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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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  #1  
Old 03-30-2009, 09:31 PM
exceptiontotherules exceptiontotherules is offline
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Default Is it hopeless? First case conference gone wrong....any advice is appreciated

BF went to first case conference today. Went horribly bad and the judge basically told him that he would rule 100% in favour of his ex. Is this just this particular judge's opinion or is my bf financially ruined for life? Any help or advice how to proceed is appreciated.

No motions ordered today other than financial disclosure of biological fathers and their support orders (which have not been completed yet).

A little background on the situation - 8 years married, diligently paid according to separation agreement for both biological kids. She found out she could get money for the two kids not his and alimony and now 15 months later is looking to cash in. Judge basically said he didn't care they had drafted a separation agreement.

She was to pay for half the debts and decided not to. She stopped paying and said it was his problem. He tried to keep up but hours cut at work. He has a huge negative equity and credit is falling fast. Judge said she wouldn't be responsible for half, it was 100% his problem.

She denied him access for 3 months and continually keeps them from him for vacation or extra time. She isn't following the existing temporary court order but the judge wanted to change some things based on "her word".

His income has dropped by 20%, soon to be 40%. Overtime cut and her attorney is trying to get him assessed at more than he brings home. She makes cash and is lying about her income and expenses.

Based on the alimony and child support numbers the judge threw out my bf would not have $500 a month to live off. That wouldn't cover rent (he has a basic apartment, nothing fancy) let alone transportation to work and food.

How is he to maintain a job if he can't keep somewhere to live, can't feed himself and can't get to the job to pay her?

We have extensive documentation but judge didn't even want to look at that. It shows the games she has played with access to the children and denial of time.

Any help or advice anyone can offer is appreciated. His lawyer is professional and argued but hers was loud, obnoxious, unprofessional and overpowered the situation. Due to her lying on her income, she has legal aid and we of course do not. We have limited money to fight her.

Is it possible to come out ok or is he doomed? Any suggestions on how to combat this from people who have been there or seen it before?

He is not opposed to paying but wanted to get his kids more (not for a reduction in money but just to spend time with them) and the judge didn't even talk about that.

Any thoughts are appreciated.

Exception

I'm going through my own issues but that is for another post...
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Old 03-31-2009, 06:49 AM
standing on the sidelines standing on the sidelines is offline
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i am really hoping that this works out for your bf. How can the judge even think to award her SS after this long?? If she hasn't needed it for the last 15 months then she doesn't need it. Has your boyfriend tried to get legal aid since his income has dropped?? I am thinking that the judge cannot disregard the separation agreement. So everything was okay until she got the idea that she could squeeze more money out of your bf? (except for the access) It is woman like her that make it bad for others and give CP mothers a bad rap.
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Old 03-31-2009, 08:19 AM
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If both parties to the separation agreement had independent legal council before they signed it then it should stand up.
If they did not get a lawyer to look it over and sign a paper stating that they had advised the person of the ramification/implications of signing the agreement it can be tossed out as void.

The BF would do well to not focus on the behaviour of the ex , and only focus on dates and times and remain neutral.
IE when documenting denied access do not interject an opinion of why she did this or anything.
Simply state access was to occur on this date, explain that he arrived as per agreement for access but children were not ready for access, no access took place. IF he called, provide a telephone log of all calls and note if he left a message, if someone answered, and what was said and possibly how long the call lasted.

All his notice of assessments would be what the courts would want to determine CS amounts however, also make sure to include recent pay stubs to support the reduced income. Otherwise the courts will use the average of the last three years of his income. And if the company issued any written notices to the affect of reduced work loads include that too to document that over time and extra work is being cut back.

He must not under any circumstances look like he’s trying to make the mother look bad.
He has to stick to documentable facts, otherwise the judge will rule in her favour hands down.
Spousal support as a general rule should be at minimum “requested” for consideration within the first year of separation.
As stated because she managed 15 months without it, it demonstrates her decreased need. SS is primarily based on the need of the requesting party and means to pay of the paying party after all other support ordered amounts are misused from the income. The courts take into consideration the length f the relationship, both parties income levels, any support orders from other parties, (ie cs for the non-bio children from their bio father and his role in their lives). It is important if there is no order for support from the bio dad for the other children to seek to include him in this request as it is primarily his obligation to support his bio-children not the BF.
If the courts feel that the claim for CS of the non-bio children is warranted, they will look at the capacity in which the BF played the parental role. IE did he sign permission slips, attend school teacher meetings, doctor’s appointments and dental appointments, how involved in discipline was he relative to the mother things like that to determine “loco parentis”.

