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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 09-15-2010, 07:47 PM
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Default How tough is it to get a variance?

Hi everyone. I'm putting this out there in order to try to help me decide whether or not to bother to try to have the amount of spousal support agreed to in our Separation Agreement varied. I'll try to stick to the facts that The Law will likely care about, and I'll try to keep emotion out of it:

- married June 1993
- separated July 2009
- divorced July 2010

- 2 children, now 14 & 15
- I have 100% physical custody/parenting (not sure of the nuances... both kids live with me full time)

- ex lives out of province (she moved to SK to be with family)

- agreement initially assumed that the kids would stay with ex and that ex would stay in Ontario. I agreed to pay CS IAW guidelines and $1000/month SS. We were in Trenton, I am now in Ottawa.

- in Agreement she "pledged" to seek full-time employment with a minimum annual income of $24K - but I did not impute it to her

- June 2009 she tried to take both kids out of province, kids declared intent to live with me, and did so right after the last day of school (so, 14 months or so now)

- neither of us requested support from the other, as things had changed. We had, I thought, a tacit agreement to leave each other alone.

- I just received notice from FRO that I am in arrears and that they are going to garnish my wages.

- I am not yet receiving CS, nor will it be a decent amount because she wont work (she just quit one part time job (min wage, 20 hours/week) in favour of another that offers the same wage/hours). Her work history is the same: Never held a job while we were married (despite a promise to do so) and drained the household finances in pursuit of home-based businesses - all of which she quit. In short, I don't have high hopes that she'll ever secure meaningful work.

- I just bought a house (a HOME!) for the kids and the $1000/month SS will cause some pretty scary financial hardship: With mortgage, insurance, bills, medical, etc., etc., I was about even (income vs expenses) before this development.

- There is SO much more to the story, but I doubt The Proverbial Judge would care, so I won't bother here.

In the long run, if she were forced to work I would come out ahead financially: SS is $1000, CS (based on $36K ($24K "promise" plus $12K SS) would be about $530, and I get half of my $1000 back in taxes. I'm already in the green, and I haven't even looked at Schedule 7 yet.

BUT... she won't work.

Ideally, I'd prefer what has been happening for the past year: I am raising the kids on my own, with my income, and things are fine. She hasn't been paying support and I don't need it so I don't ask for it. (Stoooopid, I know, but, well, that's me).

Failing that, what I'd like to see happen is have her income imputed per the amount she "pledged" to seek in the agreement, and have the SS reduced or even eliminated.

ALL I WANT is to leave my past life behind and provide a HOME for my kids. The financial situation as it is, is gonna get in the way of that.

Sorry to ramble so much. I am going to make an appt with my laywer (McGuinty) and go over options but I'd like to go in there with an idea of what to expect and what my chances are.

There is, no doubt, lots of pertinent info missing above. Please ask questions and I'll fill in.

Thanks gang,

Cheers!

Gary

Last edited by Gary M; 09-15-2010 at 07:49 PM. Reason: Typos
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Old 09-15-2010, 07:56 PM
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Forgot to add:

Her share of my pension is about $200,000

I took on $40,000 more debt than she did in exchange for an equal reduction (equalization) in my pension paid to her. (Yeah, I know, now, that 1-for-1 was dumb, but, well...)

So, she's getting about $160K to put in the bank. I don't know how this might affect things, if at all.

Gary
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Old 09-15-2010, 09:43 PM
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Holy crap you need to get all those living arrangements reflected in a revised order you need to seek equalization of family property.

The FRO isn't going away until you get that done.
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Old 09-15-2010, 10:16 PM
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Yes - maybe exparte considering FRO's mandate. I think if it was me, I would serve the FRO and keep them in the loop of any or all action. They may just suspend their enforcement measures.
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Old 09-17-2010, 12:13 PM
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Quick update:

- EXCELLENT news from FRO after a few not-so-good phonecalls with them

- Retained lawyerS

- Got the ball rolling on all sorts of things and all are looking good so far

- Had NO idea how much I could do, and am likely to achieve

- Going to email ex (friendly and factual) and give her 'til Sunday @ 23:59 to cease and desist (she will not) and then unleash the Shit Storm. Please let me know if this is a Bad Idea.

- I've gone from not sleeping and feeling like I've been kicked in the 'nads to being pretty stoked becuase I might actually see some resoution.

OK, no time now - will kick in some details later.

Thanks for the replies, guys.

Gary

Last edited by Gary M; 09-17-2010 at 12:16 PM. Reason: Added something
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Old 09-17-2010, 12:44 PM
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Quote:
- Going to email ex (friendly and factual) and give her 'til Sunday @ 23:59 to cease and desist (she will not) and then unleash the Shit Storm. Please let me know if this is a Bad Idea.


