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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 12-01-2013, 02:09 PM
FindingMyFeet FindingMyFeet is offline
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Default Self-represented at trial coming up in January

I've been using this site for information for a long time now, but am at the point where I am hoping for a few specific answers from those who have successfully represented themselves at trial.

A brief overview - settlement conference was the 7th of November. We have been slotted in on the January 13th trial list, and where I am, they don't bother with Trial Management Conferences (apparently they are too understaffed to bother).


I was a stay-at-home mom for the course of our 12 year marriage. He is an engineer, who makes app $130k. I made virtually nothing the first year and a half of our separation, living off a combination of trying to sustain a business I started in 2008, but which involves using equipment that remained in the home, and cashing in RRSPs I didn't want to.. He has temporary full custody of the children, and is seeking for that to remain.

I work fulltime at Tim Hortons - Mon-Fri 2-10pm (which obviously impacts mid-week visits with the children). His lawyer was seeking an imputed income of $30000 for me, and believes spousal support in the amount of $550/month for just under 5 years to be reasonable...


That's the easiest summary. I don't know, as the applicant, how many witnesses I should call. I don't know if judges bother at all with the cause of marriage breakdown, if I believe it has effects on the children as far as potential alienation goes. I don't know how to admit text messages or emails as evidence. I need to know if evidence that was stricken at a motion can be re-admitted at trial. Also, what do I have to have filed, and by when? Do I really only have until the 13th of this month to have everything submitted??

And, is it a good idea to call yourself to the stand? Or is it better to submit your own version during your opening? What about your STBX, should I call him to the stand?

Hoping someone has answers to my somewhat vague questions, thanks in advance!
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  #2  
Old 12-01-2013, 11:35 PM
stripes stripes is offline
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Maybe others can advise better than I can - but from reading over your case, it sounds like you would really benefit from the services of a lawyer. It appears that you're missing even the administrative basics of what needs to be filed when and where, never mind substantive strategy for your issues (which is not meant as a criticism - I would have no idea how to go about a trial on my own either).

Have you looked into legal aid? If your ex has a lawyer, and a lot of money, and sole custody of the kids, you need to be pretty heavily armed, or "temporary" is going to turn into "permanent", and you will lose the kids. You should be asking for 50/50 joint custody.

A couple of minor points: The cause of the marriage breakdown is irrelevant in legal tems, and you will look petty if you bring it up. The point of the trial is to set things up for the future, not to dwell on the past. Parental alienation is almost impossible to prove if you don't have psychological assessments of the kids, so probably best not to bring it up. If at all possible, you should try to get your work shifts rearranged so that you can have the kids half-time - e.g. working 9-5 rather than
2-10.
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  #3  
Old 12-02-2013, 09:08 AM
FightingForFamily FightingForFamily is offline
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What are you seeking? What offers to settle have you made?

Given your work schedule, the custody being proposed sounds logical if you works weekday evenings. In which case EOW is what you are looking at. If that's not what you want, you need to be able to prove to a judge that you can manage to work while looking after the kids.

The imputed wage of 30k is also reasonable. The proposed SS package of 550/month for 5 years is a little bit low, but may be worth considering to avoid the costs of a trial.

From where I sit with very limited information, you need a good lawyer pronto, and more importantly you need to seriously consider offers to settle (both yours and his).

At this point, I don't see it going very well for you at trial.
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Old 12-02-2013, 10:38 AM
FindingMyFeet FindingMyFeet is offline
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Why impute $30k if the most I can make is $21k?

I didn't qualify for legal aid bc of rrsps. Then I did qualify when I had to use them up. Now I no longer qualify, bc of my fulltime job. I can't afford to live off of $21k a year, nevermind the $15 that child support would reduce me to (how is the justice system just if paying child support puts a parent below the poverty line?) I'm helping a man who makes 6 times what I do raise the kids in the home to the detriment of me being able to afford them in mine when they are with me....

