Small claims, not divorce court. We go Jan 18. I had a thread on this misadventure that was lost in the crash. To summarize, Canada Revenue Agency (CRA or the Canadian equivalent of IRS) deposited my income tax refund in WXH's account which at one time was held in joint with me. After 6 or 8 weeks of CRA giving me the runaround, they finally told me since that was the information that they had on file for me, they couldn't (wouldn't) take the money back and I would have to ask WXH for it myself. WXH said yes, then no, then yes in installments but then had excuse after excuse after excuse why he couldn't. Finally I got fed up and filed a suit in small claims court. He counter-filed suing me for an "overpayment" in our separation agreement on my DS's college tuition. The wording on the SA says "one half of the tuition, a sum of $15,000.00..." The actual cost of the tuition ended up being $26,832, so one half was only $13,416 for a difference of $1,584. My income tax refund was around $1,560. Hmmmm. Interesting.

Anyway, my lawsuit is a nobrainer. He didn't even attempt to deny it in his defense. His could go either way depending on how the judge wants to determine that wording. I put in my defense that the amount we agreed to for tuition was based on an estimate of the costs (we didn't know as it went up every year) and was agreed to in leiu of monthly child support payments which would have amounted to much more. WXH even stated in his claim that he had requested to pay a lump sum rather than monthly payments, so it's clear that the agreement is an accomodation in his favour. This statement is written under the heading "Child Support". Also, he had never once asked for this money until my income tax refund was dropped in his lap. I know he saw a paralegal about this and likely they pointed out the similarities between the refund and the tuition discrepancy (because honestly, he's too stupid in his wayward state to figure that out himself). In any event, though I don't believe I own him that money, I'm aware that a judge might see it differently.

Last night, WXH came by with an offer to settle (i.e. we both drop our cases and call it even).

HA!

No, I'm not going to drop it. Worst case scenario I end up owing him the $20-some odd difference. They could charge me with his court costs, but I can also say that I had to pay costs for my winning case which were equal to his, so he can pay mine and I can pay his and we're even there.

One might wonder if this whole misadventure is worth it. After all I've written here before about how this affair has survived mainly because of the ongoing drama. Here I am just adding to it, fueling it on so to speak. Well to be honest, ever since I started this court process, WXH and I have been remarkably civil to one another. And this is a process that requires personal contact - all papers have to be served in person and not through a third party. I actually knocked on his door and spoke to OW - which turned out to be very empowering as she practically cowered on her own doorstep while I calmly asked for WXH. Every exchange, whether it's been me serving him or him serving me, has been ultra-polite and respectful. No mud-slinging. No shouting. Nothing. He did leer at my car last night - I had just washed it and one thing he used to hate about me was that I used the drive through car wash. He thought it was a waste of money but honestly $10 is a fair price to not stand outside in the freezing cold spraying water from a hose. He's probably thinking how lucky he is to have left me because I just wasted $10.

Anyway, if anyone has any advise for me heading into this I'd appreciate it. Otherwise, wish me well. It's still 11 days away but I'm getting nervous. I've never done small claims court before. I'm not sure if I should be taping and watching Judge Judy or anything - does anybody know if those shows are even remotely accurate? I'm not sure what to wear. Any suggestions there?

Tabby, I am sorry I am not good at the suggestions for this one, but I am sending prayers your way....and I cant beleive that you saw OW face to face and you were calm cool and collected, good for you....You are one strong lady. I probably would have scratched her eyes out...Hope I am as strong as you one day...

Thanks. I was not strong at all. If you had seen her cower and shake and heard the stammer in her voice, the instant realization of what a cockroach she is is very empowering. Because I was the one standing on HER doorstep.

I know, I love it.

Hi, Tabby. I am another Canuck. (West Coast). I do have a few suggestions about Small Claims Court. I represented myself in Supreme Court for my divorce so do have some experience.

Small Claims is a LOT less formal. So, no worries. Most times, neither party has a lawyer so the presiding Judge will be quite lenient.

Even though you think this is a no-brainer, do not assume that it is. The first thing I would suggest is go to the bank and get them to sign, or at least stamp a letter confirming the date that you were removed from the joint account.

The letter should also include the date that the cheque was deposited and the amount.

