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  • legal aid - question

    first the situation summary
    alright, so i was charged with criminal, though all allegations are totally false, they are serious, that battle is in superior court and I have hired an experienced lawyer to fight that, his block bill for that is huge! (of course .. it always is )

    one of my bail condition is, no direct or indirect contact with xxx except through counsel for the purpose of child access and .... so on!.

    she filed bs in family court which i have to fight as well, my criminal lawyer also does family and i decided to retain him for that @ a discounted rate of $300/hr, ex got legal aid and some how legal aid found her a top notch lawyer who does some pro-bono work! i think he is more than a good match for my guy. google (toronto divorce lawyer bencher) he is on top of the list

    originally i make well above the legal aid eligibility guidelines but with paying my lawyer for both criminal & family, i am looking at friends for money for rent and food, let alone having to pay CS & so on.

    now the questions
    1- how can i plead to legal aid to at least get me a family lawyer, specially one that matches the other guy?
    2- can based on my condition of no contact except through counsel, will they consider over riding the eligibility guidelines?

    the reason i ask these questions is that i dont want to apply, get rejected and then have to appeal which will also most likely get rejected. please suggest a way that my case goes straight for approval

  • #2
    To answer your questions:

    1. Likely, you will not be eligible to legal aid to defend your family law case. Basically, if you income is too high, you do not qualify.

    2. Court will not "over ride" guidelines, but they could award amounts less if a situation of undue hardship exists (ie. expenses because you are caring for other dependents). Alternately, the court could award amounts above the guidelines, but likely not. But, there is special and extraordinary expenses that could be huge depending on a variety of scenarios.

    Likely you will have to pay guidelines for child support, any special expenses and, if you spouse was solely dependent on you, spousal support.

    Your criminal matters will effect your case, but how much depends on what you were charged with and what, if any, convictions are.

    Comment


    • #3
      sorry for not being clear, where i said "will they consider over riding the eligibility guidelines?" by "they" i meant "legal aid" folks, given that the court mandated that i can only contact her through counsel, counsel becomes a mandatory legal requirement for me, therefore if i am unable to bear the burden, i cannot contact her for the purpose of child access, which is unfair to my child if not to me. i mean i need an argument to get the legal aid lawyer.

      while speaking on the ss & cs, i do believe that there is a huge undue hardship,

      1- i got thrown out of my house with nearly nothing, just clothes and my laptop, have to start all over, while she has every thing that we ever got so standard of life is greatly different.

      2- after paying the lawyers i already dont have money to pay my rent and relying on people to help me out, if i dont pay the lawyer and go to jail, where is she going to get the SS & CS from anyways?

      i started paying CS right away but cant afford it now, still borrowing money from friends to pay, but how long will that last. ... i see this going downhill, friends are taped out, FRO kicks in, means i am on the road and nothing to pay the lawyer, means i go to jail on criminal which means i lose the job which means end of CS & SS for her.

      It could possibly be avoided if i can at least get the family lawyer from legal aid, sack that bill, keep paying CS until the debt for criminal is paid off, win the criminal and then possibly pay her SS, (which i dont think she deserves given all what she is putting me through)
      and sue her for all the criminal bs she did on me, but thats a different story.

      Comment


      • #4
        Like Kenny said, Legal Aid operates and determines eligibility based on a very specific set of guidelines. If your income level and assets do not fall below their required threshold, it is unlikely that they will override the existing eligibility guidelines. They may apply a detailed needs assessment for your case, but even then that is no guarantee that they will grant you a certificate if your income/asset is way above their criteria threshold.

        I understand your situation. I have been helping a friend navigate through a very similar situation (false criminal charges, left home with just clothes on his back, SS & CS issues etc.). However, it does not matter to Legal Aid that you were charged or had restrictions placed upon you requiring you to have a lawyer. That is simply not taken into account in determining eligibility.

        Your situation is a nightmare, no doubt about it; but you will have to find some way to come up with funds for a family lawyer, or go the self-represented route. Undue hardship does not even come into play until some sort of “resolution” or order has been determined in terms of quantum and duration of support obligations, and that’s a long ways off yet, unfortunately.

