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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 12-15-2016, 12:10 PM
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Sam Sung is on a distinguished road
Default Self Rep ; Question re : offer to mediate

I am self rep and have our first case conference set for mid Jan. 2017.
The ex has a lawyer.

Our lawyer drawn up SA from 2012 always encouraged us " that when we disagreed, we should use Dispute Resolution through mediation ".

Everything I have researched so far seems to say that the courts want us to try to resolve our issues ourselves as much as possible .

The 2 main disputes are

1) Can I get the separation agreement amended so that it clearly shows that we have 50 - 50 care and custody and we both pay support to each other and thus I am eligible to the EDC . Current wording uses the word " offset " and she refuses to amend the agreement because she is worried that they will re-look at her taxes . CRA has denied me thousands of dollars over the last 3 years .

2 ) All 3 children are in school full time . The younger 2 ( age 11 and 14 ) spend 1 week with me and 1 with her on alternating weeks . Oldest ( 20 yrs old ) lives exclusively with me and sees my ex maybe 4 days per year. I have asked her to pay me support for our oldest . She refuses .

Over the last 4 years I have asked my ex a few times to go to mediation to try to resolve our disputes. She has always declined .

Problem is , it was done through text messages and that phone had a hard drive crash and now the text messages are gone ( over 1100 of them ) .

Should I start a new line of requests to go to mediation before our first case conference or just wait until Jan 2017 ?

I would like to show that I am willing to negotiate and keep her legal fees to a minimum as well .

I am trying to show that I am reasonable and logical but I also don't want her lawyer to try to spin anything against me .

Any thoughts ?
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Old 12-15-2016, 12:54 PM
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Thoughts:

1) You're over emphasizing the value of offering to mediate. The Judge won't care that you offered mediation over and over. Once is sufficient to clear the requirements of the SA if they try to argue that point. It also has no impact on costs or the final order.

The law on changing custody, amending agreements and child support has nothing to do with how reasonable a party is.

The law on costs (awarded after a motion or trial) requires you to submit an offer to settle. If your settlement offer is the same or better than your outcome at the motion/trial, then you presumptively get a higher costs award. However, an 'offer to mediate' has no value, since the court cannot order you to mediate. You can't 'beat' or 'match' this offer.

2) Amending a SA is effectively a motion to change. You need to demonstrate a material change in circumstances, that was not foreseen or foreseeable at the time you entered into the SA, has occurred. I don't see any evidence of a material change in your circumstances.

I don't know what the EDC is. I'm assuming you meant the CTB (Child Tax Benefit)? This needs to be explicit in your agreement that it's shared. If the agreement is deficient then your remedy is against your former lawyer for negligence.

You could try to argue there was a mistake and the CTB was always meant to be shared, but without her consent it's a tough hill to climb.
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Old 12-15-2016, 01:33 PM
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Kinso, thank you for your thoughts .

Perhaps I need to clarify a little more and use exact excerpts from our SA .

" The parties will have joint / shared custody of the children on a week on week off basis. "

" To satisfy each parties obligation to pay child support "

" Mother may claim the Child Tax Benefit for the first 6 months of each calendar year and Father may claim the Child Tax Benefit for the latter 6 months of each calendar year "

" The parties may each claim the Eligible Dependant Credit for one child .
In the event that only one child remains qualified for the EDC, mother shall claim for even numbered years and father shall claim for odd numbered years "

Any lay person who reads these excerpts would fully expect :

1) that they have shared custody of their children.

2) each party is obligated to pay child support

3) that for each and every taxation year, each parent gets to claim one qualifying child for the Eligible Dependant Credit and that they each get to split the Child Tax Credits 50-50 .

I am not really sure how these exact words can be misunderstood .

Now because of a loophole that Revenue Canada has pulled on many of the decent fathers who have had a similarly worded agreement , we now have to jump through hoops in order to get the agreements re-written to show the true and correct way it should have been done in the first place.

The lucky ones get to do it with their former spouses consent .

