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  • Trial - really?

    Hi,

    My ex wife and I have been going through the legal process since Sept. 2010. To make a long story short she tried to use false claims of alcoholism, child abuse, etc etc. to gain sole custody of the children.

    We have had 50/50 access and joint custody on an interim order for a year and a half now. I currently pay her offset child support, I make around 80K/yr and she makes about 54k/yr. The last motion she filed was
    to seek a change to sole custody and a 70/30 access schedule. She was not granted the request and access and custody stayed the same.

    The only outstanding financial items are a joint debt of $7,000 (I have been the only one paying it for 2 years) and a pension equalization (my pension). For a time during our seperation, my wife lied to police to have me arrested (no charges were laid) and when I came back to the house the locks were changed and the boyfriend was living there. I moved in with family and hired my lawyer. For almost a year I was paying all of the mortgage and loans with no help from her. At the settlement conference I showed the judge the amount of money I was out and he suggested that if we went to trial I would get credit that money.

    My lawyer and I have tabled an offer to settle with a reduced pension amount going to my ex and it was refused. We are about $10,000 apart of the amount of my pension that should be roled over to her. I have also offered to pay off the full amount of joint debt. My ex and her lawyer keep refusing and now we are on the trial list, possibly to be scheduled for trial in late April.

    My lawyer has been great to this point but recently I have been bugging him to get this settled before it got to this point and I think he has been overwhelmed with other clients etc, still no excuse. Now he is asking for a $10,000 retainer by next month to prepare for trial. There is no way I can pay him and will have to go self-represented. I honestly don't see how my ex can afford a trial either. If we do go to trial I know that my ex will again be seeking full custody and limited access to me.

    Sould I be worried? It seems that no matter what I offer, it is always turned down.

    Thanks for any advice anyone can offer.
    Last edited by Teddie; 03-12-2012, 03:43 PM.

  • #2
    Basically what I am asking is, what steps might be in place to avoid families getting to a trial? Is there an emergency settlement conference booked as a last ditch effort to settle?

    I just can't see the point in going to trial and spending money better spent on our kids post-secondary education....espcially over such a small amount of money.

    I feel like I am backed into a corner and again being forced to offer up more money just to avoid all this.

    Comment


    • #3
      If 50/50 is the status quo and you end up in trial, I believe the judge would leave it in place.

      What is the worst that could happen with your pension if it ended up in trial? I'm not sure about pension splitting, but did your lawyer give you any idea?

      If you're likely to get 50/50, and you can't lose anything significantly more from your pension, could you self-rep? Her lawyer might be bluffing.

      Comment


      • #4
        Originally posted by Teddie View Post
        Hi,

        My ex wife and I have been going through the legal process since Sept. 2010.
        Your situation seems too similar to be a good reflection on Canadian Justice. I had thought my situation was an exception!

        If you are going to trial, assume that nothing has been decided, because it hasn't. Interim orders are for the waiting game until a divorce decree is given. Trial or not, the final order is what matters.

        Regardless of what you do in the trial, remember that it is a public record. Don't concern yourself with how unjust she is - that's her problem more than your own. Concern yourself with your goal and achieving it in a way that your kids can look at that public record and you can look back at them without making excuses or trying to justify what was immoral. There's no point in raising kids that learn to mistrust loved ones as adults because they found out that you got your goal by using them as your wife has.

        Good luck.

        Comment


        • #5
          Originally posted by AdTheDad View Post
          Your situation seems too similar to be a good reflection on Canadian Justice. I had thought my situation was an exception!

          If you are going to trial, assume that nothing has been decided, because it hasn't. Interim orders are for the waiting game until a divorce decree is given. Trial or not, the final order is what matters.

          Regardless of what you do in the trial, remember that it is a public record. Don't concern yourself with how unjust she is - that's her problem more than your own. Concern yourself with your goal and achieving it in a way that your kids can look at that public record and you can look back at them without making excuses or trying to justify what was immoral. There's no point in raising kids that learn to mistrust loved ones as adults because they found out that you got your goal by using them as your wife has.

          Good luck.
          Very good information to note. I am still confident that we won't make it to trial but you make a good point should it come to that.

          Up until now I have always stated that a) this is what I am seeking b) why it works for the kids.....that is all that should really matter; what is best for the kids. I am on my lawyer as we speak to get an offer out that is acceptable to both parties and is fair because it is not in our kids best interest for their parents to go bankrupt in a trial.

          Thanks

          Comment


          • #6
            I think i read a case from Superior Court of manitoba,where the judge "ruled and reveresed" a case where 1 party gave up all rights to the others pension.NOT trading/equalizing, as 1 party didn't have a pension..Maybe this was at the beginning of the legal process???As i have such an agreement since july 2000,[traded all other "assets" for her wavier to my pension],does anyone know "about this???"

            thanks
            bbd

            Comment


            • #7
              So, my lawyer sent a request seeking full disclosure of all my ex's financials as she has held back on giving certain information despite many requests.

              We have given her side 2 weeks to respond. I said to my lawyer, "should we send an offer to settle in the meantime", and he said "absolutely".

              We are just under 2 months away from potentially going to a trial and I want to at least send a reasonable offer to settle so that it can be avoided. Neither her nor I can afford a trial. I sent my lawyer a list of things I am willing to offer and things that I would like to agree upon in a final settlement. The last communication I have from him is on the 13th of March saying that he was working on the offer as we speak.