Dealing with CRA is a real pain but can be very helpful. For example, I had to ask a question regarding how to file my taxes, prior to my divorce. And then asked them how common-law worked. hehehe. I mentioned to them that Dork was shacking up with Ditchpig4 and that she was getting all sorts of benefits as a single parent. They were very interested. Naturally, being a law-abiding citizen, I gave CRA her full name and address, etc.

Back to Small Claims. I think I remember you are in ON, correct? Go to the provincial government website and look for Small Claims Court. Or Google the province, small claims, and representing yourself. There is likely some material there regarding what to do and how to act, etc. If there isn't any good material, I know the BC Gov has great video and information including a checklist.

So, after you have the letter from the bank, print off any emails that you sent to your WH and his responses, if any where you bring this up. Also, a list of when and who you contacted to try to straighten this out. with the date noted.

It is not necessary, but if you want to gather all your supporting documentation together, including an affidavit where you say in your own words what happened, you can get it notarized. It is more work, and costs about 25 dollars for a lawyer or notary to put their seal on it. But it looks good in court. The affidavit has to be written in a certain way but the government website will have examples and a form for that.

If you have any further questions, I would be happy to go into more details:)

Tabby,

These things are always a toss-up. Small claims court shouldn't cost that much, so it is probably worth it. If you would have had to get an atty involved then I would say let it go.

Even if the judgement is in your favor, getting the money is going to be another story. Good luck on that.

Your XH is a joke as is mine. Good job on the OW. Sounds like you made her feel like pond scum, which is what she is.

Tabby, try free googling "small claims court"--whenever I google anything, usually there's a blog or two with someone talking about their experience. There are also lawyer advice sites that sometimes do Q&A.

In the US, the counties often have their own website as well. Some are more comprehensive than others, but may have suggestions as to what to do re small claims court--what to bring, what to wear, fees, etc.

Good luck!

Gotta love it!

I had a claim in small claims court many years ago. I was very concerned and worried about it. I even went to see a lawyer to get some advice. One bit of advice he gave me, which ended up alleviating my fears greatly, was sit in on small claims proceedings and get a feel for how it works. This was invaluable, and helped me on the day... It also helped I brought a friend that could speak for me when I started stumbling.

Thanks fightingalone. Actually, I've already done all the leg work and am now just awaiting the date. The ON gov't site does have a lot of useful information on small claims court and I've been following it to the letter. The clerks where I filed my claim and defense were also very helpful.

You are so right about the CRA - they are absolute nincompoops and completely useless. I had to write a letter to my MP to get them to write a letter to me stating where they deposited the money. They tried to tell me that information was confidential. I pointed out that it was MY INFORMATION so don't I have a right to it??? I received the letter about 2 weeks after I wrote my MP (who is NDP btw, not even PC). The worst thing about the CRA is they said they can't guarantee that any future refunds aren't deposited into the same account as it can take many years to change this information! (?!?!?!?)

Regarding the bank, they wouldn't write in the exact date that my name was removed and they didn't even want to write a letter that my name was no longer on the account because, again, it was confidential information and it wasn't my account. However, I had printed all my bank statements for the year up to the separation before I took my name off and I still had these. I had done this when I discovered how much money was "disappearing" shortly after I discovered the affair in case I needed them. Turns out I did. I showed them the statements so the reluctantly agreed to write the letter. It's not a strong letter, but I do have hard evidence showing my money was deposited in an account that doesn't belong to me and WXH didn't make a single claim against this fact in his defense.

As far as my defense to his claim goes, I included the SA, the section of the Divorce Act that talks about variances to child support, as well as the child support tables to indicate what his court-appointed CS would have been had we not had an SA. I gave a list of other expenses I have paid for DS (car insurance etc.) that go above and beyond tuition. This is the one that could go either way as the wording says exactly: "one half of the tuiton, a sum of $15,000."

Tabby, another thing. The overpayment on the tuition thing. I am not sure that Small Claims Court can address that as it in regards to the separation agreement.

