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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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  #21  
Old 01-09-2007, 11:35 PM
logicalvelocity logicalvelocity is offline
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hurt1,


Interesting legal agreement the individual has had drawn up. Why would someone go to such extent if they felt they had a prima facie case of no obligation of same.

in regards to your questions,

Quote:
He has paid almost $20,000 into his RRSP's in the last year and a half.
sorry to say, they remain to be his own. However, you got a heavy bargaining chip currently. Maybe you can negotiate for some of this.

Quote:
The first deals with the impending move this weekend - he has placed a clause that I will be liable for any damage resulting from the move. So, if the paint on the wall gets a few scratches on it and he needs to repaint it and is out of that particular colour of paint and the store no longer makes it and he has to paint it an entirely DIFFERENT colour, I will have to pay the cost of the pain (total run-on sentence, I know. I'm being faceitous here )
I wouldn't agree to such clause. If he is concerned about damage to his residence then have him remove your items from the home. However, you should have concerns with damage to your belongings if such occurs.

Quote:
The other deals with the wording regarding my daughter. Part of the clause states that I will not persue a claim of child support. Fine. The other part states (I am paraphrsing here) "that _____ (me) acknowledges that ____(him) was never a parent to ____ (daughter) nor did he act with the intent to be a parent to her or treat her as a child of the family".
I take his lawyer advised that he may be liable for child support for your child if it is found he acted as a parent to same. I wouldn't sign any clause at this point in time. He is worried, hence the clause. The offers to settle will get better! I'm thinking he has about $1500 invested already in legal fees at this point in time!

Quote:
I know you may be raising an eyebrow and saying "just sign it, doesn't matter what it says, you are getting your furniture and the $3000" but it DOES matter to me. It totally destroys any last scrap of dignity I had left in this whole thing to have to sign that he meant nothing to my daughter, and that she meant nothing to him.
I believe the Limitations Act will apply to you situation. See section 4 - Two years from the point of separation to bring forth a claim.

Limitations Act, 2002

S.O. 2002, chapter 24
Schedule B


http://www.e-laws.gov.on.ca/DBLaws/S...2l24_e.htm#BK5

Basic Limitation Period

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

However, the longer you wait, the weaker your claim becomes. Time is of the essence in litigation. If a satisfactory agreement cannot be reached, be sure to at least start an Family Law application ASAP with claim of child support for your child on the grounds that he acted as a parent. You can always settle and accept a reasonable offer after the claim has been started.

If you agree by signing the agreement that he did not act as a parent to your child, your potential claim for child support will be void and have no merit.

If it was me, I wouldn't sign the agreement and I would hold out. A better offer is on the horizon.

You could rattle the cage in the interim and say something to the effect that you been speaking to a lawyer and there appears to be more on the line than a few thousand. Place emphasis on your child's standard of living is going to be significantly reduced now. 877 a month (based on an income of 100K) or 11k per year approximately for the next decade or two.


Karma - who is whistling now


lv
  #22  
Old 01-10-2007, 02:19 PM
hurt1 hurt1 is offline
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Oh BLESS YOU. I was thinking I was going to get prodded at for not taking what I asked for and walking away. To me it's a matter of principle - and I could not live with myself if I signed something legal stating that I agree that he never acted as a parent towards my daughter. I have so many photos and home movies of the 2 of them together over the course of the last 4.5 years (even when we weren't officially living here, we spent every weekend at his house, both nights). He has ALWAYS treated her as though she were his own.

I sent him an email about it and he replied that he feels that he is already being more than reasonable. I told him that's rather open to interpretation at this point.

I have spoken with my lawyer (who is actually my lawyer for my MVA, but he did do Family Law up until about 10 years ago). He has been such a gem throughout this. I have told my ex-partner I will NOT sign the agreement as it now stands and if it is not changed I will consider it null and void. As soon as I am settled I will be applying for Legal Aid and we'll see what tune he whistles then. He's going to look like an ass - kicking out a single-Mom and her 6 year old daughter, 2 weeks after Christmas, and said Mom (me) has a terminally Mother who is dying of cancer. And kicked us out with no beds, no TV, etc. He'll look HORRIBLE in front of the judge I think.

