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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 12-27-2005, 11:09 PM
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Default Spousal/Child Support Question

I have a question about how spousal support is typically addressed in a separation agreement

I have read the guidelines about amounts and duration of spousal support. The question I have is how is it typically awarded.With the spousal support is it given as a set amount? the percentage( the 1.5 or 2%) ? If it is based on a percentage, do they use your last years income to award the amount of the support and adjust the future year based on that? I expect my situation to change in the next few months and I don't want to constantly have the amounts adjusted but would rather have a set amount that could be increased or decreased even on a yearly basis.

Any clarification on this would be helpful :-)
Thanks
Jenny
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Old 12-28-2005, 02:25 AM
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Jenny,

Not sure where you are located, but for Ontario:

Spousal support is pretty much no fault in Ontario as long as you have NEED and he would have MEANS. There may not be sufficient income left after deducting payable child support.

The courts would take into consideration the amount of child support that he would pay. This is generally calculated from tables which can be found here.

http://www.e-laws.gov.on.ca/DBLaws/R...h/970391_e.htm


Generally, the last 3 years income amount from line 150 of the payer's income is used. This amount is cross referenced against the tables to determine the monthly periodic amount.
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Old 01-07-2006, 12:42 PM
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I have been separated for 4 years. My ex paid child support at a pretty low level. In the last year he helped make up for it by paying for back to school supplies and boots. I just put the divorce through and thinking it would stay that way kept it at the low child support rate. He has now decided to stop helping out and also let me know he should be paying way more than he does but since it is low on the divorce order it stands. I asked him formally for a income statement and he now refuses. Can I go back to court so soon (3 months) after the divorce and have the child support adjusted?
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Old 01-07-2006, 09:13 PM
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Quote:
Originally Posted by alot to learn
I have been separated for 4 years. My ex paid child support at a pretty low level. In the last year he helped make up for it by paying for back to school supplies and boots. I just put the divorce through and thinking it would stay that way kept it at the low child support rate. He has now decided to stop helping out and also let me know he should be paying way more than he does but since it is low on the divorce order it stands. I asked him formally for a income statement and he now refuses. Can I go back to court so soon (3 months) after the divorce and have the child support adjusted?

alottolearn,

I am not sure if your current child support order was made under the Divorce Act (Canada) or Family Law Act of Ontario.

The law in Ontario says you can request financial disclosure on a payer once in a 12 month period. If the payer fails to co-operate you could bring the matter before the courts and seek costs.

Please read this section taken from

Family Law Act O. Reg 391/97 Ontario Child Support Guidelines

Income Information

Obligation of applicant

21. (1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,

(a) a copy of every personal income tax return filed by the parent or spouse for each of the three most recent taxation years;

(b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;

(c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent’s or spouse’s employer setting out that information including the parent’s or spouse’s rate of annual salary or remuneration;

(d) where the parent or spouse is self-employed, for the three most recent taxation years,

(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;

(e) where the parent or spouse is a partner in a partnership, confirmation of the parent’s or spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

(f) where the parent or spouse controls a corporation, for its three most recent taxation years,

(i) the financial statements of the corporation and its subsidiaries, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

(g) where the parent or spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and

(h) in addition to any information that must be included under clauses (c) to (g), where the parent or spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information. O. Reg. 391/97, s. 21 (1); O. Reg. 446/01, s. 7.

Obligation of respondent

(2) A parent or spouse who is served with an application for an order for the support of a child and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse, an applicant under section 33 of the Act or the order assignee with the documents referred to in subsection (1). O. Reg. 391/97, s. 21 (2).

Special expenses or undue hardship

(3) Where, in the course of proceedings in respect of an application for an order for the support of a child, a parent or spouse requests an amount to cover expenses referred to in subsection 7 (1) or pleads undue hardship, the parent or spouse who would be receiving the amount of child support must, within 30 days after the amount is sought or undue hardship is pleaded if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other parent or spouse with the documents referred to in subsection (1). O. Reg. 391/97, s. 21 (3).

Income over $150,000

(4) Where, in the course of proceedings in respect of an application for an order for the support of a child, it is established that the income of the parent or spouse who would be paying the amount of child support is greater than $150,000, the other parent or spouse must, within 30 days after the income is established to be greater than $150,000 if the other parent or spouse resides in Canada or the United States or within 60 days if the other parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other parent or spouse with the documents referred to in subsection (1). O. Reg. 391/97, s. 21 (4).

