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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 07-13-2021, 01:54 PM
malam malam is offline
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Default Need advise on settlement agreement

Hello,

I need advise on the present situation:

Background:

I am going through a divorce with my ex, who filed for sole custody of our 5 children after 14 years of failed marriage. Got separated In January, 2020, I got served in August, 2020. During this period I had limited access to my children primarily due to the 1st lockdown and her resistance to see the children citing concerns of infecting with Covid. Finally when the lockdown was over, I brought an emergency motion in September, 2020 to access my children. My previous lawyer made mistakes in attaching evidence, and failed to respond the opposition on time with newly brought false allegations, so judge disregarded the crucial evidences and granted me limited access every Saturday 9-5, every 2nd weekend 1 overnight stay, gave the mother temporary custody & ordered OCL. Received OCL report in February, 2021 which suggested 50/50. Had a case conference in April, judge suggested to submit full financial disclosure and agree on a parenting time (mother refusing 50/50), offered increased parenting time to 3 weekends Friday 12 to Sunday 8 PM. My new lawyer called for a motion to implement OCL recommendation which was supposed to take place on July 19. As we were preparing affidavits for the motion, last week my lawyer said that the mother has more chances of winning with her offer and the judge is not bound to implement OCL recommendations at a motion and may simply defer to a trial judge & if I lose again it will be strike two against me and my chances of securing 50/50 will significantly decrease at the trial. So, we agreed to skip the motion and work on a interim agreement so we can have an settlement conference before going in trial. Although I don't agree with the increased parenting time, I am being told that I don't have any other option. Also, Ex's lawyer is asking child support more than income (despite submitting 4 years 2017-2020 full financial disclosure). My lawyer thinks I should agree to the offer in order to fast track the trial, the longer I wait to settle, the stronger she gets with her new status quo as a sole custodian (post separation it has been 18 months).

My question is:

1. Should I go for this settlement agreement (her lawyer is claiming it's a gradual increase in parenting time from 2 over night stay/month to 6 over nights stay despite OCL recommendations of 1 week on & off back in February, 2021.

2. I was in international tourism sector and out of job since the separation l. Last year I was primarily on CERB & CRB and this year I am on CRB. Her lawyer is claiming child support more than my 2020 income, which I can't obviously pay at this moment. Any suggestions how to go about this?

3. If we can't agree for a settlement, should I go through a motion? or agree for for less as offered so we can fast track for trial?

I would really appreciate if you can suggest, advise on this situation.

M
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  #2  
Old 07-13-2021, 09:36 PM
rockscan rockscan is offline
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Quote:
Originally Posted by malam View Post
My new lawyer called for a motion to implement OCL recommendation which was supposed to take place on July 19.
This was a bad move. The judge told you to work on a parenting plan and financial stuff. You should have just made an offer and waited for the next conference. The judge increased your time, you dont go busting in demanding a recommendation from a third party be implemented.

Quote:
As we were preparing affidavits for the motion, last week my lawyer said that the mother has more chances of winning with her offer and the judge is not bound to implement OCL
This is true but I question why the lawyer moved for the motion and then said you will lose.

Quote:
if I lose again it will be strike two against me and my chances of securing 50/50 will significantly decrease at the trial.
This is not necessarily true. The judge ordered increased time after the first strike so you have a chance at increased time.

Quote:
So, we agreed to skip the motion and work on a interim agreement so we can have an settlement conference before going in trial. Although I don't agree with the increased parenting time, I am being told that I don't have any other option.
You need to be reasonable. Just because OCL said 50/50 doesnt mean it is guaranteed. But your ex is also not guaranteed full custody. You could make an offer that gradually increases your time to 50/50 over a period of time. Consider what she is offering and make a counter offer. At the settlement conference the judge will tell you both what can be expected at trial and will make a suggestion on the parenting time. I have a feeling you are using the ocl report to demand more. Be reasonable.

Quote:
Also, Ex's lawyer is asking child support more than income (despite submitting 4 years 2017-2020 full financial disclosure).
Its based on your actual income and they could argue to have an income assigned to you based on what you could earn. You may want to do some work on either finding a new job or retraining to demonstrate you arent simply sitting on your ass to avoid cs.

Quote:
My lawyer thinks I should agree to the offer in order to fast track the trial, the longer I wait to settle, the stronger she gets with her new status quo as a sole custodian (post separation it has been 18 months).
Either there is more to the story or your lawyer is an idiot. If you accept an offer to settle there is no trial. You can make a counter offer that is more reasonable and go from there. Either way, if you both disagree you will go to trial.

