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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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Old 10-16-2011, 10:35 AM
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Default Case briefs in support of support offset?

Hi everyone,

So my case is slowly progressing. The ex hired a lawyer, and he has been playing fast and loose. Only providing the trial record documents two days before trial, not providing documents requested by the court, and myself between court dates repeatedly.

We had court the past Friday and he set me up pretty big, argued that I only had my child 30% of the time based on hours, instead of 44% I do have him based on over nights. They also asked for reduced access for me during the week. Judge refused my request for adjournment based on evidence not being submitted, and sent us off to discuss. We chatted, and the lawyer said he calculated based on hours I had the child divided by hours in a month. I asked about time in daycare/school, and he said that courts predominantly award that to the parent the child is with on a higher percentage. I literally laughed in his face, and asked how any parent could ever hit 40% if that was the case, so he went on to brag about how one of the cases he worked, the opposing father actually had the kid 60% and had to pay full support because of hours vs days.

We agreed we were getting no where, and he suggested we have the judge rule JUST on the 40%. If we hit 40% we would impute my ex's previous wage and he did not want to talk about any of the other income she has. So I agreed to let the judge decide. We get in there, and the judge was skeptical about just ruling on 40%. He warned me that there was no rule that stated copay was going to necessarily happen, and asked my ex's lawyer how he could rule on the 40% if they were asking to change access anyways. The lawyer said.. if you rule with us on the 40% we are fine leaving the schedule as is. HA.. I turned around and smiled at my dad behind me because this tells you exactly what they wanted, and the judge caught me and smirked. oops. So the judge agreed to rule on this, and then my ex's lawyer drops Evan v. Gravely (2000), Robblee v. Reid,(2003) and Gore-hickman vs Gore-hickman (1999) on my and the judges desk. Joy. LUCKILY I pulled one out of my arse and argued that the courts had never determined who the primary care giver was in an previous motion, and that the applicants argument that my son's mother was the primary care giver due to "her name being first on the emergency contact list" at daycare/school was ridiculous as I had been equally involved in making these decisions and unfortunately there is only 1 space for first contact. The judge agreed with me and ruled I had met the 40% threshold. So when he came back, he suggested the lawyer and I step off together and discuss support.

My offer was full offset based on her previous wage, and that if she accepted I would not put in a claim on any child tax benefits, baby bonus etc which is $500 month for her. They laughed at the offer, and claimed they never offered her previous wage to be used in the calculation (my dad was in the room with me, and I specifically acted "stupid" when her lawyer was first offering the previous wage so that he would clarify exactly what he meant.. so the bugger was back tracking/lieing) The lawyer told me that the judge already suggested he would award support with no copay and they would go to trial. Now the Judge only warned this was a possibility.. not that it would happen.

So I have court again in just over a month... the only real thing to settle is support now, as I'm pretty sure the judge just ruled I have shared custody by agreeing to the 40%. Best news in a long time.

I have drygali vs pauli for imputed income, but I have no case law briefs that show full offset support copay as the "norm" and I think I need to get this ready for next time. Are there any "standard" case law briefs that judges should be very familiar with that I can take with me? I checked out CanLii for cases but I would assume ones that are regularly used would be better as the Judge will already have seen them on multiple occasions.

Not sure I'd gotten this far without this forum!
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Old 10-16-2011, 10:53 AM
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Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
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The judge hasn't ruled anything. The judge offered an opinion based on what you presented. It was just objective legal advice.

The setoff amount is written into the Child Support Guidelines. If there is not a setoff then there has to be a compelling reason provided. You don't get into an argument over this, you memorize it and repeat it back like a tape recorder no matter what the ex's lawyer says.

You do not take legal advice from the ex's lawyer, ever. Just ignore anything they say regarding what the law says or what the judge said. You make your offer and stand your ground. You are making a reasonable offer within the family law act, they have not presented anything as a compelling reason to go otherwise.

You are doing well, you know what their arguments look like, you clear up your arguments and stand your ground.

To my knowledge, there is no special likelihood that a court would count hours; I have read the opposite, however I am not a lawyer.

The issue of school should be this: If the child is sick, they will stay home with the parent whose house they slept at that night. If you had the child Monday night, they would stay home sick with you on Tuesday rather than be moved. Therefore the school hours shoud be considered in the care of the parent's house they woke up at. The change over should be 4pm. This should actually be specified in your agreement if you settle, or you will run into problems in the future, on PD days, on long weekends, etc.

You should be prepared to back this up with school attendence records and work records showing you have cared for the child on sick days. If you can't show this your argument is weakened.

I strongly suggest you gather material like this and have it at hand, they will push the hours theory, you need to show that you are responsible during given school hours. If you word it correctly and have supporting attendance records this will be a very strong argument.

The opposite, if the ex is taking all the sick days and can show this, then they have a stronger argument for hours.
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Old 10-16-2011, 11:06 AM
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Thanks Mess.. The judge came back and had a verbal ruling.. stating that he was basing the calculations off over nights, not hours and I had my son 6 days out of 14 and that he would preside over the support issues but we had to reschedule due to time concerns....

its really just an objective opinion and the next court date could over rule that argument? Guess I better be prepared for the worst!

