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  • Trial Management Over but no Orders

    Well first I wish to thank this forum for all the help an incredible support from LogicalVelocity.

    My Trial Management Conference is over: the judge was very good but late for an emergency dental appointment so he made it brief.

    Performance Rating
    Judge said my brief summary was excellently prepared and that I represented myself emminently and considers me to be intelligent enough to represent myself especially if I remain as objective as I was at the TMC. However he recommended that I should obtain counsel, I advised him of my financial situation as bleak

    Support:

    Judge Acknowledged impact(physical,emotional,financial) of spouses departure as a good point but looked at last years income in ascertaining if support might be warranted. (re Leskun Supreme Court Ruling)

    He would not issue Orders for Full and Frank Disclosure, Financial Examination( other counsel would not grant it) as requested.

    They claim that they would like to settle but we are so far apart.Nor would the Judge acknowledge that I am paying insurance for the Applicants vehicle.

    Would not offset because I am looking after son trying to get his masters and felt that since the youngest child moved out No child support would be required and was a non-issue.However he commended me on doing the right thing.

    NFP

    Will review this form again and try to fine tune.
    They really want half my pension

    Also

    Court date will be set next Friday.

    Can I still request an order for any of things
    Note other party wants Spring court date
    I am eligible for retirement. If she gets hafl my pension I will be takuing home half of what she earns next year. How can I use this to bargain for leverage.

    Can I still request financial examination (Judge more or less said this guy can go any time and therefore a financial examination would not be warranted, nor Full and Frank Disclosure)

    Tough to fight a battle when the rules aren't followed.

    PS ex was not there, Lawyers son took his place because he was on vacation


    Thanks, any tips or advice would be appreciated.

    Thanks
    Mcbroke (but greatly appreciative)

  • #2
    More info and questions

    Other lawyer called up and wants court date for November. I have no more holidays available for this year and could possibly lose my job if I skipped work for that week and I will not have the necessary funds to go to court. We have to go before a judge to detemine availability, the new year is the earliest.

    Question: I stayed in the home after the ex lived there, the other lawyer mentioned occupancy cost if I laid claim to utilities etc. Are property taxes part of that.

    Question: I have revised my NFP and figure I owe about $20,000 but don't have money to pay it. How do I work this out?

    If my pay was 30000 gross and her's 45000 Would I be able to claim spousal support?


    Thanks everyone,

    Mcbroke (but tried my best)

    Comment


    • #3
      Mcbroke,

      It is difficult to determine how a Judge would rule, but it appears you have some insight on the matter.

      The Judge did make a good point. The individual could skip at any time. (less than 3 years cohabitation.)

      Since the Judge did not acknowledge that you are paying your ex's insurance, why continue to do so. If this insurance amount was funneled directly to her as a periodic payment as spousal support, at least you could get the tax write off.

      You can bring forth a motion at any time in case management, even during the trial.

      I am not clear in what you mentioned,

      They really want half my pension
      Was this asset not already equalized? Is she looking for a periodic payment or lump sum in the form of spousal support. For taxation purposes, it is better if a periodic payment to prevail.

      If my pay was 30000 gross and her's 45000 Would I be able to claim spousal support?
      I am not clear. She makes more money than you already and she is claiming spousal support?

      or are you referring that your income will be reduced significantly when you retire and your income will be the quoted amounts.

      You can request to amend your pleadings, but I suspect the other party would not allow same. Your only recourse then would to bring forth a motion to amend your claim to include a claim for spousal support. You would have to be successful on your motion before the pleadings could be changed.

      see this case on amending family law pleadings

      Stefureak v. Chambers (No. 3)

      http://www.canlii.org/on/cas/onsc/20...onsc13850.html

      Question: I have revised my NFP and figure I owe about $20,000 but don't have money to pay it. How do I work this out?
      perhaps apply for a loan, line of credit, secured line of credit on property etc.

      Perhaps your could hold them off till the spring when you retire and use your severance package?

      lv

      Comment


      • #4
        Hi LV and thank you

        Sorry LV about the confusion,

        My Pension is the only thing on my side that tips the balance, as it is included in my NFP. I only have debt, no liquidity, no real asset (car is leased, house has hi mortgage due to low down. The ex has liquidity and secured debt. With all diffences being taken into account half the difference is 20,000 . My pension is my only asset and non-cashable, cannot be used as collateral so therefore I have nothing to use to pay anyone. I have no credit because of the high unsecured debt load and already negative on my monthly balance sheet.
        I won't get a lump sum on my pension, it is transferred into an annuity when I retire. That creates my pension.