Quote:
My question is:

1. Should I go for this settlement agreement (her lawyer is claiming it's a gradual increase in parenting time from 2 over night stay/month to 6 over nights stay despite OCL recommendations of 1 week on & off back in February, 2021.
You could agree to a temporary custody arrangement or just reject it. If you dont like it now, you wont like it in two weeks. What you agree to could be permanent. Make a counter offer and see how it goes.

Quote:
2. I was in international tourism sector and out of job since the separation l. Last year I was primarily on CERB & CRB and this year I am on CRB. Her lawyer is claiming child support more than my 2020 income, which I can't obviously pay at this moment. Any suggestions how to go about this?
CS is based on income. They could argue that travel is coming back and you are capable of making more but that is their work to prove. You may want to demonstrate you are looking for work or retraining and cs can be revisited in six months but right now your income is less than what you earned in 2019.

Quote:
3. If we can't agree for a settlement, should I go through a motion? or agree for for less as offered so we can fast track for trial?
You are already before the court for custody. Filing an additional motion is stupid. You need to resolve the current matter. There is no fast track for trial. You should have another conference set up so you go in and argue that you have had great success with the new arrangement and you want to increase it further with a goal of 50/50 as recommended by ocl by a certain date. If she refuses to settle then you go to trial and its decided there. Know that you may not get 50/50 at that point either.

Make an offer to settle and consider what she is offering. Offer something in the middle of what you both want.


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  #3  
Old 07-13-2021, 10:44 PM
StillPaying StillPaying is offline
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Quote:
Originally Posted by malam View Post
1. Should I go for this settlement agreement (her lawyer is claiming it's a gradual increase in parenting time from 2 over night stay/month to 6 over nights stay despite OCL recommendations of 1 week on & off back in February, 2021.
Keep accepting all access increases offered on an interim basis. Trial is where you'll get 50/50. Unless this is finally offered, keep pushing for trial.

Quote:
2. I was in international tourism sector and out of job since the separation l. Last year I was primarily on CERB & CRB and this year I am on CRB. Her lawyer is claiming child support more than my 2020 income, which I can't obviously pay at this moment. Any suggestions how to go about this?
Make sure you're at least paying the full amount based on your current income. You may be imputed or ordered to pay a higher amount, but deal with that when it comes.

Quote:
3. If we can't agree for a settlement, should I go through a motion? or agree for for less as offered so we can fast track for trial?
I agree with your lawyer. The ocl report should get you more access but maybe not 50/50 right away. If they're continuing to offer more access, I would keep taking it and bring a motion if needed later when they stop. Unless you agree on a final order, you should be continuing on your journey to trial nonstop. Sounds like you're doing well.

Quote:
You are already before the court for custody. Filing an additional motion is stupid.
Please learn the court process.
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  #4  
Old 07-14-2021, 07:37 AM
rockscan rockscan is offline
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Quote:
Originally Posted by StillPaying View Post
Please learn the court process.
I know the court process. He already filed a motion for access in the fall. At their last appearance the judge said to work on a parenting plan. Filing a second motion to force additional access would have been a bad idea. Sure he can file any motion he wants but losing those motions is costly.
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Old 07-14-2021, 11:36 AM
StillPaying StillPaying is offline
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Quote:
Originally Posted by rockscan View Post
I know the court process.
Another read could only help. You're wrong a lot these topics.
New divorces vs returns, the various types of motions and their purpose...

Malam will most likely require several motions on the trial journey. Required, not stupid; cost debatable. I would think if he's not at least eow/wed by upcoming SC, a motion should be brought asap.
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Old 07-14-2021, 11:55 AM
rockscan rockscan is offline
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Quote:
Originally Posted by StillPaying View Post
I would think if he's not at least eow/wed by upcoming SC, a motion should be brought asap.
His motion in the fall resulted in two weekends and full Saturdays the other two weeks after his ex brought forward allegations that his last lawyer failed to respond to. I have a feeling there is more to this but will leave it at that.

At the conference in February the judge increased it to 3 full weekends a month and told them to work on a parenting plan. His ex obviously has a my way or the highway attitude but there was no indication that Malam made a reasonable counter offer other than OCL says 50/50, give it to me now.

From what he has posted it appears either he has had terrible legal advice or gave his lawyer too much push. His lawyer pushed for a motion then told him it would end badly? That is another question that doesnt have an answer.

There are a lot of things left out of this story but the red flags for me are the comments on his lawyers and also that he wanted OCL implemented immediately. The court process is slow yes and you can file whatever you want whenever you want but successful parties are those who are strategic not emotional. An offer that outlines a step towards 50/50 is more reasonable than two parties saying no dice unless I get what I want.
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Old 07-14-2021, 02:15 PM
malam malam is offline
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Quote:
Originally Posted by rockscan View Post
His motion in the fall resulted in two weekends and full Saturdays the other two weeks after his ex brought forward allegations that his last lawyer failed to respond to. I have a feeling there is more to this but will leave it at that.

