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  • letter from her Lawyer

    Hi Everyone
    I wanted to update on what I just received today from her Lawyer.

    He has requested me to fill out Financial Statement 13.1 and the past 3 years tax returns. This is all in regards to my STBX seeking spousal support.

    It also says a few other things like ,, If I do not wish to cooperate I will seek my Clients instructions to bring this matter before the court. Also I will recieve the same accompanied by an her application to the court for an order setting aside the agreement and replacing same with orders in respect of custody access,child support, and equalization of net family property>

    I bought her out of the house over 2 years ago and she got her half of the equity.

    Any help would be great

  • #2
    Originally posted by zanman View Post
    He has requested me to fill out Financial Statement 13.1 and the past 3 years tax returns. This is all in regards to my STBX seeking spousal support.
    If there is an application before the court then you are required to complete a Form 13.1 in accordance with the Family Law Rules. So do it. You will eventually have to do one so just do it.

    Originally posted by zanman View Post
    If I do not wish to cooperate I will seek my Clients instructions to bring this matter before the court.
    Standard statement. If you don't reach a settlement then you both have every right to seek an order from the court. They are just explicitly stating that they will take this permitted and very legal option.

    Originally posted by zanman View Post
    Also I will receive the same accompanied by an her application to the court for an order setting aside the agreement and replacing same with orders in respect of custody access,child support, and equalization of net family property
    It is hard to set aside an agreement. Very hard. Again, this is a standard statement to try and get you to settle on something. They often bring up nonsense that they will have everything overturned. Big words that won't result in much if your agreement that is already in place is good.

    Originally posted by zanman View Post
    I bought her out of the house over 2 years ago and she got her half of the equity.
    If there is nothing to equalize and it is already done then you just need to do a Form 13. They have to demonstrate a material change in circumstance or produce new evidence that you maliciously failed to disclose information regarding the NFP to have those agreements overturned.

    What help do you need? If there is an application before the court then you need to do a proper Form 13, Reply and other documentation and schedule a case conference. If there is no application before the court you owe them nothing. Especially if you have an agreement in place that was obtained with legal advice. The ball is in their court. Nothing compels you to respond to a letter.

    I wouldn't take the lawyer's statement to bring an Application forward if one doesn't already exist. Hopefully the matters of SS were resolved in the existing agreement already in place.

    Good Luck!
    Tayken

    Comment


    • #3
      Thanks

      We did our own agreement and had it notarized by a lawyer , I'll admit it was not the greatest agreement but we really simplfied things. They have not submitted and application before the court yet , I just informed her 5 weeks ago that I am not paying for a lawyer anymore as I would have to sell the house to do so.

      Our agreement was so simple at the time we did the Agreement on Sept 8th 2014 and had our own time if we wished to seek legal advice , we then met at a lawyers office December 2014 and had it notarized by him and we both signed it.

      I did keep more RRSP than her but she was ok with the amount that I gave her at the time , I have met a few lawyers and all have said our agreement is a joke? But at the time it was what we decided was right and both signed it.

      They are actually making me a little nervous with all of this. Her lawyer is indicating if I do not provide this he will subit an application on her behalf setting aside the agreement and replacing same with appropriate orders in respect of custody access,child support, and equalization of net family property. . Not sure why all of this was added , I pay the right amount of CS and we have 50/50 custody

      The spousal support section we crossed out and at the end of the agreement we indicated this is agreement constitutes a full and complete and final settlement of all rights ,causes,claims and demands with respect to support and property.

      So in a short form I bought her out of the house and transfered RRSP into her name. and we have 50/50 custody of the 2 kids 11 and 13

      Do I even respond ? to them

      Comment


      • #4
        Originally posted by zanman View Post
        Our agreement was so simple at the time we did the Agreement on Sept 8th 2014 and had our own time if we wished to seek legal advice , we then met at a lawyers office December 2014 and had it notarized by him and we both signed it.
        So you didn't get independent legal advice prior to signing it? If that is the case, that's not good.

        Originally posted by zanman View Post
        ...I have met a few lawyers and all have said our agreement is a joke? But at the time it was what we decided was right and both signed it.
        That's not a good sign! That's why independent legal advice is important. Had she sought independent legal advice, her lawyer may have told her it was a joke and she wouldn't have signed it.

        Originally posted by zanman View Post
        Not sure why all of this was added, I pay the right amount of CS and we have 50/50 custody...

        The spousal support section we crossed out and at the end of the agreement we indicated this is agreement constitutes a full and complete and final settlement of all rights, causes, claims and demands with respect to support and property.
        She's looking for SS.

        If she didn't get independent legal advice, and the agreement is unconscionable, it can be set aside, regardless of the "final settlement" wording.

        Originally posted by zanman View Post
        Do I even respond ? to them
        Yes. Ignoring them won't make the issue go away.

        Comment


        • #5
          Originally posted by zanman View Post
          Do I even respond ? to them
          The best person to ask that question to is a lawyer.

          If I was in your position and I had an agreement in hand I wouldn't bother responding. The onus is on them to bring forward a motion and demonstrate a material change in circumstance. They have to prove to the court - not you - that there is material reason to change the agreement.

