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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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Old 05-26-2011, 07:27 PM
fieldgrey fieldgrey is offline
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Default Trial - Day 4 experience

In continuation of previous 3 days' posts about my motion to vary spousal support based on material change in circumstances.

Today we met with the mid-trial justice to get an endorsement of our settlement that we began negotiating yesterday. It was endorsed as a final order, so....it's done. 16 months after filing my motion to lower spousal support due to material change in my circumstances, I now have spousal support agreement that fits my income reductions over the past two years. It's not exactly everything I wanted, but I prefer to move on with life. It's lower than my last offer to settle pre-trial, so that's great.

Before we cleared the court the trial justice wanted to speak with us as well (according to the clerks trial justices rarely ever meet the litigants when there is a settlement mid trial). He interrupted another trial he was conducting in order to give us a few words: he expressed thanks for saving his time so he could move to a child custody trial he said was pressing; he stated that he felt our settlement was 'good' resolution so we can move on with our lives; he was glad that we could put behind us several years of warring with each other; he also congratulated both of us for preparing for trial better than 'many' of the lawyers he sees and thus saving him time. As the matter is over I'll state that our trial judge was the Honourable Justice Rowsell at Oshawa Family Court. I credit him with conducting two very good days of trial separating the issues for trial and making clear what needed to be addressed and what was irrelevant - I believe this allowed the mid-trial Justice Olah to have the materials to express an opinion which lead to a settlement that I could accept.

Of course, I could have rolled the dice on trial and it might have come out slightly better. Or not. In some ways I would like to have seen the trial through to then end, to get years of acrimony heard, settled and judged. But this is where I discover that I can't always listen to ego. It's humbling.

On the weekend I will post a 'reflection' on the past 16 months about where I went wrong in my own defense, what I did right, what I learned late - hopefully this will help self represented forum members manage and control their own cases. I will review the various applications of family law and procedures, the family law forms and other relevant matters I struggled and dealt with - so that members can hopefully benefit from the hard learning I had to go through.

It's a good day.

FG
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Old 05-26-2011, 07:43 PM
TLCRN TLCRN is offline
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Congratulations. Thanks for posting your trial experience. Being in the middle of a continuing ongoing trial, we are at a stand still having a witness (ex's new wife), being on the stand for three days without stopping talking about issues which are not even pertinant to the trial issues lised in the last Court Order and talking about issues dated back from when she wasn't in the picture. For some unknown reason, the Judge. She claims she is talking of my ex's behalf as he quote: "cannot express himself properly" claiming "she diagnosed him with this learning disability".
Can you tell me as I am not sure if you mentionned this or not: but if you have remarried, did you have to provide your wife's income in order to change the support. In my case, it's relating to child support, not spousal.
According to numerous FLIC I spoke too being in the same juridsiction, Judges from Oshawa are quick to solve issues, not wasting time, which is great, and wish our trial was in that same jurisdiction. It is difficult at times to obtain answers from the FLIC lawyers as my case is in a different jurisdiction, where some rules are different, which I didn't know. (unified and non unified court).
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Old 05-26-2011, 08:20 PM
fieldgrey fieldgrey is offline
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Quote:
Originally Posted by TLCRN View Post
Congratulations. Thanks for posting your trial experience. Being in the middle of a continuing ongoing trial, we are at a stand still having a witness (ex's new wife), being on the stand for three days without stopping talking about issues which are not even pertinant to the trial issues lised in the last Court Order and talking about issues dated back from when she wasn't in the picture. For some unknown reason, the Judge. She claims she is talking of my ex's behalf as he quote: "cannot express himself properly" claiming "she diagnosed him with this learning disability".
Can you tell me as I am not sure if you mentionned this or not: but if you have remarried, did you have to provide your wife's income in order to change the support. In my case, it's relating to child support, not spousal.
According to numerous FLIC I spoke too being in the same juridsiction, Judges from Oshawa are quick to solve issues, not wasting time, which is great, and wish our trial was in that same jurisdiction. It is difficult at times to obtain answers from the FLIC lawyers as my case is in a different jurisdiction, where some rules are different, which I didn't know. (unified and non unified court).
Are both parties self represented in your case?