I can't afford a lawyer. Nevermind that he made a point of visiting all that offfered free consultations so that it was a conflict of interest when I did call them. I have taken advantage of duty counsel as much as possible, but that only goes so far....
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  #5  
Old 12-02-2013, 10:53 AM
stripes stripes is offline
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Just a thought: have you received any offers to settle from his side? If not, have you sent an offer to settle to him? Given what you lay out here (no legal representation and a barracuda on the other side), you should seek to avoid a trial by any means possible, and the best means would be by settlement. It might not be what you want, but it would be better than a trial.

What are the outstanding/unresolved issues, and how would you propose resolving them? What do you think would be a realistic proposal that your ex might agree to? Forum members might be able to help you out with this.

My other suggestion would be to really work on resolving your employment and financial situation. Find a job that pays better and offers more kid-compatible hours than Tim Horton's (you sound smart and educated, which should help); and/or use your SS to go back to school and retrain. Once you have that piece in place, you can seek a change in your divorce order based on a material change on circumstances.
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  #6  
Old 12-02-2013, 10:58 AM
FightingForFamily FightingForFamily is offline
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You can live on 21k per year. Remember this is a divorce forum, many of us have been through what you are going through or worse. During my separation my salary was nearly 60k gross. After taxes and support, I had 22k left. It's not pretty but it can be done.

If you take the offer you will be receiving an additional 6600 per year from SS.

If you manage to get a better work schedule and are able to negotiate shared custody, you will be eligible to claim one child as a dependent on your taxes and you will receive an additional $400 per month in CCTB.

Again, if you manage to share custody, child support will be offset and you will receive child support rather than paying it.

If you do not wish to pursue shared custody, you will pay $333 per month in child support. Coming out of your SS, this will still put you ahead of where you are today.

The general rule in divorce is that whoever gets the kids gets all the money... usually way more money than is strictly fair or needed to look after the children. Having shared custody may give you the best shot at having a piece of the financial pie with respect to the children, but keep in mind it also comes with a lot of costs. Overall, shared parenting is the most expensive custody arrangement when considering all expenses from both sides.

On other hand, if you go to trial without lawyer and lose, you may be ordered to pay legal costs of up to $10000 per day of the trial, because there was a reasonable (not great but reasonable) offer on the table.

I just want to point out that you were OFFERED spousal support. This much more than most people ever get, and by definition makes it a pretty good offer.
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  #7  
Old 12-02-2013, 11:20 AM
FindingMyFeet FindingMyFeet is offline
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Status quo - I don't think shared will work at all. I think that is one battle I'm bound to lose. When I moved out, it was with a "separation agreement" between the two of us - we all know how those go. We agreed to 50/50, but that was quickly squashed.

My business was about to skyrocket - I was becoming a member of a very elite niche in Toronto's wedding industry, and had forked over substantial amounts to be involved in by-invitation-only shows and magazines. I was good at what I do.... I don't want to look for another job, I want my old one back. In the early weeks of our separation, while we were still trying to figure out what was going on, my husband stole my van, my phone, blocked access to my computer, and removed parts of my equipment to make finishing work, or replying to new clients impossible. It's why I ask whether or not the dissolution of the marriage can have any impact in court. The judge at the last settlement conference seemed to think so. I left the home in good faith, and lost everything in the process.... I know how many people here must be able to relate! I came into the idea of divorce thinking fairness, and equality would win the day. I'm disillusioned and overwhelmed at this point. I know there is a way to present these things factually, but I realize I can come across as the bitter "victim" in all of this if I don't mind my p's and q's - which is what lawyers are there for. It's a complicated disaster, and I guess sometimes I wish the last two years came with mulligans. We all do the same thing though - make the best decisions we can at the time with the information we have....
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Old 12-02-2013, 12:14 PM
DowntroddenDad DowntroddenDad is offline
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First off, separate the issue of custody and access.

Sole custody implies sole decision making ability. Unless your ex has major life issues like addictions etc, or has decided to totally abandoned the child, then don't go there.