And I agree, Karma is not just whistling, she's starting to sing pretty loudly! LOL
  #23  
Old 01-10-2007, 09:48 PM
logicalvelocity logicalvelocity is offline
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hurt1,

as you mentioned,

Quote:
I was thinking I was going to get prodded at for not taking what I asked for and walking away. To me it's a matter of principle - and I could not live with myself if I signed something legal stating that I agree that he never acted as a parent towards my daughter.
You have to keep in mind that you have asked for something without knowing what your rights are and what the big picture is. You have an idea through the forum, but you have yet to retain a lawyer to act on your behalf. Bottom line is support of children is a paramount consideration of the court and your right so far his conduct will not look good at all.

The individual went from his tough luck "nothing" offer to spending I'm guessing approximately 1500 in legal fees to date , and offering everything you asked for. Ask yourself why? There is a lot on the line considering his income and pending amount of child support for the next 20 years.

lv
  #24  
Old 01-11-2007, 09:32 PM
hurt1 hurt1 is offline
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It's gotten much better...LOL

Went and saw my lawyer. He is rather insulted by the offer. He has counter offered - same agreement, same furniture, etc - except he changed the $3000 to $15,000. Said that was a nice round number to work with He will also send a letter stating if they don't comply, then we will be proceeding with a claim under the FLA for child support. I will have to go apply for Legal Aid, but my lawyer will set me up with a good friend of his that specializes in this stuff and accepts LA certificates. I think my lawyer is dying to do it himself but has been out of the courtroom for Family Law stuff for too long to do it justice. He did tell me that he thinks I am selling myself (and daughter) way too short with what I was willing to accept on the first offer. What a gem. Next time someone tells a "lawyers are horrible people" joke I am going to hit them upside the head. He reminded me that if I am signing off on my right to claim CS then I need to consider what will happen to me if my injuries from my MVA worsen? (we are still about a year away from litigation for that case) Who will help care for my daughter then? What if I have to hire a house-cleaner? Not to mention I am moving into a tiny 2 bedroom apartment and my daughter's WHOLE LIFE is about to change, again.


It will go to HIS lawyer tomorrow. I have covered some bases just in case. I am in the process of moving the smaller boxes over to the new apartment. Tomorrow, I will finish moving them, including my computer and important documents. All that will be left is the furniture. My daughter will be gone to her Dad's, I will have everthing moved except the big furniture and can go stay at my Mom's if need be.

Right now he is being SO NICE to me. I have been walking around with a "woe is me" look on my face all night, so he thinks he has won and I am going to meekly sign his crappy offer and that will be that.

Boy will he be shocked tomorrow. Thank you again so much for the advice and support here. If it weren't for you, I would have been walking out the door with nothing. That may still happen, but at least I will have my pride intact and know that I did NOTHING wrong in asking that my daughter's future be protected.
  #25  
Old 01-11-2007, 11:02 PM
logicalvelocity logicalvelocity is offline
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hurt1,

thats more of a reasonable offer in consideration of what is on the line. I'm thinking if the matter proceeds through litigation by way of an application, financial statements, conference briefs, motion documents, affidavits etc this alone I suspect will cost the individual more than 10K defending the claim and still be found obligated to support of your child until your child obtains their first post secondary degree or diploma or withdraws from being a child. If the matter proceeds to trial, I do suspect he will be over 25K easily. I do feel that your claim is robust with significant merit.

As you mentioned the individual does have significant funds in RSP's at his disposal. Basically the choice is his to litigate or pay your recent request and be done with.

I suspect you will receive resolution to the issue shortly and the individual will agree to your latest offer. Hang in there!

lv

Last edited by logicalvelocity; 01-11-2007 at 11:36 PM.
  #26  
Old 01-11-2007, 11:34 PM
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hurt1,

in regards to your outstanding MVA claim, that you mentioned,

House keeping falls under the statutory accident benefits - Insurance Act. I believe if your health was to deteriorate due to injuries received from the motor vehicle accident and your are unable to housekeep for yourself, the auto insurer is liable for such costs for housecleaning within 104 weeks of the onset of the disability unless you have signed a waiver or signed away the benefit. Beyond the 104 weeks, you have to suffer some " catastrophic impairment " from the accident to have coverage.

see the insurance act or the aka SABS statutory accident benefits schedule
as found here for accidents after 1996

http://www.e-laws.gov.on.ca:81/ISYSq...284D.tmp/3/doc

see section 22(1) of the SABS

Housekeeping and Home Maintenance

22. (1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. O. Reg. 403/96, s. 22 (1).

(2) The amount payable under this section shall not exceed $100 per week. O. Reg. 403/96, s. 22 (2).

(3) No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability. O. Reg. 403/96, s. 22 (3).