Oshawa Court has a large Family Law court division with many specialized justices. This certainly helps get matters dealt with properly. The only time I had a problem with a justice was when a criminal justice was brought up to handle family motions for a day. Much more confrontational style than the 5 family justices I had dealt with.

On matters of rules, all Family Law matters are handled through reference to Divorce Law and Family Law Acts and processes are governed by Family Law Rules, regardless of court division. There is no variation. But I understand there are cultural divisions. For example I was told many times that Oshawa justices have little patience for long briefs and argumentation that are often submitted by 'Toronto lawyers'. I don't know about that, but certainly I have seen great practicality in Oshawa Court.

As for my case, no I am not remarried nor is the other party. The law does not specifically state if the income of the spouse of an ex is applicable, so it's a matter for common law: opinion and precedent. According to my separation agreement, remarriage does trigger a review in material change in circumstances, so it can be applied. If memory serves me right, income of spouses of an ex can be brought into a case if substantially material, but in the normal course of the average income it is not material. If the other party doesn't agree, you'll have to take up the relevance in front of a justice for decision about applicability. I am not very familiar with child support precedent, but I would suspect that the spouse of a remarried ex cannot be held accountable unless the ex stops working and claims he won't pay support. This is a case by case issue that needs to be determined by a justice in a disclosure motion founded on the relevancy you claim in the pleadings of your case.

FG
  #4  
Old 05-26-2011, 08:49 PM
DunnMom DunnMom is offline
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Congrats!!! Hopefully your able to put this behind you and move forward and enjoy life!!!
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Old 05-26-2011, 09:08 PM
TLCRN TLCRN is offline
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Yes we are self represented after having legal counsel for 9 years and spending way too much in legal fees. I realize it might have been a mistake but at the time everything is so overwhelming especially when dealing with the safety of the children.
There was an issue once as our file was to be transferred as per a Court Order from one jurisdication to another, taking almost a year as the procedure was different from a unified to a non unfied court. That is what we were explained at a Court proceeding.
Humm, that is exactly what is happening with our case as he is remarried and stopped working collecting EI for exactly a year, receiving a subplan from his union, and living off an inheritance, stopping paying CS. Can't figure out how one can pay $2,000 monthly for mortgage payments, plus expenses while collection EI.
Will have to wait and see the decision of the Justice.
Did you and the other party file with the Court "an offer to settle" which is to be opened only after the trial completed?
I was told by an advice lawyer where I reside to request our file to be transferred to your jurisdiction where the children reside close to Oshawa last year; but told by another FLIC where the proceeding have been held the past 10 years NOT to request transfer of the file since we were bound to get a Justice who is familliar with our case; sure enough, the trial Judge has dealt with our case twice in the past, making a "final" Order which has yet to be complied with by the other party.
I do not understand in your case, if you had all documents as proof of change in material, why the other party did not settle? were you both self represented? did Justice make an order for costs even if you were self represented?
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Old 05-26-2011, 09:19 PM
staysingle staysingle is offline
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Thank you for sharing with us your experience and insights. What you're providing others with is invaluable help within a terribly complex and intimidating system that for most of us the stakes are unbearably high. By the time a person is finished with a trial and lessons learned it is often to late to apply!.
So again fieldgrey thank you and good luck.
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Old 05-26-2011, 09:38 PM
fieldgrey fieldgrey is offline
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Quote:
Originally Posted by TLCRN View Post
Yes we are self represented after having legal counsel for 9 years and spending way too much in legal fees. I realize it might have been a mistake but at the time everything is so overwhelming especially when dealing with the safety of the children.
There was an issue once as our file was to be transferred as per a Court Order from one jurisdication to another, taking almost a year as the procedure was different from a unified to a non unfied court. That is what we were explained at a Court proceeding.
Humm, that is exactly what is happening with our case as he is remarried and stopped working collecting EI for exactly a year, receiving a subplan from his union, and living off an inheritance, stopping paying CS. Can't figure out how one can pay $2,000 monthly for mortgage payments, plus expenses while collection EI.
Will have to wait and see the decision of the Justice.
Did you and the other party file with the Court "an offer to settle" which is to be opened only after the trial completed?
I was told by an advice lawyer where I reside to request our file to be transferred to your jurisdiction where the children reside close to Oshawa last year; but told by another FLIC where the proceeding have been held the past 10 years NOT to request transfer of the file since we were bound to get a Justice who is familliar with our case; sure enough, the trial Judge has dealt with our case twice in the past, making a "final" Order which has yet to be complied with by the other party.
I do not understand in your case, if you had all documents as proof of change in material, why the other party did not settle? were you both self represented? did Justice make an order for costs even if you were self represented?
You've got a lot of questions mixed with statements, but I'll do what I can. Some of this is opinion, some is procedural.