          Not having seen the original agreement it is hard to say if the lawyer is blowing hot air. It is 2 years after the fact which doesn't bold well for the other party with a claim for SS. There is a time frame at which a judge will say you agreed to not seek SS (both of you) and that was X years ago. You can't come back X years later and asking for something you agreed not to ever seek.

          Letters are letters. They are of no value. Responding to them are not required. The only thing you have to respond to are court filings and court actions (conferences, etc...).

          The lawyer could send you a letter telling you that you have to agree that the moon is made of BBQ spare ribs. Just because it comes from a lawyer in a letter doesn't mean jack squat. They may be simply trying to scare you into settling out of court for something that you shouldn't have.

          You would be wise to hire a lawyer on a limited retainer to review the matter with. That way the other counsel won't have direct access to them and you can control what advice you get. When a lawyer sends another lawyer a letter many feel compelled to respond. Which wastes money.

          Good Luck!
          Tayken

          Comment


          • #6
            Originally posted by HalifaxGuy View Post
            If she didn't get independent legal advice, and the agreement is unconscionable, it can be set aside.
            100% Incorrect. That would mean any unrepresented litigant who makes an agreement to settle a matter at a case conference is unconscionable and can be set aside.

            Suffice to say, if the agreement does not prejudice a party, is in line with the law and neither party was not under any "real" duress the court will generally uphold the agreement if both parties waved their right to legal counsel.

            Agreements between two parties do not require a lawyer. Getting legal advice is a "good idea" it is NOT required nor does it make the agreement unconscionable (not right or reasonable).

            If the terms of the agreement are not right or reasonable to what would be typically agreed upon or ordered and is prejudice to a party (especially a non-party like children) then it can be easily overturned.

            But, simply not getting legal advice does not render an agreement not right or reasonable. One only has to spend 5 minutes in CanLII to see thousands of decisions where an agreement where parties didn't seek independent legal advice are upheld. I just posted one the other day from Pazaratz regarding the habitual residential location of children...

            Good Luck!
            Tayken

            Comment


            • #7
              http://canlii.ca/t/gt8q1

              See Para 14 and para 17(h).

              h. The onus is on the party seeking to impose a change to a child’s situation or plan. And while I make no determination as to whether the Respondent will be successful in setting aside all or even relevant parts of the August 2015 separation agreement, there is nothing on the face of the agreement that suggests any irregularity with respect to either the equal time or “school in Hamilton” issues. Even after she says she disavowed the separation agreement, the Respondent continued to promote equal timesharing for a full year. She doesn’t deny specifically agreeing that Christian would attend school in Hamilton. She doesn’t allege she was tricked on this topic. At most, she says she never really thought about the issue, and never contemplated changes she might make in her life.
              Here we see some of the criteria for consideration of a "hand written" agreement. There has to be evidence of blameworthy conduct in "trickery" to throw out the agreement.

              Suffice to say Pazaratz enforced the agreement and ordered:

              a. The Applicant shall be entitled to enroll the child Christian in junior kindergarten in Annunciation of Our Lord School in Hamilton.
              b. There shall be a presumption that the parties shall share equal time with the child, including alternating weekends with each parent.
              Those two things are based on what was agreed to in the hand written separation agreement. Pazaratz didn't throw out the agreement and actually relied upon it even though he was silent on its validity. His order speaks volumes to the validity of the agreement as he ordered what was agreed to.

              HalifaxGuy I do realize you are new to the forum. Please be mindful of what you recommend.

              Good Luck!
              Tayken

              Comment


              • #8
                Ok
                I think I might not even respond, This all started because she is seeking spousal, support. Our agreement was very simple as we didn't have much house and cars and RRSP. We did not seek legal advice on the matter but we did give ourselves a few months before we had it notarized to do so if we pleased. No one was under duress at the time.

                I did months ago have a lawyer redo and agreement with an offer to settle the spousal support with a by out because my Lawyer at the time said I should pay her??? in which she declined the offer. So at this point weeks ago I told her I will be self representing as I can no longer afford his fees and said I will be sticking to our original agreement. I feel in a way I even got played by my lawyer . I said why would I pay her when she hasn't even provin intitlement

                Comment


                • #9
                  Originally posted by Tayken View Post
                  100% Incorrect. That would mean any unrepresented litigant who makes an agreement to settle a matter at a case conference is unconscionable and can be set aside.
                  Perhaps I didn't communicate that properly. I was not implying that an agreement without counsel is unconscionable. My intent was to say that an unconscionable agreement can be set aside. And not having independent legal advice can be used as a reason why she signed something unconscionable - i.e. she didn't understand what she was signing.

                  Comment


                  • #10
                    I guess I should respond to the Lawyer in some type of matter, ?
                    Maybe Just indicate That our agreement was exceptable at the time and I will still abide by our original agreement.

                    Comment


                    • #11
                      This question was answered already in Tayken's first post. Go back, read it again.

                      If there is an application before the courts, do up your financials and send it off to them.

                      If there is no application before the courts, you have no obligation to even acknowledge, much less reply to them.

                      Comment


                      • #12
                        Thanks Everyone for all the help its so much appreciated

                        I agree

                        Comment


                        • #13
                          Having an agreement notarized by a lawyer doesn't make the agreement better (if it would otherwise be set aside). It just means it would be hard for her to argue against the authenticity of her signature.

                          Quality witnesses perform the same function.

                          Comment

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