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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 08-16-2013, 12:00 PM
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Default Motion to change

I am going to be filing a motion to change in the next few weeks and I have a couple of questions.

Explanation:
We have shared 50/50 custody of our two children.
We have a signed final order that states that CS will be payed using the offset method.
Every year we are to exchange tax returns, calculate a new amount and as of June 1, start paying the new amount.
In addition, we calculate any over/under payment for the last year and that is to be paid either as a lump sum or over the next year.
Order states that if there is a material change in circumstance we will use the most current income instead of the previous year's income when calculating the new amount.

I am currently the payor. On Feb 1 next year I will be going on mat leave. My income will be drastically reduced. I am filing a motion to request that the CS amount be recalculated early using our expected incomes. This is to avoid me paying support for 4 months (realistically more because it's through FRO) after my income is reduced and to avoid a large overpayment being applied the following year (ex will owe that money back to me).

This motion will cause a nuclear war. I am so stressed out about the whole thing. But - not important.

My questions are:
We are requesting a change that will absolutely be denied by my ex so we will end up at case conference. What is the process at that point? Do I need to 'request a motion' at the case conference or will it automatically be ordered since I filled out a 'motion for change' in the first place?

Secondly - since my order mentions a change in circumstance will result in using current incomes during recalculation, do you think a judge would deny my request and make me wait until the June 1 changeover? I'm worried that the judge will state that the order deals with changes in circumstance already and dismiss my motion....thoughts?

Lastly, if I file this motion - does it mean I am opening myself up to my ex re-arguing our current order??

And as always, thanks for the input!
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Old 08-16-2013, 12:15 PM
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If I were your ex I would claim that you are "underemployed" following the "17" weeks of Maternity leave. Since Parental leave is technically a choice you are making to stay home with your child and not something that should change your support payments. If your ex took Parental leave would you agree to the same?

I would ask the court to have your normal income imputed on you for every week you took of Parental leave (Following week 17 of maternity leave).

Just my opinion.
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Old 08-16-2013, 12:20 PM
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Quote:
Originally Posted by FB_ View Post
If I were your ex I would claim that you are "underemployed" following the "17" weeks of Maternity leave. Since Parental leave is technically a choice you are making to stay home with your child and not something that should change your support payments. If your ex took Parental leave would you agree to the same?

I would ask the court to have your normal income imputed on you for every week you took of Parental leave (Following week 17 of maternity leave).

Just my opinion.
I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.

Also - I pay him based on his income, which is greatly reduced because he collects EI half the year. Should I impute his income because he's intentionally underemployed while on EI? (I know for a fact he could work but chooses not to because he's a member of a union and is on their 'list' so he waits on his ass for them to call him back to work.)

Last edited by HappyMomma; 08-16-2013 at 12:22 PM.
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Old 08-16-2013, 12:22 PM
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Originally Posted by CSAngel View Post
I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.
Good to know. That's interesting and something I will take a personal note of because my ex always wanted another child.

Just out of curiosity. The case law you are referring to was it with shared parenting with set-off child support or primary caregiver with full table?
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Old 08-16-2013, 12:25 PM
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Anyway to answer your question, it sounds like your agreement already includes the resolution to your problem.

When you exchange taxes next year you calculate the actual over under that is to be paid by lump sum or over the year for the next two years.

I don't understand why you need to go to court over it.

Is the issue with FRO?
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Old 08-16-2013, 12:28 PM
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Quote:
Originally Posted by CSAngel View Post
On Feb 1 next year I will be going on mat leave. My income will be drastically reduced. I am filing a motion to request that the CS amount be recalculated early using our expected incomes. This is to avoid me paying support for 4 months (realistically more because it's through FRO) after my income is reduced and to avoid a large overpayment being applied the following year (ex will owe that money back to me).
Here is the problem with your position at this time I think...

The material change in circumstance is going to possibly happen on February 1, 2014. That is 5 months and 16 days until the material change will actually occur.

Your application may fail on the fact that the change for which you are seeking an order for has not actually materialized yet. The judge may deny your Application at this time because the it is a future prediction to a material change. You may be forced to wait until the material change has occurred and not be able to pre-emptively strike this one.

I advise you to see out the advice of a lawyer prior to proceeding.

