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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 08-23-2009, 11:53 AM
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Default UK dad being crippled by maintenance plus huge travel costs. Help!

Hi everyone,

First time posting here. Really glad to have found this forum, lots of useful advice and good to know others are in similar positions. Here's my story.

I'm from the UK and have lived here all my life. I married a Canadian six years ago and she moves from Ottawa to UK at that time. We have a son, Joe, who is now 3y 8m old and was born in the UK. When the wife and I separated last summer she felt she could not cope alone in the UK and wanted to move straight back to Ottawa to live with her mother. I did not fight their decision to move away because I knew that my ex-wife would not be able to cope on her own, having made almost no friends in the UK in the five years of living there and not being willing to work full-time. I felt it was in Joe's best interests not to be in full-time child care in the UK and/or for his mother to be forced to stay in a country she didn't want to be in, and that if she decided to take the issue to court she would probably be allowed to move to Canada with him anyway eventually. Thus I agreed not to fight for custody on the condition that I was allowed to have regular phone/webcam talks with Joe and that the ex-wife would cooperate with this, which she has done with full cooperation.

We signed a Separation Agreement before they left the UK which split our (very limited) finances and agreed that I would pay the standard UK rate of 15% net income in child maintenance, which I have done. The complication lies with travel costs of visitation, since these are of course extremely high. In a desire to keep things as amicable as possible I naively agreed, through our Separation Agreement, to terms which are now turning out to be financially crippling. The Agreement only lasts until we go through with the divorce, which we can do under Canadian law from next month onwards. So it's time to renegotiate, if possible, but everything I read online suggests that I'm going to be even WORSE off than I am already. I currently pay:

1) All my costs if I go to Canada to see Joe
2) Joe's flight costs if he comes over to see me
3) All my ex-wife's flight costs if she brings him over, which she did this summer for three weeks (he is with me now, returning next weekend).

Obviously these costs are basically DOUBLING the amount I am paying for Joe, since 2 or 3 return trans-Atlantic flights per year is a helluva lot in addition to 15% of wages.

I earn $25,000 CDN per year working full-time. My STBX has never worked full-time in her life and refuses to do so, even though she is living with her mother who would be a willing free, full-time childminder for Joe. My STBX has told me she pays absolutely zero to her mother for rent, food or any other bills for either her or Joe. She has told me she is saving almost 100% of her wages plus the money I give her so that she can buy a house WITHOUT a mortgage (i.e. outright) as soon as possible. She predicts that she will be able to do this in 4-5 years time. I do not own house and have absolutely no hope of ever doing so.

Canadian law appears to state that I have no chance of getting my STBX to contribute to my extortionate visitation costs, because I earn more that she does and therefore cannot claim 'hardship' or 'poverty', despite the fact that I will need to save 30% of my net income every year in order to have Joe visit me in the UK just once per year. Is there ANYTHING I can do about this?

There is more...

Since STBX and I separated over a year ago, I have now moved in with a new partner who has a daughter from a previous relationship. Under UK law, our joint claim for Tax Credits decreases by a staggering sum of $500 CDN per month, down to almost nil, because I am legally expected to make a contribution to the costs of raising my partner's daughter even though she is not actually mine. In the UK this would mean that the amount of maintenance I pay to STBX would be marginally decreased, however Canadian law doesn't appear to recognise this in any way, so as a household we are basically being screwed both ways at once. We lose benefits because I'm expected to contribute to my partner's daughter's costs, this WOULD be taken into account calculating maintenance payments over here but since Joe is in Canada it doesn't matter a jot.

My partner and I are now expecting our own child in Spring of next year. Under UK law this would also be taken into account when calculating maintenance payments to my STBX, but it appears that Canadian law once again doesn't take this into account. So I have responsibility for one child here who is not mine, another one on the way but the amount I have to pay to my STBX still stays the same even though it would be slightly decreased in the country in which I actually live. Help!!

