to be a huge liar in all this; several times agreeing to settlement terms, but then not following through, and at this point, I don't think he'll deal with this at all unless he is actually forced to by the law. So I'll likely have to rely on my lawyer to argue the costs issue, but I feel very strongly that he won't push it at all.:confused:

Grace 12-20-2005 06:02 PM

"Costs" ordered by a court at the end of a motion and or trial are the court's way of expressing approval or disapproval of one party or the others conduct of the litigation. Costs usually "follow the event", your lawyer should be asking for costs after each motion. The "winner" gets his or her costs. The costs awarded by a court, usually do not amount to an total of ones legal costs, but merely a contribution.

logicalvelocity 12-21-2005 09:41 PM

[1.] Costs are awarded generally at the discretion of the Judge. Even if one party was unreasonable but could not afford to pay, costs may not be ordered.(example a person represented by legal aid).

[2.] An additional factor that would be considered is if there was or were any offers to settle made prior to the motion or trial.

[3.] If there was an offer to settle made by the other party etc, and was very close to the ruling of the court, an order for costs may not occur.

[4.] An additional factor for consideration is what exactly is the issue. If it was a custody issue, the court may not award costs on this issue alone.

[5.] If a court remains silent on the issue of costs at the conclusion of the motion expect non to be ordered.

[6.] If success was divided, there may not be any order for costs.

It is cheaper to negotiate than to litigate.

sasha1 12-22-2005 02:13 AM

Thank you both for your responses. The short version of this is that after we ended the relationship (I asked him to leave the home), I contacted him to discuss the situation. We set a date, had our discussion, and at the time, he agreed to pretty much all I laid out as suggestion. Within two weeks of that, he became demanding and unreasonable, and when I tried to compromise with him (the issue was that he wanted the children brought to his family home for the day; my lawyer had advised against that until an interim order was in place, so I suggested we meet at a neutral location instead), he refused and told me I better do what he tells me, or he would either physically take the children, or at the very least, force it into court. Two days later, I tried to discuss the situation again, and he told me that it was my responsibility to provide the children to him when he wanted and how he wanted at any time. When I objected to that, he told me that he'd "guarantee" that he would take the kids the next time he demanded them, and to "Contact a lawyer, you F****** C***!".

I was scared he would forcibly take the children, and I did contact a lawyer. Since then, he's adjourned and adjourned the matter, and at one point, we were scheduled in court on a Monday morning, and on the prior Friday afternoon (at about 4:30pm), he finally responded with his affidavit in response to mine. It was absolutely chalk FULL of lies! I told my lawyer that we'd need to get an adjournment, because his affidavit was so ridiculously false and malicious, it would take me some time to put together my response with all the proof. They would not agree to the adjournment, but when we all got to the court and my lawyer told his that his latest child support cheque was uncashable because it was NSF, suddenly they changed their tune and we were able to settle and just entered a consent order with the court. Non the less, it cost me to have my lawyer appear, etc, and it shouldn't have.

Then we were in dispute about how the kids should be transported. I wanted them to be in the backseat; he wanted the frontseat of his 'muscle truck'. His stupid parents accompany him every single time they pick up the kids, always following behind in one of their trucks that have a backseat (supposedly as witnesses), and access was always to be at his parents' house, since he chooses not to rent one but instead remain "of no fixed address". Still, knowing full well that I have always had concerns about small kids in the front seat (he agreed when we were together, and we only had vehicles with back seats, but within 3 weeks of us splitting up, the first thing he did was run out and buy a big powerful truck with no backseat, and promptly upped the horsepower on it), he fought for his right to transport them this way. I gave him all kinds of research I found detailing the added danger for the kids, and he ignored it all and chose to fight me in court over that point. The judge said she had no choice but to rule against me, since it's not law here yet, but that any parent who has the safer option readily available to him and chooses not to use it, is just plain stupid. She said that unfortunately, stupid isn't against the law, and gave the option to put it over for trial. I couldn't afford to do that, though, and within a month, my ex had totalled his truck in a drunk driving incident. By the way, had the kids been with him then, they'd both be dead; that part of the truck was absolutely crushed. Again, a fight that never should have had to happen.

