Announcement

Collapse
No announcement yet.

Am I Up Poop Creek? Kinda long sorry...

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Am I Up Poop Creek? Kinda long sorry...

    WOW... I have no idea what to do or where to begin. ANY advice at all in trying to wade through this would be much appretiated.

    Hubby & I seperated in 2002. 2 minor children (8 & 6) Seperated due to domestic violence on his part. We dealt with custody issues while he was still incarcerated for said violence. Me having full custody, with him having no visitation + restraining orders to keep him away from the kids. Because of his incarceration child support was not addressed. Upon serving full 50 month sentence he get's released, moves to Ontario (we're in NB) 1 month after being released he wins lotto 6/49 to the tune of 1.35 million. He has never come forward with any offer of child support.
    October 2007, I receieve divorce papers for a "simple" divorce with no financial disclosures. He's not requesting to see the children, nor is he offering support. Papers were sent via regular mail to my parents home in Ont where I havent lived in over 20 years where they were then forwarded on to my old residence & then forwarded on to me.

    I havent filed the receipt of the papers because from what I understand he hasnt "served" me properly & won't be able to prove to the courts that I've been served.
    Hiring a lawyer is not an option. I've tried they all want huge retainers, which are out of my reach financially (we live below the poverty line) Legal aid in NB has turned me down because its a divorce proceeding, weithor or not I want support. I've tried legal aid in ONT too with again no luck.

    Last week a paralegal was calling my parents house to inquire as to why I haven't signed the papers.My father told her he had forwarded tham on to me, but as they don't talk to me, he wouldnt know why. I've tried calling her back 6 times with no luck.

    All I want is child support. I know that I'd probably be intitled to more... but I just want for the children & other than the support issue have no problem being divorced to him.

    I know that lottery winnings are considered an asset rather than an income, however 1 lawyer I consulted told me that her argument would be if properly invested that money would produce a minimum return of 7% which equals an income of 98,000 per year.

    What can I do to protect the interests of my children?

    Is there a way I could file something with the courts so that a divorce is not granted in my absence, so that I can attempt to get child support? I am prepared to travel to Ontario if need be to appear in front of a judge for this.

    One friend has suggested that I file for divorce with support here in nb based on the argument that the marriage was here. our children were born & reside here, making him travel to here to settle this.

    I don't want to come off as sounding like a gold digging ex, but the reality is I don't understand why he can sit there a millionare while I raise our 2 children on 12,000 per year.

  • #2
    Tantum,

    Welcome to the Forum.

    The matter is not complicated. For one; you have the individuals new address whereby you could serve him papers for an action that would occur in your local NB court on the issue of child support. If he failed to appear, the court could order him to appear and or affix an income to him for child support purposes. Once a support order has been issued by the court, the respective enforcement agencies could handle the matter. I do suspect you would get the individuals attention and some response.

    lv

    Comment


    • #3
      Thank you soo much...

      Now my biggest concern is for the children. Since he was already given no visitation and restraining orders (along with the fact he hasnt attempted any kind of contact with them since 2002) the likelyhood of him being granted any kind of visitation would probably be nil, as it's obviously not in their best interests to see a man they're too young to remember (they were 2 yrs & 4 months old) Is he still obligated to support these children in spite of that?

      Also through the rumor mill (absolutly no evidence) I hear that he has set up trust funds for the children. Does that constitute child support? And if so, do the children have to wait until a certain age to access that money or can it be used towards their upbringing now? I would love to see the children be able to do things such as ballet, swimming, things every child deserves, but I havent been able to afford.

      Thank you so much for everything so far. I'll be marching my butt down to the courthouse wednesday morning to start what needs to be done for support !!

      Comment


      • #4
        Originally posted by Tantum
        Thank you soo much...

        Is he still obligated to support these children in spite of that?
        Yes! His obligation to them does not hinge on visitation.
        I was in a similar situation, and he went to jail for abuse and hiring someone to kill me. He was denied access and visitation as your ex was.

        Originally posted by Tantum
        I hear that he has set up trust funds for the children. Does that constitute child support?
        No.

        He is obligated by law to provide for them now, if he is in a financial position to have a trust fund that is something he does on his own. These children deserve to have a certain standard of living relative to the ability of their parents, and this does not mean that they have to wait until they are of the age of majority to do so.

        If the ex is granted the divorce, you have every right as LV suggested to file and receive child support, I was getting a minor amount from his EI while he was incarcerated, and I re-filed after his release to have amount revisited to verify if it accurately reflected his income. If your ex is potentially earning 7% on his winnings you can input that to him and get support based on that amount, which is $1319/month for two children since you are in NB.

