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rmccallion · #1 06-04-2011, 07:44 AM

Okay, so I'm the custodial father, I make $85k, she makes $60k and she says that she needs spousal support, she can't afford to live without it because she has to pay me child for 2 kids.

I've reviewed her financial disclosure, and my feelings are that she could easily afford if she made better financial decisions. Issue #1, she is currently paying $1000/month for a two bedroom apartment. There is only one person living there, she has lived there for 2 years and not for one night has she had either of the kids for an overnight. As far as I'm concerned, she could be saving $200/month by moving to a one bedroom - I don't see any justification for her having a two bedroom.

Secondly, she is claiming $900/month in transportation costs. $500 for the lease and $400 in operating costs (gas, insurance and parking). Her vehicle is a Dodge Avenger which is listed as a mid-size sedan. Expensive car, not great with mileage. Again, her lifestyle is for ONE person. She sees each of the kids twice a month for 2 hours each. I can't see her justification for spending this much in transportation. Also, especially with rising gas costs and the fact that she lives only 15km from work, as far as I'm concerned, she could be taking public transit at least some of the time.

Do I have an argument here to say that if she were able to reduce her rent by $200/month and her transportation costs by another $200/month that she wouldn't be in such a mess? The other thing too is that it's only for the next two years that she's paying a trustee $250/month for a credit proposal that she made, so she will have even more money at her disposal in a couple of years.

Also - and just thinking of this in context of my previous question on the Trial Management Conference - I am thinking that I would want to find/call two additional witnesses. One to testify to my contention that the car is not economically wise for someone who can't afford it, and I'd like to call/find another witness who could review her financial disclosure and to render their opinion as to if the expenses that she has listed are reasonable given her financial situation. If I did this, could I leave the name of the witness blank (as I don't know who yet) but just describe what I would like them to testify about?

TIA!

Rick

staysingle · #2 06-04-2011, 09:26 AM

Hi,
A few questions for you.
1) how long were you married?
2)how old are your kids?
3)how long have they been living with you and how did this come about?
4) What gives with the mother not interested in seing her kids.

I ask these questions to get a better context for your SS defence.

fieldgrey · #3 06-04-2011, 10:12 AM

Quote:

Originally Posted by rmccallion

Do I have an argument here to say that if she were able to reduce her rent by $200/month and her transportation costs by another $200/month that she wouldn't be in such a mess? The other thing too is that it's only for the next two years that she's paying a trustee $250/month for a credit proposal that she made, so she will have even more money at her disposal in a couple of years.

Also - and just thinking of this in context of my previous question on the Trial Management Conference - I am thinking that I would want to find/call two additional witnesses. One to testify to my contention that the car is not economically wise for someone who can't afford it, and I'd like to call/find another witness who could review her financial disclosure and to render their opinion as to if the expenses that she has listed are reasonable given her financial situation. If I did this, could I leave the name of the witness blank (as I don't know who yet) but just describe what I would like them to testify about?

Your ex wants spousal support? I don't know the context for claim, but people never fail to astonish me.

If you are going to use 'experts' you need to ensure you have followed all requirements around use of experts in the FLR.

Your approach needs a second reflection:

You should ask the TMC justice if they feel having witness experts will improve the chances of your case. I believe the TMC justice will give you a hard time for dragging in experts to testify to these 'elementary' matters. One of the things a TMC justice will do is try to cut down witness lists to save time and expense of longer trials.

IMHO I think bringing in experts on this matter will seem to the trial justice that you've brought hammer to set a thumb tack and might therefore see you as punitive and hostile. I recommend skipping expert demolition of budgets/spending and focus (during your chief testimony) on the budgetary needs that your children and household have. Then when you cross examine your ex you demolish her budgets and fiscal choices line by line, detail for detail, to portray her as spending beyond her means. Bring in evidence of alternate car choices, alternate accommodations, and why she hasn't chosen those options. Remember that under cross exam you can ask leading questions to test the witness. You need to get your ex to hang herself in explaining her actions and choices, I believe that will be more compelling to the justice. Justices have no tolerance for selfishness as it subverts the very nature of our common laws.

BTW I also recommend you read my 4 posts from last week which document my trial experience to get some flavour for how the trial will roll and what to prepare for.

FG

rmccallion · #4 06-04-2011, 10:24 AM

Quote:

Originally Posted by staysingle

Hi,
A few questions for you.
1) how long were you married?
2)how old are your kids?
3)how long have they been living with you and how did this come about?
4) What gives with the mother not interested in seing her kids.

I ask these questions to get a better context for your SS defence.

Answers:
1) 12.5 years, separated for 4.5
2) My son is 17.5, my daughter 14. To head off the next question, yes, I know my son is almost 18, but he may still need to be supported for a couple more years yet, depending on his decisions and ability to get a job.
3) They have both been living with me full time since Nov 2008. When we separated in July of 2007 it was joint (50/50) custody access. They both decided independently that it was in their best interest to live with me.
4) Not really relevant to this discussion - and I've asked that question too - only she knows why. She has been indifferent to them for years. Even this last Christmas, I offered that she could have them both for Christmas to hopefully encourage "bonding" but she declined as she had "plans".

rmccallion · #5 06-04-2011, 10:27 AM

Quote:

Originally Posted by fieldgrey

Your ex wants spousal support? I don't know the context for claim, but people never fail to astonish me.

If you are going to use 'experts' you need to ensure you have followed all requirements around use of experts in the FLR.

Your approach needs a second reflection:

You should ask the TMC justice if they feel having witness experts will improve the chances of your case. I believe the TMC justice will give you a hard time for dragging in experts to testify to these 'elementary' matters. One of the things a TMC justice will do is try to cut down witness lists to save time and expense of longer trials.