As for access, you will have to prove what 50/50 is not workable, as the assumption is that it is in the best interests of the child to have access to both parents. His actions towards you, the cause of the breakup do not matter. What matters is his ability to parent.

Was the agreement you had reached acceptable to you? Was it documented? That would be evidence that you were working to resolve things in good faith. If he then broke the agreement without cause it would reflect badly on him, but this will not count unless it was on paper. It wouldn't have the same weight in court as a signed and witnessed formal separation agreement, but it is better than nothing.
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  #9  
Old 12-02-2013, 12:41 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by FindingMyFeet View Post
A brief overview - settlement conference was the 7th of November. We have been slotted in on the January 13th trial list, and where I am, they don't bother with Trial Management Conferences (apparently they are too understaffed to bother).
That is a fast progression from first conference to a trial date. They may not do a TMC but, usually they will call you to attend at purge court which isn't mandatory but, a good time to make an offer to settle too.

Quote:
Originally Posted by FindingMyFeet View Post
I was a stay-at-home mom for the course of our 12 year marriage.
Was it 12 years on the date of separation or 12 years to the current date? What a court is concerned with is the time that you and the other party lived together as partners. A judge will look at the length of the relationship based on the time you lived in a relationship. So, if you were together for 8 years when you separated then, it will be an 8 year marriage. They will generally not accrue the time from your separation. Make sure you count your years "together" as a "couple" properly.

Quote:
Originally Posted by FindingMyFeet View Post
He is an engineer, who makes app $130k.
So, the other party/parent made wise investments prior to the marriage in their education so that they would have a secured future.

Quote:
Originally Posted by FindingMyFeet View Post
I made virtually nothing the first year and a half of our separation,
So you are one of the "mom" who has fallen victim to the often over sold concept of being a small business owner also known as a "mompreneur".

Even after a year and a half of effort you didn't realize that your "dream" of being a "mompreneur" wasn't going to be successful.

Quote:
Originally Posted by FindingMyFeet View Post
living off a combination of trying to sustain a business I started in 2008,
If the business was started in 2008 why hadn't it reached success by 2011? (You mentioned you have been separated for a year and a half and it is 2013.) In 3 years of operating as a "mompreneur" you didn't realize that the business wasn't profitable enough to sustain your personal needs?

Quote:
Originally Posted by FindingMyFeet View Post
but which involves using equipment that remained in the home, and cashing in RRSPs I didn't want to..
But, you had been operating a business for three years and you didn't realize that you couldn't sustain yourself on the income earned from this business? You drew from personal retirement savings from previous employment to sustain your career objectives?

Quote:
Originally Posted by FindingMyFeet View Post
He has temporary full custody of the children, and is seeking for that to remain.
So, you operated a failing business for a year and a half and the other parent obtained sole custody and majority access. Were you just focused on your business and personal "career" objectives?

Quote:
Originally Posted by FindingMyFeet View Post
I work fulltime at Tim Hortons - Mon-Fri 2-10pm (which obviously impacts mid-week visits with the children).
You could claim that the marriage impacted your income ability but, you have alledged that you owned and operated a successful/potentially successful business. So you can't claim you were a "stay at home mom" all while running a business. Do you understand why this argument will fail? You can't claim you had a successful business that was growing or just about to grow, then seperate only to find it fail and then working at Tim Hortons.

The concept is "you can't blow hot and cold at the same time" or "you can't suck and blow air at the same time". You will look like a silly goose if you bring up the business and the "potential" success that never came to reality... All while the other parent was acting as the primary caregiver and you have ample time to do this...


Quote:
Originally Posted by FindingMyFeet View Post
His lawyer was seeking an imputed income of $30000 for me, and believes spousal support in the amount of $550/month for just under 5 years to be reasonable...
That is standard. Depending on your educational background and potential for employment... It could be higher.


