More details re: is my settlement money gone?

[pinkhorse]

Let me start over with more details pertaining to my settlement money and my case as I realise I left out some important info. I started a common-law relationship in 1984 in Ontario, which lasted 22+ yrs. which resulted ina a daughter born in 1993. In 1998 we purchased a $200,000 home together in joint tenancy, with a $5,000 deposit and Mortgaged the remainder. During the years together we each contibuted to our household bills, our early years found me putting in more money as I had a higher paying job. Then in 1998 i suffered a back injury at work, followed by back surgery, I returned to modified work and in 1999 suffered a motor vehicle accident. I am legally disabled due to neck and back injuries and collect a yearly CPP diability of $10,000. Added to my child tax benefit I make about $14,000 a year. In 2005 I was awarded a settlement of Approx $275,000.00, figuring I was investing in a forever relayionship, I deposited the money into a jointt account and padi off verious Debts in my C -L Spouses name. I paid his credit card and Motor cycle debts I paid the $174,000.00 mortgage owing on our home, I paid for up grades to our home and installed a pool and Hot Tub. A second income property was purchased and I signed the mortgaged papers and went to the lawyers, signing paperwork at the time of purchase. My C-L Spouse and I were approved for a $97,000. Personal Line of credit to had a shop to our property for my spouse to do work out of. also my Spouse purchased a $50,000.00 Truck and added upgrades, which he personally financed. THen he bought a cadilac which he personally financed and put in his name. Afetr our separation in sept. 2006 in a discussion I learned he re-direted the mortgae of the second property on to our jointly owned home, plus added the $50,000.00 truck loan to that for a total of a $200,000 on our jointly owned home and the second property is soley in his name. and paid the personal loan on th ecaddilac using the joint Line of credit, but the car is in his name. So there is a mortgage back on the house I paid off with my settlement, including the cost of his truck and the car was paid for with our joint line of credit, all of this I was un aware of until a month after we had separated. Now my Ex wants me to be responsible for half the debts. and wants the second property to himself , because it is in his name, plus he wants me to split the debt of the line of credit even though the car is in his name and he has possession of both vehicles I have none.... The list goes on... My Ex currently makes $56,000. a year. HIs lawyer wants to have the court impute an income of $30,000. to me.
I think I need the representation of a commonlaw expert as this is a very complicated and extensive case. I believe I have legal grounds for unjust enrichment although my lawyer seems to want to split eveything 50/50 and move on and settle. This is not right or Fair. Can you advise?

[logicalvelocity]

pinkhorse,

In consideration that the common law relationship was significant duration with respect to the current disparity in incomes; I suspect you would be entitled to spousal support for a considerable amount of time. Needs and means is the significant factor determining such along with primary consideration to support of the child of the relationship.

Since custody of your child was not mentioned; Has this issue been settled between the parties? If so; Child support then becomes an issue along with extra ordinary expenses of said child.

To me, unjust enrichment is your only legal avenue to pursue some sort of equalization of the assets that were accumulated during the relationship.

lv

[pinkhorse]

settlement money and unjust enrichment.

I'm unsure of how an equalization of assest works and what type of claim/ amount should be making for unjust enrichment. our daughter is 13 and wants to remain living full time with me with visitation with her father. My Ex wants to have a $30,000 income imputed to me, so the support is less. My Lawyer is skirting around the unjust enrichment and is not explaining it in full. My Ex Started having a relationship with another woman in late 2005/2006, when I was investing all my money in OUR future. Now I'm left with nothing, not even a car, he took that from the parking lot where I attended a movie. I live in the country and have to borrow vehicles or get rides to appointments. I have next to no resources to pay for legal fees. My daughter and I are survivng on $1,000 a month and have been since September. He Disconnected the phone, and the propane heat. He has left me high and dry so I can't defened myself even if there is a claim to be made. My Ex is claiming he is supporting us by paying the mortgage on our house, whcih in essence is the mortgage for the second income propety and his truck payment. he is paying the line of credit bill, which is the Car he has in his name and possession plus the hydro and property taxes. BUT he collects $740from the apartment rental attached to our home and $950 from the second income property a total of $1650 a month in addition to his work employment.
I'm unsure how to proceed and not sure the lawyer I have is working in my best interest.

