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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 04-24-2006, 08:03 PM
McBroke McBroke is offline
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Default Settlement Conference Need Help

Here's the facts:

Wife left July 2004 married 23 years
I came home to one son 16 and planning on another returning to finish Masters Degree
No money from my pay ($200 and a dear John letter on the kitchen counter)
8 Credit cards maxed to $43,500
Mortgage due
Food for a week
She moved in with a guy she had been socializing with and lived with him for at least a year, she omitted this fact in the case conference,( I hired a Private Investigator)
Kept trying to restructure debt.
Sold residence
SHe got 25% of equity and I got 25% of equity
50% in trust
I am paying insurance on her vehicle
In September my oldest Son moved back from coop to finish his degree, and now is staying for Masters with me in a small condo.
In November youngest ran away because of rules for attendance at school, moved in with his best friend.
Declared Consumer proposal to creditors in February (accepted) but could not pay lawyer (he estimated this would cost $2500 for separation agreement but it $3700 and I had no money)
Valuated my pension as requested by court still pay her insurance
After lawyer was released because of consumer proposal
I released the balance of money held in trust to my ex as a sign of resolving the issues between us.
Now she is coming after me for Spousal Support and Property Settlement
PS with me giving her the balance of the house that pretty much evened the property issue in my lawyers eyes, he had her owing me $1875.

My health is poor, ( I have poor circulation due to blood clots and bad cartilage and bone wear in both legs) which resulted in a drop in pay

from $64,000 to $54,000 net $1399 every two weeks- $225 automatic deduction for consumer proposal. She makes $40-45,000 . Plus she is seeking costs.

What is my procedure to prepare for settlement coonference? I can't afford a lwayer, have no resources and cannot borrow money.

Please Help, Good Advice is Priceless.

Thank you
  #2  
Old 04-24-2006, 08:06 PM
Divorcemanagement Divorcemanagement is offline
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Default Settlement

You are stuck between a rock and a hard place because you can't afford the cost to fight for what you believe is fair. Unfortunately (and I am really sorry to have to say this) my suggestion is that you complete a formal offer of settlement with about 3-5 proposals on all of the issues and hope for the best.

If you decide to declare bankruptcy, it will probably complicate things more end. Focus on an offer of settlement - it's kind of a hail mary, but when you can't bankroll a legal battle, you have to settle.
  #3  
Old 04-24-2006, 09:02 PM
Grace Grace is offline
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YIKES, what a nightmare. Breaking this mess down, I suspect you wouldn't have to pay spousal support as your salaries are close and she is living with someone else. Child support shouldn't be an issue as long as your 16 year old is not in school. If he did return to school and lived with you, she would have to pay support. As for your son completing a master, he's on his own.

If the credit card debt occurred during the marriage than she is responsible for 50%. I'd cancel the payment to insure her car, surely she can pay this on her salary. If she received 75% of the house then I suspect she owes you a greater equalization payment. Is her pension also being evaluated? Redo your numbers on a Financial Statement & Net Property Statement and see where you stand. You will need these for the settlement conference anyway. Is the settlement conference in front of a Judge or a sit down meeting at her lawyers?

Good Luck
  #4  
Old 04-24-2006, 11:08 PM
logicalvelocity logicalvelocity is offline
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Yes indeed a horror story but remember when the going gets tough the tough

get going. Don't despair.

1) You may not have sufficient assests to cover legal representation, but you

could always represent yourself.


2) All the forms are on line for ontario courts. You can complete them

yourself or attend a family law information clinic. More and more individuals

are self represented as they find themselves in a corner; they make too

much $$$ to qualify for legal-aid, but have very little income to cover living

expenses and legal fees. The forms can be found here at this link.

http://www.ontariocourts.on.ca/famil...orms/index.htm

and after May 1, 2006 these forms take effect

http://www.ontariocourtforms.on.ca/e...mily/index.jsp


3) Spousal Support appears to be the only outstanding issue between the

parties. The primary consideration for spousal support will be that your ex

has NEED and you have means. If your income is equal, I can't see this being

an issue.


