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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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Old 04-14-2010, 10:12 PM
Stressed by Ex Stressed by Ex is offline
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Default Spousal Support - help me understand please!

Please help. Need answers and please don't take this the wrong way, but I'm not looking for somone to share their own story. Need advice based on my facts.

Married 16 years - we're both in our mid-40's
Separated 3.5 years ago. Current status = divorced
3 teenage kids
my income $90K, his income $48K
I have sole custody. Custody is not an issue for him. Money is!!!

Ex claims he has an automatic entitlement to Spousal Support. He did not sacrifice his career to raise our children. We both always worked full time. Kids in daycare immediately following my 6 month mat leaves. Majority of jobs he's had have been working evenings and weekends, so I've been a single mom for years during our marriage. He chose these shifts because they suited him, he could have worked days.

He doesn't pay Child Support even though ordered to do so. Have filed with FRO and don't need help on that issue.

He states he doesn't have to pay child support until the Spousal Support entitlement is factored in. I refuse to pay him spousal support because I can't afford to pay. I have accumulated $60K in legal debt and have already spent 3 years in and out of court. Long story - not relevant to my question. He continues to threaten me with Trial and we have a pre exit Trial conference scheduled for next month.

Assuming he's entitled, what would he get and for how long.

I am confident I will be part of that 2% that will actually go to trial. My ex is adamant about that.

If any of this is sounding familiar, my original post got closed. I'm new and don't know why my post got closed so I started a new one.

Tired of fighting and want a clean break. He and I will never have any kind of relationship or communication. Not bitter, just stating a fact that is his choice. By the way, if anyone's wondering, I didn't leave him or cheat on him. He's angry and on a mission to destroy me - emotionally and financially. No I'm not paranoid. I have been repeatedly threatened for 3.5 years. Dragging me through endless Case Conferences, settlement conferences, motion hearings, etc. just to break me.

Please help me understand the $ and entitlement. I can't believe it's automatic. He should be paying me $925 in child support and refuses to do so. Just to end this madness, I have agreed to $0 in child support and I agreed to that 3.5 years ago to keep the peace which was before I accumulated $60K in legal debt because he and his lawyer have been dragging this out. Easy to do if you're dealing with NewMarket Court in Ontario. What a mess that place is. 3.5 years, 12 different judges, numerous adjournments and I'm not special. Simply one of the statistics. Been told that many many times.

By the way, he knows I'm completely broke now and can't afford a Trial. I'm barely making ends meet, supporting my kids entirely on my own. If I didn't have the legal debt, I'd be ok on my own.
  #2  
Old 04-14-2010, 10:24 PM
logicalvelocity logicalvelocity is offline
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Needs vs. means on the Spousal Support. As demonstrated your ex has survived 3.5 years without.

Because of non-compliance of court orders - What stance do they have to bring further equitable relief application... Clean Hands Doctrine may apply.

Beidas v. Pichler (Legassé), 2008 CanLII 26255 (ON S.C.D.C.)

http://www.canlii.org/en/on/onscdc/d...nlii26255.html
“Clean Hands”

[17] In Sherwood Dash Inc. v. Woodview Products Inc. [2005] O.J. No. 5298, P.M. Perell J. quoted the often-cited maxim that one who seeks equity must have clean hands. He said as follows in paragraphs 51-53:

An injunction is an equitable remedy and it is subject to the principles that govern the grant of equitable decrees and orders. One of those principles is the maxim that "one who comes to equity with clean hands."

As commentators and judges have noted, the metaphor that a claimant for equitable relief must have clean hands must be put into context. Judges of the courts of equity do not deny relief because the claimant is a villain or wrongdoer; rather, the judges deny relief when the claimant's wrongdoing taints the appropriateness of the remedy being sought from the court. In Argyll v. Argyll, [1967] Ch. 302, Ungoed-Thomas, J. described the principle nicely at pp. 331-2, when he said: "A person coming to Equity for relief ... must come with clean hands; but the cleanliness required is to be judged in relation to the relief sought."

In City of Toronto v. Polai, (1969), 8 D.L.R. (3d) 689 (Ont. C.A.), in describing the clean hands principle Schroeder, J.A. stated at pp. 699-70:

The misconduct charged against the plaintiff as ground for invoking the maxim against him must relate directly to the very transaction concerning which the complaint is made, and not merely to the general morals or conduct of the person seeking relief; or as is indicated by the reporter's note in the old case of Jones v. Lenthal (1669), 1 Chan. Cas. 154, 22 E.R. 739: "... that the iniquity must be done to the defendant himself."

