Responding to Affidavit

[GoDiegoGo]

I totally agree with you Tayken, but let me clarify...

My ex was abusive then took off with the kids when I pushed for separation.

Self rep'd, I had to get an emergency order to have the kids returned, restraining order on my ex, and possessoin of the house. Then came all the accusations about me being abusive, over medicated, and unable to care for myself or kids. It was investigated and I was still awared custody while my ex had weekend parenting time. I volunteered to a CAS contract to try and prove myself. Then 7 months later the judge said that my ex has proven herself and is more stable. OCL did their report, and I agreed to Joint Custody with 50/50 access. Obviously I didn't want to give up the kids, but I did it in their best interest to be with both parents.

Now custody and access is no longer on the table. Our only issues left is support and equalization.

Ex has 2 degrees, and 5 years work experience. She then was off work for 2.5 years and now claims she has been off too long, can't get any job in over a year, and needs retraining. She got retrained with a Security Guard License, but now claims she doesn't like night shifts... so she just enrolled into full time school with a full time program in a completely different feild.

My argument is that my disability cheque barely covers me, let along supporting her who is avoiding work. I'm asking that an income be imputted on her hopefully equivalent to mine, but full time min wage at the least.

This is why no judge has ordered support in over a year... but she's brought a motion for it next week.

She's asking for 90% of my pay in her offers and in the motion material.
I sent her an offer based on a min wage income, which she refused.

If I can't bring up the fact that offers have been made, do I just stick to my guns that no support should be ordered since she could easily work and make more than me? Or that I agree that both parents should be responsible for CS, and as such she should not be allowed to claim zero income...

[Tayken]

Tayken.....

Thanks, there you go switching on that light bulb again

Light bulb...

Despicable Me Light Bulb - YouTube

The video is somewhat relevant as we have Grew, trying to get something, children are involved, a war between two adversaries and the real "light bulb" is Grew's realization that the children are more important (eventually) in the plot are more important than his objective to steal the moon.

Everyone needs to remember not to "fart gun" their argument before the court. That is, to listen to what is being requested and answer accordingly. or you will end up nefariously having your laywer building the wrong case which only shoots farts...

Fart Gun?! - YouTube

Because, under what circumstance would we use a lot of the evidence presented by many of the posters to this site really in family law and the determination of a child's best interests.

Good Luck!
Tayken

[GoDiegoGo]

At the settlement conference the judge said I should make an offer based on a min wage income imputed on my ex.

If we can't show offers to the judge, how can I show that I complied with the SC judge's request?

Can I say that the judge advised me to assume a min wage salaray imputed and leave it at that? How do I get around this...

[GoDiegoGo]

My ex claims in her affidavit that I refused to follow the sc judge's advise on offering support. Total bs...

Can I say I made several different offers for support but can't show them for possible misconduct in the court?!

By saying that I made offers, would I then be suggesting that I agree support should be paid?

[arabian]

To a statement like that ^ I would simply state:

"It is the defendant's (?) position that the applicant has failed to prove entitlement for SS in accordance with the Divorce Act."

I would try to keep your responses short and to the point.

[Mess]

The settlement conference is an attempt at mediation and anything offered by the judge is just advice, not an order.

Any affidavit from your ex regarding the conference is meaningless, not relevant, and not admissible at trial.

If you made offers, you should have some kind of record of this. It is ONLY relevant at the end of trial in order to assess costs.

It MAY be relevant if you have yet another Settlement Conference. This is not unheard of, a judge may recommend an additional conference if there are signs the parties are close to a settlement. Any oppportunity to avoid trial is worthwhile.

Showing your offers isn't "misconduct", it would just be irrelevant and inadmissible, BUT if your ex is able to argue that her statement is admissible and relevant, then you absolutely can show your offers in order to refute your ex's statements.

If your ex's statement is ruled admissible, then your evidence to refute is also admissible.

[Tayken]

The settlement conference is an attempt at mediation and anything offered by the judge is just advice, not an order.

Any affidavit from your ex regarding the conference is meaningless, not relevant, and not admissible at trial.

And if you understood the Rules governing the proceedings you would know this GoDiegoGo. You really need to get a lawyer involved as you are really going to fart gun your case.

If you made offers, you should have some kind of record of this. It is ONLY relevant at the end of trial in order to assess costs.

As already stated to you OP. A justice will address the violation of the governing Rules on the conduct of the other party. You should note that a number of the statements made are possibly done in violation of the requirements set forth by Rule 18 of the Family Law Rules. If it is really obvious don't state the paragraphs as a judge is OVER QUALIFIED in identifying the nonsense but, if subtle you can identify which paragraphs that may be in violation.

It MAY be relevant if you have yet another Settlement Conference. This is not unheard of, a judge may recommend an additional conference if there are signs the parties are close to a settlement. Any oppportunity to avoid trial is worthwhile.

Agreed. One would question what avenues you have explored GoDiegoGo to resolve the dispute. This will be going on in the back of the mind by the justice in the matter. When determining who the combative party is. Don't get caught in a situation where you end up being as conflicted as the other parent... Then the judge will only see two histrionically conflicted parents both "fighting it out in court".

Showing your offers isn't "misconduct", it would just be irrelevant and inadmissible, BUT if your ex is able to argue that her statement is admissible and relevant, then you absolutely can show your offers in order to refute your ex's statements.

Actually, it is against the Rules to attach an offer to settle to motion materials or even talk about offers to settle. The judge will strike the material from the record. Happens all the time.

If a lawyer reviews the materials and their client's submissions violate the Rules... It always is annoying to see the lawyer blame their client. That is when a justice should order the law society to properly investigate the matter and what other court files the lawyer has played this stupid game on to try and circumvent the Rules governing Family Law proceedings.