I can't speak to jurisdictional issues, I don't know anything about them. However, regardless of jurisdiction, the result from motions and trial is always based on the pleadings and evidence of the parties. The courts will not do the work for the litigants. This is what makes self representation so difficult: we have to learn as we are doing. If you've got orders, and they are not complied with, then you have to bring further motions for enforcement. In civil and family matters, compliance and enforcement are up to the litigants (generally speaking).

You've been at this some time and I'm surprised disclosure of income and finances is an issue. In a support claim you should have zero problem getting a disclosure order for NOA, tax filings, banking, RRSP, investing, credit and other statements for at least 3 years. Any justice will sign off on these disclosure basics. If the other party is not complying with disclosure go back for another motion with affidavit about non-compliance. A couple of these in a row will lead to grounds for a contempt order (fines and/or jail time). Again, the court system will not do this work for you - you must be on top of the other party to force compliance.

Now, about my case: my ex made two different pleadings against my motion: 1) I was willfully underemployed, or 2) I was hiding compensation.So, the evidence was not accepted by my ex as sufficient or proof positive. And where it was accepted my ex argued that I was deliberately under employed so I didn't have to pay as much support. As the justice noted at the beginning of trial: 'there is a lot of suspicion between the parties.' In fact when I was cross examined I was challenged on forging employment agreements (after the justice challenged her, she agreed they were authentic). It goes to show that evidence is only sufficient if the other party believes it is - that's why we ended up at trial.

We are both self represented, but my ex had a lawyer for the first 9 months. Because we settled, the court does not do anything but endorse the terms of the settlement. If we had finished a trial, the judge would make a ruling. In that ruling the justice would then address court costs one of 3 ways:
1. declare that each party was responsible for their own costs, or
2. assign costs immediately, or
3. request the parties make submissions on costs to be heard later

In the case of #3, the submissions can include copies of offers to settle to prove that you worked hard to avoid trial and therefore should be entitled to costs.

FG
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Old 05-26-2011, 09:40 PM
Nadia Nadia is offline
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Congratulations to you and I think you've got the right attitude with "moving on with life."

Thank you for sharing your experience. I think many people facing the same will benefit from what you have shared to date and more importantly gain much from the reflections you will post in a few days time.
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Old 05-27-2011, 06:56 AM
gumby gumby is offline
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Thank you for sharing your invaluable knowledge with others. Your advice is clear, articulate and precise.
Not only have you settled your case, you have also produced a great resource for others going through the same thing that will be referred by hundreds. Congratulations and thank you for your generosity!
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Old 05-27-2011, 08:32 AM
Exquizique Exquizique is offline
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Fieldgrey, thank you so much for being so generous with sharing your experience in this!!!!
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