You be the Judge

[thistoshallpass]

You be the Judge….a family member, a little background. Married 9 years to a ffice:smarttags" />US citizen that immigrated to Canada to marry her. She had 2 young girls from a previous marriage 4 & 7. He also had a 4yr old that when she was 7 it was discovered he was not the bio father he brought her to Canada when he came. Just before the marriage they both agreed she should drop out of collage and become a full time mom as they planned to start their family right away and had the 4 year olds at home. He secured a job in Canada with the potential to move up the corporate ladder. She did become pregnant right away but had a miscarriage at 12 weeks. They went on a few months later to have their first baby. After the birth she was again pregnant, another miscarriage, after 6 months was again pregnant 2005, carried to full term a 13 pound baby girl, she died at birth. They tried again this resulted in the birth of a son 2006. These pregnancies were within a 5 year period all c-sections the last one extreme high risk, left her with health issues and diagnosed with fibro. Unknown to her the STBX was having an affair, which she did not find out about until he announce in Jan last year he was moving out, that same month she had been diagnosed with gallbladder problems had emergency surgery to remove a stone from the bile duct, then required gallbladder surgery a short time later. During the marriage she had offered part time child care in her home to help supplement his income, she reduced this after the death of her daughter, when he left in 2008 she was giving care to only 1 child before and after school. In Feb 2008 when he left her with the 4 kids and no money other than support for his 2 bio children. He had put together a SA where he would pay only for the boys $1200 month, a verbal promise to help with the other two, nothing about the assets that were all in his name and no SS, if she refused to sign he refused to move out until it suited him, she had no legal counsel. He refused to acknowledge to CTB that he was now single which would have allowed her to collect the full benefit for all the children, the oldest was on disability she turned 18 in the Feb so lost all her disability benefits, she needed to have a full hip replacement, done in Nov 2008 she is now in school trying to catch up. It took until last Sep.2008 for her to get proof she was a single mom. She had been driving one of their vehicles from the time he left until June 5 months, he had been deducting $580 out of the $1200 CS every month to pay for half of his car the one veichle she drove, a camper and all the insurance. By June she could not afford to let him continue taking this money, he demanded that she return the car to him, which she did. All this time he had been seeing the boys every other weekend and 1 day weekly, and time at march break, 2 weeks in the summer, he ignored the older children.
In Oct they had a disagreement when he kept the boys for a week and refused to bring them back, then advised her she could get them only if she picked them up at the police station. This is when she did get a lawyer on LA. He hired a lawyer and brought a motion. From the incident in Oct thru early Dec last year he refused to pick up the children at her home demanding she bring them to the police station 15 klm away, she had no car. She started a motion in Dec but before she could have it served his lawyer served her. The court ruled for him and she was forced to allow access to take place at a point between their homes, unfortunately still no order for support, I believe that was a big mistake on her lawyers part. She still has no car and has to continually borrow one from relatives. He has also called the police many times if she had to have someone drive her to exchanges as it was not in their court order, or if her daughters got out of the car the court order said they had to stay in the car. Noting that in 2007 his income was $89,000, 2008 his income was $91000, he had been paying below guideline amount for the 2 bio kid’s all 2008. In Jan of 2009 without telling her he arbitrarily without notice cut back his CS to a guideline amount to reflect an income of $57,000 as his company would be cutting back hours in July 2009.
CC took place in April 2009 judge advised him that he would have to pay for all 4 children and also SS. Bio dad pays small amount. He fired his lawyer and hired a high priced lawyer out of TO. Which has delayed everything until next week as his lawyer could not make available dates, or was sick or on vacation.
She served him a motion in Sep 2009, he has twice since his original affidavit added new ones each with over 112 points, most of which are lies using statements like she and her. He claims that when he left she was bringing in $1200 a month baby sitting, not true, he claims she has made $2000 a month baby sitting in past years. She lives in a 1200 square ft 3 bed condo with 4 kid’s. This condo is owned by a relative she pays half of market rent, as she cannot afford to pay more. She lost her phone, internet and cable service because she could not pay the bill. She has had to use the food bank sell her furniture and even pawn her jewelry to make ends meet. He continually complains about no phone access, she makes a point at least twice a week to use either a friends phone or a call box to allow the boys to talk to him. some outside phones show up as private name, he refuses to take the block off his phone which blocks private numbers. this just makes it more difficult to find an outside phone that does not come up as private name.
Now his lawyer is threatening if she does not drop her claim for SS she will request the court to be able to cross examine her. He has emails from the years before they split that mention children’s names that she did baby sit all part time. She has never denied babysitting, she has never denied still having one child before and after school from Feb to June last year, he moved schools in Sep. She has a letter from her Doctor stating she is being treated for Fibro and can’t work, she has a letter from the recent condo management saying babysitting in the unit she lives in it is not allowed.
Her own lawyer is also not helping and seems a bit intimidated by the TO lawyers bullying tactics, in all honesty could be he has caused so many headaches for her lawyer she is sick of having to deal with him. Of course the motion hearing is the 23^rd Dec everyone wants to go home early. By the way she refuses to drop her claim for SS as she has not lied and has nothing to hide. Her income to date all of 2009 is what he pays for CS and her CTB. My question would a Judge not look at this and really not order SS.? Any thoughts.