        I currently make $56000 She with benefits $45000
        If I retire next year I will get approx $31800/ year
        If she gets a portion of it it will reduce it by 10% therefore $28800 half of what I am making now.

        This will be May of next year. If they award her support, based on my current wage I will be forced into bankruptcy and probably lose my home. Then the ex would get a larger sum of my pension. If they award them costs That's it for me.

        No job because of health, No money and no place to live.A downward spiral if you would. Any amount of alimony awarded would be critical to me. I would lose my car as I drive a 100km a day to work. I am just barely making it, LV

        What I see is that she is taking my income as well as my property.

        I was only hoping that they would follow the rules or at least the judge would apply them.

        Did you say I could still file a motion for an Order for a Financial Examination?and for Full and Frank Disclosure. I'm not really sure how it works.

        ANy help or tips

        All stressed out and MCbroke aka MCbankrupt

        Comment


        • #5
          Mcbroke,

          Your ex's claim is not about spousal support but net equalization. As you mentioned, your pension is the difference.

          Most pensions have policies in effect in regard to division on marital breakdown. Have your checked to see if yours has any policy of same. If so, the 20K could be transferred from your pension to a locked in savings vehicle etc of your spouses. You perhaps could work an additional year if your health holds up. I'm not sure of your age but I believe you could collect CPP as earlier as age 60. If you retire on account of health, I believe they CPP will wave the penalty.

          I would consult with your human resources department at your employer. Another option is to speak to your banker.

          I know Scotiabank has an interesting program in effect called STEP. Basically 90% of equity in your home can be borrowed against and CMHC insure the loan/line of credit. Check this out. http://www.scotiabank.com/cda/conten..._LIDen,00.html

          This may be a solution to your needs. Perhaps your current finances could be rearranged. A good starting point is to get your home appraised. You may be surprised. Real estate value is on the rise. Most homes are going up in value 5 to 10% a year now.

          lv

          Comment


          • #6
            Thanks LV

            Hi LV,

            She is filing for spousal support and NFP equalization.
            My mortgage is 95% of value.
            No room in budget for any additional payments. Consolidated loan from marital debt is as low as possible. I have bad credit because of the split and hence no money lender will look at me. Age 51. I hadn't planned on retirement but physically I can't handle it any more. I have deep vein thrombosis/arthritic knee joints so the pain kicks in after about 3 and half hours upright (hence most my night is horizontal).Cannot use prescription painkillers at work or when driving (Morphine based). All this and tring to save up for a medical procedure that is not covered by my medical coverage.

            My work gets notified by the court if there is an attachment on my pension, they earmark it and from that point on until I retire the court awards interest.When my guaranteed pension is calculated they include her share in the calculation to bring it up to the guaranteed level so if I were to receive it all I would get 31000, but really I would only get 28,000 . She would get the difference or a lump sum that would satisfy the court.

            With this thinking in mind the 3000 decrease in my yearly pension would be like me paying her support even though I am earning less than her when I retire.

            I think the weak link in her case is the bf. Is it possible to still file those motions for Orders of Full and Frank Disclosure and Financial Examination. Even though the TMC judge said no. If I can file these motions what if I'm not successful, is there a cost how much might it be?Any tips please,Thank you so much LV.

            McBroke

            Comment


            • #7
              Mcbroke,

              Why not retire before the matter went to trial and attend to your health. If you income was less than hers, her claim for spousal support I suspect would have no merit.

              I would stop paying her insurance. This is seen as a gift. I suspect you won't get any credit for this act and you lose out on the tax credit if this amount was funnelled as spousal support.

              You could bring forth a motion at any time for financial disclosure. If unsuccesful costs could be awarded.
              See the the article from Blishen J on the subject - 3 parts


              lv
              Attached Files

              Comment


              • #8
                part 2 costs Blishen J. article

                part 2 article by Blishen J. - costs
                Attached Files

                Comment


                • #9
                  part 3 article on costs

                  part 3 article on costs
                  Attached Files

                  Comment


                  • #10
                    Thank you so much LV for everything

                    Instead of a financial examination, can I just use Queens bench rule 35? Ask her specific questions.... What is the gross income of your partner ? Have you ever received money from your partner to help pay your lawyere retainer or bills?
                    If I can use bench rule 35 (can you use it Ontario) how do I go about doing it? What form would I use?

                    also if the ex had access to a store visa for benefits can I ask for those records in court, They are going to put her employer on the stand.