        If he fails to reply etc, then he is legally obligated to foot your legal costs as well. You will also be entitled to costs if you win your claim on the majority of the issues you bring forth. Also, at least in Ontario, you can claim any legal fees that are associated to getting child support. You'd have to check with your provincial CCRA to see if you also can claim amounts that you incurred to gain child support in your province.

        Comment


        • #5
          Thank you, I had kind of assumed that with regards to the trust fund questions.
          I think my biggest concerns are really in regards to him trying to play dirty if I go after child support, he is now in a position to hire a good lawyer, while I'm not. I'm concerned that he will try to fight for visitation or custody, although common sense tells me that he'd never get anything.
          My ex lit fire to his daughters bed, he received fifty months for arson with diregard for human life.

          Comment


          • #6
            Tantum,

            If child support is pursued; the individual may bring forth a counter claim of access. However, with consideration the facts, the individual most likely will not be successful. At the hearing, the best the individual could perhaps hope for is initial supervised access. They have the heavy onus to demonstrate that they have cleaned up their act and have significant benefits to the children before it would occur.

            If it was me, I would move ahead with an Application for child support of the children and serve the individual.

            lv

            Comment


            • #7
              Dont wait

              Your Ex will go to court without you he will say you have be served and you won't be there to say otherwise. Respond immediately, ask for child support, spousal support, and half the lottery winnings. Then settle for child support.

              Comment


              • #8
                But how?
                Thats been my biggest obstacle so far. I have no idea what to do or how to do it.

                Comment


                • #9
                  Since the individual won the lottery post separation, I do believe the value of such would be excluded from net equalization.

                  Keep in mind that periodic spousal support is generally attributed to an individual's earned income and rather than capital assets.

                  On paper their income may be next to nothing. However they still have an obligation to support their children and it is just to append such an income if they are deliberately choosing not to earn.

                  lv

                  Comment


                  • #10
                    I'm not fluent in how and what is allowed when income is calculated either as earned or other. However, I do know that when I do the tax returns for a family member (Ontario) he has a significant amount of investment income (as he was awarded a settlement for a life threatening accident), the amount I enter either as interest etc, ultimately gets calculated and there is an annual income on line 150 of the return when everything is said and done.

                    And my basic understanding is that child support is based on the amount on line 150 of a tax assessment. If he does his taxes properly and enters interest received from all sources and his assets, then there will be an amount on line 150. With this Child Support amount could be set, right or wrong?
                    If yes, then it could potentially be 7% of his initial winnings.
                    Personally I feel this is a high amount as I too do various investments both long and short term, GIC’s, RRSP’s etc, and have yet to see an average of 7%.
                    My family member last year earned an average 5.95% in various financial vehicles, GIC’s etc.

                    Child support is obviously a short term issue and he would of course have already consumed a portion of the winnings, as well as continuing to live off of them, thereby reducing the initial amount. It is possible for him to blow through the amount if he is not wise with how it is spent and utilized. So time is of the essence if you are considering that the court use this money or the interest thereof to set a child support amount.

                    Just some ideas to think about.

                    Comment


                    • #11
                      PS...with links to case law

                      http://www.canlii.org/en/sk/skqb/doc...01skqb572.html

                      Anytime the forum posts an issue that I am not familiar with I like to do some research to see if any past cases used the same issues, and what the outcomes were

                      The above is a link to a case where the judge did rule that a non-custodial's income, some of which was $10,000 draw from his capital assets, was indeed to be used for the purpose of income for calculatiing CS.
                      Here is a snipit!

                      [12] Does the father's situation conform with the circumstance set out in s. 19(1)(h) of the Guidelines? His tax returns for 1998, 1999 and 2000 disclose no dividend income. His capital gain in any of those years did not exceed $1,800. Recovery of premium paid for his annuity is not capital gain. It cannot be attributed to an increase in value of a capital asset. It is nothing more than a drawing down of a $250,000 capital asset at the rate of $10,000 a year. Clearly, the father does not derive a significant portion of income from dividends or capital gains.

                      [13] However, consistently drawing down $10,000 a year from a capital asset may well be regarded as deriving a significant portion of income from other sources, i.e. a capital fund not subject to tax. It is a sum of money available for spending or saving, as the father may choose. Obviously, he (or his trustee) has treated it in this manner. It is incorporated into a fund used to satisfy his needs. Evidently, that fund exceeds his needs. A list of his current investments shows securities valued at $122,000. His bank account is shown as the source of the funds used to purchase some of these securities. Obviously, he treats the $10,000 annual payment the same way as he treats all other income. I cannot avoid regarding this annual payment as part of a fund available for the support of his child. By so doing, I am following the direction of the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (S.C.C.), [1994] 3 S.C.R. 670 where L'Heureux-Dubé J. said in her concurring opinion at page 709:

                      ...When assessing the parents' respective abilities to contribute to child support, all of their assets should be considered...