[18] In Regina v. Consolidated Fastfrate Transport Inc., 1995 CanLII 1527 (ON C.A.), [1995] O.J. No. 1855, 24 O.R. (3d) 564, the Court of Appeal stated as follows at paragraph 133:

A Mareva injunction is a discretionary equitable remedy. It will only be granted to a person "who has clean hands". It is on this basis that the requirement for full and frank disclosure rests. See Chitel v. Rothbart, supra, where the application was refused because the plaintiff failed to make the necessary full and frank disclosure. The granting of an injunction also involves weighing the balance of convenience to the parties: Aetna Financial Services Ltd. v. Feigelman, supra, at p. 176. It will be issued in circumstances where the plaintiff demonstrates that he will suffer irreparable harm if the injunction is not issued. Fairness to both sides is a consideration. By contrast, an execution can be issued as of right once a judgment has been obtained against the defendant. If the plaintiff has a valid judgment, considerations such as fairness and the "clean hands" of the plaintiff are irrelevant.
To summarize, I don't think the court will be too impressed with their non-compliance of court order.

Failure to comply with an order that was made on motion will have significant ramifications. See Sub Rule 14(25) of the Family Law Rules:

FAILURE TO OBEY ORDER MADE ON MOTION

(23) A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs. O. Reg. 114/99, r. 14 (23); O. Reg. 89/04, s. 6 (7).

http://www.e-laws.gov.on.ca/html/reg...s_990114_e.htm

Last edited by logicalvelocity; 04-14-2010 at 10:31 PM.
  #3  
Old 04-14-2010, 10:44 PM
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I realize you are stressed by your ex, but you are asking the same question we already answered in your last thread.

His income is already over 45% of yours. On the surface, from the facts you have given, the spousal support would be $0.

You are either unclear or contradicting yourself. You separated 3.5 years ago, he began his claim for spousal 3.5 years ago, you agreed 3.5 years ago to forgo child support in order avoid legal costs, but you have spent $60k going to court for what reason then? I assume you quickly withdrew your offer of $0 child support (and rightly so) in which case this isn't really relevant to anything.

logicalvelocity, it appears to me that her ex began his claim 3.5 years ago when his hands were clean. He is in arrears for the interim order, but he is disputing the fairness of that order, he has his reasons which we do not know.

Stressed by Ex, were there any other factors brought up in this claim for spousal besides raw income numbers? Did he stop working at some point so that you could take a promotion or apply for a better job? Was he caring for the children? Covering their sick days off school? Working part time to pick them up and drop them off? Was there anything that would have affected his work, his income, his career advancement? You say that he worked evenings and weekends out of choice, why then were the children in daycare? What sort of career did he have that he could have chosen either days or evenings/weekends?

He's filed an application with reasons, what are his reasons? If it really is just your income disparity, then again, for the fourth or fifth time, he has no case.

You say that you have read the Spousal Support Guidelines I linked to earlier. Those guidelines list the rationale, the formula, etc, there is really nothing we can add there. By the info you have given he has no case.
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Old 04-14-2010, 10:49 PM
Stressed by Ex Stressed by Ex is offline
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Thank you. This is very helpful.

He is in contempt of several court orders, not just Child Support.

First motion hearing was 3 years ago. I won and was awarded $25,000 in costs. His solicitor was removed from the record due to conflict of interest.

My ex refused to pay the cost order and as a result I couldn't afford to keep my original lawyer. He finally paid a portion of these costs 16 months after it was due. He owes me the o/s balance plus interest. Refuses to pay that. I was broke and represented myself for year and tried to settle. Numerous attempts were made.

When we reconciled briefly 4 years ago and that reconciliation lasted 6 months. We purchased a new house - only one of the conditions of our reconciliation - long story - we had a verbal agreement that if things didn't work out, I would buy him out at the original purchase price. Our home is our only asset.

He refused to let me buy him out even after he lost the first motion hearing, and in October 2008 at a case conference, the judge ordered him to get an appraisal and to pay for it since he had not paid me the Costs I was awarded in January 2007. The Settlement conference Judge cautioned him that based on the fact that we only just purchased the home and separated 6 months later, that although there was no written agreement, "the value is obvious because it was recently purchased". He is in contempt of that court order dated October 2008 - he never got this appraisal done.

Now 3.5 years later, he's demanding an appraisal be done ASAP and if I don't buy him out at current market value, that I sell the house immediately. I have 3 kids who were already relocated when we reconciled the first time and I don't want to do that to them again BUT ALSO, I cannot afford to buy him out since I have to mortgage the house to do that. I can qualify for the mortgage at the original purchase price.

He is using the fact that we haven't done the equalization so he can't afford to pay me Child support. And he's trying to make me look like the bad guy in all this. I can prove that I have been trying to buy him out since we separated. He has refused and continues to exagerrate the value of our home without any input from an actual Appraiser.

Can you provide me any Case law on this issue and does it tie into Child Support and Spousal support as he continues insist for over 3 years now.