4) The settlement conference will be mainly for any outstanding disclosure,

identifying potential witness's and procedural steps perhaps the method to

value pensions etc. It is generally informal and a fair number of times the

Judge will tell the parties to sit down. A Judge will also recognize that you

are self represented and will allow you time to get a grasp of the situation or

may explain to you in layman terms. Be sure to explain to the Judge the

reason why you are representing yourself if this is the route you go.

I suspect the Judge would not order spousal support at a settlement

conference. If the matter has gone this far, I am surprised that your ex

hasn't booked a motion on an interim measure, suggesting in itself your ex

can't be in too much need.


5) Be sure to back up your medical condition with hard medical evidence such

as medical reports and letters. You can also mention that you are providing

a residence for an older dependant ie: assistance. I am sure the Judge would

give this some consideration.


6) If your condition worsens, and are unable to work, you always have the

option to claim spousal support from her.


7) You could perhaps name your ex's new partner and request financial

disclosure from that individual as a third party. The opportune time would be

to canvas this at the pending settlement conference. Before the trial,

schedule a motion to name this individual as a party. Technically speaking, if

your ex is living in a common law relationship of some permanence, the courts

have to consider this individual income and shared living expenses of your

ex. Generally to name an additional party, you have to do so under motion.

The Family Law Act - Ontario has this section to adding parties,

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK36

Order for support

Adding party

(5) In an application the court may, on a respondent’s motion, add as a party another person who may have an obligation to provide support to the same dependant. R.S.O. 1990, c. F.3, s. 33 (5).

Idem

(6) In an action in the Ontario Court (General Division), the defendant may add as a third party another person who may have an obligation to provide support to the same dependant. R.S.O. 1990, c. F.3, s. 33 (6).

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).




LV
  #5  
Old 04-26-2006, 05:17 PM
McBroke McBroke is offline
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Thank you Grace so much for your help, I can't cancel the insurance on her vehicle because my name is on the loan for that vehicle.She has no pension to speak of just RSPS included in the property statement. After valuation of my pension and after the sale of the matrimonial home, my lawyer had the numbers as her paying me $1875, (this was before I ran out of money). My surgeon has advised me to retire as soon as I am eligible and that is next May, as my knees are deteriorating at a rapid pace, and I am not allowed to take prescription painkillers at work for pain from the blockages in my left leg and thigh. I don't know if she is still living common law with this guy but at the original case conference she left section 6 completely blank, she moved twice with him and I had his license at her current address, from my Private investigator, but I received a no trespass order from her lawyer(I have not been near her or her residences or trespassed or even called her at work after she left. I drove by the first residence only to photograph her vehicle and his at the same house as required to prove cohabitation)I am absolutely a law abiding person, and feel that I stayed to deal with all the situations and responsibilities required of me as a parent. She has not communicated with my youngest son in 2 years.
. Isn't a child attending post secondary education included in child support? I thought they were.
Any more suggestions I would appreciate. Thank you so much for your caring, and your time.


Yours Truly,
Mcbroke
  #6  
Old 04-26-2006, 05:30 PM
McBroke McBroke is offline
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Default Thank you so much logical velocity

Your guidance was appreciated,

I have tried to settle this matter by releasing money held in trust by the real estate lawyer from the sale of the house and sent a note stating that this was being done in an effort to settle the issues that remain between us. I also stated that if the release money was invested in an RSP it would yield a further 33% tax return on her income. Does my son count as a dependent while attending University for his Masters, should I go after special expenses. I am just so proud he finally finished his degree and I was there. If i hadn't he would have been out on the street with no money. Am I allowed to question my ex at the Settlement Conference? My strategy is simple: She left section 6 void at the case conference with nothing filled out, In front of the judge I would ask her if she has ever lied through misstatement or omission under oath? She has by not filling out the information for our preceding case conference. I would think this would reduce the validity of her statement in front of the judge thus creating doubt as to any statement she makes. This along with my attempt to reach a property settlement should bode well in my favour.