                    Right after the TMC the other lawyer went in to the court house office to reserve a date We are to appear in court on the 11th .How do I justify a later date. I can't get any more days off I am going to have medical procedures over 6 weeks. Is there a time limit on the date can I schedule in the spring, retiremetn would be right around the corner.


                    THanks LV
                    MCBroke

                    Comment


                    • #11
                      Mcbroke,

                      Instead of a financial examination, can I just use Queens bench rule 35? Ask her specific questions.... What is the gross income of your partner ? Have you ever received money from your partner to help pay your lawyere retainer or bills?
                      If I can use bench rule 35 (can you use it Ontario) how do I go about doing it? What form would I use?
                      Is that rule from Sask, or Manitoba courts? I believe the equivalency would an examination under oath here. During a financial examination you could ask her those specific questions.

                      I would think that future court dates should be to mutual agreement and they should verify with you about availability.

                      lv

                      Comment


                      • #12
                        Thank you LV

                        I think its from Manitoba LV, but I found this in Civil Courts Act is this equivalent to Queens Bench rule 35 and can I use it in my case(to save on the possible expense of a motion or financial examination) Do you know a link to the forms if I can use this procedure? Thanks again LV:

                        PROCEDURE ON EXAMINATION FOR RULE 35 DISCOVERY BY WRITTEN QUESTIONS
                        QUESTIONS
                        35.01 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered (Form 35A) on the person to be examined and every other party. R.R.O. 1990, Reg. 194, r. 35.01.
                        ANSWERS
                        35.02 (1) Written questions shall be answered by the affidavit (Form 35B) of the person being examined, served on the examining party within fifteen days after service of the list of questions. R.R.O. 1990, Reg. 194, r. 35.02 (1).
                        (2) The examining party shall serve the answers on every other party forthwith. R.R.O. 1990, Reg. 194, r. 35.02 (2).
                        OBJECTIONS
                        35.03 An objection to answering a written question shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection. R.R.O. 1990, Reg. 194, r. 35.03.
                        FAILURE TO ANSWER
                        Further List of Questions
                        35.04 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within ten days after receiving the answer, serve a further list of written questions which shall be answered within fifteen days after service. R.R.O. 1990, Reg. 194, r. 35.04 (1).
                        Court Order for Further Answers
                        (2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination. R.R.O. 1990, Reg. 194, r. 35.04 (2).
                        Court Order for Oral Examination
                        (3) Where the court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the court may order the person examined to submit to oral examination on such terms respecting costs and other matters as are just. R.R.O. 1990, Reg. 194, r. 35.04 (3).
                        Additional Sanctions
                        (4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document that he or she is required to produce, the court may, in addition to imposing the sanctions provided in subrules (2) and (3),
                        (a) if the person is a party or a person examined on behalf or in place of a party, dismiss the party’s action or strike out the party’s defence;
                        (b) strike out all or part of the person’s evidence; and
                        (c) make such other order as is just. R.R.O. 1990, Reg. 194, r. 35.04 (4).
                        IMPROPER CONDUCT OF EXAMINATION
                        35.05 On motion by the person being examined, or by any party, the court may terminate the written examination or limit its scope where,
                        (a) the right to examine is being abused by an excess of improper questions; or
                        (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined. R.R.O. 1990, Reg. 194, r. 35.05.
                        FILING QUESTIONS AND ANSWERS
                        35.06 Rule 34.18 applies, with necessary modifications, to the filing of written questions and answers for the use of the court. R.R.O. 1990, Reg. 194, r. 35.06.
                        TAKING EVIDENCE BEFORE TRIAL RULE 36
                        WHERE AVAILABLE
                        By Consent or by Order

                        Comment


                        • #13
                          Mcbroke,

                          If a matter is not covered by the family law rules,

                          see the applicable rule 1(7)

                          MATTERS NOT COVERED IN RULES

                          (7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1 (7).

                          This rule gives the court discretion whether or not to refer to rules of civil procedure.