Mess - no other factors other than a false claim that he was the primary caregiver. Not true and I can prove this. He never stopeed working or passed up any promotions. He continued to look for work that would pay him more. No he rarely saw the children based on his work preferences. Yes he covered the occasional sick day because he didn't work in the day. He never worked part time. He has had many jobs over our 16 year marriage. He has had some day jobs but hated that. He liked his days free so he could work out and do his own thing. He did not sacrifice his career.
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Old 04-14-2010, 11:03 PM
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I thought that parties were prohibited from bringing further action to the court if they have been ordered to pay costs which haven't been paid.

LV must have closed your previous thread. Ask him why.

Last edited by dadtotheend; 04-14-2010 at 11:07 PM.
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Old 04-14-2010, 11:04 PM
logicalvelocity logicalvelocity is offline
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Quote:
Originally Posted by Mess View Post
I realize you are stressed by your ex, but you are asking the same question we already answered in your last thread.

His income is already over 45% of yours. On the surface, from the facts you have given, the spousal support would be $0.

You are either unclear or contradicting yourself. You separated 3.5 years ago, he began his claim for spousal 3.5 years ago, you agreed 3.5 years ago to forgo child support in order avoid legal costs, but you have spent $60k going to court for what reason then? I assume you quickly withdrew your offer of $0 child support (and rightly so) in which case this isn't really relevant to anything.

logicalvelocity, it appears to me that her ex began his claim 3.5 years ago when his hands were clean. He is in arrears for the interim order, but he is disputing the fairness of that order, he has his reasons which we do not know.

Stressed by Ex, were there any other factors brought up in this claim for spousal besides raw income numbers? Did he stop working at some point so that you could take a promotion or apply for a better job? Was he caring for the children? Covering their sick days off school? Working part time to pick them up and drop them off? Was there anything that would have affected his work, his income, his career advancement? You say that he worked evenings and weekends out of choice, why then were the children in daycare? What sort of career did he have that he could have chosen either days or evenings/weekends?

He's filed an application with reasons, what are his reasons? If it really is just your income disparity, then again, for the fourth or fifth time, he has no case.

You say that you have read the Spousal Support Guidelines I linked to earlier. Those guidelines list the rationale, the formula, etc, there is really nothing we can add there. By the info you have given he has no case.

Mess,

Its problematic.

They missed the 7 day Appeal Notice deadline of the interlocutory order with Divisional Court or Superior Court of Justice depending on originating Court that made the order. They would have to seek leave to extend the Appeal time to the respective court.

In the alternative - if the party grounds for non-compliance of the order is based on material change--then perhaps their hands are clean. But that would have to be determined by further hearing.

Complex-but on the face in busy motion court - I don't think they have a chance. About 3.5 years have elapsed. Interlocutory nightmare for the one that is in non-compliance of a court order to move the matter forward for final disposition.

The child support order could be set aside based on fraud, mistake or lack of notice--But I think that is not the circumstance.
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Old 04-14-2010, 11:07 PM
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You had a house fully paid for, you have possession, but you didn't buy him out 3.5 years ago. He is still waiting for equalization.

I'm sorry, I don't understand how you burned through $25,000 in legal costs in just 6 months to get one motion? Actually, since costs are never the actually 100% of the bill, I'd be surprised if it wasn't double that?

Are you saying the only issue was the sale/buyout of the home, and child support? You have a court order? Why haven't you registered with the FRO? Is he self-employed and can't be ganrisheed?

You have apparently won every hearing so far, has no justice told the both of you whether there was a case for spousal or not? I'm sorry, do we here have more evidence and legal knowledge than they?

Again, I understand you are stressed and you have another court date approaching, but what can we tell you that you don't already know?

You are asking for case law "on this issue", but I'm not clear on what your issue is? Spousal Support? The sale or buyout of the home?
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Old 04-14-2010, 11:10 PM
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There has been no material change. There is no fraud, mistake or lack of notice.

The issues are Child Support, Spousal Support and the value of a home purchased just 6 months before we separated. The conflict of interest motion hearing I won against my Ex's first lawyer was simply a failed attempt by my ex to destroy me. It took me 7 months, but I won that motion hearing and that's where I accumulated my first $40K in debt. The rest has been since I hired my current lawyer in January 2009. He finally paid me my cost order in September 2009, but like I said if you know anything about NewMarket, you incur costs because of the nightmare in the way that place is run. We were adjourned several times and none of my motions have been heard, including the contempt order. He finally buckled and paid some of it, and that's when I got an interim order for Child support reduced by his claim for Spousal support.
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Old 04-14-2010, 11:13 PM
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I got my answer from logical velocity on the Spousal support issue

I'd like have case law on the buy out of the home issue now please. The house was not fully paid. There is an o/s mortgage of 125,000

Mess - you have to slow down. Give me a chance to answer your questions. And I am registered with FRO, not asking questions about that.
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Old 04-14-2010, 11:22 PM
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Given all the time, expense and stress you have no doubt endured, surely you have exhaustively searched through CanLII on your own, right? Or made the lawyers do it in return for all the money you have given them.

Are you asking people here to provide their own case law, or to do the research for you?
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