Again thank you for your help it was extrmely beneficial.I appreciate any advice you be able to provide.

Thanks again,
Mcbroke
  #7  
Old 04-26-2006, 08:01 PM
logicalvelocity logicalvelocity is offline
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Mcbroke,

A case conference brief is unsworn. If a party decides to leave a section blank it is up to them. However the behaviour seems to show that they are indeed hiding something. Secrecy festers over time. If you are suspicious do you not think the court will be also.The more she plays games, her case gets weaker.

The other party should of served and filled a financial statement into the continuing record with their claim. A financial statement is to be served and filled before any conference or motion. This financial document is sworn and is to be filled out completely with mandatory income slips and the last 3 years Itax returns/assessments if not already in the record. One of the sections asks "Who does one live with" etc etc. If I were you I would sit on this issue and let them file a motion. She will indeed have to serve and file a sworn financial statement to support her claim. You also have the right to question her about any claim made in the financial statement and vise versa in regards to yours. This is called a financial examination.

You have sufficient merits for not settling as this point in time as she is not abiding by the rules. Continue gathering your evidence of her living arrangement. A PI is bonded and can be your witness.

I am not entirely clear on what you meant " A Lawyers Order" A lawyer has no power whatsoever to make official orders, only a court does.
  #8  
Old 04-27-2006, 05:19 PM
McBroke McBroke is offline
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Default Thanks logicalvelocity

I was served by her lawyer with a no trespass order and it was cc'd to my local police department. I heard this is a tactic used by some low end lawyers to try to get a rise out of the husband. It was probably served because she may think that I was spying on her yet it was the investigator who ran the plates and followed her. I simply have met fire with water. Her lawyer tries scare tactics, and I respond with civility.It is my understanding that judges want to see some effort to settle. I have been the only one releasing the money from the trust sale of the house and paying her vehicle insurance even though it was not an order to do so.

I plan to focus on my health situation (early retirement and some surgeries are warranted in some cases nothing can be done), her living situation (if she is still with this guy or another)my needs and the drop in income and the fact that she has all monetary and cashable assets while I carry a consumer proposal for the next 5 years for the debt.The fact that she has lied on the financial statement(did not complete section 6 on a sworn statement) creates questions as to her integrity. And finally the closeness of our incomes with an even more likelihood of a drop in my income.

DO you know the timetable for response, they have arranged a settlement conference. Thank you by the way for the links that really helped. I am fairly well spoken and I show respect in a courthouse setting. My lawyer and her lawyer were rivals and used our money to battle each other.

I've tried right from day one to settle the situation but she would have none of it. If I suspect that she is going through a change of life (pre-menopausal) should I order a psychiatric evaluation, as what she has done is way out of character? Maybe she is unfit and should be evaluated. (Maybe I'm grasping at straws with this one)

Yours truly,

Mcbroke
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Old 04-27-2006, 08:02 PM
Grace Grace is offline
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Quote:
Originally Posted by McBroke
I've tried right from day one to settle the situation but she would have none of it. If I suspect that she is going through a change of life (pre-menopausal) should I order a psychiatric evaluation, as what she has done is way out of character? Maybe she is unfit and should be evaluated. (Maybe I'm grasping at straws with this one)
NO!!! absolutely NOT!!! YES, your grasping at straws and will this will make you look badly in front of a Judge. Take if from one premenopausal female.
And besides you cannot order an evaluation for another person.
  #10  
Old 04-27-2006, 08:29 PM
McBroke McBroke is offline
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Default Thanks Grace

Thanks Grace I appreciate the help. I just need to bounce ideas . My ex was always taken in by big talkers and she was especially so at this time. When my ex left I immediately sought family counselling for me and my children, so that could cope with any stresses we might experience. It was something that I had suggested prior to the split but she wouldn't go. PS last six months of marriage consisted of one word answers from her. Last 6 and half years no intimate relations. I tried to make it work and tried to make it amicable but nothing but ice.


Thanks,
Mcbroke
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