IMHO I think bringing in experts on this matter will seem to the trial justice that you've brought hammer to set a thumb tack and might therefore see you as punitive and hostile. I recommend skipping expert demolition of budgets/spending and focus (during your chief testimony) on the budgetary needs that your children and household have. Then when you cross examine your ex you demolish her budgets and fiscal choices line by line, detail for detail, to portray her as spending beyond her means. Bring in evidence of alternate car choices, alternate accommodations, and why she hasn't chosen those options. Remember that under cross exam you can ask leading questions to test the witness. You need to get your ex to hang herself in explaining her actions and choices, I believe that will be more compelling to the justice. Justices have no tolerance for selfishness as it subverts the very nature of our common laws.

BTW I also recommend you read my 4 posts from last week which document my trial experience to get some flavour for how the trial will roll and what to prepare for.

FG

Thank you for such a great response. If I can question her line by line, then that will probably suffice, I wasn't aware that option was available to me. My original rationale was that their only case for wanting spousal support was based on her alleged need and I felt that whatever I can do (either by calling witnesses or questioning her) to challenge her current financial situation/spending habits, that if I can do that, I think that their case would be severely weakened.

rmccallion · #6 06-04-2011, 10:39 AM

Further to this - if I shouldn't be calling expert witnesses as you suggest, what witnesses might I include? My original thought was that I really don't have a need for witnesses, I didn't see how any could help resolve the current issue (her alleged need for support). For that matter, I've been trying to wrack my brain to see who she might call as a witness too

fieldgrey · #7 06-04-2011, 10:05 PM

Quote:

Originally Posted by rmccallion

Further to this - if I shouldn't be calling expert witnesses as you suggest, what witnesses might I include? My original thought was that I really don't have a need for witnesses, I didn't see how any could help resolve the current issue (her alleged need for support). For that matter, I've been trying to wrack my brain to see who she might call as a witness too

Well, I learned that many trials result in being 1-2 days because the only witnesses are the litigants themselves. The question is: what can't be proven by documents? What are the fundamentals of the case that need witnesses outside of you and the other party? Only you can answer that. You may be wanting to substitute witnesses because you are concerned you can't provide effective chief testimony and cross examination. You may instead want your proposed witnesses simply to provide you with the material/insights/questions for cross exam.

As for racking your brain on the other party's witnesses, I wouldn't get hung up on that. Once you know the witnesses, you can summons additional witnesses for your position if really needed.

By way of example, in my case we were going to slug it out with over a dozen witnesses - at least 7 of which were redundant. It was going to be a slug fest due to what the justice called 'deep suspicions getting out of hand' between the litigants. The trial judge made it clear in the first day that he wanted to restrict witnesses to 2 or 3 and didn't think the redundancy served anything.

If something came up that absolutely required a rebuttal witness, for instance a last minute surprise, then the rules permit asking for adjournment to line up the testimony.

Make sure you do an effective admit Form 22 on the other party going into trial. You should serve it on the other party as soon as possible. You can find a few recent threads on the subject of admits that should help you.

When you roll up to trial make yourself a trial book which includes all the questions you want to ask of witnesses (including yourself in giving chief testimony). Make notes beside the questions of evidence location so you can be totally on top of your facts and case.

FG

TLCRN · #8 06-04-2011, 11:50 PM

FG: do you know if paralegals have experience with trials? it seems the more I prepare for trial, my trial book containing questions is getting thicker by the day; starting to think we will not be done at the next sitting date set.. it's a family law trial and not a criminal case. I was served 7- 3" binder as request to admit, while mine was one binder. A tricky question couldn't find a thread for: one letters from his insurance company have no signature, rep. # but initial. Due to the privacy and confidentiality act, the cannot provide me with a copy to compare, and will not tell me if was actually sent by them; therefore, any suggestions of how to get proof or question the witness (himself) since the letter pertains to issues being tried without having the insurance at the trial as a witness?

fieldgrey · #9 06-05-2011, 05:52 PM

Quote:

Originally Posted by TLCRN

FG: do you know if paralegals have experience with trials? it seems the more I prepare for trial, my trial book containing questions is getting thicker by the day; starting to think we will not be done at the next sitting date set.. it's a family law trial and not a criminal case. I was served 7- 3" binder as request to admit, while mine was one binder. A tricky question couldn't find a thread for: one letters from his insurance company have no signature, rep. # but initial. Due to the privacy and confidentiality act, the cannot provide me with a copy to compare, and will not tell me if was actually sent by them; therefore, any suggestions of how to get proof or question the witness (himself) since the letter pertains to issues being tried without having the insurance at the trial as a witness?

That's a big admit. Unfortunately you have to respond to it if you want to defend your facts and evidence.

As for authentic documentation, this was one of the big drivers in my case. My ex questioned the authenticity of some of my compensation agreements and it's one reason why we ended up at trial. A way to solve this is to ask a justice at conference to endorse a request for a letter from the other party that permits you to contact the insurer for purposes of receiving a document directly from the insurer, or having the insurer authenticate the document you possess. A justice would prefer that to dragging in another witness. Alternately, put the document to a Form 22 Admit for the other party to admit to authenticity.

FG

Mess · #10 06-05-2011, 06:50 PM

Paralegals are not allowed to practice family law. They may practice civil litigations, criminal charges and most often HTA violations. As such many paralegals have experience in trials but they are not allowed to represent you for family law cases.

If you can find a para that is willing to give you some coaching behind the scenes for how to navigate the courthouse and how to handle your own case, this can be cost effective and beneficial but the can't formally advise you on family law issues or represent you.

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