        Comment


        • #5
          Beside the fact that legal lawyers can't override eligibility guidelines, except with criminal matters in certain circumstances, they won't. If they did, everyone with a hard luck case would be demanding it. Also, their case loads don't allow for it.

          Unfortunately, getting thrown out of the house with only the clothes on your back and having large legal bills will not constitute undue hardship. I suggest you search Canlii case law on this. What you will find is one denied undue hardship claim after another, although there are some accepted.

          With regards to spousal support, it doesn't matter whether she deserves it or not; it is a legal entitlement if she qualifies. Suing for throwing you out of the house in the midst of a criminal matter - good luck!

          There are two keys to having reduced child support. One, having a low gross annual income, which serves no one and two, having half the custody of the children.

          You appear to be fairly new in the divorce game, gambit or gauntlet.

          Has she filed for divorce or have you been served with anything?

          Comment


          • #6
            A note on undue hardship from The Family Law Act of Ontario, Child Support Guidelines.


            "Undue hardship

            10. (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. O. Reg. 391/97, s. 10 (1).

            Circumstances that may cause undue hardship

            (2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

            (a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

            (b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

            (c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

            (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

            (i) under the age of majority, or

            (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

            (e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

            (f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. O. Reg. 391/97, s. 10 (2).

            Standards of living must be considered

            (3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. O. Reg. 391/97, s. 10 (3).

            Standards of living test

            (4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. O. Reg. 391/97, s. 10 (4)."

            Comment


            • #7
              Originally posted by sahibjee View Post
              first the situation summary
              alright, so i was charged with criminal, though all allegations are totally false, they are serious, that battle is in superior court and I have hired an experienced lawyer to fight that, his block bill for that is huge! (of course .. it always is )

              one of my bail condition is, no direct or indirect contact with xxx except through counsel for the purpose of child access and .... so on!.

              she filed bs in family court which i have to fight as well, my criminal lawyer also does family and i decided to retain him for that @ a discounted rate of $300/hr, ex got legal aid and some how legal aid found her a top notch lawyer who does some pro-bono work! i think he is more than a good match for my guy. google (toronto divorce lawyer bencher) he is on top of the list

              originally i make well above the legal aid eligibility guidelines but with paying my lawyer for both criminal & family, i am looking at friends for money for rent and food, let alone having to pay CS & so on.

              now the questions
              1- how can i plead to legal aid to at least get me a family lawyer, specially one that matches the other guy?
              2- can based on my condition of no contact except through counsel, will they consider over riding the eligibility guidelines?

              the reason i ask these questions is that i dont want to apply, get rejected and then have to appeal which will also most likely get rejected. please suggest a way that my case goes straight for approval
              Legal Aid Ontario won't touch your file. Go through their online calculator to see if you qualify. The qualifying incomes are incredibly low these days.

              Good Luck!
              Tayken

              Comment


              • #8
                Sorry, I must ask - what's this "thrown out of the house" bs? It's called Arrested and Removed. Sounds just like my ex. Same exact words. He too claimed "innocent" but was not. That's neither here nor there, I do not pretend to know what went on at your house _ but I do know for a fact that you can arrange for a third party to arrange access w/your child. (Unless the offense that didn't occur somehow affected, or was in the presence of, the child.

                I also know for a FACT that you can GO back to the home, accompanied by the police (they do this all the time) to retrieve your belongings. Once you find a place to stay/live, you can also (police supervised) arrange to collect items that belong to you, as agreed upon w/your ex through a neutral 3rd party. Been there, done this. And even after all his belongings were removed from here, (soon after his arrest) - he kept telling the same lie (and tons of new ones) over and over again, including that he "never retrieved ANY of his items." A truck load of his belongings left the home. So if you really need your things, the police can facilitate that. As well, your probation officer (I'm assuming you have one) can assist you w/info as to who is a suitable third party so that you can re-connect w/your child, if that's an option for you. Good Luck.