                      Consequently, the annual draw down of capital of $10,000 should be considered as income for the purpose of calculating his Guideline child support obligation.


                      http://www.canlii.org/en/sk/skqb/doc...04skqb417.html

                      In this case the non-custodial parent cashed out a sizable asset and did not have it available for the calculation of past child support, but actually asked for a reduction just prior to the cashing since at the moment he was not employed, but did not return to have his income re-evaluated after cashing the asset. He lived on more than $300,000/year while his children sustained on barely $24,000 of mother's income. At some point custodial parent discovered that this had happened. Judge ruled (with the includsion of these cases, A.W. v. D.C., 2000 SKQB 495 (CanLII), 2000 SKQB 495, and English v. English, 2002 SKQB 293 (CanLII), 2002 SKQB 293) that the monies from cashing the asset were to be used for the purpose of setting both present CS arrears in CS.

                      Comment


                      • #12
                        I am so flipping mad. I've just returned from our local courthouse where I was attempting to pick up whatever forms are necessary to start the proceedings for child support for my children. They WOULD'T give them to me. They said I must do it through a lawyer. They are not availible to anyone else.

                        The best they would give me is an appointment on Wednesday at 4 for the clerk

                        I'm so mad !! What now??

                        Surely I can't be the firts person in Canada to ever attept to file for child support on their own !!

                        Comment


                        • #13
                          see your other thread with relevant links to forms.

                          By the way, the court house's position is contradictory to what this page claims

                          http://www.gnb.ca/Cour/litigant-e.asp

                          Our legal system gives every individual the right to represent himself or herself in legal proceedings before the courts. The judicial system however can be a very complex process, not only in the courtroom, but also in the proceedings leading up to court appearances. There are often many forms and documents to be completed and witnesses to summon. It is also essential to note that while one party may choose self-representation, the other party may have representation by a lawyer. Lawyers are specialists in the field of law and may request that the Rules of Court and the rules of evidence be strictly followed throughout the proceeding. As a self-represented litigant, you will be expected to follow these rules and may find little leniency for errors. Although the presiding judge will likely explain the general procedure to you, he or she will neither conduct your case for you nor act as your lawyer.

                          Should you decide to proceed with self-representation, note that each court may have different forms and procedures. Therefore, you should thoroughly investigate and prepare for the legal process well in advance. In certain limited circumstances you may qualify for a government funded lawyer. For further information please see Legal Aid.

                          Resources Available for Self-Represented Litigants

                          Lawyer Referral
                          To find a lawyer in New Brunswick, assistance is provided by searching under "lawyers" in the yellow pages of your telephone book.

                          The Law Society of New Brunswick
                          The Law Society of New Brunswick has information on legal services, programs, and procedures. You can find links to Legal Aid and legal information that may be valuable to your case. For more information please see the Law Society of New Brunswick: http://www.lawsociety.nb.ca/

                          Law Libraries
                          There are law libraries throughout the Province where you can conduct legal research and access general legal information. The following website provides information on these libraries and an online catalogue: http://www.nblawlib-bib.ca/

                          There are also two law schools in the Province of New Brunswick that have libraries open to the public (although borrowing privileges may be restricted).

                          The University of New Brunswick’s Gérard V. La Forest Law Library is located on the Fredericton campus in Ludlow Hall.
                          For more information, please see http://www.unbf.ca/law/library/index.php3.

                          The Université de Moncton’s Michel Bastarache Library at the Université de Moncton Law School is located on the Moncton campus in the Adrien J. Cormier Pavillion.
                          For more information, please see http://www.umoncton.ca/droit/bibliotheque/index.html.

                          Online Sources

                          The Government of New Brunswick Department of Justice
                          The Acts and Regulations of the Province of New Brunswick
                          The Rules of Court http://www.gnb.ca/0062/regs/Rule/rule_list.htm
                          The Rules of Court Forms http://www.gnb.ca/0062/regs/Form/form_liste.htm
                          Federal Statutes http://laws.justice.gc.ca/en/index.html
                          On-line decisions http://www.canlii.org/
                          Public Legal Education and Information Service of New Brunswick

                          lv
                          Last edited by logicalvelocity; 02-22-2008, 08:14 PM.

                          Comment

                          Our Divorce Forums
                          Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                          Working...
                          X