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Hello, I am a soon to be divorced mother with 2 children aged…

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Hello, I am a soon...

Hello, I am a soon to be divorced mother with 2 children aged 11 & 13 yrs of age. My ex husband and I did our own separation agreement when we parted ways 3 years ago. At that time I began to start a new job as I was a stay home mother for 10yrs. Since then I have been laid off and only work as "on call" basis. My ex husband has almost paid off what he owes me. He is a self employed general contractor, he pays me $900 per month for child support. Since losing my job I am wondering if I should try to claim spousal support, this was waived at the time of our separation agreement. Our divorce will be finalized August 5th 2010. We did have legal counsel finalize our agreement. I am unable to hire a lawyer due to not being employed. Can I go to the court and ask for a motion to change our separation agreement due to job loss? My ex husband does alot of "cash jobs" so it is hard to prove what he makes on paper but he was recently audited a few months ago and had to pay a fair amount of tax. He also has an income property that he rents out, which I believe adds to his yearly income. Is there anything I can do? Thanking you in advance

Submitted: 12 years ago.Category: Canada Law

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7/19/2010

Lawyer: Debra, Lawyer replied 12 years ago

Debra, Lawyer

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debra thal :

Are you saying that he did not make full financial disclosure when he swore his financial statements as part of the Separation Agreement?

Did you both have independent legal advice before signing?

Did you actually waive your right to support or leave it so you were not getting support then but could come back for a variation if there was a material change in circumstances?

Customer:

We never went inside the court room in front of a judge, so no he did not fully disclose his financial statements. I know roughly what he was making a year so we based his income of $60,000.00 for child support. We both did receive legal counsel to look over our agreement. I did waive the spousal support due to me working but then hours were reduced. I then found another job but it only lasted 7 months..the contract ended. I have been laid off since February 2010 and work on call 3 or 4 times a month. I am hoping to return to college in September so I wont be working. I spoke to duty counsel and they stated to try to file a motion for material change in circumstances. He has a very good business built up and works constantly. I am not sure what he is claiming on paper these days. I just would like to know if I can try to put a motion in before the court even though I had originally waived it..now that I am not longer working and the children live with me full time.

Debra, Lawyer

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Lawyer: Debra, Lawyer replied 12 years ago

You accepted before receiving an answer ( I was in the middle of typing) and this ended the chat.

We can continue by posting up and back though.

Is this Ontario?

Are you saying that there were no sworn financial statements that you exchanged before signing that have been affixed to the Agreement?

Did duty counsel see the agreement and if so did duty counsel understand that you waived support and so there is no basis for seeking a variation based on a material change in circumstance or does the agreement allow for this?

Customer reply replied 12 years ago

Yes this is in Ontario. I checked my separation agreement and it states under no circumstances no spousal support may be claimed. I did inform the duty counsel of this. The separation agreement does not allow for this. No sworn financial statements were ever exchanged. I do know that my ex was claiming he only made $18,000 in 2006 but since then there has been an audit for 2008 & 2009. He claimed me in 2008 (we were separated in July 2007) when he had his audit. He claims I benefited from income from his rental house that was left to him when his father passed away. I had to pay $1100 in taxes for non declared income. He claims he had to pay $38,000 from the audit. I did not benefit from this rental income of his. I stayed home for 10years before I rec'd a job in July 2007 which in now 3 or 4 days a month.

Lawyer: Debra, Lawyer replied 12 years ago

You cannot bring an application to vary the agreement based on a material change in circumstance because you agreed that there would not be any support at all.

However, if you can prove that there was material non-disclosure you can have the agreement set aside.

This is very difficult to do, even for lawyers.

I would suggest at least going for a consultation with a family lawyer (not duty counsel) and hearing what the lawyer has to say.

What you can do to find a lawyer is one of the following things.

You can contact the Law Society and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be free.

The number is:

1-800-268-8326 or(NNN) NNN-NNNN(within the GTA)

Or you can check on a site called lexpert. This is a legal directory of leading lawyers and law firms throughout Canada and is well-respected by the legal community.

Here's the link to their website:

http://www.lexpert.ca/Directory/DirectoryContent/FindLawyersOrFirm.aspx

I hope that helps as a starting point.

Please click accept so that I can receive credit for providing you with this information.

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