Needless to say, I have no hope of being able to afford legal representation. If the issue came to court it would be in Canada and even flying over to represent myself would be expensive enough.

So here are my questions:

- do I have any chance of getting the STBX to have to pay any part of the costs involved in me seeing Joe? He was born in the UK and she chose to leave with him, albeit with my consent. If the answer is No then the end result will be that I see less of him. Surely she should have SOME financial responsibility, as well as a moral one, in ensuring that her child has a relationship with his father?

- do her personal circumstances of choosing not to work full-time, and paying nothing in living costs, matter in the slightest?

- if I asked a Canadian court to take into account the two other children for whom I have responsibility, including the fact that UK Tax Credits are cut by a huge amount because I live with a new partner, would they be likely to take this into account when calculating maintenance and/or division of travel costs?

Any other advice anyone can give me on who to talk to or how best to proceed would be enormously appreciated. Thank you in advance.
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Old 08-23-2009, 05:22 PM
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Where did you marry and divorce, Canada or the UK?

FN
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Old 08-24-2009, 06:30 AM
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We married in the UK and Joe was born in the UK.

We are not yet legally divorced but we have a Separation Agreement which was also done in the UK before they departed UK last September.

However Canadian law allows you to apply for a divorce after one year of separation (UK is two years) and my STBX is planning to do that next month. She is also planning to apply for a ruling on maintenace/travel costs payments under Canadian law, since this appears to be much more in her favour. It seems that since Joe has dual citizenship and lives in Canada that is enough to make the father's location irrelevant. Does this sound accurate?

Interesting to note, however, that my father spoke to a lawyer friend this morning 'off the record' and his first reaction was that UK laws should apply.
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Old 08-24-2009, 09:01 AM
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I don't believe that Canadian courts would or could overturn UK agreements.
As to travel costs, trans-Atlantic flights are cheaper from this end. Try Hotwire.com, reverse the departure and return dates. Even better, try flying into a nearby US city and bus it into Canada.

Good luck
FN
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Old 08-24-2009, 01:32 PM
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So here are my questions:

- do I have any chance of getting the STBX to have to pay any part of the costs involved in me seeing Joe? He was born in the UK and she chose to leave with him, albeit with my consent. If the answer is No then the end result will be that I see less of him. Surely she should have SOME financial responsibility, as well as a moral one, in ensuring that her child has a relationship with his father?

In Canada "access costs" are not considered an "extra-ordinary expense" and therefore are not automatically shared. (I beleive they should be the #1 extra-ordinary expense, becasue as you say, if the NCP is having trouble paying access costs, then they will see less of their child, which is NOT in the best interests of the child-parent relationship.)

I would draft a letter to your ex-wife stating the costs, and ask her to share it. State how it will negatively affect the amount of time you can spend with your child in future. I think it is her "moral" obligation to help, since you did agree to her moving and could have tried to "stop" her, which hopefully she acknowledges as a big sacrifce on your part for her.

She may agree, in which case you can add a paragraph to the final separation agreement which reflects your arrangement. If she refuses to agree to sharing costs, at least if you have to go to court you can show the letter, and show how you tried to come up with a workable solution that was the in the best interests of the CHILD.

The only other way to ensure access costs are considered are by claiming "undue hardship" although with her not working, this route will not likely apply to you right now.

- do her personal circumstances of choosing not to work full-time, and paying nothing in living costs, matter in the slightest?

Unfortunately not really. Unless you decide to try to "impute" her an income, based on what she could reasonably be assumed to be earning but is choosing not to.
(FYI - my husband made the choice NOT to impute his ex-wife an income and it was a big mistake in hindsight. She went to "school" and didn't work for 8 years, and kept the kids in relative poverty to get herself her 3rd degree. We ended up paying 90 - 100% of all "extra expenses", plus 100% of the flights for all those years, for 2 children, which basically doubled the amount we were paying. In hindsight I wish we had not listened to our lawyer who told us not to impute an income.)