The courts would have to first determine if CS for the non-bio children is valid prior to establishing need for SS as sated, the CS amount it taken off the income of the payer before calculating spousal support amounts, plus the courts ADD any benefit the children play for the custodial aren’t to the mother’s income, IE tax credits, Child tax benefits, etc. Not to mention CS is added to her income to further determine if the need for spousal support is further warranted. As CS is expected to help with the basic needs of the children and those basic needs include rent for a home for them to live, food etc.

Your lawyer should be able to further help in these areas.
But with this you can arm yourself with some knowledge by searching the laws and any case studies on how judges have ruled in the past on any case that may be similar to yours.
Here is a useful link for case studies,

CanLII - Advanced Search
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Old 03-31-2009, 08:29 AM
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CanLII - 2004 ONCJ 324 (CanLII)

This is a good case to read.
Mother had two children with another man and did not seek support from him, and waited beyond the time limit to seek SS.
Here is an excerpt, noting what the judge says, IE during the wait before bringing forth a SS request, mom did not incur debt, and most important did not provide appropriate reason for not starting the calim for SS in a timely manner

The father and the mother did agree that the mother would not have to look for employment until Katlyn was in school. However, the father has not built up his assets as a result of not paying spousal support. The mother did not incur substantial debt before bringing this application and, more importantly, does not provide an appropriate reason for not starting this application on a more timely basis. In addition, the father did pay some spousal support and the mother’s ongoing expenses are modest. Under all the circumstances, including the payments of ongoing spousal support as well as the ongoing and retroactive child support, I find that it would cause an unfair burden on the father to pay in addition retroactive spousal support and accordingly, I dismiss that claim.
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Old 04-02-2009, 01:30 PM
exceptiontotherules exceptiontotherules is offline
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Default What happens next?

Thank you for the responses!!!!! Yes, I would agree that she gives divorcing mothers (like me) a bad rap. We will look into legal aid, the worst they can say is no I guess.

Unfortunately I think that she may get around on a technicality for the SS because he took her to court to get access just before Christmas and she slipped it in on the counter motion. That was just before the time limit. The problem was she had denied him access for 3 months and he wanted to see the kids for Christmas. Even now she barely follows the temporary court order.

I will look in depth into the case law site - that will be helpful. No case law was mentioned at the case conference which I thought was odd, the judge just listened to her fake sobs in the corner and outright lies. My bf did not get to say very much over those two. The judge didn't even listen and just assumed "loco parentis".

Unfortunately, now I have more questions though - if anyone has any answers please let me know....

-What happens next after the case conference?

-If one judge stated his opinion is that indicative of how all judges will rule this case? Her her loud mouth lawyer interrupting and talking over everyone to direct the conversation away from anything that made her look bad.

-If it goes to trial will he actually get to tell his side or will they just ignore him there too and award her all this money and him no time with his kids? He had access issues as well, trying to get them more and the judge didn't care. We are wondering if it is worth pursuing fighting. He wants to see his kids more and doesn't mind paying as long as it's fair. The numbers they threw out were basically what he brings home.

-Shouldn't his lawyer have interjected with his issues to make sure they were heard? (like denial of access and her not filing for SS or CS for the 2 girls until he brought the access issue to the judge at the end of the 12 months)? People on this site don't even know the intimate details of this case and that was a response I got back, I think it should have been brought up. We think his lawyer wasn't wasting his breath because the judge wasn't interested in hearing it but we are concerned on if he pursues this what will happen. He needs someone to fight for him!!

Unfortunately, because this judge agreed with her and told her she'll get all this money and he won't get the kids any extra than once per week and every other weekend he has created an absolute MONSTER...if she wasn't bad enough trying to dictate and harass us before, now she is a vindicated woman. You can only imagine what we are dealing with now.

Any help is appreciated!!!
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Old 04-02-2009, 08:54 PM
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Quote:
Originally Posted by exceptiontotherules View Post
-What happens next after the case conference?

Did you go to the Family Information Session? The whole process is spelled out there for you. If not, do a search on "case management" in this forum to get a take on the process. You may have one or more case conferences, motions, settlement conferences, trial management conference, exit pre-trial conference, and ultimately a trial. Only 3% of cases get to trial.

-If one judge stated his opinion is that indicative of how all judges will rule this case?

