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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 08-22-2016, 12:05 PM
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Default Issues with a Motion on Consent

My ex recently agreed to have my sons live at my house as their permanent residence. She is moving 600 km away to be with a boyfriend. We had gone through a trial 4 years ago and she won. Now she has agreed to let them live with me.

She told me that she would not be able to afford child support; and honestly, I don't care if she doesn't want to pay. (she makes about $30,000). I really don't think she would have agreed to this change if I made an issue out of it.

I filled a Motion on Consent and all of the paperwork. All the paperwork was accepted, except that the judge is asking why she won't be paying child support. I filled a new affidavit explaining why I didn't ask for support and that I was confident that I could take care of it myself. My household income is $160k.

My questions are:

1) Can the judge accept that I've waived the child support or is the law supreme in this matter? Will the judge be obligated to make my ex pay even if I don't care to make an issue of this?

2) Can my ex withdraw her consent to this motion based on her reluctance to pay support?
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Old 08-22-2016, 01:01 PM
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Could you add an item that lists the amount of cs she would be responsible for will be waived as travel expenses to visit with the children? But still put in agreed to s7 expenses and the proportionate share. You wont have to recover it but at least it might not cause a problem with the judge.
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Old 08-22-2016, 03:09 PM
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After having done a bit of research, I learned the following:

1) With regarding to waiving child support, I've learned that the court considers child support a right of the child, and neither parent can waive those rights. Although the court can certainly take under consideration the various circumstances that would justify no support payments, those justifications would have to be substantial and well reasoned. See: Can Parents Have an Agreement for No Child Support and No Access? | John P. Schuman C.S., Child and Family Law | John P. Schuman

2) On the matter of withdrawing consent, this was harder to answer. After discussing the matter with a lawyer, it seems that a request to withdraw consent on a motion after learning that child support cannot be waived probably wouldn't be seen as responsible or acting in good faith by the court. Secondly, it shifts the burden of proof on the party seeking the withdraw.

If any of you have anything to add, I would be most interested in hearing your comments.
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Old 08-22-2016, 03:41 PM
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Your research and reasoning are sound. If you don't need the child support, take it and put it into an RESP for their future.

The judge wants to make sure that both parents are fulfilling their legal obligation which includes financially supporting their children to the best of their ability.

You can agree to alternate child support amounts or methods of calculating it, but waiving it completely is usually frowned upon by the judge.
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Old 08-23-2016, 02:23 PM
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Case law pretty much sums it up, child support is the right of the child, not the right of the parent.

In reality however, It's basically a bonus payment to the parent that has the child the majority of the time, they can do whatever the hell they want with it, heck they could give it to their ex to help them pay off their debt if they really wanted to.
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Old 08-23-2016, 03:44 PM
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What is her household income?
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Old 08-26-2016, 11:55 AM
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It's only 30k. Mine is 160k.

I was hoping that the judge would see that I'm capable of taking care of their financial needs on my own. Making an issue of child support at a time when she is agreeing to let them live with me isn't in my children's best interest. They really need to get out of there (many issues going on there that would be too long to write out).
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Old 08-26-2016, 02:58 PM
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hmmmm she had full custody?
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Old 09-08-2016, 11:22 AM
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No. We had joint custody.

Just to give everyone here an update (and to enrich the knowledge base of the forum), the judge signed the Motion on Consent without imposing child support on my ex. So, it is possible to get CS waived in certain cases. I believe that the judge recognized that this was an opportunity to be seized upon, and he obviously agreed that it was in their best interest to have it waived.
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Old 09-08-2016, 11:47 AM
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Quote:
Originally Posted by Beaudoin View Post
No. We had joint custody.

Just to give everyone here an update (and to enrich the knowledge base of the forum), the judge signed the Motion on Consent without imposing child support on my ex. So, it is possible to get CS waived in certain cases. I believe that the judge recognized that this was an opportunity to be seized upon, and he obviously agreed that it was in their best interest to have it waived.
final order or interim?
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