- if I asked a Canadian court to take into account the two other children for whom I have responsibility, including the fact that UK Tax Credits are cut by a huge amount because I live with a new partner, would they be likely to take this into account when calculating maintenance and/or division of travel costs?

This is another big problem, second children are NOT taken into consideration, unless you claim "undue hardship" and even then, rarely. We have the same problem in Canada, tax benefits and credits are only available to the person who recieves the child support, not the payor.
(FYI - benefits amounts for our 2 "second" children are based on net family income, which after Child Support and extras is really only 1/2 my husbands income plus mine. However, they assume our household income includes all the income we've sent to his ex, so we get no benefits for our children).

Any other advice anyone can give me on who to talk to or how best to proceed would be enormously appreciated. Thank you in advance.

Always keep the discussion civil, show you are doing your best and always show how you have the CHILD's best interest at heart, so BOTH parents may have to make sacrifices to ensure the child continues to have a relationship with BOTH parents.

Also, in Canada the guidelines apply for the province the payor lives in. I am not sure, but maybe the UK guidelines apply, since you, the payor, lives there.

Oh yeah, and here is a link that explains in more detail problems with the Canadian Guidelines in relation to "second" families.

Canadian Child Support Guidelines are Unfair to "Second" Families Petition
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Old 08-28-2009, 12:50 AM
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can you perhaps file a divorce in the UK before she does in Canada and demand a joint custody where your son would be living with you in the UK and your STBX vising your son in the UK?

moving to Canada was her own choice, not working was also her own choice.

being a gentleman and giving your STBX everything she wants is one thing, but not seeing your son for a long time for an arrangement you made when you did not recognize the financial impact seems enough of a reason to call for a renegotiation.
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Old 09-01-2009, 07:42 AM
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helplessDad - there is no chance of this because under Canadian law she can file for divorce at the end of next month (is this even if I don't consent?), whereas in the UK it would not be possible for another year and only then with consent of both parties. Also my STBX seems to think child maintenance orders can be made separate to any legal divorce stuff, they don't have to be done at the same time.
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Old 09-01-2009, 08:26 PM
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This is very interesting.

I have stumbled upon this while looking for general information about UK and Canadian child maintenance following a discussion with my ex, but it is clear that it is my ex that has written this and that I am the one referenced. I feel the need to clarify some points.

Yes, I was allowed to leave the UK for Canada after my husband walked out. I never liked it there, and did not particularly want to stay. However, before the separation, we had been talking about and planning to move back to Canada. I was about a week away from sending off for the visa for him. In fact, it had been understood that we would make this move from before the time that we had married. I did not just run off with our son to spite him. However, I acknowledge that the move was not contested legally, and that it has increased his costs when they would not otherwise be so high, which is one of the reason I do feel that I have some moral responsibility to contribute to the travel costs.

The travel costs are high, however not as high as my ex makes out. He claims that he has to pay for his own visits, as well as our son's and my travel costs if I bring him over. This is simply a lie; I paid for my own flight over to the UK as well as my own travel costs while I was there (for three weeks). He states that "I will need to save 30% of my net income every year in order to have Joe visit me in the UK just once per year", yet our son's flight cost $750 Canadian, clearly less than 15% of his wages (mine cost $850 plus three weeks in lost wages, which works out to about 15% of my income, just for interest's sake). We have talked about negotiating the travel costs, and I have always been open to negotiation, but am not willing to pay a fixed percentage of costs when my ex insists on travelling at the most expensive times of the year (like the middle of December), and when he insists that the visitation be in his residence (meaning that we both must travel to the UK, at my cost) and for long periods of time (which keeps me from getting a decent job). I brought our son to the UK for visitation in good faith in accordance with the separation agreement that stated that I would do so, as well as on the insistence of my ex. I have suggested that I apply for support under Canadian rules, which would technically put the full brunt of the costs on him, and come to an unofficial agreement about the costs of the travel.

And just to clarify, I have never, ever tried to deny him access to his son - the worst I have done was stated that since he had paid zero in child support, if he wanted to come over here to see him he was welcome any time, but I was not willing to pay to bring our son over there.