[logicalvelocity]

pinkhorse,

It appears premeditation is prevailing.

In consideration of everything you have mentioned, I conclude that your ex has been educated and is up to speed on family law and its relevant statutes and acts and how same will apply to this situation.

That being so, I'm not clear if you are already legally aid funded, but the first step is go and apply for legal aid coverage with consideration of the facts and your respective income. Additionally, apply for the provincial social assistance disability known as ODSP. If you qualify for ODSP, by default of receiving same you will qualify for legal aid coverage automatically and have significant health, dental, eye care and prescription benefits at your disposal for you and your daughter until these issues get resolved.

No doubt to me that the individual has been enriched with your previous settlement and their current lifestyle reflects same. I believe statutes of limitation would apply to bring forth such claim. Therefore, it is absolutely imperative that the claims be brought forth within two years from the date of separation. The longer you wait, the merit of your claim will dissipate.

Custody, child support and spousal support may also be significant issues once litigation has started. However, On the face it appears that you have a some sort of status quo living regime going on with your child which further suggests that both parents have agreed to. Status Quo regimes generally prevail for children especially if everything is working out for same.

On the face of it, I suspect they won't be successful in inputting an income as CPP has certified you to have a medical disability. Thus, with consideration to the disparity of each parties incomes and general principle of needs and means and length of the relationship; I do suspect without hesitation you are entitled to perhaps periodic spousal support with indefinite duration and or lump sum spousal support or both. Keep in mind that the statute of limitations will also apply to a spousal support claim.

Time is of the essence in your situation. The longer you wait, your claims have less merit and will dissipate. I reiterate that you should apply for legal aid and bring forth an Application and get your claims established. There is no harm in applying for any of the programs that I have mentioned as they can only say no.

I can only hope the suggestions I have offered is of value and time is of the essence to act and act fast.


Regards


lv

[pinkhorse]

re:settlement money gone

Thank you for the info and advice.
I have applied for legal aid twice and been refused, reason,....... I Potentially have equity in our home, therefore own too much to qualify?
I will look into the ODSP. I believe my Ex had this planned for some time, educated himself and proceeded with the actions he took and has done many malicious things to leave me destitute in hopes I will give in and settle with what he has offered.
My Ex is asking for joint shared/custody of our daughter, but he works shift work and it is against our daughter's wishes.
My Lawyer is going for an emergency motion to try for Support and retroactive support for both myself and my daughter.
Where can I go to read up on the Statutes of Limitations to educate myself?

[logicalvelocity]

pinkhorse,

I have applied for legal aid twice and been refused, reason,....... I Potentially have equity in our home, therefore own too much to qualify?

Go to your MPP and get them working for you. Legal Aid can also fund owners of property by putting a lien on same. I bet your ex would like that.

I will look into the ODSP. I believe my Ex had this planned for some time, educated himself and proceeded with the actions he took and has done many malicious things to leave me destitute in hopes I will give in and settle with what he has offered.

Yes it wouldn't hurt to apply for ODSP. They can only say no. They would deduct any other income your receive such as CPP disability and other periodic government benefits. However, once a recipient you would have health care benefits for yourself and your daughter. ODSP generally always turns down the first application, but they do have a process of appeal. Because this is a provincial ministry, contact your MPP and get them working for you. Sometimes all it takes is a phone call from an MPP to get things moving.

My Ex is asking for joint shared/custody of our daughter, but he works shift work and it is against our daughter's wishes.