                          Your required questioning does not necessarily have to be in written form. You could ask those questions using rule 20 Family Law Rules in a oral capacity. The questioning session is recorded and can be entered into evidence.

                          http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm


                          RULE 20: QUESTIONING A WITNESS AND DISCLOSURE

                          QUESTIONING — PROCEDURE

                          20. (1) Questioning under this rule shall take place orally under oath or affirmation. O. Reg. 114/99, r. 20 (1).

                          CROSS-EXAMINATION

                          (2) The right to question a person includes the right to cross-examine. O. Reg. 114/99, r. 20 (2).

                          OTHER CASES — CONSENT OR ORDER

                          (4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,

                          (a) with the other party’s consent; or

                          (b) by an order under subrule (5). O. Reg. 114/99, r. 20 (4).

                          ORDER FOR QUESTIONING OR DISCLOSURE

                          (5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

                          1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

                          2. The information is not easily available by any other method.

                          3. The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5).

                          QUESTIONING ABOUT AFFIDAVIT OR NET FAMILY PROPERTY STATEMENT

                          (7) The court may make an order under subrule (5) that a person be questioned or disclose details about information in an affidavit or net family property statement. O. Reg. 114/99, r. 20 (7).

                          QUESTIONING OR DISCLOSURE — PRECONDITIONS

                          (8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

                          (a) has served and filed any answer, financial statement or net family property statement that these rules require; and

                          (b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained. O. Reg. 114/99, r. 20 (8).

                          NOTICE AND SUMMONS TO NON-PARTY

                          (9) The court may make an order under this rule affecting a non-party only if the non-party has been served with the notice of motion, a summons to witness (Form 23) and the witness fee required by subrule 23 (4), all by special service (subrule 6 (3)). O. Reg. 114/99, r. 20 (9).

                          PENALTY FOR FAILURE TO OBEY SUMMONS

                          (10) Subrule 23 (7) (failure to obey summons to witness) applies, with necessary changes, if a person summoned under subrule (9) fails to obey the summons. O. Reg. 114/99, r. 20 (10).

                          PLACE OF QUESTIONING

                          (11) The questioning shall take place in the municipality in which the person to be questioned lives, unless that person and the party who wants to do the questioning agree to hold it in another municipality. O. Reg. 114/99, r. 20 (11).

                          OTHER ARRANGEMENTS FOR QUESTIONING

                          (12) If the person to be questioned and the party who wants to do the questioning do not agree on one or more of the following matters, the court shall, on motion, make an order to decide the matter:

                          1. The date and time for the questioning.

                          2. The person responsible for recording the questioning.

                          3. The method for recording the questioning.

                          4. Payment of the expenses of the person to be questioned, if a non-party. O. Reg. 114/99, r. 20 (12).

                          NOTICE TO PARTIES

                          (13) The parties shall, not later than three days before the questioning, be served with notice of the name of the person to be questioned and the address, date and time of the questioning. O. Reg. 114/99, r. 20 (13).

                          QUESTIONING PERSON OUTSIDE ONTARIO

                          (14) If a person to be questioned lives outside Ontario and will not come to Ontario for questioning, the court may decide,

                          (a) the date, time and place for the questioning;

                          (b) how much notice the person should be given;

                          (c) the person before whom the questioning will be held;

                          (d) the amount of the witness fee to be paid to the person to be questioned;

                          (e) the method for recording the questioning;

                          (f) where necessary, that the clerk shall issue,

                          (i) an authorization to a commissioner (Form 20A) who is to supervise the questioning outside Ontario, and

                          (ii) a letter of request (Form 20B) to the appropriate court or authorities outside Ontario, asking for their assistance in getting the person to be questioned to come before the commissioner; and

                          (g) any other related matter. O. Reg. 114/99, r. 20 (14).

                          COMMISSIONER’S DUTIES

                          (15) A commissioner authorized under subrule (14) shall,

                          (a) supervise the questioning according to the terms of the court’s authorization, these rules and Ontario’s law of evidence, unless the law of the place where the questioning is to be held requires some other manner of questioning;

                          (b) make and keep a copy of the record of the questioning and, if possible, of the exhibits, if any;

                          (c) deliver the original record, any exhibits and the authorization to the clerk who issued it; and

                          (d) notify the party who asked for the questioning that the record has been delivered to the clerk. O. Reg. 114/99, r. 20 (15).

