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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #11  
Old 04-14-2010, 11:22 PM
logicalvelocity logicalvelocity is offline
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Quote:
Originally Posted by Stressed by Ex View Post
There has been no material change. There is no fraud, mistake or lack of notice.

The issues are Child Support, Spousal Support and the value of a home purchased just 6 months before we separated. The conflict of interest motion hearing I won against my Ex's first lawyer was simply a failed attempt by my ex to destroy me. It took me 7 months, but I won that motion hearing and that's where I accumulated my first $40K in debt. The rest has been since I hired my current lawyer in January 2009. He finally paid me my cost order in September 2009, but like I said if you know anything about NewMarket, you incur costs because of the nightmare in the way that place is run. We were adjourned several times and none of my motions have been heard, including the contempt order. He finally buckled and paid some of it, and that's when I got an interim order for Child support reduced by his claim for Spousal support.
If they were granted a reduced amount of CS in lieu of SS - what's their reasoning for non-compliance of the Child Support Order?

They may get some points for effort for partial compliance of the Cost order. But effectively they are still non-compliant. Definite fiasco.

It's not clear why you brought contempt. Are they in non-compliance of other non-monetary orders?
  #12  
Old 04-14-2010, 11:28 PM
Stressed by Ex Stressed by Ex is offline
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Contempt was because he refused to pay me my Cost Award for a motion hearing held January 2007 in which I was successful in having his first lawyer removed due to a conflict of interest

He is non-compliant on the CS Order because he says that he is entiltled to Spousal support and based on his calculations, Spousal support amount is greater than child support amount. My lawyers calculations show the opposite to be true.

And yes he is in non-compliance of other non-monetary orders. For example, ordered to get the home appraised in October 2008.

Wow this forum is tough to get answers on questions. Guess as a newbie I'm doing a horrible job....
  #13  
Old 04-14-2010, 11:34 PM
logicalvelocity logicalvelocity is offline
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Wink

If it was me..

I would bring interim relief to have the home sold. Call it net equalization. Additionally, the previous costs award etc could come from their share. But alas, if that happened-their hands are clean and your at square one with respect to the Support Issues. If nothing new has happened since the last reduced amount order - Would it not be resjudicata?
  #14  
Old 04-14-2010, 11:58 PM
Stressed by Ex Stressed by Ex is offline
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Logicalvelocity - I dont' want to sell the house. Are you stating what you would do if you were me or my Ex? I have 3 kids who don't want or need to be relocated again. I can afford to buy him out at the original purchase price and have been trying to do so for over 3 years!!!

I have no idea what resjudicata means!!

Wow it really is difficult to get a straight answer, but hey perhaps I don't ask straight questions!
  #15  
Old 04-15-2010, 12:05 AM
logicalvelocity logicalvelocity is offline
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Quote:
Originally Posted by Stressed by Ex View Post
Contempt was because he refused to pay me my Cost Award for a motion hearing held January 2007 in which I was successful in having his first lawyer removed due to a conflict of interest

He is non-compliant on the CS Order because he says that he is entiltled to Spousal support and based on his calculations, Spousal support amount is greater than child support amount.

And yes he is in non-compliance of other non-monetary orders. For example, ordered to get the home appraised in October 2008.

Wow this forum is tough to get answers on questions. Guess as a newbie I'm doing a horrible job....
The Cost award is monetary so in essence even though they are non-complaint Contempt is an inappropriate procedure.

Contempt is quasi criminal (Beyond a reasonable doubt rather than on the balance of probabilities) threshold and you would have a difficult time proving. The proper procedure would of been Rule 14(23) - Strike their pleadings.
FAILURE TO OBEY ORDER MADE ON MOTION

(23) A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs. O. Reg. 114/99, r. 14 (23); O. Reg. 89/04, s. 6 (7).
Again, if it was me, I would seek interim relief to have the home sold and settle the equity. The court dealt with the Reduced Support Amount previously on the face - resjudicata on that issue in the interim considering no material change.

However, the court may order trial on the support issues. I think their hands would be clean with equalization of the home and costs orders etc. The court could go on to test the evidence for final determination.

Interesting--please share how you make out.
  #16  
Old 04-15-2010, 12:23 AM
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Quote:
Originally Posted by Stressed by Ex View Post
Logicalvelocity - I dont' want to sell the house. Are you stating what you would do if you were me or my Ex? I have 3 kids who don't want or need to be relocated again. I can afford to buy him out at the original purchase price and have been trying to do so for over 3 years!!!

I have no idea what resjudicata means!!

Wow it really is difficult to get a straight answer, but hey perhaps I don't ask straight questions!
Missed that - your located in the house with your children. Google Resjudicata and I think you will get self explanation. Means to Retry the same issue. No material change prevailing. If one doesn't like the order - thats what Appeal is for.

