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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 03-26-2007, 11:24 AM
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Default bringing child support up to current guidelines.

My ex and I have a separation agreement from Oct 2005. It does not reflect the current values of child support according to the guidelines. I want to get a variation to the child support amount as my ex's income went up 20 000 dollars. I feel that I signed my separation agreement under duress. I had duty counsel which was not very good. I was not happy with the terms in the agreement, but my lawyer told me it was as good as I was going to get. So I signed. My life has been miserable since our separation. I had no idea what it was going to be like when we went to our case conference. I feel it was very one-sided. I'm hoping this time, they will look at the facts of the case. My ex left me and my son 25 kms out of town without any way to get food or anything. I was making payments on my car, which was bought with a trade-in using my previous paid off car and my ex was paying me 850 a month in child support. I had a friend move in with me to make ends meet. My mother-in-law had to drive my son and I to get groceries. As soon as my roommate moved in, my ex started to pay me 420 a month, which was the amount that the judge supposedly agreed to when we signed our separation agreement. I didn't get to make a claim of the hardship I was suffering even though it was mentioned in my papers. My ex was earning around 50000 when we split up, and him being the only income earner. The rent at our rented home was 475 a month plus about 300 a month for oil, and 100 for hydro. I had no money, no car, and no way to heat the house or get groceries when I needed to. My son and I had to go to my parents house when it was really cold so my furnace wouldnt end up going dry. My phone was cut off also. I had to do something. I made an agreement with my ex and my mother so that I could go up north and work in a fishing camp to make quick money for a month to get a car and first and last months rent for a new place. I had to give up 80% of my household things to my landlord upon leaving so I could pay the rent that was owed to my landlord. During this time, my mother took over my custody of my son and my ex had his usual weekend arrangement with our son. During this time, he did not pay child support. Between my mother and my ex, their agreement into when my ex had our son changed. My parents were doing renovations on their house so they could sell it, so my ex had our son more. When we went into court, the judge ordered that since my ex had him every weekend from thursday to sunday, during that time, he didnt feel that it should change. Even though that wasn't the agreement made between my ex and I. My reasoning for going up north was from the direct actions of my ex cutting my support from 850 to 420. I couldn't afford anything, and he didn't care.
Going into court, my ex claimed that he had 29, 000 dollars worth of debt that I didn't know about. He had the credit cards, and I never used them. I knew we were in debt because he was going to school for a few years on and off to get his electricians license. My parents also helped with groceries and gas money while he went to school, because we were tight. My sole duty was to look after our premature child.
I feel that I really our case conference was EXTREMELY one sided. My ex had a lawyer and my duty counsel told me there was nothing I could do. My ex was living at home, rent free...two vehicles and a debt that his parents gave him the money for. I have had to sell almost everything that I owned to keep food on the table. I went up north and got a car and got my first and last months rent to move into town and out of the country. I had a really good full time job but my car was so old and I couldnt afford to fix it. Then my car died, and all hopes of keeping that job died. I've had to move since then, I couldnt afford my rent. I have had help from social assitance for the last year.
Last fall, my ex told me that he will have to pay more to me this upcoming summer. I had no idea of how much. So since its income tax season right now, I asked him how much he made last year. He told me almost 70,000. I was shocked. My total on line 150 this year was $8000. My son and I have been living in dire poverty and selling stuff to make ends meet, plus getting help from welfare. My ex has a house, 3 cars, not counting his girlfriends and she has 2 kids of her own. Her custody arrangement for her kids is that their father has them every other weekend. My ex won't go for that, which I want to persue. I figure, I've been home with my son everyday except weekends for the last 5 years. If I get a full-time job, with the current custody arrangements, I would see my son for an hour or so every night. That's it, my quality time with my son has ended. He still has my car in the garage and never uses it. Im still angry that I paid over 10000 on that car. His name was on it, so he took it.
I am wondering if its a losing battle for me to go back to court. The first time we did a case conference, none of my issues were addressed. I'm thinking if we go back to court, it will be the same thing or worse. Please help anyone...I don't want to lose my son.
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Old 03-26-2007, 06:14 PM
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welcome to the forum

I have a couple of questions -

1) Were you married to the individual?

2) Did both parties exchange full and frank disclosure of all sources of income, assets and liabilities before the separation agreement was entered into and signed by the parties?

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Old 03-26-2007, 06:25 PM
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We were married for almost 4 years and together for about 6. There was wasnt full disclosure because both of us agreed that we would each be responsible for our own debts. He has cattle also, that was bought during our marriage, and sold after we split up. I never saw any of that money. He never claimed some of the cattle on his income tax either. He has not claimed all of his cattle sold every year. I had brought that up during our case conference and nobody went further with that issue.
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Old 03-26-2007, 08:05 PM
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dickstacie is on a distinguished road

I didn't end up disclosing any of my debts because he claimed them as his own. He used all the debts from the marriage so the judge issued him to pay less support and so he could waive paying spousal support. Even though in the marriage, I did pay my share towards debts through the EI was getting. I was also paying off a car payment which was in his name although I used my paid off car for the down payment. He took the car because I couldn't pay the payments after he stopped paying me 850 a month in support to only paying 420.
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Old 03-26-2007, 11:29 PM
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I assume your in Ontario so lets refer to the Family Law Act which has this to say in regards to separation agreements:

