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

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  #11 (permalink)  
Old 06-12-2017, 11:35 AM
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As in "erroneously go above a 50-50 NDI split" or as in "correctly go above a 50-50 split"?
The SSAG occasionally show the recipient parent receiving greater than 50% of NDI in a situation of shared custody.

Most judges seem to agree that if the parties have equal parenting responsibilities/costs, it does not make sense for the higher-earning parent to have less than the recipient parent.
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Old 06-12-2017, 11:57 AM
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Originally Posted by dinkyface View Post
The online free support calculator based on SSAG gives a range of about 350 to 900, so a midpoint about 625. The midpoint gives between 45-55 and 50-50 NDI split.

From what I've read, splitting NDI 50-50 is very generous on your part.
I just rechecked numbers... midpoint SS is $578 (range $320-$842), and with her receiving $30K taxfree benefits (!!), she comes out ahead of you by $12500/yr even if she does not work.

I used TaxTips.ca - 2016 and 2017 Canadian Income Tax and RRSP Savings Calculator for income tax, ei, cpp calculations

and https://www.mysupportcalculator.ca/calculator/results for cs/ss

and http://www.cra-arc.gc.ca/ebci/icbc/prot/proc_witb1 for child/gst/energy/salestax benefits

Last edited by dinkyface; 06-12-2017 at 12:04 PM.
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Old 06-12-2017, 12:57 PM
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Originally Posted by North of 40 View Post
It's my understanding if she's able to, i.e. not on a disability, she HAS to get some kind of a job. I.e. working at Tim Horton's. They are always highering.

If not, it's seen as avoidance.
Yes, unless your STBX has some disability, she should be out working to the best of her ability like every adult should.
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Old 06-13-2017, 02:00 AM
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Thanks Everyone for your help/suggestions.

dinkyface: I'm going to see a lawyer and ask him to calculate the 50/50 NDI Split (to ensure the numbers that the numbers I ran are correct). Your numbers seem a little off (i used the same calculators with the exception of using simple tax, https://simpletax.ca/calculator, to estimate Income Tax, and looked up CPP/EI).

My main concern here is i want to make sure we are both getting a fair amount.

Thanks
Andrew.
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Old 06-13-2017, 08:23 AM
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My main concern here is i want to make sure we are both getting a fair amount.
Make sure to get DivorceMate printouts. This will give a breakdown of the NDI, and incorporates things like tax consequences of the children.

So long as the information put in is accurate, and entered correctly, the end number is reliable.
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Old 06-13-2017, 01:07 PM
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Thanks OrleansLawyer - so the DivorceMate printouts will show the 50/50 NDI point?

Andrew.
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Old 06-13-2017, 03:00 PM
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the DivorceMate printouts will show the 50/50 NDI point?
Yes. The default is to show low-mid-high but you can do a lot with the program to show different scenarios, such as specific NDI % or specific support numbers.
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Old 06-15-2017, 02:03 AM
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Quick update:

I was able to confirm that the 50/50 NDI split was in fact the absolute low end the range. Nonetheless, STBX believes that she should have about 55 NDI and me 45NDI (or worse) based on her "compensatory claim" ( ie that she has been home for 13 years). Thoughts?

FYI the youngest child started school full time 2 years ago (If that matters). The STBX has completed 1 year of undergraduate studies.

Thanks!
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Old 06-15-2017, 08:44 AM
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STBX believes that she should have about 55 NDI and me 45NDI (or worse) based on her "compensatory claim" ( ie that she has been home for 13 years).
Even when the recipient's claim is based upon a loss of their earning potential, I have difficulty seeing a case with shared custody or no children going in front of a judge and the recipient receiving more than 50% of the NDI.

Could it happen? Yes, but the circumstances would need to be extraordinary.
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Old 06-18-2017, 11:33 PM
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Unfortunately Divorcemate is the standard in Ontario. It's a horrible program that miscalculates everything. Also many lawyers miss legitimate deductions to input into the softwaresuch as but not limited to - employment expenses, debt payments, insurance deductions (life disability, health). If you have to pay any of those, this reduces your income substantially.

In addition, Divorcemate splits income this way. The "low" range is based on 53/47 in her favour, the "mid" range is based on 55/45 in her favour, the high range is based on 57/43 in her favour. This is based on the following fact - you are both employed fully to your capability but she is also taking care of the kids so she gets more. If you are in shared custody or she is underemployed (which seems to be the case)

Either you can push for a 50/50 NDI or impute income to her through this guideline (which lawyers also fail to adjust for most of the time.

Intentionally under-employed/unemployed
Input the additional amount of annual employment income to be imputed to the intentionally under-employed or unemployed party (CSG, s.19(1)(a)). This amount will then be included as if it were gross employment income in the determination of the party's Guidelines Income and child and/or spousal support (CSG, Sch. III, s.12), and in the Support Scenarios.
Section 19(1)(a) of the CSG provides that the court may impute income to a party where the party is "intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse [ie. party]".
Input a reasonable amount of income according to the person’s education, abilities and experience. Parties must make an effort to maintain employment suiting their education, experience and abilities, or income may be imputed.
In Drygala v. Pauli (2002), 61 O.R. (3d) 711, the Ontario Court of Appeal held that there is no need to find a specific intent to evade child support obligations before income can be imputed. This is consistent with the approach adopted by the Manitoba Court of Appeal in Donovan v. Donovan (2000), 190 D.L.R. (4th) 696. However, in Hunt v. Smolis-Hunt (2001), 20 R.F.L. (5th) 409, the Alberta Court of Appeal held that s.19(1)(a) requires proof of a specific intent to avoid child support obligations or circumstances which permit the court to infer a specific intent. Spouses should be aware of the other spouse working part-time, or a 4-day workweek. A court will not tolerate payors who arrange their affairs so as to avoid paying child support. Clients should be advised accordingly: see Abdilla v. Abdilla, 2004 CarswellOnt 4524 (S.C.J.); White v. Comeau, 2003 CarswellOnt 1140 (S.C.J.); Egan v. Egan, 2003 CarswellBC 1 (S.C.); Kaye v. Kaye (2002), 32 R.F.L. (5th) 368 (Ont. Div. Ct.); and X.(R.L.) v. X.(J.F.), 2002 CarswellBC 1934 (S.C.). However, a parent is not intentionally underemployed where he or she is unemployed because of ill health or misfortune: see Metzler v. Metzler, 2002 CarswellOnt 3149 (S.C.J.). Evidence of lifestyle may be used to impute income: see Orszak v. Orszak, 2000 CarswellOnt 1574 (S.C.J.); Chen v. Chen (2000), 5 R.F.L. (5th) 288 (Ont. S.C.J.); and Currie v. Currie (1999), 2 RFL (5th) 153 (Ont. S.C.J.). In a clear case, a court may impute income on an interim motion: see Gillett v. Smyth, 2002 CarswellOnt 3737 (Ont. S.C.J.). However, generally the courts take a conservative approach on interim motions: see Bedard v. Bedard (2003), 36 R.F.L. (5th) 10 (Ont. S.C.J.); and Kadikoff v. Kadikoff, 2003 CarswellOnt 1251 (S.C.J.).

Based on what you have told us so far, your worst case scenario is spousal support is zero. Your best case scenario is spousal support is zero and you get a reduction in child support.

Don't let lawyers tell you otherwise.

Regards.
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