An order for purchase of their equity less the money they owe for previous costs awards etc could be brought. The other side wouldn't have much say and I suspect relief could be granted.

Its confusing why you would bring a quasi criminal contempt action against the children's other parent -- They could be incarcerated if found in contempt. Is it in the kids best interest to experience that? Something to think about...
  #17  
Old 04-15-2010, 12:47 AM
Stressed by Ex Stressed by Ex is offline
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I woudn't and haven't brought forward the contempt action. I am always thinking about the kids. That's all it should ever be about.

As of September 2009, he has partially obeyed the order for costs. Between July 2008 and August 2009, every time my Ex served me (contrary to the rules by the way) to appear in court for a settlement conference, motion hearing, etc etc, I consistently asked for an adjournment on the grounds he was in contempt. No order has ever been made by the court that this subrule does not apply. Can I have all his pleadings struck from the record for anything he entered between July 2008 and August 2009. Can I ask for this at my pre trial exit?

Or when I get to trial do I seek costs for dragging me to court repeatedly even though he was in contempt and should never have had audience?

I'm glad you find this interesting. I'm so stressed over this madness! Our matter was so simple and he complicated everything for no valid reason - other than a promise to destroy me.
  #18  
Old 04-15-2010, 01:52 AM
logicalvelocity logicalvelocity is offline
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Quote:
Originally Posted by Stressed by Ex View Post
I woudn't and haven't brought forward the contempt action. I am always thinking about the kids. That's all it should ever be about.

As of September 2009, he has partially obeyed the order for costs. Between July 2008 and August 2009, every time my Ex served me (contrary to the rules by the way) to appear in court for a settlement conference, motion hearing, etc etc, I consistently asked for an adjournment on the grounds he was in contempt. No order has ever been made by the court that this subrule does not apply. Can I have all his pleadings struck from the record for anything he entered between July 2008 and August 2009. Can I ask for this at my pre trial exit?

Or when I get to trial do I seek costs for dragging me to court repeatedly even though he was in contempt and should never have had audience?

I'm glad you find this interesting. I'm so stressed over this madness! Our matter was so simple and he complicated everything for no valid reason - other than a promise to destroy me.
In my view, the court didn't deal with the Contempt - because effectively they are monetary orders. It's inappropriate. If the court remained silent, Contempt was not shown on the face. You could be held accountable for this unnecessary action by the way of costs.

However, if Rule 14 was applied, action could be brought to settle non-compliance of the monetary orders.... "Order made on motion" and have the other parent's equity in the jointly held home dispersed towards previous costs and outstanding arrears of interim support.

The issue of the home equity is settled and just leaves the Support Issue prevailing for final determination.

If their pleadings were struck for non-compliance of previous monetary orders - as soon as the equity in the home is dispersed-they could have their pleadings reinstated. Catch 22 and probably yield a trial eventually.

Settlement Conference is just that - To promote settlement. Have the two of you considered mediation. Has everyone concerned considered the effect this litigation has had on the children the last few years. Surely, I suspect your children can see and feel the stress of both parents. They are caught in the crossfire...Settlement is not winning or losing but doing what is right for your children collectively as parents.

Best of Luck.
  #19  
Old 04-15-2010, 02:16 AM
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How come this procedural mumbo jumbo hasn't already been explained to you in return for the many tens of thousands of $ you have spent at the lawyers?
  #20  
Old 04-15-2010, 07:43 AM
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Just as you have spent tens of thousands on lawyers, so has he and he is not able to get legal aid. He earns $48k a year, he has not received equalization on a fully paid house that he can't live in. He has been paying off the cost award, but obviously couldn't come up with $25k on the spot.

If you had not fought against attending case conferences etc, this could have been settled years ago. Has either of you made an offer to settle?

I can't do your equalization from here, but be aware that many many people find that they can't afford their mortgages and have to sell their homes. That is a reality of life. You seem to be avoiding a settlement, avoiding progressing through the conference system, using motions to create obstacles, so that you can avoid having to take out a mortgage?

I'm sorry, perhaps I'm completely misunderstanding you, but this is what you are presenting.

I realize you are not asking for personal advice, you are asking for an example of case law. But in fact, if you are not making attempts to settle, this will affect the outcome of your case. Case law applies depending on whether your position is ultimately reasonable. If you lose, he could end up appealing the earlier costs you were awarded. There is case law on this.

How far apart are the two of you, actually? Take the reduced CS offset by his spousal claim, offer him an immediate settlement on the house, less his outstanding costs (which should ease your mortgage woes) and get out of the court system all together.
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