                          ORDER TO BRING DOCUMENTS OR THINGS

                          (16) An order for questioning and a summons to witness may also require the person to bring any document or thing that is,

                          (a) relevant to any issue in the case; and

                          (b) in the person’s control or available to the person on request. O. Reg. 114/99, r. 20 (16).

                          OTHER RULES APPLY

                          (17) Subrules 19 (2), (4) and (5) (right to examine document and obtain copy, documents protected by legal privilege, use of privileged documents) apply, with necessary changes, to the documents mentioned in the order. O. Reg. 114/99, r. 20 (17).

                          SCOPE OF QUESTIONS

                          (18) A person to be questioned may be asked about,

                          (a) the names of persons who might reasonably be expected to know about the claims in the case and, with the court’s permission, their addresses;

                          (b) the names of the witnesses whom a party intends to call at trial and, with the court’s permission, their addresses;

                          (c) the names, addresses, findings, conclusions and opinions of expert witnesses whom a party intends to call or on whose reports the party intends to rely at trial;

                          (d) if it is relevant to the case, the existence and details of any insurance policy under which the insurance company may be required to pay all or part of an order for the payment of money in the case or to pay back to a party money that the party has paid under an order; and

                          (e) any other matter in dispute in the case. O. Reg. 114/99, r. 20 (18).

                          REFUSAL TO ANSWER QUESTION

                          (19) If a person being questioned refuses to answer a question,

                          (a) the court may, on motion,

                          (i) decide whether the question is proper,

                          (ii) give directions for the person’s return to the questioning, and

                          (iii) make a contempt order against the person; and

                          (b) if the person is a party or is questioned on behalf or in place of a party, the party shall not use the information that was refused as evidence in the case, unless the court gives permission under subrule (20). O. Reg. 114/99, r. 20 (19).

                          I suspect your required disclosure is covered by the family law rules, no need to refer to rules of civil procedure. I believe you won't be able to question in written form now because of the stage of your case but I think you could bring forth a motion to question your ex in a oral capacity under oath. You would have to be successful in your motion if they don't consent to questioning.

                          lv

                          Comment


                          • #14
                            Thank you LV.

                            I think I understand. It says

                            5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

                            1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

                            Does that mean that I can request a motion to question the boyfriend, if questioned she could say that she does not know how much he makes. I would like to put forward a motion to question both of them. SInce he is not represented I might have a better chance of getting full and frank disclosure from him? Just to put pressure on both of them to comply with family rules.
                            Reason: The Applicant imay say she is unable to reveal information that she may not be privy too (bf's income). Therefore the bf is the one who is not complying in providing the information

                            It was stated in court before the judge by the Applicant's lawyer that " it is my understanding that Mr. X does not want to be involved." Question: Has the Applicant's lawyer now represented the Applicant 's bf in court? Does that raise any new issues, such as third party involvement? I would think that the lawyer should not have stated this in court at all. I expected " Your Honor, I cannot speak on Mr X's behalf however it is my understanding that the Applicant does not want him involved in this matter...or something to that effect.

                            Could I argue that the Financial Statement as it is written does involve the Applicants bf the way it is written and therefore the form itself is reason enough to add the Applicant's bf as a third party, and hence the completion of said form with full and frank disclosure as the form itself does not specify duration of cohabitation.I therfore require this information. (Weak concept or valid point?)


                            Just trying to find a loophole as cheaply and effectively as possible.

                            Thanks LV
                            Yours truly,
                            MCbroke

                            Comment


                            • #15
                              mcbroke,

                              you do have a valid point. To me the boyfriends income is relevant as your ex's need may not be as great as she put forth in her financial statement.
                              Her expenses are shared. Quite frankly, the bf may be paying the full shot.
                              Who really knows. Questioning your ex alone may disclose some of her expenses.

                              The Judge made a good point, the bf could leave at anytime and since they are less less than 3 years of continuous cohabitation and no child is born to them while cohabitating, there is no obligation by the bf to support your ex. You do have a right to disclosure of information part 6 of the financial form. Your ex should be disclosing his income here and the contribution to same.

                              Time is of the essence to your ex's claim, hence the current urgency by them.
                              I suspect they realize this and why they are expedited their claim. Try to schedule the trial as far into the future as possible. Not sure how much backlog there is. If the trail date is set, both parties are expected to attend, no ifs and buts.

                              lv

                              Comment

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