Regarding sick days... I actually have taken probably about 80% of these and I can back them up with work emails, and attendance I believe. I'll have to include those in the next court date in-case they try to re-argue the 40%
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Old 10-16-2011, 06:58 PM
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Way to go taking this on self reping!!!!!
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Old 10-17-2011, 07:01 PM
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Quote:
Originally Posted by staysingle View Post
Way to go taking this on self reping!!!!!
Thank you staysingle... not much of a choice really. The only advantage I have is that my time is free.. so that definitely helps!

I find it funny that judges/layers all say there is no rule for determining support in a shared custody situation yet the government websites all have examples of calculations using the full offset rule. I understand every case is different and they need to give the judges some flexibility but you'd think they would be able to set a more concise rule with some verb-age allowing for unique situations. oh well!
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Old 11-14-2011, 06:35 PM
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Hey everyone. I was hoping that someone could point me in the direction of a few case law briefs supporting copay for shared custody. I have been reading case law after case law and they all tie back to multiple other case laws and I am curious if there are any "accepted" cases etc that would be ideal to use? OR should I just find the ones that are as close to my situation as possible? Any pointers would be great!~
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Old 11-16-2011, 07:07 PM
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Just a quick question regarding your original post...what case law did you pull out of your arse? I'm in a very similar situation as you. If I come across any case law regarding copaying based on offset amounts I will post them here.
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Old 11-16-2011, 08:22 PM
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Default Counting Time - Section 9 of the Child Support Guidelines

May be this will help little bit
from

Family Law
The GPS of Family Law - Where to Start, Where to Go,
What's the Best Way to Get to Resolution

The Year in Review - Noteworthy Cases of 2009
D. Smith and Patricia Robinson
Smith Family Law Group.

I hope this time I quote something from other source correctly

Quote:
One issue that we were able to dodge in Contino [2005] 3 S.C.R. 217 (S.C.C.) was how to count time when assessing a claim for child support under section 9 of the Guidelines.

To determine if the section applies, the court must first determine if a child is in a parent's care for more than 40% of the time.

In Maultsaid v. Blair [2009] B.C.J. No. 467, the British Columbia Court of Appeal gave us a very helpful decision, despite the fact that the best summary of the ratio is "it depends".

The court made the following points:

• How one counts time is different for access parents as compared to joint
custodial parents. For joint custodial parents, school time is neutral, as both are presumed to have decision making authority and responsibility over the children at all times. For an access parent, his or her authority and responsibility is , prescribed by the time within which they have care of the child. So for a joint custodial parent whose parenting time is Thursday after school to return to school on Tuesday, all five of the school days are neutral. For an access parent whose parenting time is Thursday to Tuesday, the school time on Friday and Monday is to the credit of the access parent. (paragraph 16-20)

• Whether one counts "days" or "hours" will depend on how the agreement or order is drafted. If the parenting time is for a prescribed period using precise language, such as Thursday after school to Tuesday return to school, counting hours will be appropriate. For the periods when the schedule is described by the number of days or weeks or blocks of time, e.g. two weeks during the summer holidays, "the broader method of calculation by reference to days may be appropriate".(paragraph 26)

The decision is a handy tool in the section 9 repertoire.
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Old 11-19-2011, 10:27 AM
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I actually signed a parenting plan that suggested that, the duty counsel told me there was no consequences that would arise from that. Ill have to dig out the case law that her lawyer used, how ever I beat that argument by proving that I had the same decision making power as she did. I was involved in school choice, I was involved in day care choice, I had taken days off sick to care for him while he was ill, I had helped arrange time he was cared for while day care was not sick, I had participated in parent/ teacher meetings, etc etc. I think fathers who are happy to get 40% and then wont (or sometime's dont fight / proactive to get the chance to) worry about those other items are the ones who seem to fall into the trap of assuming that their 40% is the end all be all. You also have to be a proactive parent, and be able to prove it. I THINK the pick up drop off times defined are "OK" as long as you can prove that while the child is in daycare/school, you have care as well. My ex's BIG argument was that my ex was listed as the primary contact. I suggested there could only be 1 primary contact listed and that who signs the form shouldn't determine who the primary caregiver was.. and infact that we both shared all responsibilities, he had no primary care giver. Judge agreed.

How ever the judge also said there was no guarentee that he would do an offset calculation for support even if I won that.. I suggested that was fine, we could cross that bridge when ready. So I now need to find case law supporting this. I found green vs Green 2000 BCCA, 310, contino vs leonelli , 2003. but feel I need something "smaller" and more concrete. Hard to find

Quote:
Originally Posted by WorkingDAD View Post
May be this will help little bit
from

Family Law
The GPS of Family Law - Where to Start, Where to Go,
What's the Best Way to Get to Resolution

The Year in Review - Noteworthy Cases of 2009
D. Smith and Patricia Robinson
Smith Family Law Group.

I hope this time I quote something from other source correctly
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