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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 10-26-2009, 05:48 PM
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Default Offer to Settle Child Support - Is This Fair?

After an ongoing battle over child support, lasting now 1 year, my husband has decided to serve his child's mother with an offer to settle. For the past year, my husband has been employed, unemployed, employed for a few months, unemployed for a few months, employed and unemployed again. It has been a vicious employment-unemployment cycle. Each time there was a change in financial circumstance, he tried to change his child support obligation to depict his financial state. Unfortunately, after 4 court dates, we noticed that the judge had no problem INCREASING his child support each time he got a new job with higher salary, but never once did the judge DECREASE his child support due to unemployment. (Pretty "fair" huh?)

My husband begun a new job today. The last thing he wants is for a judge to rule child support on - yet again - his "current" salary at the time of court. The reason he believes this isn't fair is that each time, at the time of court, he was employed, if even for a couple of days. Yet for months before, he was unemployed - at times collecting EI benefits, and at times not. Yet the judge never once took his unemployment into consideration, and based every support order on whatever the current salary was that he was offered at the most recent job he obtained. So even when he was not making any money, he was being ordered to pay child support based on income he did not have.

His offer to settle is simple. He is giving his son's mother 2 options to choose from:

Option A: Base his current child support on the income depicted on line 150 of his 2008 income tax return, and come July 1st 2010, base it on the income depicted on his 2009 income tax return, provided that this method of calculation is used yearly thereafter; or

Option B: Base his current child support on the average income of the last 3 years as depicted on his 2006, 2007, 2008 income tax returns, and come July 1st 1020, base it on the average income of the last 3 years as depicted on his 2007, 2008, 2009 income tax returns, provided that this method of calculation is used yearly thereafter.

The above options are the two guiding methods of calculating child support according to the Federal Child Support Guidelines.

My husband has offered this to my stepson's mom in the last few months, but she declined both offers. You see, my stepson's mother disagrees with the above methods of calculation, and with having to abide by one methods of calculation for all adjustments. She feels that she should be entitled to whichever method yields the highest amount of child support, whether that is "current" salary, last year's total income, or a 3-year-average - whichever is greatest (because that was the "method" used by the judge we've encountered during our last 3 court appearances/conferences).

Neither my husband nor I - nor the duty counsel we've spoken to about this - agree with this type of calculation. So, my husband wants to serve his son's mother with an actual offer to settle, before we go to trial in 3-4 months, to show that he has tried to be reasonable and abide by the court order and CS Guidelines, yet she has refused.

Do you think his offer (the 2 options above) is fair?
Will it appear fair in the eyes of a judge?

Any advice is greatly appreciated. Thank you.
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Old 10-26-2009, 08:35 PM
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I think it is fair. But with family law, everything is a crap, shot, We are in mediation now and hoping it won't come to what you guys are going through,all the best
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Old 10-26-2009, 11:37 PM
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sounds fair. Hope it works too
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Old 10-26-2009, 11:44 PM
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I believe that your offer is more than fair, and follows the letter of the law.

I don't believe that any other Order would be appropriate?

Even if a NCP changes employers multiple times per year, the increases/decreases in income would be disclosed within the annual income tax returns, so the CP has nothing to disagree with!?

If your husbands income this year has been significantly lower than the previous years, she would probably choose the option that gives her the most money.

And IF you have a clause in your agreement that states that any changes in income/employment have to be disclosed within X number of days, she could call that a 'material change' and drag you back to court anyways, (which seems to be her forte).

The good thing is, as long as your offer is:

1 - Reasonable;
2 - Close to the final Order;

she will likely be ordered to pay your costs (either full or partial indemnity, based on your previous request), up to the date the Offer was rejected.

So make sure you put a point on 'costs' in your settlement offer.

You can also put a time limit on your Offer; or let it cancel out on the date that the trial begins.

Good Luck
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Old 10-27-2009, 07:50 AM
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Thank you for your replies.

We didn't consider adding "costs" to the offer. We felt that costs would be addressed/taken care of by the judge.

After all, the rules state:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

Should we include a cost clause anyway?

Also, we are thinking about adding a statement at the bottom, which reads: The Respondent requests that one just method of calculation be determined and followed for all child support adjustments in order to provide the fairest determination of actual income and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income, or receipt of a non-recurring amount during those years.

Is this appropriate?

We're planning on letting the offer expire on the date of trial (which we are still waiting to be notified about). My husband wants to serve it ASAP, however, as he just started a new position yesterday, and wants to make sure the his child support is not - yet again - based on his "current" income without taking into account - yet again - the months he was unemployed and receiving no pay.

Any other suggestions?

Last edited by #1StepMom; 10-27-2009 at 07:54 AM.
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