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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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Old 09-27-2011, 02:51 PM
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Default 50/50 child custody; half vs full offset (attn Tayken)

Hello Tayken:

Awhile back you posted an interim CS order in a 50/50 child custody whereby "half offset was used vs. normal FULL offset".

Example: tables say Parent A would pay $700 per month
Parent B would pay $500 per month

Full offset: Parent A pays Parent B $200 per month

Half Offset: tables suggest $1200 a month total, so each pays $600. Therefore Parent A pays parent B $100.

Basically, makes a BIG difference for Parent A (ie. HALF of CS).

I ran your Canlii reference by my lawyer but he said since only an "interim" and not final CS order not really relevent. Lawyer said courts would usually use ONLY "full" NOT "half" offset.

Can you comment ? Any case law showing FINAL CS order based on Half offset ?

Any help would be REALLY appreciated. Thanks !
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Old 09-27-2011, 03:18 PM
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Originally Posted by shellshocked22 View Post
I ran your Canlii reference by my lawyer but he said since only an "interim" and not final CS order not really relevant. Lawyer said courts would usually use ONLY "full" NOT "half" offset.
Your lawyer is somewhat correct as the decision made is "intern" but, the question for your lawyer is to ask why the posted decision is different than your situation. Why that citizen of Ontario was granted a different decision that you should be granted against the previous case law.

You can always order the full continuing record from a service so you can investigate what was exchanged between the parties that caused that specific judge in that specific situation to make the specific order. Furthermore, it was posted for a reason.

Also, another challenging thing to pose is... Often intern orders become final orders when neither party litigates further. So, if this matter was not litigated and the error of the judge was not appealed why should it stand for one parent and not the other parents of the province.

It would take a gutsy and qualified lawyer to make that argument. Lawyers like to play it safe a lot.

Your lawyer probably gave you some story about looking "cheap" etc. The challenge really before the courts that even on an intern order this parent was awarded (and was posted as a decision) a vastly different order.

It all comes down to the inconsistency in case law and the application of case law. The judge made a new determination and as far as I know no appeal was brought forward on the decision.

It is a long shot but, the reality is that more and more of these decisions will be creeping into the system. Keeping an eye on them is key. The more that get posted the more likely a change will occur that reflects this decision. It isn't "guaranteed" that a judge will even consider it in your matter but, somewhere a judge did consider it for a parent.

Good Luck!
Tayken
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Old 09-27-2011, 03:48 PM
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So, if this matter was not litigated and the error of the judge was not appealed why should it stand for one parent and not the other parents of the province....
An interim order does not stand as a precedent for all subsequent trial decisions. An interim order may very well be a compromise agreed to at a case conference; why on earth would that be a precedent for my trial? Even an interim order from a motion hearing does not carry weight as a precedent.

Trial orders are precedential because they represent the considered decision of a judge who has heard full evidence from both parties. This is not the situation at a conference or a motion hearing.

That many parties will settle and hold to an interim order doesn't carry weight. Many parties settle between themselves outside of court, with or without lawyers, with or without mediation, and reach settlements that don't follow the FLA or the CSGs. Many separation agreements wouldn't stand the test of court, but the parties are happy to hold to them. Many parties live just fine without separation agreements.

The expectation of a trial is that the judge's decision will be in line with legislation, and/or the previous decisions of judges at trial for similar matters.
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Old 09-27-2011, 03:55 PM
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Good day Tayken! I noticed you are online. You have been really busy - thank you for your last help - I noted that your inbox is full - no more can get through unless some get emptied? Not sure - all this part is new to me!
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Old 09-27-2011, 04:06 PM
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Unfortunately one of the largest hurdles (according this site) to shared custody being more acceptable and prevalent is one of the parties fear of losing out on what they consider much-needed child support.

The fact that even offset CS turns a 700 vs 500 into a 500 vs 700 balance is an indication (to me anyways) that the law still has a long way to go with respect to shared custody when the half-offset amount sounds more equitable.

I know people with shared custody who would be happy to consider no child support except for S7 expenses in proportion with income, but is this really a good idea when someone's income changes and one party decides they could do better and have the agreement challenged and destroyed by a judge?