[standing on the sidelines]

okay first off the judge will not care that she lost babies through miscarriage etc.

did she claim the babysitting income on taxes??

[thistoshallpass]

You are absaloutly right miscarriage and lost babies are not relevent to a Judge. The intention was to give background only.

Taxes were done and filed by him before he left. Anything made in 2008 was claimed this year.

[standing on the sidelines]

it really sounds like he is being an ass

[billiechic]

I think the judge will see right through it. If she can't work, he has to pay SS. He knew she was ill as well. Jerk!

[dadtotheend]

It also sounds like a lot of irrelevant details have been included in that lengthy post.

One can't "be the judge" on this only knowing half of the story. But it appears that he's going to have to pay CS and probably SS.

[representingself]

She needs to get down to the bare FACTS of the case, and put aside any other irrelevant details, (although personal & painful).

She said/he said, has no place in family law. Even if he abused her and ignored the kids, it has NOTHING to do with CS and SS.

100+ point Affidavits are a complete waste of time and money.... Lawyers love them because they are charging you $300+/hr, and Judges DON'T even read them.

Who immigrated where/ miscarriages, etc, etc, etc. is irrelevant.

Facts......

1. They were married 9 years,

2. She was a full time homemaker/ caregiver. He provided nearly 90% of the families income.

3. They share 2 biological children.

4. He acted in 'loco parentis' for the 2 older children for a substantial amount of time.

5. She is legally entitled to 50% of the marital assets and liable for 50% of the debts, unless there was a signed prenuptial agreement.

6. She is legally entitled to guideline support for their minor children, (all of them).

7. She is legally entitled to some child support for any age of majority disabled children.

8. She will receive her share of assets and SS. But how much and for how long will be based solely on the Judges discretion... and the competency of the Lawyer.

9. Don't waste your time arguing about how little details.... like how much money she made doing some side babysitting jobs. Her income is what was reported to CRA.... if he argues it, just state that everyone who pays for childcare claims it as a tax break, so if you received the money, it would appear on the taxes.....and leave it at that.

SEPERATE the issues.

File a seperate motion for ongoing guideline child support, commensurate with his income.

File a seperate motion for retroactive CS, but only go back to the date your originally filed for CS, is you want to make it easy.

File a seperate motion for ongoing SS.....

And so on and so forth...

Like I said, its the Lawyers who love the Affidavit battles... Judges care only about the LAW and the FACTS that support the LAW.

If she happens to loose the SS debate (which I highly doubt, btw..), she can always claim undue hardship based on her health issues, and possibly win CS above the guideline amount.

Hopefully that helps???

[dadtotheend]

Nice pruning of the facts out of all that. That could be the basis of a brief, concise affidavit right there. Well done.