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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 08-14-2015, 08:27 AM
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Default DRO Results leaves me with more questions.....

Quick over view..
Ex filed a Motion to Change our final order because he wanted:
1. reduce child support based on new income of 23K. (originally 38K imputed for lack of financial disclosure and self employment)
2. Change meeting exchange location closer to his home. ( He moved 235KM away from children to be with new wife)
3. If meeting place not changed, reduction in payable support to cover costs and time of travel.
4. S7 proportionate to new income of 23K.
5. Clothing for the children, sent by me, to his home for his access weekend with the children.
My argument against the MTC is that there is no material change and MTC should be dismissed. I also made a Request for financial disclosure, (as per a post from Tayken)
First appearance, he no showed, sent his lawyer, was then scheduled for DRO. Case conference briefs served to me the night before court, and financial request was pretty much denied. Again he doesn't show for DRO conference, just his lawyer. Sitting with DRO and all suggestions are made. DRO actually says "Ex has no case here". Judge will not reduce child support because EX chose to take a lower paying job as a result to move to be with wife. Judge will not support making mother drive and hour an a half further, again because EX chose to move further away. Support cannot be reduced due to a move and longer travel times. It was EX's choice to move, not children's, nor mothers.
All the above made me a very happy person.....with this expection...DRO suggested child support be reduced to reflect last Canadian income.(31K) Tells EX's lawyer to do up minutes of settlement, and have me sign, send originals to EX, have him sign, file in court and new order to me made!! No need to come back to court on this matter.
I'm game, I'm happy, I'm "jiggy with it", pretty happy that I self reped and got what I wanted and am ready to sign off on all his stupid requests that didn't work for him!! But as I wait for lawyer to draw up minutes of settlement, I start to think and replay the whole conversation in my head that just happened with the DRO...and then I realize that I am not happy with the chld support being reduced to reflect 2013 income. Not a big deal to some, or me even.....if the income was a true reflection of money earned.
December 2012 final order was made. 38K imputed as projected income due to lack of financial disclosure, as well as the fact that EX is "self employed" and has certain amounts of tax breaks. 2013 income is with same "Employer". NOA states 31K as income. All of this I can agree too...but I know that he worked for cash on some jobs, received tips on most, and has tax break benefits that would increase his income. Can I prove it...I'm not sure. He has one T4 for 2013....but it is filled in in his own hand writing. What I mean is it looks like to company said here is a blank T4, with out company letter head filled in already....you just imput the numbers you want to claim for taxes. This infuriates me. I will sign off on minutes of settlement IF he can prove that he only made 31K in 2013. Can I request to see his last paystub of 2013, and see if the numbers he imputed are matching to the last paystub? My ex has always been sneaky and secretive with financials, and I don't want to settle until I know I have exhausted all means of providing financials. The judge in our final order saw right through my EX and imputed 38K when NOA only stated $3,600.00. DRO tried to tell me NOA is golden, and I didn't want to start a pissing match with her....but I disagree. Next DRO conference scheduled for October.

Thoughts, comments, concerns, questions....lemme have em.
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Old 08-14-2015, 10:00 AM
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Is your ex self-employed or not? That is the big question I suspect.

If he is self-employed you would want to see his complete tax return to start. What a self-employed individual can legitimately receive a tax credit on may or may not be relevant. In other words, how your ex "chooses" to file his taxes each year (if self-employed) may not correctly reflect his income for the purposes of determining support.

NOAs only reflect the tax payable/receivable AFTER all the deductions/credits. A self-employed individual can manipulate this (legally) so as to reduce his/her tax position. I would only accept a NOA as a means to corroborate a tax return.... so you need to see the complete tax return and decide if situation warrants further financial disclosure (bank statements, etc.).

You might find this recent case from Nova Scotia to be of interest/relevance to your situation regarding determining legitimate business expenses, etc.:

https://www.canlii.org/en/ns/nssc/do...15nssc234.html

Last edited by arabian; 08-14-2015 at 10:26 AM. Reason: addition of case law
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Old 08-14-2015, 10:59 AM
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Before you decide to do anything, calculate how much would the difference in CS be and then decide if it is worth the fight, stress and time.
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Old 08-14-2015, 11:32 AM
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Quote:
Originally Posted by Toutou View Post
Before you decide to do anything, calculate how much would the difference in CS be and then decide if it is worth the fight, stress and time.
True, however, receiving FULL financial disclosure would be the first step I would think. How can one decide if they don't know how much money the other parent earned?
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Old 08-14-2015, 11:47 AM
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Take him for all he's worth! He could be hiding cookies under his bed!
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Old 08-14-2015, 12:03 PM
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money money money.. sheesh! Get disclosure. Do you have a job as well?
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Old 08-14-2015, 01:23 PM
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Quote:
Originally Posted by Links17 View Post
Take him for all he's worth! He could be hiding cookies under his bed!
The new wife is eating his cookies.

