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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 07-04-2010, 02:40 PM
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Default paying child support without a court order

I have been divorced for 8 years and have one child from the marriage. I have re-married since and have a family.
We have Shared custody and joint Guardianship. My daughter has always lived with me for 50% of the time.
My ex is suing me now, accusing me of not paying child support . She is acting like she had the full customer of the child and I’m owing her money.
We did the Separation agreement out of a booklet and filed it in Provincial Court. We crossed off child support ,as my ex got the house.
We filed Divorce in Supreme Court with only Divorce checked off. The judge denied the divorce stating that a child support needs to be included. I did an affidavit in which I stated that I will be paying child support of $300 per month and the divorce was approved.
I never any order or prior notice by the courts to pay child support. I paid CS voluntarily, even though my ex never disclosed her income and was actually making more money than me and on top of that she refused to pay for extraordinary expenses , I ended up paying for child care, before and after school care summer camps etc.
I did this for years, then my ex sold our matrimonial home and pocketed $200K.
I stopped paying her the $300 CS, as she was clearly milking me. She never gave me a penny from the proceeds of the house.
She has now filed a claim in Prov Court accusing me that I have never paid CS and wants Retroactive CS paid for the last 8 years. So now I have to go to court and prove myself innocent. The only problem is that when I walk into court the judges looka at me as if I‘m the bad guy and my ex is a wonderful person. The judges get irritated when they hear ‘’this father has not paid child support. Poor mom. ‘’
At our pre-trial my ex spoke to a Duty Counsel and they advised her that based on the Affidavit I had signed in Supreme Court, she can make a claim against me there. So now I have 2 claims against me for the same thing in 2 different courts (Prov and Supereme).
Can the supreme court judge order me to pay CS retroactively based on the Affidavit I signed in Supreme Court, even though I never had an Order to pay CS ?
Will the judge take into consideration that my ex benefitted the most by raking in huge profit from the sale of our matrimonial home ?
I offered to pay CS but my ex disagreed saying that I should be paying her the full amount. I don’t think that is fare as she doesn’t have the full custody of the child and the child lives with me for 50% of the time.
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Old 07-04-2010, 03:01 PM
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You have 50/50 shared physical custody. The calculation for CS should be the amount you would pay according your income, and the amount she would pay according to her income. Subtract and this is the amount.

If it is true that her income has been more than yours, then she should be paying you the offset amount.

You should counter sue her for unpaid support, and claim the offset amount going forward. You should do this immediately. If your lawyer doesn't understand this, or can't or won't put forward this argument strenuously, fire them immediately and find a lawyer who will. There are plenty.

Perhaps you are only providing skeleton info, or your lawyer specializes in wills and real estate, or there is other misunderstanding here, but there is no way any competent lawyer should have let your case progress the way it has. You need to file a completely differenct argument here to counteract the bias.

Yes, judges don't like to hear that support is not being paid, that is why you have to put it in big bold simple language that your ex is the one who should be paying support and is not.
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Old 07-04-2010, 03:03 PM
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I'm kind of confused here...were you paying the $300 you agreed to previously at any point? Your biggest mistake was in allowing her to keep the home and then STOPPING the agreed to support payments. You CANNOT bargain away CS obligations like you tried to do.

With an established, 50-50 arrangement the two of you should be using the OFFSET table amount, based on your line 150 amounts. You need to file a motion to have CS adjusted based on that. (Which means you need to request her financials.)

As it stands, she can go after you for retro support for the $300/month you agreed to, effective to the month you stopped paying it. Unless you are willing to allow that to occur, then you need to file a motion to vary to have the CS payments adjusted accordingly, based on table amounts and offset method due to the amount of time you have the children.

I hope to hell you paid her via check, or other trackable method for the time you WERE paying the $300/month, and weren't just handing her cash.

The funds from the house are probably gone, I doubt you'd be able to lay claim to any of it. You signed away your rights to it by the sounds of it.
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Old 07-04-2010, 03:07 PM
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Quote:
Originally Posted by Roni View Post
I offered to pay CS but my ex disagreed saying that I should be paying her the full amount. I don’t think that is fare as she doesn’t have the full custody of the child and the child lives with me for 50% of the time.
This has nothing to do with "fair", the fact is that it is not legal. You are both required by law to pay support to each other. She is not, she is breaking the law. Again, if your lawyer doesn't understand that, they are incompetent to represent you in a case like this.
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Old 07-04-2010, 03:21 PM
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I was young and naïve and should have hired a lawyer or seek legal advice. I’m sure a lawyer would have put a lean on the house and she would have never been able to sell it without paying me equal share.
She was renting 2 basement suites in the house and making $1,100 per month, she made money on the side but she never claimed that on her income. ON top of that she was on social assistance and milkd the system for years and had welfare pay her mortgage.
Don’t understand why is she soo greedy. She has the money.
Before she filed in court, we met with a family justice councilor. I offered to pay $250 per month based on our 50/50 arrangement. My ex – disagreed and she says she wants the full CS amount.
One legal advice given to me was that, the money she pocketed form the proceeds from our matrimonial home, could be used as a lump sum payment towards CS.
I don’t know how the judge is going to react to that.
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Old 07-04-2010, 03:48 PM
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I’m thinking of filing a counter order asking for a full custody of the child (teenager)
I caught her doing drugs and she admitted to it. The person she does drugs with lives in the same complex as her mom. I will for the safety and well being of the child.
Will I have any chance succeeding ?
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Old 07-04-2010, 04:08 PM
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There is little chance of getting a judge to force a custody order on a teen who isn't willing to comply. I'm sorry your child is in such a situation, but you won't solve it with a custody challenge. That may come about at the end, but you need to deal with your teen one-on-one first and try to work something out with her.