Good Luck!
Tayken
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Old 08-16-2013, 12:39 PM
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Quote:
Originally Posted by CSAngel View Post
I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.
I would proceed with caution on this argument. Remember there is another responsible parent involved in the birth of a child. As you share 50-50 access (residency) of the child for which support is being paid for the argument could easily be made that the other parent to this new child should be taking the other half of the parental leave time as one would expect them to be an active "co-parent" to this new child.

You may not be able to blow hot-and-cold at the same time on an issue like this before the court possibly. A strong argument can be made that you should only be talking half the time and the other parent should be taking the other time.

The alternative on a cross motion would be possibly to claim undue hardship (other party) and seek the income of the parent to this new child to contribute to the CS payments possibly.

I warn you of Section 9 of the FCSG and to seek an adjustment in line with Contino possibly. This will take into account a really detailed review of both household's expenses and those contributing to them. (Possibly including your new partner and parent to the yet unborn child.) So, the court may determine based on the household incomes that you still have to pay and may actually increase the amount owed to the other parent. This could be argued as Contino is about evaluating the standard of living of both households.

Good Luck!
Tayken
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Old 08-16-2013, 01:03 PM
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Quote:
Originally Posted by Tayken View Post
I would proceed with caution on this argument. Remember there is another responsible parent involved in the birth of a child. As you share 50-50 access (residency) of the child for which support is being paid for the argument could easily be made that the other parent to this new child should be taking the other half of the parental leave time as one would expect them to be an active "co-parent" to this new child.

You may not be able to blow hot-and-cold at the same time on an issue like this before the court possibly. A strong argument can be made that you should only be talking half the time and the other parent should be taking the other time.

The alternative on a cross motion would be possibly to claim undue hardship (other party) and seek the income of the parent to this new child to contribute to the CS payments possibly.

I warn you of Section 9 of the FCSG and to seek an adjustment in line with Contino possibly. This will take into account a really detailed review of both household's expenses and those contributing to them. (Possibly including your new partner and parent to the yet unborn child.) So, the court may determine based on the household incomes that you still have to pay and may actually increase the amount owed to the other parent. This could be argued as Contino is about evaluating the standard of living of both households.

Good Luck!
Tayken
Since I am the lower income earner, it does not make sense for my partner to take part of the parental leave. It is already going to be tough for us. The case law I read on this did not address this at all - it simply stated that the mother had the right to the leave and reduced CS.

Question - I understand he could argue the validity of parental leave at motion, however, could he also reopen the whole CS calculation if we already have an order stating that we use the offset method? All I'm asking for is to make the calculation earlier in the year so that he doesn't end up repaying a large overpayment the next year and I don't end up with next to no income for 4 months.

Using Contino vs Contino, I could also end up with reduced payments since 9b and 9c, as you stated, would require a detailed analysis of our incomes and expenses - it would need to take into account the fact that I have other children to support and I have increased costs associated with the shared custody arrangement - of which I have proof. However, I really don't want to go there though - SO MUCH WORK and too risky

Thanks for your input Tayken - you've given me lots to think about.
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Old 08-16-2013, 01:07 PM
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Quote:
Originally Posted by FB_ View Post
Anyway to answer your question, it sounds like your agreement already includes the resolution to your problem.

When you exchange taxes next year you calculate the actual over under that is to be paid by lump sum or over the year for the next two years.

I don't understand why you need to go to court over it.

Is the issue with FRO?
The issue is that my income will be drastically reduced for 4 months before the recalculation kicks in - and then because it's through FRO, the new order will be a few months getting processed which means I'll end up paying likely another 2 months minimum before it's fixed. That would cause us real hardship.
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Old 08-16-2013, 01:08 PM
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Quote:
Originally Posted by Tayken View Post
Here is the problem with your position at this time I think...

The material change in circumstance is going to possibly happen on February 1, 2014. That is 5 months and 16 days until the material change will actually occur.

Your application may fail on the fact that the change for which you are seeking an order for has not actually materialized yet. The judge may deny your Application at this time because the it is a future prediction to a material change. You may be forced to wait until the material change has occurred and not be able to pre-emptively strike this one.

I advise you to see out the advice of a lawyer prior to proceeding.

Good Luck!
Tayken
Good advice - it was actually my lawyer who told me to file right away since the court process is slow (and we know this won't be on consent). I'll definitely review this with her though.

Thanks!
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