My ex states that he has been abiding by the agreement we signed for him to pay 15% of his income as child support. This is technically true, although very misleading. The fact is that for nearly a year, from our separation last July until the beginning of this July, he has not worked and therefore has not paid a penny of child support, so I guess $0 is 15% of $0 income. When he finally got a job and the support came due, he promptly began to argue that it would cripple him financially and should be reduced. He has paid according to the agreement only very grudgingly, and in arrears.

My ex states that "My STBX has never worked full-time in her life and refuses to do so, even though she is living with her mother who would be a willing free, full-time childminder for Joe." This is also untrue, and the implication that I am not working at all, as some have assumed, is also false. During the first year of our marriage, I worked two part-time jobs (amounting to full-time work) while my ex was unemployed. It is true that I worked part-time thereafter (from 15 hours/week when our son was very young to my present 24 hours/week), for four reasons:

1) In my occupation (library technician) full-time jobs are rare;
2) While we were together, my ex ran a business from home which required him to be away most weekends and often a Friday or Monday as well. Therefore, I arranged my hours so that I worked Tuesday-Thursday, to suit his job;
3) Since I have moved back, I have known that I was going to have to bring our son to the UK. At his insistence, this was to be for no less than 3 weeks. Since the normal holiday time in Canada is only 2 weeks/year, I have been stuck in a low-wage job which gives me greater flexibility (though no pay at all for holidays). Now that the visit is done, I hope to be able to find something better, and that he will agree to visits of no more than two weeks if I must come along;
4) I am currently attending college to attain Canadian qualifications for my chosen field of employment, and the extra course work makes it difficult to work full-time.

I also do not feel that I should require my mother to be a free full-time childminder - surely she has the right to a life of her own. Nor should my ex be able to insist on this.

My financial plans for the future are none of my ex's business, and neither are my current financial arrangements in comparison to his, and should have no bearing on the discussion. I am well aware that he resents the fact that I am budgeting and saving for my future and our son's, as he believes that I should be spending more money on our son (who is well provided with clothes, food, toys, and activities). I have decided not to share any new personal information or changes of circumstance of a personal nature with him (unless something that obviously concerns him, like moving my son in with someone else), as he uses this information to attack me personally. It his none of his business how I spend my own money as long as our son is being provided for, just as it is none of my business how he spends his, or how he conducts his life when it does not impact on our son.

With regard to his current relationship and the difficulties it causes him, my attitude has always been that his choices are his own responsibility and that my son and I should not be made to pay for them. He knew when he moved in with his partner that her benefits would drop, and he chose to do so anyway. He chose to have another child (while unemployed), so he must take the responsibility of providing for that child and any sacrifices that may entail to his standard of living. The terms of the separation agreement were clear to him for months before he decided to cohabit and have a child; he should have been aware of the consequences and be responsible enough to face them. With regard to his partner's daughter from a previous relationship, her costs should be paid by her father through her own child maintenance payments, so my ex should not be claiming he is paying for her or legally responsible for her as he is not married to her mother and has not adopted her (he disagrees with this point). The tax credits being cut are his partner's, not his, and are therefore irrelevant to his own finances. It is true that his second family does place him in greater financial hardship, but this hardship was his of his own making and was entered into voluntarily. He should not be punishing his first son by denying him the support which is his right, and should not have counted on future children reducing the amount of child support it was his duty to pay. Canadian law tends to see things this way as well, as it expects people to be held responsible for their own actions; apparently British law is more lenient. Perhaps he needs to talk to his partner about his financial arrangements with her, and whether she will give him any leeway over rent and other expenses. She is the one with the moral duty to defend and protect his interests, not me.

That's about the sum of things from my side. I am very disappointed at the degree of hostility that this issue has provoked between us, as we did get along reasonably well before. But I suppose I should not have been surprised that money issues would so destroy trust and goodwill.

JDB
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