Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Financial Issues

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

Reply
 
LinkBack Thread Tools
  #1 (permalink)  
Old 04-02-2014, 10:50 PM
NOF NOF is offline
Junior Member
 
Join Date: Mar 2014
Posts: 1
NOF is on a distinguished road
Default motion to vary non-table child support amt

Hi all,

Brand new to the forum so be kind



Background:

Separation agreement granted 2012 (divorce later that year)
2 children of the marriage; joint custody.
Child support set at $550/month (non-table amount).
Section 7 shared 50% (primarily soccer fees), school fees shared 50%.
Ex responsible for cost of busing (approx $800/yr)
Schedule with kids: Thursday after school with me until dropped off Wednesday morning at school;
with ex after school Wednesday until the next Thursday morning (6nights/8 nights every 2 weeks).
All school holidays equally divided.


However, at the time of signing separation agreement “clause” or “point” was put in stating:
“in the event [my] parenting time increases in the future from the current 5 out of 14 days to 6 out of 14 days by agreement of the parties, such change in and of itself shall not be considered a change in circumstances sufficient to warrant a decrease in child support”.
My lawyer at the time said “you can never waive your future rights” so that line was put in at ex's lawyers insistence and there really would have been no way of getting any agreement without it – hopefully I don't regret signing the document with it in there.


At the time of signing, incomes were set @ $64,000 for ex & $66,000 for me


Present day:
Waiting for ex's 2013 NOA; in 2012 gross income of ex was $79,890

my 2012 line 150 $62,501
my 2013 gross income (taxes not done yet, gross income on T4) $73,953.80

Since February 2012 children have been spending Thursday after school until dropped of at school on Wednesday morning (one extra night)


Children are now nearly 12 & 15


My questions:
What is considered a “material change in circumstance”? I feel since we have joint custody, access for me is approx 45% over the year, I have (own) a family-focused home (both kids have there own rooms, room for friends to come over which happens a lot,games, bikes, on and on and the expense of maintaining this home and I bought a home in a neighbourhood close by the ex's in order to facilitate school districts and activities) altogether could constitute a change in circumstance.



As well, I have read that in regards to non-table support amounts, a change in income/means/needs of either parent is considered a change of circumstance. Nevermind that 12 and 15 year old kids and friends eat far more than 9 and 12!



I am seeking to make a motion to vary the order to::
  1. reflect the change in schedule to the increased night ie. From tuesday after school to Wednesdy after school as that is what is happening (maybe even request week on/week off)
  2. child support to be calculated using the offset method, recalculated annualy
  3. S.7 (including busing) to be proportionate to incomes. I think if I use busing as “leverage” I may be more inclined to have some success with the ex.


I would also like to say that I purchase for the kids: bedding/socks/underwear/clothing/shoes/outdoor gear for activities (fleeces/hiking boots, camping equipment; soccer cleats -in fact the ex at one point told me I “need to take care of what the kids need when they are with” me) I realize this standard stuff but I feel it is important to point out that I provide for the children at ex's as well as with me and each week it becomes more difficult (for example, S14 will have 3 friends over eating ALL the food; he is going on more expensive activities -eg.skiing with friends). I pay for summer camps and activities, we take vacations every year and I save as much as I can in and RESP for each child (started after separation).
I should say that I don't mind to purchase items and take care of my kids in fact I enjoy it. It is getting harder to afford the child support to ex and to maintain our home, and the things the kids need/want/enjoy when with me- me going into my overdraft nearly every month does not seem to be in their best interests.


I am concerned that as she has a very high conflict lawyer and is difficult to work with (nearly 4 years of litigation to settle after I had given a draft sep. agreement with pretty much the same terms). Ex also often, if not always, gets the kids involved (for example when the mat home was sold kids said to me “if you don't sign the papers [divorce agreement], [ex] says we have to rent a house and we don't want to”). I know I can't change that behaviour but knowing the past history of ex's lawyer and how ex is often unwilling to communicate or negotiate I would like to be as prepared as possible. Ideally I would like to make an agreement outside of the courts but I can't be sure this will happen.



