Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

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

Closed Thread
 
Thread Tools
  #1  
Old 09-15-2010, 10:29 PM
peteranonymous peteranonymous is offline
Junior Member
 
Join Date: Sep 2010
Posts: 5
peteranonymous is on a distinguished road
Exclamation Date of separation disagreement

I received court documents notifying me that my wife (and lawyer) started a court case with the Superior Court of Justice for our divorce. Were were married for more than 30 years, but have been separated for roughly 9 years living completely separate lives. Our children are grown up and self-sufficient.

In her application, she stated a date of separation of December 2005. However, I have proof that she moved out of the house in November of 2001 and rented an apartment. I have been filing my income tax as separated ever since 2002.

In 2005, she moved back to the house temporarily for a few months to save on rent (though likely more than 90 days). We did not share the same bedroom during this time, nor did we share activities or bank accounts. I consider us as separated during this time.

Note that I supported her through her education after our children were grown up and she now owns a very profitable business and a large house in a desirable neighbourhood. I am nearly done paying the mortgage on the matrimonial home that was purchased 12 years ago, to which she never contributed.

As I understand, there are time limitations to the division of property (6 years after the day that you separate with no chance of getting back together). In other words, the date of separation will determine whether we have to divide property. According to her claim, we have been separated for 5 years. I believe we have been separated for 9 years.

I now have less than 30 days to answer and / or oppose any claims she made on her application. I feel that I cannot agree with the claims (other than "divorce") unless we settle the date of separation.

Do we need a separate trial to settle the issue of date of separation?

Any help will be much appreciated. Thank you.

Peter Anonymous
  #2  
Old 09-16-2010, 02:41 AM
kdham1964 kdham1964 is offline
Member
 
Join Date: Jun 2010
Posts: 48
kdham1964 is on a distinguished road
Default

My best advice would be to get a lawyer FAST! Pull together any proof that you have of when she left, and have your lawyer file an answer disputing her claims. I'm sure that the lawyer will come up with other arguments as well.

The next step is to request a case management conference. But it is important to file your answer on time.

You may have an issue with that period she lived with you in 2005...a lawyer would be able to clarify this for you. In all my research I have found that the period of separation begins on the date that one spouse moves out of the matrimonial hame. However, the court may grant a divorce to people who are living separate and apart under the same roof (usually for financial reasons) as long as their social, sexual and financial lives are kept unrelated and distinct from one another. This sounds like your case. Gather anything you can find to prove this and discuss it with your lawyer.

You will also need to file your financial statement (again the lawyer will help you with this). I don't know exactly what she is claiming (I assume she wants equalization and spousal support). Depending on your respective situations, you MAY have a claim for financial support.

I know the situation sucks, been going through it with my fiance's ex. And nobody wants to have to shell out the money for a lawyer, but I really think, given the length of the marriage, a lawyer is you best option. It also takes a lot of the stress off you. Let me know how things work out.
  #3  
Old 09-16-2010, 11:30 PM
rwm1273's Avatar
rwm1273 rwm1273 is offline
Senior Member
 
Join Date: Sep 2010
Location: Alberta, but would rather be in Africa.
Posts: 518
rwm1273 is an unknown quantity at this point
Default

You may also charge her for occupational rent for the 90 days she was living with you.
  #4  
Old 09-17-2010, 08:45 AM
peteranonymous peteranonymous is offline
Junior Member
 
Join Date: Sep 2010
Posts: 5
peteranonymous is on a distinguished road
Default

Thanks to both of you for your advice. Interestingly, she is asking me to pay rent from the date of separation to now for my "sole use and enjoyment of the matrimonial home".

I am in the process of finding a lawyer. Can meditation be suggested at our first case conference? I fear that going to court is going to be too costly for the amount of money involved...
  #5  
Old 09-17-2010, 09:24 AM
blinkandimgone's Avatar
blinkandimgone blinkandimgone is offline
Moderator
 
Join Date: Feb 2010
Location: Lucknow
Posts: 5,411
blinkandimgone is a jewel in the roughblinkandimgone is a jewel in the roughblinkandimgone is a jewel in the rough
Default

Can she ask for occupational rent if you were the one paying the mortgage? Not sure how that would work but that seems silly that you should be paying twice to live in the home.
  #6  
Old 09-17-2010, 09:49 AM
rwm1273's Avatar
rwm1273 rwm1273 is offline
Senior Member
 
Join Date: Sep 2010
Location: Alberta, but would rather be in Africa.
Posts: 518
rwm1273 is an unknown quantity at this point
Default

You do not need to go to court to ask for mediation. I do not know if the Ontario Government has a mediation program, but here in Alberta there is, and if you want to try to mediate, all you need to do is call the mediation office, and set up an appointment. They will call the other party and see if they would be willing to mediate.

If they do agree, then you try mediation and if it works great. If not, then anything that was said in mediation is not usable in court.