If your ex's statement is ruled admissible, then your evidence to refute is also admissible.

The sauce that is good for the goose is good for the gander.

You can't blow hot and cold at the same time.

Good Luck!
Tayken

[Tayken]

To a statement like that ^ I would simply state:

"It is the defendant's (?) position that the applicant has failed to prove entitlement for SS in accordance with the Divorce Act."

I would try to keep your responses short and to the point.

I wouldn't recommend to use this statement EVER. Only someone who wants to demonstrate their issues of "control" to a justice should include this statement and tell a judge how to do their job and how to Rule in the matter.

The judge will determine who has "failed to prove" and not the defendant (respondent) to the matter and I remind everyone reading this "advice".

Good Luck!
Tayken

[arabian]

The statement I provided above is quite acceptable and used by lawyers frequently. If you are self-representing I don't see why you wouldn't use this statement. In my opinion you are not telling the justice what to do. You are merely stating the facts as you perceive them. You can qualify your statement by citing relevant case law immediately after the statement.

Submitting a long, rambling document will do more harm than good in my opinion. When you do that you are leaving yourself open.

[GoDiegoGo]

My answer to cs:
ex should be imputed with income equivalent to mine or at least minimum wage before any child support is ordered.

My answer to her request for ss:
"It in my position that the Respondent has failed to prove entitlement to Spousal Support in accordance with the Divorce Act"

Can I give a timeline breakdown to show we both have been on/off work the same amount of time and that I was already off work when she decided to quit her job... she's claiming she gave up 2 years of her career to care for the family, and can no longer get employed without retraining. (in a whole new career path)

Do I also mention that SSAG suggests $0 and $114 per month (with a midpoint of $0 per month)

[Tayken]

The statement I provided above is quite acceptable and used by lawyers frequently.

Any supporting evdence to your "belief" that it is good conduct of a litigant and their lawyer to instruct a judge how to on the balance of probability make a determination of fact?

If you are self-representing I don't see why you wouldn't use this statement. In my opinion you are not telling the justice what to do.

Here is the statement:

"It is the defendant's (?) position that the applicant has failed to prove entitlement for SS in accordance with the Divorce Act."

See my above highlight. That determination is made by the judge hearing the matter not either of the parties to the matter. No evidence in support of this claim has been stated. It is a blanket statement of "fact" based on a "belief". You have to substantiate evidence in support of the position, not just make a blanket "position statement". When you do this, it is instructional to a judge. Your response should present the counter evidence for a judge to make the appropriate determination on the balance of probabilities based on the evidence presented by both parties.

A fast track to having something ordered against you is to make a statement of claim and not provide any supporting evidence. The statement provided, if written truly by a lawyer would be a at best a concluding statement identifying the evidence in support of the Respondent's position. Not just a blanket statement of a position.

Just because you say to a judge, and very explicitly "the applicant has failed to prove entitlement", doesn't mean anything to a judge. In fact, a negative inference may be taken against the person supplying this "evidence" with no support. Evidence that they have no counter argument and just a blanket statement of a challenge but, without having challenged the evidence of the other party to the matter.

You are merely stating the facts as you perceive them. You can qualify your statement by citing relevant case law immediately after the statement.

No, you are not with that statement quoted above you provided as "advice". YOu are making a blanket statement. You haven't demonstrated any counter evidence contrary to the position put forward by the other party. In fact, you are just making a blanket statement that there is no evidence. Good luck with that kind of statement in a well formed argument for SS or any matter before the civil court.

Submitting a long, rambling document will do more harm than good in my opinion. When you do that you are leaving yourself open.

Submitting a blanket statement that explicitly states "the applicant has failed to prove entitlement" is just as dangerous. It demonstrates possibly ignorance to the understanding of what needs to be demonstrated in a counter claim to entitlement of SS.

I would question the professionalism of any lawyer who responds to an application for SS to court with this blanket statement. I wouldn't recommend them to anyone. Just my personal opinion.

SS entitlement is a complex matter before a court of competent jurisdiction. Simplifying a response to a claim for SS is not a great way in my opinion to respond at all.

Good Luck!
Tayken

[arabian]

I stand by my recommendation. Lengthy, wordy statements get you no-where in court in my opinion.

Yes I agree that SS is indeed a very complicated issue. Don't be intimidated though. The judge knows you aren't a lawyer so don't present yourself as one and keep things simple and to the point. Judges just want facts.

[Tayken]

I stand by my recommendation. Lengthy, wordy statements get you no-where in court in my opinion.

Quick questions, for which you don't need to provide a lengthy or wordy response.

Is your matter regarding equalization and spousal support settled FINAL before the court?

If no, what month/year was the initial application for resolution of these matter made?

If no, how many motions have you been to? When is your trial scheduled for resolution of your matters before the court? Has a trial been set down to resolve and order final in your matter?

Good Luck!
Tayken

[GoDiegoGo]

We separated Jan 1/12, and I made my application January 3rd, 2012.

I believe we've had 2 case conferences, and we were are awaiting our 3rd settlement conference in April. Judge ordered us to mediation before next date.

We've had at least 4 different motions.

Nothing is final, no trial in sight, and there has never been any orders for cs or ss.

Only orders (temp I guess) is that we have Joint Custody with 50/50 access, and alternate holidays.

Equalization hasn't been touched yet.

[GoDiegoGo]

"It in my position that the Respondent has failed to prove entitlement to Spousal Support in accordance with the Divorce Act"

If you don't feel that this line is appropriate, what would you suggest?

I provide all my counter reasons, then at the end say:
"Based on this, I firmly believe that no SS should be paid"?