Then, after the kids went with him for their first 2-night stay, they came home very upset and insecure. This went on for weeks and weeks, and to a degree, we're still dealing with it, and it's been about 2 and a half monthes now. After a couple of weeks had passed and things weren't getting better, I called the ex and suggested that he have shorter, but more frequent, visits for a while, before we try overnights again. He was all choked about it, and argued the point, but finally said he'd agree with it only if I had my lawyer draw up an order in writing, stating that it was at my suggestion and that he only agreed so he could see the boys. My lawyer did that, and his lawyer never responded at all; again, more charges on my legal bill for nothing.

We pretty much have issues on everything; custody, what kind of access he should have (he's an alcoholic), ownership of the house, spousal support. He did make a settlement offer fairly early on in all of this, but it was not acceptable on a few different points, so it was rejected. Oh, and I should mention that he has failed to produce his financial disclosure still, even though he was served with a Notice to Disclose in July.

So, is there no recourse for the $10,000 bill I already have? Initially, my lawyer took a $1000 retainer, and told me that I would be lucky to settle the matter with $2000, but that if it went beyond $3500-$4000, one or both of us were fools. Well, before my ex was even served the Statement of Claim, the bill was at $3350. This seems outrageous to me, and I really resent being forced into this position under threats of my ex taking the kids. Are you saying that the only orders for costs that a judge may make would be pertaining to the particular action before him/her that day? That there wouldn't be any chance a judge may recognize that this legal bill I now have was unneccessary and just another way that my ex is trying to control me by keeping me broke and afraid?

sasha1 12-22-2005 02:22 AM

Oh by the way, he earned between $75,000 and $90,000 the last two years (a typical figure for him), and I earned $0. I'm a SAHM to two toddlers; the 'plan' was for me to stay home with the kids until they were in school full-time, and then I'd finish my education and start a career (I've had some post-secondary, but haven't graduated yet). One of the other things that we're at odds about is that I want him to pay for a two-year diploma program for me, so that I have an opportunity to build a better life for me and the kids, and he feels it's not his responsibility; in fact, for spousal support, in his settlement "offer", he said he'd pay the mortgage on the home for six monthes; that's it. I spent several years of my life devoted to this jerk and our future together, he blows it all with his drinking and irresponsible behaviour, and I should walk away with two young children to support, and six monthes of mortgage payments?!

Aden 12-22-2005 12:50 PM

stick it out
 
Sasha,
I feel for you, in my own situation my ex has a big trust problem which is affecting our own issues and has for a long time, due to an alcoholics inlfuence in her life long before I ever met her, and it really hits home all of the deceit etc.... same type of patterns you mention.
I used to come home and spend all of my time with our kids and I would do anything not to cause any problems for them in anyway, sounds like you have your hands full.
That is one of the reasons I am being so gracious to my ex.
She`s a great Mom.
It sounds like you have a plan though and I find that a plan can be the best thing to enable you to move forward.
Keep your head held high, you sound like a great Mother and you have put up with alot of issues.
I wish you well.
Good Luck!!:)

Jeff 12-22-2005 07:02 PM

Hi sasha1,

Sorry to hear about your situation. Unfortunately, it's quite common. I hope you find the support you need here.

A lot of people have misconceptions about legal fees, so I just wanted to clear up some things.

I've got an estimate of legal fees in Ontario here:
http://www.ottawadivorce.com/legalfees.htm

Based on what you've told me, your legal fees to date seem reasonable, given at what point you are.

Remember, your legal fees aren't your lawyers fault! You say:

Quote:

Originally Posted by sasha1
my ex's completely irresponsible and shady tactics....

My ex has shown himself to be a huge liar in all this...

I don't think he'll deal with this at all unless he is actually forced to by the law...

etc, etc. These are the things that are driving your legal fees higher.

Quote:

Originally Posted by sasha1
My lawyer keeps acting like my insistance that we push for costs is a nuisance to him, and I can't help but wonder if that isn't because the last thing he'd want is for my ex to be responsible for the legal bill.

Even if you get a costs award against your ex, you're still responsible for paying your lawyer's legal fees. Your lawyer's contract is with you, not your ex. If there's a costs award, the money is owed to you, not your lawyer.