At the conference in February the judge increased it to 3 full weekends a month and told them to work on a parenting plan. His ex obviously has a �my way or the highway� attitude but there was no indication that Malam made a reasonable counter offer other than �OCL says 50/50, give it to me now�.

From what he has posted it appears either he has had terrible legal advice or gave his lawyer too much push. His lawyer pushed for a motion then told him it would end badly? That is another question that doesn�t have an answer.

There are a lot of things left out of this story but the red flags for me are the comments on his lawyers and also that he wanted OCL implemented immediately. The court process is slow yes and you can file whatever you want whenever you want but successful parties are those who are strategic not emotional. An offer that outlines a step towards 50/50 is more reasonable than two parties saying no dice unless I get what I want.

Just to give a bit more insight background:

3 Days before ER motion in last fall, my Ex's lawyer submitted affidavits with false allegations (I was an abusive, husband & father), for which my previous counsel didn't reply because he used up all the hours from Legal Aid in preparing the motion and kept only 4 hours for the motion even though I asked him 3 times by email to respond. Even the motion judge asked why didn't he reply to the allegations and he said he didn't have time (Of course I wasn't happy about it, and the judge ordered OCL to investigate).

February, 2021 was the OCL disclosure with both party and our lawyers, no judge. OCL reported no evidence from my ex's side nor from children (they spoke highly about me and wanted to spend more time with me) about the allegations. OCL report also said that I am "an active father who provides structure & discipline in children's life" and very good at managing conflicts with children as oppose to the mother who has very passive parenting". The OCL report is 100% in my favor.

April, 2020: was the first case conference with my new lawyer in which the judge ordered to submit full financial disclosure from my part and work on a parenting plan. Parenting time was increased by the mother after the conference when I requested to follow OCL 50/50 (So, present offer of 3 weekends is not a court order). There were a lot of back & forth counter offers & negotiations in last 3 months but the mother isn't willing to increase more than what she offered. As such my lawyer decided to call for a motion in mid June but later changed his mind as I explained before and has suggested that we accept this offer on an "interim, interim basis without prejudice with the right to go for a trial and seeking OCL implementation at the trial"

What I understand this settlement agreement is only for interim basis so we can eventually go for trial.
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Old 07-14-2021, 02:18 PM
malam malam is offline
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Quote:
Originally Posted by rockscan View Post
I know the court process. He already filed a motion for access in the fall. At their last appearance the judge said to work on a parenting plan. Filing a second motion to force additional access would have been a bad idea. Sure he can file any motion he wants but losing those motions is costly.
That's what my lawyer said after changing his mind, it's not just about the cost if I lose, but also it would have been the 2nd motion brought by me & if I were to lose, it would have counted as strike two against me.
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Old 07-14-2021, 02:26 PM
rockscan rockscan is offline
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Do you have a date for the next court appearance? Not the motion, the next conference.
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Old 07-14-2021, 02:41 PM
malam malam is offline
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[QUOTE=StillPaying;246881]Keep accepting all access increases offered on an interim basis. Trial is where you'll get 50/50. Unless this is finally offered, keep pushing for trial.



Make sure you're at least paying the full amount based on your current income. You may be imputed or ordered to pay a higher amount, but deal with that when it comes.



I agree with your lawyer. The ocl report should get you more access but maybe not 50/50 right away. If they're continuing to offer more access, I would keep taking it and bring a motion if needed later when they stop. Unless you agree on a final order, you should be continuing on your journey to trial nonstop. Sounds like you're doing well.

Quote]

Thank you for your insight, there has been gradual increase in parenting time from my ex after the OCL report but not exactly how it was suggested (OCL suggested adding 1 day each moth from February to arrive at 1 week in July). But, the mother refused that and only increased to 3 full weekends (from mid June), and agreed to offer Friday12 to Monday 1 PM for the rest of the summer (3 weekends) with 1 week vacation time. But in September it goes back to Friday 12 to Sun 8 PM when the school starts (this is the latest & final offer from her which came in yesterday).

So my lawyer has suggested that it's already 3x more than the last fall temporary endorsement from the ER motion. So, my ex has a good chance of proving the court that she has gradually increased the time (although not what the OCL report suggested). So, take it on interim basis, have an interim agreement at the settlement conference in September and then go for trial in December if OCL recommendations are not agreed at the settlement conference.
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