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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 03-09-2012, 02:31 PM
Ace Ace is offline
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Smile Earliest date to vary Child support from a final order in Superior court

I have a final order dated Sept 8 2009. The order is retroactive to July 1 2009. I heard something in conversation about not "going behind an order". I have a material change in circumstances, "no job" since Mar 09. I want to change the order to better match my earnings. What date is the earliest I can go back to, retroactively. I heard something about 6 months after an order but was not sure if that was date of order (Sept 8/09 + 6 mo) or the previous retroactive date used in the order the order (July 1/09 + 6 mo).
Appreciate your input.
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Old 03-09-2012, 02:36 PM
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Originally Posted by Ace View Post
I have a final order dated Sept 8 2009. The order is retroactive to July 1 2009. I heard something in conversation about not "going behind an order". I have a material change in circumstances, "no job" since Mar 09. I want to change the order to better match my earnings. What date is the earliest I can go back to, retroactively. I heard something about 6 months after an order but was not sure if that was date of order (Sept 8/09 + 6 mo) or the previous retroactive date used in the order the order (July 1/09 + 6 mo).
Appreciate your input.
1. You should have filed your change in circumstance in March 2009 and went on motion to have it changed.

2. I doubt that they will go back and pay you your over payments since your date of unemployment due to the fact it is now March 2012.

3. They will change the CS payments but, you need to complete a form 13 and provide full financial disclosure.

4. Before even going to court why not work it out with the other parent first?

Good Luck!
Tayken
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Old 03-09-2012, 04:05 PM
Ace Ace is offline
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THX Taken, here is some perspective......We appealed the final order on 14 issues. CS was not one of them since it would have diluted our appeal in the other areas. The appeals court ruled in Dec 2010 on 7 issues and dismissed the rest claiming they did not have time to essentially redo the case.

Temporary orders to pay support in 2010 prior to appeal court were made by vesting assets from RRSPs to the tune of 100k (CS + SS).

We were granted some concessions by the appelant court ~30,000 but then got stuck with the court costs (25k my lawyer + 15 k her lawyer). My lawyer advised not to do the CS then.

In 2011 another 190k was transferred including the house and more RRSPs.
I was out of money, got my parents to help pay off my legal bill then she quit on me in mid 2011.

I commenced with an application to vary CS in Aug 2011 on my own. My X did not want to do anthing on consent nor did she want to go to the court in Sarnia from Kitchener. She appearred only by conf call at case conf and Settlement conf. Talked judge into a motion to move to Kitchener and here we are.

I do qualify for Legal aide but no one has time to take the case or they dont want it.
We have to redo the settlement conf for it was deemed not complete hence I wish to ammend my proposal to meet the criteria of timing layed out in the rules. I do not know when the 6 months commence so that I am not "going behind an order".

Unemployed I cannot possibly meet the court order asking for $1468/mo. This alomg with my X wifes refusal to tell FRO I gave he $290k in assets of which likely 40+k are deemed to be FRO related has resulted in a FRO account balance of 52K.

I need the retroactive ammended CS and I need the acknowledgement of FRO (via my X) to bring my balance down to where it should be (near zero) so that FRO will cease enforcement.
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Old 03-09-2012, 04:28 PM
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THX Taken, here is some perspective......We appealed the final order on 14 issues. CS was not one of them since it would have diluted our appeal in the other areas. The appeals court ruled in Dec 2010 on 7 issues and dismissed the rest claiming they did not have time to essentially redo the case.
Appeals are not cheap at all. Rare occurrence in Family Law. I can't even imagine what that would take to get done.

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Temporary orders to pay support in 2010 prior to appeal court were made by vesting assets from RRSPs to the tune of 100k (CS + SS).
Do you have a final order in your matters yet?

Quote:
Originally Posted by Ace View Post
We were granted some concessions by the appelant court ~30,000 but then got stuck with the court costs (25k my lawyer + 15 k her lawyer). My lawyer advised not to do the CS then.
The majority of the 7 changes I guess were not in your favour? Or were there offers to settle that the costs decision was based on?

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Originally Posted by Ace View Post
In 2011 another 190k was transferred including the house and more RRSPs.
I was out of money, got my parents to help pay off my legal bill then she quit on me in mid 2011.
"she" being your lawyer or did the other party in the lawsuit?

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Originally Posted by Ace View Post
I commenced with an application to vary CS in Aug 2011 on my own. My X did not want to do anthing on consent nor did she want to go to the court in Sarnia from Kitchener. She appearred only by conf call at case conf and Settlement conf. Talked judge into a motion to move to Kitchener and here we are.
So matters are being heard in Kitchener or Sarnia?

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Originally Posted by Ace View Post
I do qualify for Legal aide but no one has time to take the case or they dont want it.
I would guess it is the latter. Your file must take a semi truck to move around with all the previous materials and an appeal. The transcripts of hearings alone must be enormous. It would be hard for the best family law solicitors to take the file over and get to speed let alone one on a Certificate.