Quote:

Originally Posted by sasha1
So, is there no recourse for the $10,000 bill I already have? Initially, my lawyer took a $1000 retainer, and told me that I would be lucky to settle the matter with $2000, but that if it went beyond $3500-$4000, one or both of us were fools. Well, before my ex was even served the Statement of Claim, the bill was at $3350. This seems outrageous to me, and I really resent being forced into this position under threats of my ex taking the kids. Are you saying that the only orders for costs that a judge may make would be pertaining to the particular action before him/her that day? That there wouldn't be any chance a judge may recognize that this legal bill I now have was unneccessary and just another way that my ex is trying to control me by keeping me broke and afraid?

Usually, you won't recover in litigation any costs you incurred prior to litigation starting. As well, a lot of the upfront costs you incurred in litigation, such as preparation of pleadings, preparation of a financial statement, financial disclosure, etc., are costs you would have incurred whether you win or lose, so normally, you can't recover these costs. Costs aren't normally awarded for case conferences or settlement conferences either, as there's no "winner" or "loser" in these. The costs you may recover are normally 1/2 to 2/3 of your costs for motions and if it comes to it, the trial, if you're successful at these.

sasha1 12-24-2005 04:10 AM

Quote:

Originally Posted by Aden
Sasha,
I feel for you, in my own situation my ex has a big trust problem which is affecting our own issues and has for a long time, due to an alcoholics inlfuence in her life long before I ever met her, and it really hits home all of the deceit etc.... same type of patterns you mention.
I used to come home and spend all of my time with our kids and I would do anything not to cause any problems for them in anyway, sounds like you have your hands full.
That is one of the reasons I am being so gracious to my ex.
She`s a great Mom.
It sounds like you have a plan though and I find that a plan can be the best thing to enable you to move forward.
Keep your head held high, you sound like a great Mother and you have put up with alot of issues.
I wish you well.
Good Luck!!:)

Aden, thank you for your sympathy and compliments! I feel for you, trying to deal with someone so scarred by her past issues, and that is precisely why I won't be dating again for quite some time. I think it's human nature to learn from our mistakes, but it's human error to punish those we encounter for others' mistakes. I hope that your ex is able to come to appreciate your patience and understanding; I'm sure your kids will, in the long run. If it helps at all, my parents divorced when I was 18, and from the very day that my Mom left, my Dad was respectful about her. I was angry and disgusted with her, I knew my Dad wanted to work things out, and she wouldn't even try, but still my Dad kept insisting I respect her, and never said a negative thing to me about her; nor did he tolerate MY negative comments. It got to where my Dad refused to even discuss the situation if I said anything nasty about my Mom, and he'd tell me that she is my Mother; whether I liked or understood her actions, she deserved my respect simply because she was my Mom. Now 15 years later, I love and admire my Mom again, but will never forget that when she left my Dad, he all but chewed his tongue off to keep from saying anything bad about her, but she still indulges from time to time in her complaints. Keep that in mind, and know that you really are doing so much good for your kids by putting your relationship issues aside and setting an example for them of respect for their Mom. It's a very generous and unselfish thing you're doing; one most people find impossible. Kudos!

Aden 12-24-2005 07:38 AM

Hey
 
Well, I am definelty in shock still. I cannot belive that she does not want to be around me at least for the kids sake for a breakfast today.... on Christmas.
So my son and I (our daughter is only 7mths) are going to sit down on a large blanket in the snow and open presents.... I relate to what you said, and I cannot stand to be angry and upset and adversarial wirth anyone, and she is a great Mom she is speaking through her wounds right now and acting through them as well.... I cannot stop that unfortunate issue.
I too will not be dating for some time, I just need to focus on our kids and make something good from all of this. I truly appreciated your words, they mean`t alot. Thank you so much. I am off to meet the children.
Cheers,

Grace 12-24-2005 10:17 PM

Aden,

I hope you had a wonderful time this morning. Opening presents on a blanket in the snow, sounds like your doing your best to be positive for them during this difficult time in your lives. The children deserve to have the Holidays as a magical time in their lives.

I agree with you and Sasha1, beginning a new relationship is not a good idea until you have completely resolve your past relationships.

Merry Christmas,
Grace


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