(4) Subsection (3) does not apply if the insured person sustained a catastrophic impairment as a result of the accident. O. Reg. 403/96, s. 22 (4).


I do have some personal experience dealing with an auto insurance company under the previous Sabs. One thing is certain they don't like to pay and you have to cover your bases.

lv

Last edited by logicalvelocity; 01-11-2007 at 11:37 PM.
  #27  
Old 01-12-2007, 09:15 PM
hurt1 hurt1 is offline
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WELL -

His lawyer advised him not to accept the offer. In fact, there wasn't even any attempt at negotiation - just a flat out refusal. So tomorrow we are moving out, without beds, without a Tv and without my poor daughter's Playstation.

As soon as I am settled I am going to go apply for legal aid. My lawyer is already lining me up with a friend of his that specializes in Family Law and Support issues. At this point, even if I go to court and lose, at least I'll have made him waste thousands of dollars on legal fees.

Ah well. I am almost all packed and ready to go. I will be offline until Saturday night or Sunday morning.

To top things off, my ex-husbands grandfather passed away today. Very sad, funny how we can divorce the spouses in our lives but their families still stay attached to ours.

Thank you again for all the advice and support. OH! For the MVA - I think we are going to be getting close to the "crucial" time for settlement. It will be 2 years in May since the MVA and I have actually gotten worse, not better. I am on Oxycontin and Percocet (fairly large doses, in fact) and had to reduce my hours at the office I work at by 5 hours a week. THAT is part of what is being "examined" right now (rolling my eyes here..LOL) I did have an evaluation by a physiatrist of the Insurer's choosing and he gave me a relatively favourable report, considering he's on the Insurer's payroll.

OK! I will check in in a day or so
  #28  
Old 01-16-2007, 12:22 AM
logicalvelocity logicalvelocity is offline
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Hurt1,

I came across another case that may be of interest to you

In Johnson v. Johnson, 2005 ONCJ 325, http://www.canlii.org/on/cas/oncj/2005/2005oncj325.html The court held there was an underlying sponsorship agreement and that the individual acted as a parent in loco parentis, notwithstanding the parties had only lived together for one month. In the result, the party was ordered to pay child support. The court held that "intention" connotes quality not duration.

lv

Last edited by logicalvelocity; 01-16-2007 at 12:43 AM.
  #29  
Old 01-16-2007, 01:34 PM
hurt1 hurt1 is offline
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LV,

I honestly cannot thank you enough for all the advice and support you have shown me and others on this forum.

We are moved in and slowly getting boxes unpacked and our lives back in order. My daughter is still very saddened by the whole thing and last night she was crying. I asked her why she was sad and she said she wasn't sure - she just felt sad and like she had to cry. Damn, it just tears my heart to see her this upset. My own upset has been replaced by anger although I am sure at some point that will end and then I'll be able to properly "grieve" my losses.

We are going with my Mom tomorrow to buy beds for the two of us. Right now my daughter is sleeping on an air mattress and I am on the couch. Not good for my neck injury, but better than the floor, I guess.

I think at this point he thinks he has "won" since I didn't say a word to him the day I moved out about any further legal action. I need to go through and find my papers and then will be heading to Legal Aid either this Friday or next Friday.

For Legal Aid elgibility what all do they count as assets? I have a 98 Sunfire, paid for in full, but I need my car for taking my Mom to her Dr appts (cancer) and also for the occasional visit to a clients farm to take photos or whatnot. I also have about $2600 in RRSP's. Will they make me sell my car and give them my RRSP's to pay for Legal Aid? Do they count child support I am receiving already from my daughter's birth dad as part of my income?

If I don't qualify for Legal Aid and end up having to persue this out of pocket, can I ask for costs when we go to court if I win?

I don't think I will have any problems proving he acted with intent to parent my daughter. Although we only lived together full time for 14 months, for the 8 months prior to that (and for the 16 months we were together the first time from June 2002 to Oct 2003) my daughter and I stayed at his house virtually every weekend and also during our holidays.

If it was just me I would cut my losses and move on. But my daughter was given and promised so many things by this man. When my daughter and I had to cancel our trip with him out of the country last October we promised she could go another time. Her standard of life will definitely be greatly decreased due to the end of the relationship and my finances are now in a mess since I had no warning of the split.

What a mess! LOL!
  #30  
Old 01-16-2007, 01:35 PM
hurt1 hurt1 is offline
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PS Thank you again for posting that link you did. I have been doing a fair bit of research on the net and am bookmarking all the links you have sent me plus others that have relevance to my situation.
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