Also, the final and biggest question is : how much weight does the clause in our separation agreement have?

Can all the changes taken together constitute a material change in circumstances?
Can a motion like this be put forward and be self represented?


Thanks for any and all input,
Please let me know if I need to provide any further information or clarification.
Reply With Quote
  #2 (permalink)  
Old 04-02-2014, 11:34 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default

Honestly, I'd take the kids as much as you could and continue to pay what you do. The opportunity cost to do otherwise I'm guessing will cost you more in the end. And if she has a HC lawyer I'd almost guarantee that it will cost you a fortune in time, money or effort... $550 is peanuts as you'd stand to only save a few hundred a month *if* offset was approved.

My final advice: tread lightly.
Reply With Quote
  #3 (permalink)  
Old 04-02-2014, 11:43 PM
Senior Member
 
Join Date: Feb 2013
Posts: 2,836
stripes is on a distinguished road
Default

Your agreement says that if your access increases to 6 out of 14 nights (=43%), you won't recalculate support. I don't know if this would hold up in court.

However if you can show that your access is greater than 6/14 nights, i.e. The kids are with you more than 43% of the time over the course of a year, that clause in your agreement would become irrelevant, whether or not it's legally sustainable. Can you show that you've had the kids for that amount of time? If so, in combination with the other factors you've listed (bedrooms for each kid, you're involved in their lives, you take care of their needs, etc) I would think you could claim you have a true shared parenting situation (S9 of the FCSG) and so the appropriate CS is offset and S7 proportional.

However, I don't really see a material change in circumstances here. The things that you've listed (kids eat a lot more than a few years ago, they have their friends over they have more expensive hobbies as they get older) are all things which could easily have been foreseen at the time of the agreement (it probably shouldn't come as a surprise to anyone that kids get older and more costly over time). A material change in circumstance would be something outside of what was predictable at the time you signed the agreement, e.g. you lost your job, your ex had quintuplets and moved to Peru, the house burned down, etc. I'd forget the "change in circumstance" argument.

It may also be the case that you and the kids are living beyond your means. Whether you're paying table or you and the ex are both paying offset, it sounds like the kids' activities are more than you both as parents can afford. You may want to have a talk with them about priorities. They're old enough to understand that yearly vacations and skiing trips may be just too expensive, and that your priority is funding their RESPs. They may not like it, but they're old enough to hear the facts of life.
Reply With Quote
  #4 (permalink)  
Old 04-02-2014, 11:45 PM
Senior Member
 
Join Date: Feb 2013
Posts: 2,836
stripes is on a distinguished road
Default

(I also think that Serene is right - you might want to think hard about whether the amount you save by switching to offset will be more than the costs of a long legal battle, which might well drag on until the oldest is out of high school. I think you have a good case for offset, but proving that case could be expensive, and your already financially strapped).
Reply With Quote
  #5 (permalink)  
Old 04-03-2014, 01:13 AM
Senior Member
 
Join Date: Nov 2010
Location: Toronto
Posts: 385
momforever1956 is on a distinguished road
Default

Are You kidding me??? $550 a month for a child and you are concerned?? Are you joking???? Wow,, no wonder my x is furious how the Family Law system fixed him---he would be happy with 30X that a month,,,,Please tell me it aint so, you resent $550 a month?
Do I live in a bubble?

OMG, I just reread the OP's post, there is more than one child!!!!!!!!!!!!!!!
Reply With Quote
  #6 (permalink)  
Old 04-03-2014, 09:51 AM
Senior Member
 
Join Date: Jul 2012
Posts: 1,769
dad2bandm is on a distinguished road
Default

Quote:
Originally Posted by momforever1956 View Post
Are You kidding me??? $550 a month for a child and you are concerned?? Are you joking???? Wow,, no wonder my x is...

...OMG, I just reread the OP's post, there is more than one child!!!!!!!!!!!!!!!
Actually, $550 sounds like a lot, given they have shared custody according to the times the original poster stated (if accurate). Even more so now, if the other parent has the higher income now, as stated.

The higher income parent should be paying the lower income parent in this shared custody situation.

