CS, adult kids, and expenses, long post

[venice]

Hello, I live in Quebec but hope the family laws in Ontario and Quebec are similar enough that I can obtain some advice on financial matters from the contributors to this forum…I have previously read through some of the posts and appreciate the knowledge being shared…I apologize in advance for the length of this post...


I haven’t posted in a long time but my initial post was on the domestic violence forum, outlining how my controlling, abusive husband filed false charges against me after I initiated the separation. It took 10 long months before my nightmare was over but the prosecutor eventually dropped the charges after receiving evidence in the form of my ex’s very explicit emails to me that the allegations were part of an extortion plan to force me to waive my rights to splitting pensions.

Since then, I obtained a court order for him to pay child support for 2 kids, pay half of all special expenses and I also obtained custody of the youngest of three sons who are 16, 18 and 20. The 18 year old wanted to be in shared custody but ended up staying with me and I have not received child support for him and my ex has refused to pay 50% of his basic expenses like clothing. My ex was also imputed an income as he is deliberately not working, only collecting a pension, to avoid his financial obligations to the kids. I receive the child support from Revenu Quebec who takes the payments directly from my ex’s pension cheque.

Beginning in December 2011, my sons decided to agree to a shared custody arrangement with my ex at his sister’s house which is not far from mine. For many reasons, I don't expect this arrangement to last more than 3 to 6 months. In December, my ex deducted my child support payment from the arrears he had to pay (for the 18 year old who ended up staying with me), saying I am no longer entitled to child support after the kids spent a few nights with him after he hadn’t seen them in 5 months. After one month of this arrangement, my ex is now threatening me with court action and costs if I don’t reimburse him January’s support payment by next week.

My question is: what is a reasonable amount of time to wait before changing child support provisions? Given the pattern of the past two years, plus the temporary nature of the accommodations at his sister’s house, I prefer to wait 6 months before making any retroactive adjustments, in case the situation changes once again.

Another issue I have concerns the older sons’ contribution to their expenses. The judge recommended that the older 2 boys contribute 30% towards the cost of their special expenses: tuition fees, books, bus passes and other school-related stuff. The judgment further stated that if we obtain the 30% contribution, that it be used to reduce equally each parent’s share of the special expenses.

However, my ex insists that our sons pay one third of all of their expenses. Therefore, under any shared custody arrangement and for the kids’ special expenses, my ex is only willing to pay 30% rather than 50% of the expenses and this is after he has determined what he thinks the correct cost should be for the expense in question. I pay the expense and then try to obtain reimbursement from him but have been unsuccessful for the most part.

The 20 year old already pays 50% of his university tuition and books and is now having difficulty meeting the 50% contribution and will be obtaining a loan from his university. My ex and I share the other 50%.

The 18 year old goes to a public CEGEP which costs substantially less than the private one the older son went to and that we fully paid for. I have never requested the 18 year old contribute as I want to treat the 3 sons fairly and he will be expected to pay 50% of his university costs in fall 2013.

My question is: how much do the adult kids pay, can they be forced to and can my ex simply decide he is only paying 30% when he is required to pay 50% as is the norm in shared custody or is it different because these are adult children?

One final question:

My court order provided for all payments to be up to date to May 2011. From May to Dec 31, 2011 the 3 children have spent on average 90% of custody time with me. Is child support calculated on a calendar year basis and am I entitled to child support for all 3 this entire time period?

I appreciate any advice, insight anyone can provide to these three questions. Thank you in advance!

[HammerDad]

Regarding post secondary education, it is entirely reasonable that the adult child be expected to pay 1/3 of their education as they are the major benefactors of that education. Costs will generally rule that the child be responsible for 1/3 of their education costs and the parents split the remaining 2/3'rds proportionally to income.

As for the what child support you are entitled to, you are entitled to what the court order provides. If you had the kids for more then your prescribed time then you would need to file a motion to change the current provisions to more accurately fit your scenario. If there is an agreement or court order that states you have sole of all 3 kids, you would receive c/s for minor children and adult children who are enrolled in full-time school. If the agreement states he pays offset for 2 and full for one, but the really is, you are taking full time care for all 3........well..... unfortunately, until the agreement/order is changed to state otherwise, your ex is only responsible to pay what they are ordered to.

[HammerDad]

Also, while you can ask for "retroactive adjustments", the odds of you getting anything are slim. Why? Unless you have requested that changes be made to the agreement to more accurately fit the actual arrangement, you haven't done anything on your part to bring to your ex's attention that this is an issue. Meaning, you failed to attempt to mitigate your damages with your ex.

Should you file a motion to change, the court is likely to only go back for any retro to the date of filing. The main thinking behind that is, you can't go back to make someone pay for something that you never requested before in the first place.

[venice]

Thank you HammerDad. The court order was for support for 2 of the 3 children but the third one ended up staying with me. My lawyer sent his a letter in September requesting child support for the third child and then sent repeated requests. Finally, in December, my ex took the law into his own hands and told me he was deducting December's child support from the retroactive child support due, so, in effect, he paid only a small portion of what was due. Based on what you're saying, then, I should send him a letter outlining exactly how much child support he still owes me for 2011 and then try to get a judgment on it, assuming he won't comply, is that correct?

[HammerDad]

OK, your posts are confusing.

I get that you have 3 kids. 2 are adults in college. The court order provides that he is to pay full c/s for 2 kids and offset for the 3rd. The reality is, all three are now living with you.

What you should do is send a letter stating that, due to a material change in circumstances, you are requesting his agreement to the court order being amended to change the provision relating to custody from being 2 primary and 1 shared, to 3 primary, which is in accordance with the current living situation.

If he does not agree to said change, you have to take him to court to have them make the change.

You cannot request cs in amounts that have not been ordered. If he is paying in accordance with the current order he is in compliance. You need to have the order changed in order to be entitled to full c/s for the child that was previously shared.

[HammerDad]

Originally Posted by HammerDad

Also, while you can ask for "retroactive adjustments", the odds of you getting anything are slim. Why? Unless you have requested that changes be made to the agreement to more accurately fit the actual arrangement, you haven't done anything on your part to bring to your ex's attention that this is an issue. Meaning, you failed to attempt to mitigate your damages with your ex.

Should you file a motion to change, the court is likely to only go back for any retro to the date of filing. The main thinking behind that is, you can't go back to make someone pay for something that you never requested before in the first place.

I should take some of this back. You MAY be able to claim retro IF the change to c/s was due to increases in the payors income, notwithstanding not having requested it prior.

CanLII - 2006 SCC 37 (CanLII)

The court will look at the big picture prior to actually granting any retro payments, but there may be entitlement.