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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 05-09-2006, 08:48 AM
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Default Difficult situation please advise

Hi, I have reading some posts and can identify with alot of them..I feel for so many of the dads on this site because so many of the moms have taken them by the necks and literally strangled the life out of them...I have been married 3 times and have never once taken the men in my past lives for anything at all, in fact I have left them all better off than when I met them...this is just me and I am sure that there are plenty of woman who have treated their ex's fairly as well..so with that said let me tell you what my husband is dealing with now..he has been married 2 times before..1 son from 1st marriage and 1 son from 2nd plus a step daughter that he has been paying child support for since she was 4--she is now 19 and going off to college..the first wife has been getting child support for their son and it has been no problem at all, that is until the son moved 4 hours away to live with the maternal grandparents last June-he can't stand his mom and all his friends are way up north...support payments were $625.00/month and the ex was sending only $200.00/month to her parents for the son..she was using the $425.00 to pay her own debts (mainly gambling debts she incurred)..we found out that the son got suspended from school because he was skipping and he had taken up with this girl who is 10 years older than him with 3 kids..they had come back to this area to live therefore my husband put a stop payment on the remainder cheques and figured that since no school no support money. No money has gone unpaid except $225.00---April cheque was given to the mother and she cashed and gave to the son to help him get started...then son breaks up with older woman, moves back to grandparents place and grandmother talks to school and gets him back into the school on conditions that he never skips again....so husband decides to send up $400.00 of the $625.00 to grandparents instead of sending it to the ex wife and feels that she should be paying the rest $225.00 towards her sons support. Yesterday we got a letter from her lawyer wanting a copy of his 2004-05 T4 and pending a review of his financial disclosure he is to send the $625.00 to the grandparents until it can be reviewed..it said in the event a court application is required to resolve this issue the ex will be seeking a retroactive adjustment to child support.....this is so stupid...she feels that she can't afford to support her son and needs the money to pay for her house and that we should pay the total amount..she is in the process of selling her house and moving in with her boyfriend, she has a very good job and so does her boyfriend...my husband has a very good job too but he has to pay support for 2 other kids as well each month and I just lost my job after 20 years... are standard of life is living in an apartment..we really don't know where this will all lead, but feel that she should have to support her son as well and if it does go to court wouldn't the judge see that he is supporting his other family and now me without a job???? sorry for the long winded version but I felt someone might be able to shed some sort of light on this dark situation....oh yeah the grandmother told us that she gives the boy $100.00/week spending money...he smokes and drinks so this is what he is using the money on which we do not condone in the least....
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Old 05-09-2006, 09:55 AM
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Mikesgal,

It appears to me that the older child has withdrawn from the custodial parent which would construe to be a material change of circumstances. ie: child living with a woman etc

If the child is now living full time with grandparents and restarted school, it appears that they the grandparents should be the ones receiving child support.

It appears that the lawyer involved is somewhat using a bullying tactic
ie: " it said in the event a court application is required to resolve this issue the ex will be seeking a retroactive adjustment to child support" How can this be when the child was not living with her. The child withdrew from her control moved to the grandparents then moved in with another woman and was kicked out of school. Now the child has restarted school and is now living with the grandparents.

Child support is the right of the child.

By all means provide financial disclosure such as 2004/2005 itax final assessments or returns. Provide a copy of same to the grandparents also. Additionally, copy them in all correspondence. In any court proceeding name the grandparents as a party. Relay this intention and stance to her lawyer. Should have no problem considering the current circumstance. In addition be sure to request the mother's financial information (assessments) for the last 3 years. I believe she also has a responsibility to support the child.

LV
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Old 05-09-2006, 11:39 AM
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Thank you for the quick response...I totally agree with your advise on this matter..I agree about the bullying issue as well...this woman has her own home and has a good paying job, and she sobs the blues that she can't afford to pay child support to her parents for raising her son...what kind of crap is that??? Was also wondering though for the fact my husband has to pay for 2 other kids and support his now unemployed wife would the courts take this into consideration at all??? undue hardships perhaps????
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Old 05-09-2006, 12:34 PM
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Mikesgal,

I would have to say that first family obligation is first priority, then 2nd family child support obligation and lastly the obligation to support spouse.

Now you could bring these points up but most likely they would be given very little consideration as the support obligation issue is the first family.

I would place more emphasis on naming the grandparents as a third party as in fact the child is living with them.

Upon saying that; the mother of this child has an obligation to provide support ot this same child.

To get the current support varied, the onus is on the party seeking the variance to prove the material change; this is relatively easy to do being that the child lives with the grandparents. In essence, the grandparents are now acting as the child parents. Since the child still requires support, it is logic to reason that the grandparents should receive the support as it appears they are acting as custodians for the child. Under the law, both parents are obligated to provide support for their child.

Family Law Act R.S.O. 1990, c.F.3

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK31

Definitions

1. (1) In this Act,

child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody; (“enfant”)

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

PART III
SUPPORT OBLIGATIONS



Definitions

29. In this Part,

“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).

This is where Judicial descretion of the court comes in to play; To me the child is under the control of the grandparents afterall, the grandparent spoke to the school, this suggests that they were acting as a parent.

1) Are the grandparents acting as parents, If so, then the child has not withdrawn and is entitled to support from both parents. It appears they are.

2) If is is determined that the child has withdrawn from parential control that being (the mother) regardless if he is now attending school, then there will be no support obligation.

I can't see option 2 as an option as child support is paramont and is the child's right to same. This child is somewhat older, but still a child.

I would mention the other support obligations(2nd family and spousal support), but keep it low key. Place emphasis on having the grand parents named as a party and emphasis on the mother paying child support in addition to your own contribution. Who knows a Judge may look at each parties income and split the tabled amount between the parent's to be paid to the grandparent's as long as the child is enrolled in school.

Order for support

Section 33(1)

33. (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support. R.S.O. 1990, c. F.3, s. 33 (1).

Applicants

(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent. R.S.O. 1990, c. F.3, s. 33 (2).


Adding party

(5) In an application the court may, on a respondent’s motion, add as a party another person who may have an obligation to provide support to the same dependant.
R.S.O. 1990, c. F.3, s. 33 (5).

Idem

(6) In an action in the Ontario Court (General Division), the defendant may add as a third party another person who may have an obligation to provide support to the same dependant. R.S.O. 1990, c. F.3, s. 33 (6).


Purposes of order for support of child

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;


(b) apportion the obligation according to the child support guidelines. R.S.O. 1990, c. F.3, s. 33 (7); 1997, c. 20, s. 3 (1).

LV

Last edited by logicalvelocity; 05-09-2006 at 12:38 PM.
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Old 05-09-2006, 01:05 PM
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thanks again for the quick response...I should clarify that it is ME that is the unemployed spouse not his ex wives
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Old 05-09-2006, 02:56 PM
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Mikesgal,

your still a spouse and currently in need of support
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