I have to point out that at law both parents have coextensive custody of the child until a separation agreement or an order from the court provides otherwise. However, it appears you have the status quo advantage. The other parent's authority to act in the ongoing parental responsibilities of the child's is suspended but not ended currently.

Incidents of custody and access is determined by applying the best interest of the child test as listed in the Children's Law Reform Act.

see section 24(1),(2),(3) and (4) of the Act:

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK27

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).

Past conduct
(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

Where can I go to read up on the Statutes of Limitations to educate myself?

The Limitation Act, S.O. 2002, chapter 24, Schedule B can be found here:

http://www.e-laws.gov.on.ca/DBLaws/S...sh/02l24_e.htm

Pay particular attention to section 4 of the Act as listed:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

-and-

section 16(1) subsection (a) as listed:

No limitation period

16. (1) There is no limitation period in respect of,

(c) a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be filed under section 35 of that Act;

What this means is once the claim of spousal support is filed by way of an application within the two year anniversary of the date of separation in common law relationships, there is no limitation period to take action to vary amend or settle the issue.

If you wait till after the two year date, you lose your right to bring forth a claim.

I believe a claim for unjust enrichment would work the same way.

hopes this helps

lv

[pinkhorse]

unjust enrichment?

pinkhorse,



Go to your MPP and get them working for you. Legal Aid can also fund owners of property by putting a lien on same. I bet your ex would like that.



Yes it wouldn't hurt to apply for ODSP. They can only say no. They would deduct any other income your receive such as CPP disability and other periodic government benefits. However, once a recipient you would have health care benefits for yourself and your daughter. ODSP generally always turns down the first application, but they do have a process of appeal. Because this is a provincial ministry, contact your MPP and get them working for you. Sometimes all it takes is a phone call from an MPP to get things moving.



I have to point out that at law both parents have coextensive custody of the child until a separation agreement or an order from the court provides otherwise. However, it appears you have the status quo advantage. The other parent's authority to act in the ongoing parental responsibilities of the child's is suspended but not ended currently.

Incidents of custody and access is determined by applying the best interest of the child test as listed in the Children's Law Reform Act.

see section 24(1),(2),(3) and (4) of the Act:

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK27

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).

Past conduct
(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

The Limitation Act, S.O. 2002, chapter 24, Schedule B can be found here:

http://www.e-laws.gov.on.ca/DBLaws/S...sh/02l24_e.htm

Pay particular attention to section 4 of the Act as listed:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

-and-

section 16(1) subsection (a) as listed:

No limitation period

16. (1) There is no limitation period in respect of,

(c) a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be filed under section 35 of that Act;

What this means is once the claim of spousal support is filed by way of an application within the two year anniversary of the date of separation in common law relationships, there is no limitation period to take action to vary amend or settle the issue.

If you wait till after the two year date, you lose your right to bring forth a claim.

I believe a claim for unjust enrichment would work the same way.

hopes this helps

lv

I met with my Lawyer last friday and asked about the unjust enrichment claim, he explained that he has based my pleadings on the unjust enrichment, but is asking the courts to split everything 50/50, which I am finding completely unfaIR.
I have been reading the case law on this and find CL wives who have stayed home and contributed in many ways other than a money investment, to be getting a 50/50 split in assets. I however not only have been a stay home wife and mother to our child, doing all the household up keep of a family, BUT have also paid for almost all our family debts and paid for the $174,000.00 mortgage on a home purchased for $200,000.00.
My feeling is I should be entitled under the unjust enrichment for a higher percentage, but am unsure how this claim works? At the case conference breif the judge seemed sympathetic in my favour, but my Lawyer stills claims I am only entitled to 50% and have to take on half the $75,000.00 debt of the 2 vehiecles my CL spouse has aquired in his name and redirected the debt back on our family home. This is a very complex case.
I am going to seek a second oppinion on this and am researching for a lawyer with common law experience any references would be appreciated, I'm north of Toronto, Newmarket area.
Thanks