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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 03-22-2012, 01:31 PM
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Default Child Support Upon Death of Ex

About a month ago, my ex-wife passed away suddenly at the age of 38. My children, for whom I had joint custody but was not the custodial parent, are now living with me full time and adjusting as well as can be expected.

I have been advised that because I had joint custody I don't really need to go back to court to amend the order, as custody defaults to me in such a situation. That's the good news (if correct). Trickier is the issue of child support. My son is not mine biologically, though I have always acted in loco parentis and was paying a partial support amount for him under my 2009 court order. His biological father was paying full child support to my ex under this order as well.

I have been advised by FRO that my ex's death has essentially nullified the bio dad's responsibility to pay and that his payments do not default to me now that I am the de facto custodial parent. They advised that I would have to change my order or get a new order under which his support payments would come to me. As FRO is notoriously WRONG about so many things, I thought I'd come and ask the wiser minds here before mucking about with my order.

I'm stable financially and not in desperate need for the money, but it would be nice to have so that I can squirrel it away for college/university, as my son is now 15.

Any advice you can offer about the child support issue specifically and anything else I may have to address upon my ex's death more generally would be greatly appreciated. Many thanks.
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Old 03-22-2012, 01:39 PM
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Quote:
I have been advised by FRO that my ex's death has essentially nullified the bio dad's responsibility to pay and that his payments do not default to me now that I am the de facto custodial parent.
THAT is a load of crap! (Your post actually managed to tick me off..total injustice!)

The child didn't pass away, his mother did. How does his mother dying negate his child support responsibility? It must be wrong. I would understand you having to have the order amended and re-issued but nullied? That's nonsense. I'll search canlii for similar cases and I'm sure a lot of other posters will too.
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Old 03-22-2012, 01:45 PM
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Originally Posted by Pursuinghappiness View Post
THAT is a load of crap! (Your post actually managed to tick me off..total injustice!)

The child didn't pass away, his mother did. How does his mother dying negate his child support responsibility? It must be wrong. I would understand you having to have the order amended and re-issued but nullied? That's nonsense. I'll search canlii for similar cases and I'm sure a lot of other posters will too.
Well this was my thinking. The child support money wasn't my ex's, it's my son's. I had assumed it would simply follow him. It's not like now that his mother has passed on he magically doesn't deserve support anymore.
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Old 03-22-2012, 01:48 PM
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Didn't the FRO simply mean that the court order, which they enforce, is no longer valid? The FRO enforces court orders, the don't interpret family law etc.

What does the bio dad say about all this?
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Old 03-22-2012, 01:56 PM
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Yes, I agree with Bill. I'm wondering if you misinterpreted what they said...because them not enforcing or "nullifying" the previous order makes sense. Nullifying his responsibility to pay doesn't make any sense and doesn't correspond with the CS responsibilities laid out in the act itself.

I'm thinking either you misunderstood what they said, the FRO rep said it incorrectly, or they don't know what they're talking about.
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Old 03-22-2012, 06:54 PM
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why didnt the bio dad get custody of his son when your ex died??
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Old 03-23-2012, 12:01 AM
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Originally Posted by billm View Post
What does the bio dad say about all this?
I would think a simple phone call to the bio-dad would solve solve the problem.

My assumption is that he is a stand up guy and will continue paying for his child - with or wothout an FRO enforceable court order.
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Old 03-23-2012, 09:04 AM
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1) It possible that I may have misinterpreted FRO's meaning. The gyst I got wasn't that his responsibility to pay has neccessarily was gone, but rather that they couldn't collect it from him and give it to me without something from the court ordering that. Would I need to do a Motion To Change so that my order lists me as the support recipient instead of my ex?

2) I've spoken to the bio dad and although he isn't refusing payment, he has a long history of dodging payment wherever possible (ie: hiding income, underreporting, etc). I would rather go through FRO because I expect problems and I doubt he would pay in the absence of something telling him he has to.

3) Bio dad didn't get custody of my son because the ex and I had joint custody. I've been his dad since he was 10 months old. The bio dad has never shown any particular interest in being involved and has only been paying child support since our order in 2009.

Thanks for the help, by the way guys. I was wholly unprepared for all this and a little lost as to process. Just when you think you are done with all the Family Law paperwork, life finds a way to bury you in it again.
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Old 03-23-2012, 09:55 AM
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Unless you adopted him, technically upon the death of your wife, custody should default to BIO dad, not you.

However, the kid is 15 and his wishes are a virtual lock in terms of where he would like to live.

You need to get an amended court order to have support directed to you.
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Old 03-23-2012, 04:35 PM
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i have a feeling that this is going to open a whole can of worms. If bio dad is the way he is, he may try for custody instead of paying you anything.
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