I think the heart of the matter is the same as always, try to settle out of court and half offset is a pretty fair way of doing that for shared custody. Unless the incomes are significant, the difference in CS isn't worth going to trial over even if it's one of the core issues. And using half-offset means that even if incomes change, it still makes it not worthwhile to bring up to a judge.
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Old 09-27-2011, 04:11 PM
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thanks Mess - I have been reading and I was wondering how - well I understand that now. An extension to this is a final order that I may find on CANLII it may have details that are similar to my circumstance to find out later "who gives a b___p what you read - that decision was appealed and no longer holds wieght"

Impressive statement but how can you tell if a posted CANLII decision has indeed been appealled at a later date (would they not remove a posted decision on CANLII in that case) and yes i do seem to remember reading or coming accross appeals where it was only one piece of the decision that was appealed and subsequently addressed. I would take that everything else in the original decision stands true against our current Family Laws?
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Old 09-27-2011, 04:20 PM
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Trial orders are precedential because they represent the considered decision of a judge who has heard full evidence from both parties. This is not the situation at a conference or a motion hearing.
Yes for a case conference, but motion hearings are different. They are based on sworn affidavit evidence and oral arguments. They are "best at time" decisions. Hence the recommendation to see the final order and what was ordered and the reason supporting the decision.

If the motion was heard on affidavit evidence and oral argument, it may be an intern order but, still holds value to point out possibly. Again, it is up to the judge hearing the matter. They are all very conservative and hate to rock the boat.

Quote:
Originally Posted by Mess View Post
That many parties will settle and hold to an interim order doesn't carry weight. Many parties settle between themselves outside of court, with or without lawyers, with or without mediation, and reach settlements that don't follow the FLA or the CSGs. Many separation agreements wouldn't stand the test of court, but the parties are happy to hold to them. Many parties live just fine without separation agreements.
In this situation if there are two consulting solicitors who have advised on the settlement agreement then yes you are correct. But, your theory doesn't hold much water if no legal advice was provided on the agreement and the court will uphold the law surrounding the dispute. But, if the party had consultation with a solicitor on the agreement, then they can wave their rights. An unrepresented litigant can't and can bring the matter back to court for what should have been appropriate.


Quote:
Originally Posted by Mess View Post
The expectation of a trial is that the judge's decision will be in line with legislation, and/or the previous decisions of judges at trial for similar matters.
As substantive issues can be addressed on motion and only procedural on conference you will see a mix of decisions. The big question mark to it all is the judge. They can consider anything they want. It just takes one judge to upset the apple cart.

Good Luck!
Tayken
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Old 09-27-2011, 04:24 PM
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Sorry friend, 99.9% of the time I agree with you, but here I have to say, please find a case where a trial decision was made based on a precedential decision at a motion hearing. It does not happen.
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Old 09-27-2011, 04:27 PM
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Unfortunately one of the largest hurdles (according this site) to shared custody being more acceptable and prevalent is one of the parties fear of losing out on what they consider much-needed child support.
The reason possibly being that separation and divorce is about two adults and not children. If one party is operating on a fear that they will not have a sustainable future on their own (even on a 50-50) they will fight tooth and nail, even despite spending more on legal fees than child support would ever get them over the life time of their children.

There are a lot of parents in front of the court spending thousands for small increases in child support. It is very sad to see when the parent constantly litigating for an increase or decrease that is really intangible to the actual cost to litigate for the monthly increase.

Penny wise... Pound foolish... Too many litigants in family law act this way. Shared parenting doesn't solve this problem as it isn't the default by legislation. It makes fighting for custody (over money) all too common.

The unfortunate part is the children involved. Australia has a better model from the start. It also has resulted in a decrease in separation and divorce.

Good Luck!
Tayken
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Old 09-27-2011, 04:36 PM
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Hey Guys: Thanks for input, I think this might turn out to be a very important thread.

In some cases, the answer can be a big amount of money.

Would you agree that the "half offset" MAY become more popular, but at this point anyway, it's a bit of a long shot given the "full offset" is historically the norm. As we all know, the law is "vague" on the 50/50 (or 40+) custody arrangement.

2nd question: let's say, for purpose of getting this done quickly, I agree to the "full offset" or typical format and the Sep Agrement specifically spells this out (ie giving an example). Furthermore, let's say a few years down the road the "half offset" DOES become the norm. Would it be fairly easy to modify the arrangment at that time OR would the fact that the SA spells out in detail with examples the "full offset" method would it be quite difficult for me to change to the better (for me) "half" offset method. I'm trying to get me SA done ASAP so I would really appreciate any help on this one. I don't want to drag things out on an "iffy" approach but at the same time don't want to be screwed in the long run if the acceptable format changes.

Your thoughts ?
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