Child Support - Maternity Leave Question

[dinkyface]

Originally Posted by Human Way

The way i see it i have two choices. Give in and pay the full amount and get 35% visitation or status quo as she likes to remind me. OR go to court and fight for 40% or more. And adjust payments accordingly. Either way, i feel sick about it.

Or, go for more time while continuing to pay full amount. Not saying it's fair, though.

Did you figure out your actual time split over the last year? (hopefully you've been keeping detailed records) - are you SURE the status quo time split is 35/65?

[billiechic]

I've heard that when it is close to 40% (maybe 35 or more) that some judge will consider it close enough. Calculate your time, or start doing it now. If you have ben asking for more time and she denies it for invalid reasons you may be able to ask for more time. Have a look at case law, there might be one to help.

I know how you feel about going to court. I am so dreading that outcome as well.

[Mess]

Originally Posted by Human Way

The way i see it i have two choices. Give in and pay the full amount and get 35% visitation or status quo as she likes to remind me. OR go to court and fight for 40% or more. And adjust payments accordingly. Either way, i feel sick about it.

You can request that she go to mediation with you. There is a possibility she will see reason if there is mediation, especially since you got along well enough the last 5 years.

Going to court doesn't mean you will end up in trial. 90% of suits are settled out of court. At your case conferences the judge will state what a likely outcome of a trial will be, and often will make suggestions for a settlement agreement. You would very likely get a suggestion that you are close enough to 40%, or that she should move up to 40%, or that she should back off from the table amount and stay with your existing agreement, etc. The point of negotiation is to settle on the Table amount, otherwise there is no negotiation.

The case conference will be a wake up call and give both of you an idea of what you realisticly can expect, and what would be considered fair. I found mine worthwhile and it really made my ex move her position (in my favour, drasticly, but I had a very strong case.)

[Human Way]

Thanks for the responses. After a nights sleep it doesn’t feel much better. I think im going to take your advice and try at least mediation. Something has to give here.




I have kept detail records for the last six years. Every visit. Every over night. I just thought if it was really 35 percent that I was screwed. Now that she is aware of the 40 percent rule she has become very adamant about not every going there. Saying that our daughter is happy with her, and why change it? I know why. The worst part is she throws it in my face that I’m just greedy to want to spend time with her. It’s funny how fast things can deteriorate.

[NBDad]

Our current child visitation schedule is a 40 – 60 split

Do you have documentation to back this up? You indicated that the status quo ranged from 35%-50% based on what was best for your child at any given month. If not, start documenting it NOW. Get as much supporting documentation as possible. (ie. letters from the school, daycare, etc, etc.)

Couple other questions/observations:

1. Maternity Leave shouldn't affect the existing CS payments. "Usually" what is fair in a 40-60% split is that the CS amounts are reviewed anually based off the previous year's tax return. When it's established the first time you can do a couple of things, go off the previous year, the highest of the previous 3 years or the average of the previous 3 years.

(She will probably want to use the valuation that puts YOU at your highest income, and her at her lowest, be warned).

YOU will want to take the high ground and use the valuation that's "in the middle". (ie. of the three if one puts the difference at 10K, one at 8K and one at 5K....she'll want to use the 10K...you offer the 8K). Unless the difference is drastic, it won't affect the CS payments by that much, AND it makes YOU look like the reasonable one.

Regardless, you want to make sure there is a clause in there that the CS amounts are adjusted annually. That way it protects the both of you. In your situation she may jump on that, since next year it'll mean an increase for her due to Maternity Leave lowering her income. It'll suck for that year, but in the long run is a good idea.

2. Who is currently collecting the CCTB? If you can prove 40%, then legally you are entitled to the CCTB/UCCB for the child for 6 months of the year. (only the UCCB is "taxable" income)

3. You can argue the fact that your existing agreement (aka "status quo') is close enough to 40% so you believe that the amount you have been paying in CS is actually more than you should have been. She *might* be able to make a case for retroactive CS, (that extra $100 or so), but if you have kept sufficient records and can prove access times month/month, that part is likely not worrying about too much at this point.

4. In any event, see if a mediator will be successful in resolving this as a first step. (Assuming she agrees to go with you) It's been mentioned, and there is probably not any harm in requesting she provide you with the reasoning in writing for her wanting to break with the existing status quo.

5. Do not do anything verbally. All communications surrounding access/support/etc should be done in writing (via email/letter). Verbal arrangements aren't admissible...arrangements in writing ARE. Regardless of what else is going on, keep your emails short, polite and to the point. Consider it "business" correspondence it that helps put you into the proper mindset. Have an uninvolved friend/etc perhaps proof read it before hand. As with all email, when you are finished with it, go grab a drink, take a walk, etc and then come back and read it again before sending it.

[Mess]

Excellent advice from NBdad.

Re the Child Tax Credit Benefit, if you are certain you can add up enough hours to get you to 40%, even averaged over a period of time, then I would say write to Revenue Canada (there should be a form you can download on the website as well) and get it switched over to a 6 month rotation.

Keep in mind this will be inflamatory, and do it when you are ready to move on everything else, but it will help in that you will arrive in court with one more piece of recognition that you have sufficient time with your child to be at the shared custody level.

Revenue Canada and Family Law don't always coincide, and one may ignore the other, but if it part of a long list of documents like records from daycare of who picked the child up, etc, then you will be in a stronger position.

Keep in mind with your arguments you want to be arguing to solidify your time with your child, and clarify your rights and custody, not fight about money. Judges don't like you if use the child as a prop in a money fight. Let your ex play that role, judges aren't stupid. Make a clear, solid case that your child thrives in your care, you participate in her life and activities, you are a much stronger presence in her life than the typical every-other-weekend arrangement and you want this protected, because your ex is trying to cut you down for financial gain. This should be the gist of your approach. You are concerned with time with your child who needs you and expects to be with you regularly, not just occasionaly.

[NBDad]

Mess makes some good points.

Couple other points:

When communicating, or in any kind of documentation, try to use terminology like "our child" or "our children". Using the words "my" or "mine" convey a sense of ownership. You don't "own" the children. It's a small thing, but can help to convey you as a reasonable, mature individual whose "child centric". (ie. focused on your child, not on yourself).

There are also perhaps some other programs you might be able to look into. There is one in NB called "For the Sake of the Children", it's a 6 week? program that focuses on "co-parenting" after a divorce/separation.

Look into whether there is anything similar in your area. You may not NEED it, but the point of TAKING it and educating yourself will be yet one more little thing you can bring before a court.

Be involved with your children, make a point to talk to their teachers, if you have them on a weekday, ask the teacher to please send home extra copies of school notices,etc on that day due to the family situation. Most will be more than happy to accomodate. Make a point to know when report cards come out, or parent teacher interviews. Get a copy, make your OWN appointment, and keep it.

If your children need dentist/doctor visits and your ex isn't taking them, then try to book an appointment for one of your days (if possible). Yes, it seems like a pain and that you lose time with them, but it places you where you want to be...in the "primary caregiver" role.

[Human Way]

i read your advice over and over, and tried really hard over the

christmas break to make things better..... no such luck.

i booked an appointment with my lawyer. I think for my daughter, family, and mine own sake, I should formalize this with some kind of legal document. Im sure i will have a million more questions, rants in the up coming weeks.

thanks for the support.