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Originally Posted by Ace View Post
We have to redo the settlement conf for it was deemed not complete hence I wish to amend my proposal to meet the criteria of timing laid out in the rules. I do not know when the 6 months commence so that I am not "going behind an order".
Was there an endorsement made at the SC that prevents you from bringing a motion forward?

Quote:
Originally Posted by Ace View Post
Unemployed I cannot possibly meet the court order asking for $1468/mo. This alomg with my X wifes refusal to tell FRO I gave he $290k in assets of which likely 40+k are deemed to be FRO related has resulted in a FRO account balance of 52K.
Only way to fix this is on motion if you can't get consent. But, it sounds like you have a ceased file from your description. Is there an explicit endorsement/order preventing parties from bringing a motion forward?

Quote:
Originally Posted by Ace View Post
I need the retroactive ammended CS and I need the acknowledgement of FRO (via my X) to bring my balance down to where it should be (near zero) so that FRO will cease enforcement.
If your file is not ceased by order or endorsement I see no reason why you can't bring forward a motion. For counting days within the court look at the Rules in the Court of Justice Act. It details how "days" are counted by the courts.

Good Luck!
Tayken
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Old 03-09-2012, 05:29 PM
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Question

Hi Taken, I wiil try to answer your queries.

The judge really cocked up the entire order as if he arrived late for a movie then did a review. It was a complete debackle a little like a referee taking over a hockey game.

The final order was handed down Sept 8 2009. The appeals order was done Dec 21 2010. The final draft order was written in summer of 2011.

In regards to apeals court, roughly 3 were changed in my favour, 4 were upheld and 7 were not ruled on. It was as though, How dare I question the decision of one of our esteemed judges"? I guess they dont make mistakes or errors in judgement or hy jack proceedings. Maybe my judge was an imposter!
Sorry about the sarcasm...

From the very beginning the other side has seeked costs and have been granted them. From the beginning any reasonable offers from me were snubbed. No offers were made during the appeal process.

The 'she' I refer to is my lawyer. Nice girl but tired of fighting and loosing 10-0! There is no lawsuit. Money is gone, her work is done, so she quit!

Proceedings are moved from Sarnia to Kitchener as it was deemed 'more convenient' to the mother.

Funny thing, I pd the lawyer final bill in hopes of getting the files but no they keep the files. She offerred to give me the $7000 transcript from superior court and a couple original statements. Other than that they claim to have sent materials to me by email.

At case conf they said motions can be brought by both parties but specifically to allow for my X to move the venue. What motion should I bring?

I do not know what a ceased file is nor do I think this is the case. I can bring a motion but what motion?

My original question was in regards to 6 months from what date to change a CS order, the court order date or the retroactive date in the order.
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Old 03-09-2012, 08:37 PM
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Quote:
Originally Posted by Ace View Post
Hi Taken, I wiil try to answer your queries.

The judge really cocked up the entire order as if he arrived late for a movie then did a review. It was a complete debackle a little like a referee taking over a hockey game.

The final order was handed down Sept 8 2009. The appeals order was done Dec 21 2010. The final draft order was written in summer of 2011.
So you have a "final draft order"? Do you mean it was never filed with the court? You either have a final order in place or not.

Quote:
Originally Posted by Ace View Post
From the very beginning the other side has seeked costs and have been granted them. From the beginning any reasonable offers from me were snubbed. No offers were made during the appeal process.
They are going to continue being awarded costs as you may have been labeled a vexatious litigant. If you continually bring matters before the court and have costs awarded against you... You might want to re-read your entire file again.

Quote:
Originally Posted by Ace View Post
At case conf they said motions can be brought by both parties but specifically to allow for my X to move the venue. What motion should I bring?
A motion to vary child support. Don't put any allegations into your materials just state the facts of your current financial situation. Do a Form 13 and have it sworn too. Don't give them any ammunition to attack you with with allegations. Just state the facts to your current income situation. Attach everything to it. Your unemployment checks, your bank statements. Provide FULL FINANCIAL DISCLOSURE. Hide nothing if what you are saying about your financial situation is true.

Quote:
Originally Posted by Ace View Post
I do not know what a ceased file is nor do I think this is the case. I can bring a motion but what motion?
It would be an order preventing you from brining further motions without the court's permission. Special clause that judges put in to stop people who have demonstrated that they bring forward useless motions.

Quote:
Originally Posted by Ace View Post
My original question was in regards to 6 months from what date to change a CS order, the court order date or the retroactive date in the order.
I am not sure of the 6 months you are talking about. If there is no order from stopping you from filing a motion there is nothing to stop you for filing a motion to change the child support. You should change CS when you have a material change in circumstance ie. lose your job, or even better get a new one that pays more.

Good Luck!
Tayken
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