I wonder how this was even agreed to.
Reply With Quote
  #7 (permalink)  
Old 04-03-2014, 10:51 AM
Senior Member
 
Join Date: May 2010
Location: Hamilton
Posts: 3,718
HammerDad will become famous soon enough
Default

Quote:
Originally Posted by momforever1956 View Post
Are You kidding me??? $550 a month for a child and you are concerned?? Are you joking???? Wow,, no wonder my x is furious how the Family Law system fixed him---he would be happy with 30X that a month,,,,Please tell me it aint so, you resent $550 a month?
Do I live in a bubble?

OMG, I just reread the OP's post, there is more than one child!!!!!!!!!!!!!!!
Do you understand the law in this regard? Or have a clue about why c/s is paid?
Reply With Quote
  #8 (permalink)  
Old 04-03-2014, 11:20 AM
Rioe's Avatar
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,217
Rioe will become famous soon enough
Default

Now that some time has passed since the breakup, and you have both established that you are equal parents, I think it would be worth approaching your ex and asking what she would think about switching to pure offset and section 7 proportional to incomes (including the bus cost).

As your kids are now both going to be teenagers, you will likely find that they end up in whichever house they feel is most convenient in the moment, not going by the schedule their parents set. As your incomes are pretty close, defaulting to a slight offset exchange no matter what the kids' schedule ends up like would be fairest for both of you.

The paragraph you are concerned about, as you lawyer said, is not binding. As I understand it, the law says CS is the right of the children, and a parent cannot waive it like this.

That said, it sounds like your ex is not the most reasonable of people. So you really have to weigh the monetary cost of continuing with the current CS arrangement vs the emotional and legal cost of trying to change it. You're in this for ten more years though, so I personally think it would be worth doing now.

I would suggest the half offset system. Think of it as each of you putting your CS table amounts into a kitty, and then each removing half. The end result is that half the difference in amounts changes hands. As your incomes appear to be not that far apart, at least right now, the amounts will be negligible and you can promote it as being self-sufficiency of each household. Anything you can do to take the emphasis off her losing $550 a month, and onto fairness and independence would help your negotiation.
Reply With Quote
  #9 (permalink)  
Old 04-03-2014, 11:35 AM
Senior Member
 
Join Date: Mar 2012
Posts: 283
nogoingback is on a distinguished road
Default

Quote:
Originally Posted by momforever1956 View Post
Are You kidding me??? $550 a month for a child and you are concerned?? Are you joking???? Wow,, no wonder my x is furious how the Family Law system fixed him---he would be happy with 30X that a month,,,,Please tell me it aint so, you resent $550 a month?
Do I live in a bubble?

OMG, I just reread the OP's post, there is more than one child!!!!!!!!!!!!!!!
How very entitled of you and your bubble
Reply With Quote
  #10 (permalink)  
Old 04-03-2014, 11:49 AM
Senior Member
 
Join Date: Mar 2012
Posts: 283
nogoingback is on a distinguished road
Default

I would pursue formalizing your current status quo parenting arrangement before seeking to reduce child support. I would seek and ask for an equal shared parenting arrangement framed around why this is in the best interests of your children. If you are successful in increasing your parenting time in writing, I would then (i.e. 6 months later) pursue the reduction of child support. As soon as you ask for either increased time or decreased child support, your ex on the advice of her lawyer will likely try to reduce your time back to what you currently have in writing, so make sure you document the time you spend with your children now, and her subsequent attempts to reduce it.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Motion to Change Final Order - Child Support and terms Gilligan Divorce & Family Law 16 10-17-2013 11:05 AM
Post Secondary Education Ginger_Mallow Divorce & Family Law 39 12-11-2012 08:18 PM
Will I be Paying Spousal Support? North of You Financial Issues 5 10-21-2009 03:05 AM
Child Support Question Gwen Financial Issues 10 10-16-2008 11:54 AM
Difficult situation please advise Mikesgal Divorce & Family Law 5 05-09-2006 02:56 PM


All times are GMT -4. The time now is 08:04 PM.