                Comment


                • #9
                  Came across this today...it might already be here...if so, I apologize for reposting it



                  http://resources.lss.bc.ca/pdfs/pubs...ssault-eng.pdf

                  Comment


                  • #10
                    oops... sorry just realized it's for the province of BC

                    Comment


                    • #11
                      Oh, my friend, I feel your pain. I am going through the exact same thing. Can't get legal aid and having to pay for a criminal lawyer and a family lawyer. I don't have a criminal record, my X just did it thinking it was an easy way to get sole custody of the kids, which live with me and have for the last two+ years. Unfortunately from what I've experienced so far you are going to have to dig yourself a huge hole in legal fees or represent yourself. Everyone and their brother seem to know now that the false domestic accusation during a custody battle is becoming more common in the courts. I wish you luck.

                      Comment


                      • #12
                        Even with criminal charge which I assume must be assault , the dispute is between you and your wife or ex and not the kids. So you will get access to your kids in some form , probably supervised. In the meantime, you will prob get a peace bond and be required to take anger management or domestic violence training. So do it. Criminal part will end. Then move on to your family matters...you can increase your access and get it unsupervised once you have some counselling done. Just because you and wife are having a dispute, doesn't mean your kids are going to be affected. Pay your child support regularly and you will be ok. Next time , make sure she doesn't get you for assault or threats. Expect to get kicked out of your home for a year or forever. You and a million other guys in Canada.

                        Comment


                        • #13
                          Thanks to every one for replying, I do have unsupervised access now, initially she was asking for supervised access, then decided to let me have him every Saturday 10 am- 6 pm, then was denying over night access accusing me of being a "dangerous" person, i asked for an exception on his birthday for one night, she voluntarily gave access for two nights, I wonder how this will look like in front of the judge, claiming the person is so dangerous he shouldnt have unsupervised access and then giving regular unsupervised day and additional 2 nights unsupervised while being asked for only one. she even admitted to police (in police notes) that she asked me to keep the child before the breakup.

                          I did get a bail variation to go back to collect my stuff with the police, went there with the police first time and she said my son is sleeping dont want to wake him up come back after two hours, went back with police after almost three hours and she denied entry claiming that the bail variation only allows me to enter, does not ask her to open the door for me. the cops agreed with her and said they cant force themselves in if she dosn't allow and i had to leave WTF? cops said send her a list of items and she will give them to you via third party, sent the list, received all the trash she want to throw away instead, only couple of items from the list were provided.

                          regardless of that, in response to hadenough, i understand your position, and yes many women do get abused and thus are victims of crime, all my sympathies to them, but yet as you may very well be aware, a wast majority also falsely claims abuse (such as my case and many others voicing here) just to gain advantage in custody, possession & support battles

                          this is a good read on what happens
                          Ontario Bill 117 — Presentation by Federal Senator Anne C. Cools
                          and so is this, Ontario Bill 117 specially read Mr Fox's comments.

                          I am indeed fairly new to this situation, but i do see the need to amend the laws in accordance to what Senator Cools, & Mr Wasser & Fox said in their statements above.

                          Comment


                          • #14
                            I however came here to see if any one had any tips on getting a legal aid lawyer while being outside their set income limits, and the clear answer seems that i cannot get legal aid regardless of what situation i am in. now, i guess i will just apply and get rejected, i mean take a shot, most likely wont work, but a grim hope.

                            Comment


                            • #15
                              I would like to believe that making false allegations is not at epidemic proportion. I certainly was not in any way untruthful when I called the police re: my X. There does need to be a balance of some kind established b/c these "false" claims are clearly ruining ppl's lives (I've been lied about 100x, just not re: "abuse," and it's very frustrating) - but more than that - it's taking and using resources that should be available to true victims of domestic violence - of which there are many out there.

                              I do not personally know anyone who has made up an allegation of abuse to get the husband thrown out, but I do not doubt that it happens. There ought to be serious consequences for any person (male or female) who levels serious allegations against their former partners, that are found to be without basis.

                              Comment

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