However, to be prepared, I am sure that you can come up with extraordinary expenses that require WH to pay his portion. For example, my DD plays volleyball. So her trips, including hotel, food and airfare or other travel expenses for the school and then club are considered extraordinary expenses. As are music lessons, any additional medical expenses that medical doesn't cover like glasses over and above the deductible, etc. Orthotics, and a kazillion other things. AND then produce any receipts to show that you paid them If no receipts, no worries, any emails or notices will do.

Thanks Chai! I understand what you say about getting payment. Here, small claims court winnings can be garnished from wages and there are instructions on how to do that as well. I'm 99% sure I will have to do this if I win. If I do win, I'll make sure the judge orders a payment deadline or schedule. It will take longer but it's already been 8 months so what's a few more. I'll have this year's refund before I get last year's.

The only "extraordinary" expenses were the car insurance and I had to pay for an accident he had with my car. DS totalled our car back in 2006 so his insurance is very high. For a while, he was paying it himself but he was having trouble with it so I took it over. Then, he backed my car into a neighbour's car. The damage was minor but costly (as these things tend to be). I ended up paying just over $2K for repairs to both vehicles. Going through insurance would have put his rates up far too high to make it worthwhile. I did mention these in my defense.

Is WH paying less than the minimum CS????? Oh my, goodness! And you agreed to this?

As I represented myself in my divorce, I watch the legal precedence and latest on these issues. Tabby, there is a new case that says that as the parent paying CS increases his or her earning they MUST increase the CS to match.

As the SA is normally part of the Divorce Order, I would have another look at it. I suggest you vary it to include extraordinary expenses, tuition, and CS to be in line with the legal requirements.

Another thing that I am finding that is causing a real issue is the dates for exchanging financial information is not defined well enough. PLUS it doesn't clearly state what information to exchange. I can't make him give me his T4s or his investments, etc as he is saying he doesn't have to. So, back to court for me:)

Tabby, if you want to chat, you can email me or MSN, etc. I could likely help you.

My only concern about this is that the Judge may weasle out and say that this is a matter to be addressed in divorce court-- seeing it as a request for enforcement of an agreement relating to that. However, if he does agree to hear it, sounds like you've got your evidence in order.

I've found that in small claims court the Judge really won't care what the parties SAY, but more about the physical evidence in front of him, and possibly any supporting statutes that you can point out for him (with copies).

I took my WxH to Small Claims court, too. - in the US, though.

This sounds strange but ....... I loved every minute of it. I knew I was right, there was no way I would lose unless I had a very RADICAL judge.

I didn't.

It sounds like you have all your facts and information together. If your WxH is anything like mine, all he will come in with is the excuse "well, I don't think I should hafta."

It was a little more than that....but not much.

The other posters are giving you GREAT advice.....take it all under consideration.

Another weapon in your arsenal is your ATTITUDE. I built a great rapport with the judge just in the little time we were there. I was friendly, upbeat, calm and didn't argue with WxH when he tried to draw me into it. Be kind - appear to only be seeking what is right.

When we were finished, I asked the judge when she expected to have a decision. She explained that she was going out of state for some championship football thing for our local college. We talked about that for a few moments, laughed a couple of times about a story she told, I told her to have a GREAT time, etc, etc.

WxH was SEETHING, to say the least.

Don't let WxH draw you in during the proceedings . My WxH kept trying to speak directly to me, "correcting" me or making a snide comment - when I would respond - it would be directly to the judge. I'm telling her my side - I'm not trying to convince WxH. KWIM?

It was very informal. Attorneys are not allowed in Small Claims. The three of us set at a conference table and the judge audio recorded the proceedings.

Seriously, piece of cake. The waywards have a way of making THEMSELVES look bad - we don't have to do any work at all.

We went to court December 10 and the judge had told me she wouldn't have a decision until after the first of the year.

We got the decision right before Christmas. I had to hire someone to garnish his wages - but all the fees were charged to him and they garnished those, too.

I'd do it again in a heartbeat.

Best of luck to you!

I agree totally with WH

1. dress professionally
2. Have all your documentaion organised. Keep hard copies at home.
3. State your case impersonally.
4. Do not "over share" your feelings about this. Unless the judge asks, don't venture.
5. Do not get drawn into any conversaton/sniping/ with your stbxh. At any time on court day. Do not even acknowledge OW if she is there.

What she said.