The unlucky ones have to get a Motion to Change in order to try to get it done .

Am I now to believe that this is a battle that cannot be won ?
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Old 12-15-2016, 01:40 PM
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This isnt a motion to change (in my opinion). This is a motion for support. The paperwork would be for a support order for offset based on current living conditions.

The issues with revenue canada may or may not relate to the wording. Have you attempted to file?
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Old 12-15-2016, 01:46 PM
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I respectfully disagree with Rockscan. It sounds like from OPs description that the parties have a support provision in the SA, and now he seeks to change that provision. That's a classic Motion to Change circumstance.

The fact that the motivation to change the existing provision is because of tax consequences is irrelevant.

If the SA is silent on the issue of child support, then I would agree it's a new Application.

OP have you spoken to a lawyer about your claim?

Additional consideration (although without seeing the full SA and the full reasons for CRA's refusal it's hard to know) - this might be a Tax Court issue, not a Family Court issue - other than the child support for the oldest of course.
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Old 12-15-2016, 02:07 PM
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The SA is not silent on child support .

we used the " offset method " and the difference between our salaries netted " child support " to the tune of $ 300 per month for 3 children .

Once CRA saw that, the rest is history .

Now it is quite obvious that $ 300 would never be adequate to support 3 children unless it was a true shared custody , 50 -50 , week on week off living arrangement . We split everything and I give a little extra so the children's standard of living is the same at both residences .

The $ 300 was supposed to make the balance sheet even for both parents for each and every month .

However now factor in the fact that the Father ( me ) never receives the child tax benefit each month plus the huge tax return once a year that the Mother ( the ex ) does receive and we clearly see that the scales are way out of whack .

it is situations like this that make people who strive to do the right thing want to quit their jobs since their is never any incentive for the lower earning parent to want to make more money .
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Old 12-15-2016, 02:20 PM
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Yes I am in tax court as well .

Our original SA only showed the money going one way instead of both ways with the higher payer dolling out the difference .

This has been discussed many times here on the forum .

Claiming Eligible Dependant

Until I get the original agreement amended, I cannot convince CRA that I do in fact qualify for the EDC and CTB .
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Old 12-15-2016, 02:22 PM
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Have you looked through the forums on the CRA issue? There is helpful information.

Kinso, my partners lawyer advised on the motion for support. My partner has an agreement for cs which is clear. His ex filed with FRO and will need to update. I asked the lawyer what her next steps would be and he said it would be a motion for support regardless of the existing order. There would not be a motion to change as its a motion for support.
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Old 12-15-2016, 02:28 PM
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Rockscan, thank you for your comments as well .

Yes I have studied the forum and have read quite a bit about this exact scenario .

The difference is in most of the cases I read the ex spouse had no problem agreeing to the amendment to the SA .

My ex has flat out refused to help ( even though it wouldn't affect her ability to make the EDC claim ) .

So I have to ask a judge to make the amendment for me .
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Old 12-16-2016, 01:57 PM
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Kinso, again thank you for your opinion . Even if it is different then mine, it helps me greatly .

In reference to your statement

2) Amending a SA is effectively a motion to change. You need to demonstrate a material change in circumstances, that was not foreseen or foreseeable at the time you entered into the SA, has occurred. I don't see any evidence of a material change in your circumstances.

When I entered into my agreement, everything in the wording suggested that I was going to be able to receive child tax credits and an Eligible Dependant credit because it specifically said those words in my agreement .

" Mother may claim the Child Tax Benefit for the first 6 months of each calendar year and Father may claim the Child Tax Benefit for the latter 6 months of each calendar year "

" The parties may each claim the Eligible Dependant Credit for one child .
In the event that only one child remains qualified for the EDC, mother shall claim for even numbered years and father shall claim for odd numbered years "

Since CRA has decided to hide behind loopholes and deny my credits, this has put me at a disadvantage financially and that was " not forseeable at the time that I entered into the agreement "

Does that make sense or am I looking at it incorrectly ?
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