Friendly, factual and BUSINESSLIKE. Cease and desist is the wrong term. You may want to consider a different tactic...give your ex an out:

ie. FRO has notified me that they were not informed of the changes in our situation....etc

If you can get her to sign the forms to notify FRO of the change in situation voluntarily, most of the headache goes away with respect to their involvement. That will buy you time to get the rest of your situation sorted away without having to scramble.

I definitely think it's a great idea, because if she refuses to acknowledge the existing situation with FRO...you ask for COSTS when you go back to court. (ie. since she screwed around and didn't do what she was supposed to.). She can't claim financial issues, since she's getting 160K from you.
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Old 09-17-2010, 12:54 PM
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Maybe you can email her a copy of the Notice of Withdrawal for her to fill out and send back. (hell, print it off and send it to her via REGISTERED MAIL asking her to complete it), include a pre-paid registered return envelope inside it to totally kill any excuse about not being able to get it back to you quickly.

http://www.canadapost.ca/cpo/mc/pers...denvelopes.jsf

http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetAttachDocs/006-FRO-006E~2/$File/FRO-006E.pdf

Last edited by NBDad; 09-17-2010 at 12:56 PM.
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Old 09-17-2010, 01:03 PM
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Quote:
Originally Posted by NBDad View Post
[/u][/b]Friendly, factual and BUSINESSLIKE. Cease and desist is the wrong term. You may want to consider a different tactic...give your ex an out:
Absolutely!!!

If you back someone into a corner, they have no option but to fight you, even if they haven't a hope. Always use a carrot and stick, offer an attractive way out of a situation that costs them less, or a scary consequence that will cost them an arm or a leg.
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Old 09-17-2010, 04:12 PM
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Thanks everyone.

I am going to draft a nice, factual, and businesslike letter and send it. The main gist will be that...

"I've retained the services of a Family Lawyer (name, office) to assist me with this matter.

I have also contacted FRO and Pension Board and both have frozen their files pending resolution of the pending Motions regarding SS, CS, Custody, Equalization, your income, and pension division. FRO will not release any money to you, and Pension division will not take place until these matters are resolved. These motions are all related to a Change of Circumstance, namely that the Agreement was drafted and signed with the intention that you would be the Primary Parent of one or both children. This was never, nor is it now, the case and so the Agreement must be varied.

Should you wish to settle this amicably between us, you have until 23:59 on Sunday, 19 Sep, 2010. I have an appointment at 09:30 Monday morning with my lawyers and if I have not heard from you I will authorize them to proceed with the Motions.

In order for me to cease legal action, I will require from you a written promise, copied to your lawyer and mine, to:

1) Voluntarily withdraw from FRO enforcement of support (I can provide you with the necessary paperwork if required);

2) Promise to not seek any form of Support while the children are living with me; and

3) Revise your request for division of my pension to reflect the amount we settled upon in the Separation Agreement.

As you can see, all I am asking for is status-quo and what we agreed to.

Failure to agree to these three conditions will leave me no choice but to proceed via Family Court as follows:

- move the place of proceedings to Ottawa, as the children have lived here for over twelve months

- impute your income at a reasonable level (average income in Moose Jaw is $54.4K, median is $45.3K)

- order Child Support IAW imputed income

- terminate Spousal Support due to your refusal to work, or, as a miniumum, have it reduced to reflect your imputed income

- revisit the division of assets which were manifestly unfair, especially in light of the Change of Circumstances

- due to the improper division of assets and debts, reduce the amount of your pension entitlement

- make an order regarding some $20,000+ in unpaid Schedule 7 expenses

- I also reserve the right to begin proceedings regarding custody, parenting, visitation, etc."

Guys & Gals, if you have the time, please tear this up and tell me what's wrong with it.

Thanks,

Gary

Last edited by Gary M; 09-17-2010 at 04:16 PM. Reason: typo
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Old 09-17-2010, 04:24 PM
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You are showing your hand...not a good idea.

Quote:
Failure to agree to these three conditions will leave me no choice but to proceed via Family Court as follows:

- impute your income at a reasonable level (average income in Moose Jaw is $54.4K, median is $45.3K)

- order Child Support IAW imputed income

- termina Spousal Support due to your refusal to work, or, as a miniumum, have it reduced to reflect your imputed income

- revisit the division of assets which were manifestly unfair, especially in light of the Change of Circumstances

- due to the improper division of assets and debts, reduce the amount of your pension entitlement

- make an order regarding some $20,000+ in unpaid Schedule 7 expenses

- I also reserve the right to begin proceedings regarding custody, parenting, visitation, etc."
Take ALL that out...you DON'T want to give her OR her attorney a heads up in what you'd be seeking, if you include that, she has more time to come up with arguments to refute you, and it increases your chances of a long drawn out battle.

Personally I'd cut it off RIGHT after the bolded text.
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