Full financial disclosure includes paystubs, financial statements, etc. How much of an effort/stress would it be to you to continue to delay until you receive full disclosure, and would the numbers really vary that greatly? I certainly wouldn't finalize an agreement without full disclosure, but only you can draw that line for yourself.
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Old 08-14-2015, 01:43 PM
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Arabian- Thank you so much for your input. I was hoping I would hear from you. The case link is awesome! Thank you! Keeping this quote in mind.” When the court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or a further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on - or wait for - - representations from the payor.
I realize that some of you are not familiar with my situation, and I may have left some details out in my “Quick Overview”…
EX was imputed income for lack of financial disclosure, not providing court ordered financial documents and attempted to avoid having to pay support at all.
Ex’s Income is 23K, based on part time hours….and that is in US Funds. Full time employment, with exchange rate of 1.2535 (Bank of Canada, 07-01-15)applied would have him at 42K, (that does not include the overtime hours during the busy season)
I’m not requesting that child support be increased to reflect the potential income….I’m requesting that the CS remain the same based on the judicially imputed income.
I’m not out to take him for all he is worth….if I was I would be looking for the crumbs and potential chocolate chips that fell off the cookies he could be hiding under said bed.... :P
Unlike yourself LF32, my EX doesn’t seem to have the same passion, need, want, or desire to see his children, be part of their lives, nor be responsible for them…especially in a financial manner. He tends to see them when it is convenient for himself, not when he could be seeing them. I have requested disclosure with this MTC. I requested the following and this is what I have been told:
-A copy of the Respondent's signed and dated employment contract from his employer clearly stating his/her salary, position, bonus and other benefits. I received a response of “EX does not have a contract of employment.”
-A copy of the Respondent's signed and dated resignation letter or signed and dated termination letter from his employer. I received a response of “EX did not provide letter to employer, he advised them verbally.”
. A copy of all income slips (T4s, T4As, T5s, etc.) received for any of the of the three most recent taxation years for which a tax return has not been filed by the Respondent. I did not receive any of this. Ex worked in Canada 01-14-03-15….still waiting on these.

. A copy of the most recent pay stub or statement with year-to-date income for the Respondent's current employer.
I received “Ex hasn’t worked since 02-15…most recent pay stub dates 01-15 Yet I have emails from him in 02, 03,04, 05 AND 06 stating that he is unable to see his children because he has been called out of town for work, Or work schedule changed cannot pick up children.
I also requested all employment financials from the US for 2014 and 2015. I have nothing of that either. Requesting Disclosure doesn’t prove to be very helpful when nothing is provided.
I am employed…Full-Time and have been since 1996. Employment is a necessity when raising children. I believe that it helps to provide said children with structure, routine and stability. Parental Employment teaches children lessons in saving and spending habits, it teaches them responsibility, routine, and gives them structure. The see how to prioritize even though you may not like to do so. I am sad, and maybe even a tad jealous, that I wasn’t able to spend the first few years of my children’s lives with them at home, being able to snuggle and cuddle them. My heart aches when I have to leave a sick child with another relative, so that I can go to work, but I do it. Because I have responsibilities. And in my heart I know that I am teaching my children that when you take on a responsibility…you FOLLOW through with them. You don’t give up on it when you feel like it, and walk away because it’s no longer what you want or convenient for you anymore.


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Old 08-14-2015, 11:26 PM
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I will review your post and reply tomorrow or I will PM you. At a glance it comes down to: you have not received full financial disclosure which your ex's lawyer is obliged to provide.

Without full financial disclosure I'd investigate the typical income of someone doing the same sort of work as your ex (typical annual salary) as a benchmark/starting off point.
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Old 08-15-2015, 11:27 AM
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Busch, you have a standing order. Your ex has filed a Motion to Change it. Before anything else can happen, your ex has the onus of proving that a material change of circumstance has occurred. If one hasn't, your order cannot be changed.

You need to focus on whether there is a material change.

The court imputed an income of $38,000 to him. The judge found as a fact that this is his income. He is now claiming his income is $23,000. The onus is on him to prove it.

You don't need to spend all this effort trying to get his financial disclosure. He brought the motion. He has to prove there has been a material change. His withholding disclosure hurts his ability to do that. Make requests for disclosure in writing pursuant to Rule 13(11) of the Family Law Rules and if he doesn't provide it, you use his refusal to disclose to support your position that he hasn't proved a material change.

You need to look at the circumstances when your order was granted and look at the circumstances now and decide if there is a MATERIAL change. To be material, the change must be significant, long-lasting, not one of choice, and unforeseen.

What are the specific changes he is claiming? Choosing to take a position for $15,000 less than the court has found he is capable of making is not a material change.

Your posts are confusing re:self-employment. If he is self-employed, he wouldn't have T4s or employment contracts.

Is he claiming he is no longer self-employed and has taken a job for $15,000 less than he made working for himself?

You can end this all rather quickly if you want by filing a motion requesting summary judgement dismissing his Motion to Change on the basis that he has not proved a material change. No conferences are required. Look at Rule 16 of the Family Law Rules. They have recently made changes to the rule to make it easier to bring a motion for summary judgement to encourage people to use this method of resolving issues.
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