There are other options such as collaborative law, which is often cheaper and less advesarial. This basically is mediation but with both of you having a lawyer represent you. The lawyers are trained for such law, but again if it fails, then you can't use that lawyer or anything from those meetings in court.

As for occupational rent, she may be entitled to some value of the house, but after such a long separation, she will need a very good lawyer to try to sway the courts to her thinking.

You can do yourself a big help by doing your homework first. Get all the information you can to show she moved out in 2001. Prove that you did pay for her post separation education. You will need to show that the 2005 90 day cohabitation was nothing more than room mates at best. You will need to paint the picture as you were just being civil and trying to help her out as you were still friends, but you two were still separated.

She probably has been talking to people who have told her what to go to court and ask for, and how to ask it. The system is geared towards women, and the government is very willing to give women spousal support just so they do not have to support them. If she is working and making a good salary, then you have an argument to show that she is not entitled to spousal support. The long period of time before she brought a motion forward is going to hurt her, but not sure how much. There have been some precedent setting cases over child support, and the women had won substantial amounts of back support claiming that they either did not know they were entitled to periodic reviews of support, did not have the money to go to court, or did not know the laws. I can only assume that a judge may look at spousal support in the same manner.

As for property equalization, this may be a factor. She is entitled to share in the rewards of the marriage for the period you were married and cohabitating. She will be entitled to some of the value of the home that you live in, but only for the time she lived there. Did you purchase that home with proceeds from the sale of a previous home? If so then she is entitled to more of value. Were I see it being difficult is to say how much value dated back to 2001. You may need to speak to a realtor to get some advice too.
  #7  
Old 09-17-2010, 09:53 AM
dadtotheend's Avatar
dadtotheend dadtotheend is offline
Senior Member
 
Join Date: Jul 2007
Location: Toronto
Posts: 3,644
dadtotheend will become famous soon enoughdadtotheend will become famous soon enough
Default

Go see a few lawyers and get a free half hour of them to get a qualified opinion.
  #8  
Old 09-17-2010, 11:49 AM
Mess Mess is offline
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

Quote:
Originally Posted by rwm1273 View Post
You do not need to go to court to ask for mediation. I do not know if the Ontario Government has a mediation program, but here in Alberta there is, and if you want to try to mediate, all you need to do is call the mediation office, and set up an appointment. They will call the other party and see if they would be willing to mediate..
There is no program for mediation like that in Ontario. Mediators are just private professionals. There is a limit court appointed and govt funded mediation if the parties can't afford it.

Collaborative law is great if both parties are willing. If you hire a collaborative lawyer and your ex hires a litigator, guess how well that will work out?

It can be effective to file an application, push the first case conference asap and ask the judge for mediation, judges are favourable to that. Mediation won't work if both parties aren't working for it, but go to court appointed open mediation (open means that anything said can be used in your case) and you can show you've made attempts and failed, this allows you to push your trial forward, otherwise the judges at the conferences will keep trying to get you into mediation. If it's not going to work, make a quick cheap attempt, get it over with, and you can now show that it is your ex (it had better not be you) who is unreasonable and not willing to negotiate.
  #9  
Old 09-17-2010, 12:36 PM
HammerDad HammerDad is offline
Senior Member
 
Join Date: May 2010
Location: Hamilton
Posts: 3,973
HammerDad will become famous soon enough
Default

Quote:
Originally Posted by Mess View Post
There is no program for mediation like that in Ontario. Mediators are just private professionals. There is a limit court appointed and govt funded mediation if the parties can't afford it.
The Family Law Information Centres in Ontario provide for subsidized mediation based off your income. I know, I am using one with my ex.
  #10  
Old 10-01-2010, 07:32 AM
AnarX AnarX is offline
Senior Member
 
Join Date: Jul 2010
Location: Ottawa
Posts: 172
AnarX is on a distinguished road
Default

I am not sure about the etiquette in this forum. I am putting my question in this thread because it fits the topic title and may help others who search for "disagreement on separation date" later in the future. Anyway, here is my question:

My spouse discovered that I told other people (namely bank representatives) that I was intending on ending the marital relationship before I told her. On this basis, can my spouse contest our date of separation and demand that the date be pushed earlier?
The difference of a few of months puts my spouse at a financial advantage over me.
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
How is the date of Separation Determined? Acura Divorce & Family Law 2 05-16-2011 09:01 AM
Separation date mrix General Chat 3 01-04-2011 09:26 PM
Date of Separation divot Divorce & Family Law 1 09-30-2008 02:52 AM
Separation Date - Tricky Question Sandra Divorce & Family Law 2 05-19-2008 07:53 PM
Back-dating The Separation Date Time4Change Divorce & Family Law 3 03-18-2008 10:37 PM


All times are GMT -4. The time now is 01:50 AM.