Quote:
Originally Posted by FindingMyFeet View Post
That's the easiest summary.
Or how you want to project the story to readers of this forum.


Quote:
Originally Posted by FindingMyFeet View Post
I don't know, as the applicant, how many witnesses I should call.
It isn't about numbers but, relevance of the evidence they will give. Based on your story and postings... I would guess you have very little understanding of the key concepts of relevance. So, you may want to really think hard about the witnesses you call and if they are relevant. Remember, they will be cross examined... Friends are rarely if ever a good idea unless they have material evidence that they can give. Family is also questionable at times. The justice will already see them as biased to your position.


Quote:
Originally Posted by FindingMyFeet View Post
I don't know if judges bother at all with the cause of marriage breakdown, if I believe it has effects on the children as far as potential alienation goes.
No, the justice won't care about the breakdown of the marriage. The justice doesn't care who slept with who or who wasn't sleeping with who. Remember, you are dealing mostly with a custody and access dispute from the sounds of it. Your business etc... is all immaterial to a custody and access dispute.


Quote:
Originally Posted by FindingMyFeet View Post
I don't know how to admit text messages or emails as evidence.
Again, you have to consider the relevance. Based on your questions... They probably are not very relevant at all.


Quote:
Originally Posted by FindingMyFeet View Post
I need to know if evidence that was stricken at a motion can be re-admitted at trial.
Generally no. The question is what evidence was struck from the record and for what purpose. Striking the record is rare stuff. Doesn't sound like you are on a very good track. YOu really need to get a lawyer. Also, a lawyer who is not going to believe your "story" and who is going to challenge you. One that is not a negative advocate who will believe everything you say. One who is experienced in family law. Not one who "dabbles" in family law and primarily hears criminal or other areas of law.

Quote:
Originally Posted by FindingMyFeet View Post
Also, what do I have to have filed, and by when? Do I really only have until the 13th of this month to have everything submitted??
You are the Applicant. You have a lot to do! Trial record, etc... Book of Authorities, documents brief, opening statement, etc... Witness list... LOTS. YOU NEED A LAWYER!

Quote:
Originally Posted by FindingMyFeet View Post
And, is it a good idea to call yourself to the stand? Or is it better to submit your own version during your opening? What about your STBX, should I call him to the stand?
YOu better be prepared to give testamony in chief and be cross examined. If you have submitted affidavits they will all be tossed if you do not go on the stand.

You need a lawyer and fast.

Quote:
Originally Posted by FindingMyFeet View Post
Hoping someone has answers to my somewhat vague questions, thanks in advance!
The best advice is to hire a good lawyer. A respectable one. One who will advocate positively on behalf of the children. One who will tell you to let go of your business and personal dreams to the side and put your children first.

Good Luck!
Tayken
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  #10  
Old 12-02-2013, 12:53 PM
stripes stripes is offline
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The issue of your ex stealing your van and phone might be relevant to the distribution of assets (assuming you have police reports and/or evidence that he currently has the phone and the van), but it's irrelevant to custody and access. What happened to your business is very unfortunate, but it's also water under the bridge. Small businesses and start-up enterprises are notoriously risky - you will have difficulty convincing anyone that your ex caused your business to fail, so I wouldn't even try.

You say your ex has "full custody". Do you mean that he has sole custody - i.e. that you have agreed that he will make all decision concerning education, health, medical care, residence, etc? Or do you mean that he has primary residence - the kids live with him more than 60% of the time? If you aren't able to have shared parenting (where the kids live half the time with you, half the time with him), you can still have joint custody (you have input into decisions affecting the children). Don't give up joint custody, regardless of residence arrangements, or you'll lose all influence in your kids' lives.

What do you want to see in a divorce order? How would you like to see child custody, parenting access, division of assets, and spousal support handled? Have you proposed this to your ex (in the form of an offer to settle)? If not, how far is your ideal from the offers you have received from him? The answers to these questions will help you decide whether you want to risk the dangers of going to trial.
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