Family Law Act, R.S.O. 1990, Chapter F.3

Section 51


51. In this Part,

“separation agreement” means an agreement entered into under section 54. (“accord de séparation”) R.S.O. 1990, c. F.3, s. 51.
Section 54 of the Act states:

Separation agreements

54. Two persons of the opposite sex or the same sex who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24).

With that said on the face of it appears that your current agreement is binding. However, certain events have to occur such as:

The separation agreement must be in writing. see section 55(1) of the Act
Form and capacity

Form of contract

55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).
The court reserves the right to set aside terms of the separation agreement in regards to the best interest of the child. See 56(1) of the Act.
Provisions that may be set aside or disregarded

Contracts subject to best interests of child

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1); 1997, c. 20, s. 10 (1).
Separation agreements on the issue of child support are to reflect the child child support guidelines. The guidelines changed in May 2006. Therefore here is your material change alone to bring forth action and I do suspect the court will order the current guideline amount in respect to the payor's current income. See section 56(1.1) of the Act:

Contracts subject to child support guidelines

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement. 1997, c. 20, s. 10 (2).

I suspect you have significant merit to set aside the separation agreement as mentioned certain events have to occur by default . No ifs, And or buts.

See section 56(4) of the Act:

Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).

If financial exchange of income, assets and liabilities did not occur, a party may apply to the court to set aside the agreement. See section 56(7) of the Act:
Application of subss. (4, 5, 6)

(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary. R.S.O. 1990, c. F.3, s. 56 (7).
With all that said, You do have grounds to apply to the court to have the separation agreement as a whole set aside.

Since you were married, I would also like to point out that provisions of the Divorce Act can also apply to your situation.

Divorce Act ( 1985, c. 3 (2nd Supp.) )

There is no time limit to bring forth a claim for corollary relief such as spousal support even after a Divorce has been granted.

See Section 15 of the Divorce Act:



Definition of “spouse”

15. In sections 15.1 to 16, "spouse" has the meaning assigned by subsection 2(1), and includes a former spouse.

R.S., 1985, c. 3 (2nd Supp.), s. 15; 1997, c. 1, s. 2.

With all that said, I would think your first step would be to secure a legal aid certificate and retain a lawyer who could discuss all your options of your situation.

I do suspect you will be able to set aside the existing separation agreement with consideration of the lack of financial disclosure between the parties. For example see the matter of:

Mantella v. Mantella, 2005 CanLII 23690 (ON S.C.),

Once successful on setting aside the current agreement; Subsequently, you will be able to address the other issues of spousal and child support.

Hope this helps

  #6 (permalink)  
Old 03-27-2007, 10:29 AM
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dickstacie is on a distinguished road

Thanks so much! But I had waived spousal support in this separation agreement, even though I feel I should have got it, the judge said no I guess (that's what my ex told me) I was so upset that I don't remember. Since everyone told me that I would never get it, I signed the agreement. I believe that I should have, based on the facts that my ex was supporting us during that marriage and after we got separated, dropped his support from 850 to 420. There are grounds that he can again, I don't understand.
  #7 (permalink)  
Old 03-27-2007, 11:11 AM
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dickstacie is on a distinguished road

My ex and I are talking, and of course, he doesnt want anything to change. I asked him if I could get our son every other weekend, and he start paying up to the new guidelines starting in July (that's when he thinks it changes.) If I could get my son every other weekend, I would pay for all daycare so he doesnt have to pay anything. I know im going to get screwed if we go back to court because I did the first time, and he told me this also. I have never done anything wrong, yet why am I going to get screwed because I can't pay for a lawyer? I hope that he agrees with what I have proposed. He got the better deal in court the first time, I hope they don't take my son away from me if we have to go to court this time. I am soooooooo scared to go to court.
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Old 03-27-2007, 02:31 PM
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I'm curious as to why you think that you would lose your child if you go to court?
  #9 (permalink)  
Old 03-27-2007, 03:09 PM
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since you already have basically 50/50 with your son, why not ask for alternate weeks?

his income is so much higher than yours, he would still be required to pay at least as much child-support as he is currently paying, and likely more.

you can represent yourself in court, it's not complicated, and the judges often seem to feel sorry for self-represented people (from what I have observed)

having your son half of the time will allow you to have him alternate weekends, and it will allow you to work full-time, just as your ex does, and give you both the same amount of time with your son. It will also allow you to earn a full-time income, and get out from under the financial strain you are currently experiencing.
  #10 (permalink)  
Old 03-27-2007, 03:26 PM
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dickstacie is on a distinguished road

is it a fact that a father who has him on the weekends from friday night to sunday morning 50/50? we can't do alternating weeks, he lives an hour and a half away from here and he doesnt want to do that. my ex just figured out where my son's school is.
My ex tells me that I could lose my son, amongst other things. I've never done anything wrong and I live for my child. My ex has been living common law with a woman since we separated and she has two kids which go to their fathers every other weekend. I also need to take him to court so that my son's interests are protected if their relationship goes sour.
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