              My lawyer has been good up to this point but the fact that no offer has been sent yet is ridiculous. I have trusted him up until now but I wonder if he is dragging this out so that we do go to trial and he secures more work for himself.

              My ex's lawyer is so incompetent that working with the other side is extremely slow and frustrating. For instance, we owe $7,000 in joint debt, I have offered to take it all on myself, I pay offset CS because we have 50/50 agreement for the kids. It seems pretty straight forward. For some reason her lawyer wants me to cash out 75% of my pension and sign it over to my ex.....it makes ZERO sense.

              If this does get to trial I cannot afford my lawyer and will have to self represent. For the life of me I cannot see how this hasn't been settled yet when it is so simple. I guess in the lawyers and the courts eyes its "in the best interests of the children", to spend money for their post secondary education on a trial.

              Comment


              • #8
                Send your lawyer a polite, professionally worded letter, stating that you have instructed him to send an offer to settle (on such and such a date) and it has not been sent. If there is a reason why he cannot send such a letter, he needs to inform you immediately so that you can make other arrangements.

                If he feels he cannot meet your needs sufficiently in a timely manner, he should inform you of this, and you will be happy to reduce your association to a "Limited Retainer" (*note: this means you deal with everything, but it goes through your lawyers office on his letterhead. Basicly you are paying for his secretary to type it up and send it out, the lawyer has no involvement and you don't pay the lawyer's fees. Your lawyer will hate this.)

                Comment


                • #9
                  Originally posted by Mess View Post
                  Send your lawyer a polite, professionally worded letter, stating that you have instructed him to send an offer to settle (on such and such a date) and it has not been sent. If there is a reason why he cannot send such a letter, he needs to inform you immediately so that you can make other arrangements.

                  If he feels he cannot meet your needs sufficiently in a timely manner, he should inform you of this, and you will be happy to reduce your association to a "Limited Retainer" (*note: this means you deal with everything, but it goes through your lawyers office on his letterhead. Basicly you are paying for his secretary to type it up and send it out, the lawyer has no involvement and you don't pay the lawyer's fees. Your lawyer will hate this.)
                  I sent him a professional letter this morning after trying to contact him all week. He did respond saying he was working on it.

                  I didn't know that you could do that but if need be I will bring up the Limited Retainer with him as a scare tactic.

                  Thanks Mess

                  Comment


                  • #10
                    So, an offer to settle was sent but so far it has only been met with more requests for disclosure. My lawyer took three weeks to send the offer and when I received a draft of the offer, it was a copy of one he sent a year ago and was full of errors and omissions which I had to correct before it was sent.

                    My lawyer wants a $10,000 retainer by the end of this week or he's dropping me as a client. On April 22nd, the date for a trial is being set so I don't know why he needs the retainer before that date as there is a chance we settle before then. Up to this point my lawyer has made close to $20,000 from me but he won't seem to give me a break.

                    Neither my wife nor I want to go to trial and neither can afford it. Negotiating directly with her is a nightmare as she wants full CS and SS for 2 kids that we share on a 50/50 access arrangement. She is asking for the moon and stars and I can't see us coming to an agreement.

                    Any recommedations? Do I go self-represented?

                    Comment


                    • #11
                      Either find a way to pony up the dough, or go self-rep. Those are your options.

                      It's important to remember that a lawyer acts on their clients' instructions. Do not think this is her lawyer doing this. It is her.

                      I faced the same problem - and quite frankly caved. I settled on the day of trial and regret it.

                      If you can settle and be happy with the result - do it.
                      If that would be unacceptable (as she won't compromise on any points important to you) then show up in court and put your best foot forward.

                      Complaining you can't afford it will not help you in the least.

                      Comment


                      • #12
                        Originally posted by wretchedotis View Post
                        Either find a way to pony up the dough, or go self-rep. Those are your options.

                        It's important to remember that a lawyer acts on their clients' instructions. Do not think this is her lawyer doing this. It is her.

                        I faced the same problem - and quite frankly caved. I settled on the day of trial and regret it.

                        If you can settle and be happy with the result - do it.
                        If that would be unacceptable (as she won't compromise on any points important to you) then show up in court and put your best foot forward.

                        Complaining you can't afford it will not help you in the least.
                        Well, the way I see it, it won't cost me money to go self represented. I'd be surprised if she doesn't cave due to the costs associated with a trial. She has mentioned mediation again but the last time we tried that it was extremely counterproductive. In fact, it went so poorly that the mediator never billed us.

                        I just have to prepare myself for self-representation at trial and hope she comes to her senses before that.

                        I'm not selling my house to pay a lawyer to take this to trial. In fact, since this process started I have done a lot of the work that my lawyer should have been doing in the first place.

                        Comment


                        • #13
                          Just one thing to remember, The judge will not put you on the trial list if there is still undiscosed information, unless it is minor info.
                          Lack of disclosure will delay a trial.

                          Comment


                          • #14
                            Originally posted by CycleDad View Post
                            Just one thing to remember, The judge will not put you on the trial list if there is still undiscosed information, unless it is minor info.
                            Lack of disclosure will delay a trial.
                            Actually, my ex has ignored all of our requests for NOA's.

                            Comment


                            • #15
                              Originally posted by Teddie View Post
                              Actually, my ex has ignored all of our requests for NOA's.
                              Is the judge aware of this and have you asked for orders to be made to get the NOAs?

                              Has the Ex done her taxes in the last 3 years?

                              CD

                              Comment

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