Failure to comply

22. (1) Where a parent or spouse fails to comply with section 21, the other spouse, an applicant under section 33 of the Act or an order assignee may apply,

(a) to have the application for an order for the support of a child set down for a hearing, or move for judgment; or

(b) for an order requiring the parent or spouse who failed to comply to provide the court, as well as the other parent or spouse or order assignee, as the case may be, with the required documents. O. Reg. 391/97, s. 22 (1).

Costs of the proceedings

(2) Where a court makes an order under clause (1) (a) or (b), the court may award costs in favor of the other spouse, the applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or order assignee for all costs incurred in the proceedings. O. Reg. 391/97, s. 22 (2).

Adverse inference

23. Where the court proceeds to a hearing on the basis of an application under clause 22 (1) (a), the court may draw an adverse inference against the parent or spouse who failed to comply and impute income to that parent or spouse in such amount as it considers appropriate. O. Reg. 391/97, s. 23.

Failure to comply with court order

24. Where a parent or spouse fails to comply with an order issued on the basis of an application under clause 22 (1) (b), the court may,

(a) strike out any of the parent’s or spouse’s pleadings;

(b) make a contempt order against the parent or spouse;

(c) proceed to a hearing, in the course of which it may draw an adverse inference against the parent or spouse and impute income to that parent or spouse in such amount as it considers appropriate; and

(d) award costs in favor of the other spouse, an applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or assignee for all costs incurred in the proceedings. O. Reg. 391/97, s. 24.

Continuing obligation to provide income information

25. (1) Every parent or spouse against whom an order for the support of a child has been made must, on the written request of the other spouse or the person or agency entitled to payment under the order not more than once a year after the making of the order and as long as the child is a child within the meaning of these guidelines, provide that other spouse, or the person or agency entitled to payment under the order, with,

(a) the documents referred to in subsection 21 (1) for any of the three most recent taxation years for which the parent or spouse has not previously provided the documents;

(b) as applicable, any current information in writing, about the status of any expenses included in the order pursuant to subsection 7 (1); and

(c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship. O. Reg. 391/97, s. 25 (1).

The complete act can be found here.

http://www.e-laws.gov.on.ca/DBLaws/R...391_e.htm#BK27
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Old 01-07-2006, 09:51 PM
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Quote:
Originally Posted by Jenny
I have a question about how spousal support is typically addressed in a separation agreement

I have read the guidelines about amounts and duration of spousal support. The question I have is how is it typically awarded.With the spousal support is it given as a set amount? the percentage( the 1.5 or 2%) ? If it is based on a percentage, do they use your last years income to award the amount of the support and adjust the future year based on that? I expect my situation to change in the next few months and I don't want to constantly have the amounts adjusted but would rather have a set amount that could be increased or decreased even on a yearly basis.

Any clarification on this would be helpful :-)
Thanks
Jenny

Jenny,

Basically spousal support would be calculated on your current financial situation. You could incorporate cost of living increases (consumer price Index) as set by statistics Canada.

Can be found here at this link

http://www.statcan.ca/english/Subjects/Cpi/cpi-en.htm

Per say in the future that if your financial circumstances changed for the better or worse and or additionally your ex's financial situation changed for the better or for the worse, you would call this a material change of circumstances.

You could include some type of language into your separation agreement in regards to this type of circumstance that spousal support "Shall Be Reviewed" at the written request of either party if a "material change were to occur". You can also have clauses such as financial disclosure every 6 months etc to confirm that everything is status quo etc.

You could also have your separation agreement to remain intact but such issues such as spousal support could be amended at the agreement of both parties.

One thing to note that the federal spousal support guidelines are ADVISORY. The courts do not necessary have to apply the guidelines when making spousal support orders as it is not proclaimed law.

Basically it is your and your ex's separation agreement. It is a binding contract. You can incorporate any type of language terms etc in the agreement.

You have to ensure that the drafting and signing of the separation agreement complies to ensure that it is not voided by some technicality such as one party failed to get competent legal advise on the matters or the agreement was not properly witnessed, full and frank financial disclosure of both parties income, liabilities and assets did not occur.
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Old 10-01-2013, 12:45 AM
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Where you located exactly?

Have a look here, this is applicable to Ontario:

http://www.e-laws.gov.on.ca/DBLaws/R...h/970391_e.htm
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Old 10-01-2013, 01:01 AM
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Do you know you're bumping a post from 2005/2006?

I'm thinking that the OPs issue is probably resolved one way or another by now.
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