If you did not have legal counsel when you first agreed to this arrangement, it cannot possibly be binding. It may be too late to file for assets equilatzation, you should have just taken half the value of the house and if you prefered, banked that money and paid support from that. Legally, she could take the house and then sue you for support later. You cannot sign away child support, period. You should have been told that.

The only way to protect yourself from people like your ex is to have a proper legal contract that is checked out by a specialist lawyer and notarized and filed with the courts. You can do an informal agreement between two reasonable and honest people. Your ex isn't one of them. You cannot change the past, but you can do as much as you are able to clean up the future.

Keep it simple and straightforward. At the beginning of this process, the judges who make temporary orders or hear your case at a case conference or a motion are going to look at the first page and then size you up. Put it in simple terms in one or two paragraphs so they see it right away: Your ex had greater income than you, she should have been paying you child support. Worry about proving that later. Once you establish a counter claim, the judge stops seeing it as a simple "He is not paying" case and will read page 10.

The courts won't easily recognize a lump sum payment from the house as CS. You may get this recognized at the end. Worry about establishing the amount you should have paid first, then worry about the accounting.

Your situation is a tangled mess. Worry less about how it will end, and worry about getting the truth of the situation recognized.
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Old 07-04-2010, 05:03 PM
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Thanks For now I will file a Response to a family Claim in Supreme.

I'm supposed to appear in Prov Court and I'm thinking of asking the judge to Cancel the claim against me, as there is another claim against me in Supreme for the same thing.

Sorry, I don't know what you mean by:
Once you establish a counter claim, the judge stops seing is as simple ''He is not paying '' case and will raed page 10.''
I'will include tha fact that my ex was making more money in the Responce to a family claim not a Counter Claim, correct?

can a Counter Claim be made asking for a temp order granting full custody for the sake of my child's well being and safety (not living close to a drug addict) ?
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Old 07-04-2010, 05:35 PM
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Quote:
Originally Posted by Roni View Post
Thanks For now I will file a Response to a family Claim in Supreme.

I'm supposed to appear in Prov Court and I'm thinking of asking the judge to Cancel the claim against me, as there is another claim against me in Supreme for the same thing.

Sorry, I don't know what you mean by:
Once you establish a counter claim, the judge stops seing is as simple ''He is not paying '' case and will raed page 10.''
I'will include tha fact that my ex was making more money in the Responce to a family claim not a Counter Claim, correct?

can a Counter Claim be made asking for a temp order granting full custody for the sake of my child's well being and safety (not living close to a drug addict) ?
unless you can prove specific child endangerment, it is a hard hill to climb, not to mention all the upheaval. You have to be true to yourself on that one. Then this is the 'teenager' factor, where you child begin to have her own rights as to where she stays. I would tread carefully, make sure you have all your ducks in a row, and most importantly, have proof of your claim.

Believe me when I say, I know or feel for you concerns, but you have to have the proof, otherwise you'll just look like a complainant father. Even though there maybe validity to your claim.
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Old 07-04-2010, 06:27 PM
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Quote:
Originally Posted by Roni View Post
Thanks For now I will file a Response to a family Claim in Supreme.

I'm supposed to appear in Prov Court and I'm thinking of asking the judge to Cancel the claim against me, as there is another claim against me in Supreme for the same thing.

Sorry, I don't know what you mean by:
Once you establish a counter claim, the judge stops seing is as simple ''He is not paying '' case and will raed page 10.''
I'will include tha fact that my ex was making more money in the Responce to a family claim not a Counter Claim, correct?

can a Counter Claim be made asking for a temp order granting full custody for the sake of my child's well being and safety (not living close to a drug addict) ?
What I mean, the judge will look at the top page of the submissions and begin to form an opinion, rightly or wrongly. Maybe not even read the whole thing. You want your main point on page 1. It needs to be simple so it stands out, not part of a complicated mess.

What you want is your support situation fixed. Your ex has not been paying child support like she should have. Make this the first thing the judge sees. If the first thing the judge sees is a bunch of claims of unreported income or drug dealers, he will just mark you down as a deadbeat and not be inclined to listen. Make your main point first, then after that explain why it is true, then after that provide supporting evidence.

DO NOT seek to "fix" your support arrears by thinking you can make a claim for full custody. That will be too obvious to the judge and make you look like a dead beat. Don't seek to connect the two, don't even connect them in your mind. If there is factual evidence that your child is at risk, note that evidence on a piece of paper in point form. Then put another piece of paper on top of that and write out why your child would have a positive life living with you (not a negative one living with the ex.) Then on top of that goes your completely separate support issues. The issues of the drugs are on the bottom of the pile, as much as they may be on the top of your list in your head.
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