Theoretically, the judge may give an opinion as to how everything will play out, therefore yes it is supposed to be indicative. Practically, the judge is not hearing evidence that is tested and is not in a position to weigh the validity of the evidence. Judges tend to more candid with their feelings in a case conference because that is not a formal proceeding that will form part of the continuing record. Therefore they can be quite animated, even a prick, and it will not come back to haunt them because it's not part of the formal record. Therefore, what a judge says in a case conference does not necessarily predict how a trial judge will rule.

Also keep in mind that a judge before whom you appear at a case conference or motion is disqualified from being that judge at trial. So take consolation from the fact that the judge you saw is not allowed to be the same one that ultimately would decide, should it get to trial.

-If it goes to trial will he actually get to tell his side or will they just ignore him there too and award her all this money and him no time with his kids?

Absolutely he will get to tell his side at trial, there are rules of civil procedure that operate to ensure that both sides get to present their case.

-Shouldn't his lawyer have interjected with his issues to make sure they were heard? (like denial of access and her not filing for SS or CS for the 2 girls until he brought the access issue to the judge at the end of the 12 months)?

Maybe the lawyer knows this judge and to have piped up would have been useless. No substantive order was made anyway so as horrible as the judge was, it hasn't prejudiced you in any significant way, just scared the hell out of you.
The best thing he can do right now is to educate himself on the process and put the bad outcome behind him, since it hasn't done anything bad yet, except scare him. Knowledge is power.

I had one really wacked judge at a case conference and it scared me too. She pressured me into agreeing to something really dumb that set my case back. But in the end, reason and the right result prevailed after lots of other court activity.
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Old 04-02-2009, 09:25 PM
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Thank you for that insight and sharing what happened to you...we are both feeling a little more at ease now understanding what happened. We came out of there wondering how in the world they could say what they did.
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Old 04-03-2009, 09:20 PM
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Exceptiontotherules, I just wanted to let you know that you're not alone. I know exactly what you're going through. My husband's case conference was also pretty bad, and we came out of the courtroom wondering how they could say what they did say as well. He was imputed income to pay a child support amount that he cannot reasonably cover. (I have been paying close to 100% of all of our expenses so that he can pay the ordered amount.) The judge ordered this amount because she "felt" he "could possibly" get such a high paying position given his education and licensing. He has been out of a job (applying for positions daily, attending interviews weekly) since October. The amount of child support the judge ordered is almost triple what he should be obligated to pay according to the guidelines and the amount of EI benefits he receives. But, this particular judge did not think that appropriate, so she ordered an amount she thought was "fair" to the support recipient, and ordered my husband to continue providing all transportation to and from visits (at close to 100km one way) as well. But enough about that. I'm sure the judge gave your BF a date for a settlement conference, as well as a list of documents he is expected to file before that date. Basically, the settlement conference is your next step in the process. I do hope you can "settle" in a fair manner and that things start turning up for you and your BF. Good luck!
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Old 04-04-2009, 03:57 AM
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The amount of child support the judge ordered is almost triple what he should be obligated to pay according to the guidelines and the amount of EI benefits he receives.
Surely this was an order made on consent of the parties if it was at a case conference. Was your ex represented at the case conference? A lawyer would have politely declined to agree to that amount. Unfortunately the pressure that is exerted by the judge in some of these conferences intimidates the parties into agreement.

It's only afterward after your head stops reeling that you realize you got screwed. There's no way a judge should be ordering triple the table amount. They usually follow the guidlelines very closely.
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Old 04-04-2009, 09:00 AM
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Quote:
Originally Posted by dadtotheend View Post
Surely this was an order made on consent of the parties if it was at a case conference. Was your ex represented at the case conference? A lawyer would have politely declined to agree to that amount. Unfortunately the pressure that is exerted by the judge in some of these conferences intimidates the parties into agreement.

It's only afterward after your head stops reeling that you realize you got screwed. There's no way a judge should be ordering triple the table amount. They usually follow the guidlelines very closely.
Consent? More like disbelief and not knowing what to say or do - the joys of self-representation. I'm sure if we had a lawyer, there would have been an objection, but the judge did not even give my husband a chance to speak after she stated her "recommendations" on the amount he is to pay, based on her 'belief' that it costs at minimum $1,000/month to raise a child and that each parent should be responsible for at least half that amount. And since he does not live alone and therefore doesn't have to incure all living expenses. Upon hearing this, my husband was - sad but true - a dear in headlights, not able to speak or move. You're dead on with it being intimidation. He was beyond intimidated.

Last edited by #1StepMom; 04-04-2009 at 09:07 AM.
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