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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 08-05-2013, 11:58 PM
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Question New here and lots of questions

Please excuse all of the questions I'm about to pose if anyone knows answers to even some of them it will be greatly appreciated.

I spent 15k hammering out a separation agreement with my ex wife and it was signed and done in January 2012. Agreement was drafted by her lawyer who put the terms forward. Agreement says that the parties shall exchange NOA's by June 30th of each year and that the new child support amount based on the NOA will be effective as of May 1st. She moved in with new bf December 31st and went on long term disability as of January 15th of this year. She has a history of going on LTD whenever she gets into a new relationship so it wasn't shocking that she did this. 2012 income was $56,000 she's estimating that her 2013 income will be about $36,000. She has hired a lawyer for a number of things one of which is that she wants to go back to January 2013 and have an increased CS payment based on her expected 2013 income even though the agreement specifically sets out the May 1st day. We pointed out that if we pay the higher amount now, we would need some way to balance it out as of May 2014 because the payments from May 1, 2014 to April 30, 2015 will also be based on 2013 income so essentially dad will be paying the higher amount for the same timeframe twice. Her household income with the new BF is now about $200,000 even with her being on disability and they have two adults and 1 child. Our household income is about $130,000 with two adults and 4 kids. Each has 1 child from the marriage so we pay the offset amount monthly. So now I've given a bit of history here are my questions.

1. Since the agreement specifically states how the CS payments are to be calculated can she now go back and get the higher amount for 2013, plus still get it again from May 1, 2014 - April 30, 2015? They are not willing to agree to deduct the overpayment next year.

2. We pay about $700 per month in CS - after the offset it is $200 that actually exchanges hands. The child living with mom is 12. Before the parents split kid did not do extracirriculars except maybe the odd swimming lesson because he has no interest. Mom now wants $2000 per year for "extraordinary expenses" but lists swimming, art classes, etc. We offered to pay 50% of any physical activity up to a maximum of $300 per year even though our previous lawyer said swimming, etc. is included in the table amounts. Based on the 2012 incomes the ratio for extraordinary expenses is 58% us and 42% them. We offered 50% because she keeps the tax credits. I know the courts are literally all over the place with extraordinary expenses but stuff like swimming lessons is definitely something she can afford especially since her household finances are much better than ours. She said that is not enough and she wants us to pay 70% of all expenses based on what she "expects" to earn this year - even though her own doctors note says she will only be off for the near to mid time. Child is seriously overweight so we offered to pay 50% for the cost of a bike to be kept at her place. We have bought him a bike for our place but taking it back and forth isn't really an option. She said that is not enough and she wants us to pay 70% for the bike - I can find no case that lists a bike as "extraordinary". So do we have to agree to the 70% even though there is no way to know how long she will be off work, and her 2012 income was significantly higher? And do we have to pay the full amount for swimming, etc or am I within my right to say that those items are included in the table amounts.

3. The child that lives with us is starting college next month. Again based on our 2012 incomes we took the cost of the education split it in 3 to count for hers, mine and the child's contribution. I then took 58% of the remaining costs and that is what I paid to the school. The ex does not want the child to contribute to the costs and wants me to pay 70% of the total cost of his education - again is this something that she can do considering all of the above?

4. The 12 year old that lives with her spends about 3 weeks a summer with us. We offered to pay 50% towards the cost of two weeks of summer camp aside from those three weeks. Again 50% because she claims the credits. She says no that is not enough she wants us to pay 70% for the other 5 weeks of the summer. He is over 12 so my understanding was that "child care" is no longer a necessary expense because of his age. He spends 3 weeks with us, she usually goes away with him for 2 weeks and I think 2 weeks of camp is more than reasonable. She is arguing that child care is a Section 7 expense which I get but no daycare will take him because of his age so how can camp be considered a "required daycare?" In addition to that she put a claim in on her taxes last year for $7000 in child care paid to her mother (using her mother's maiden name and we know its fraudulent) so I do'nt see how she can argue that she still needs child care on top of that. Are we wrong in this case?

5. Finally, at the time of working out the agreement I accepted the family debt in exchange for her not getting alimony. Because she has Chron's disease the agreement says that due to her health she has a right to revisit the alimony issue down the line. She is now asking for alimony despite living with a man and having a household income of over 200k. So can I deduct her portion of the family debt from any alimony she would be entitled to? Using her 2012 income she is not entitled to alimony using the calculator but if you use her estimated 2013 income she would be entitled to about $150 a month for 9 years. Her portion of the family debt is over $24,000 so it far exceeds any alimony she would be entitled to.

Sorry for all the questions I'm still trying to pay off the lawyer bills from the agreement so I'm trying to handle this myself unless it gets to court. I appreciate you taking the time to read this. If it matters I am in Ontario.

Thank you!!
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Old 08-06-2013, 06:47 AM
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first off dont worry about her husbands income, that doesnt count, neither does the fact that you have kids with your current partner. So take that stuff out of the arguement.

Why dont you get the Dad in question to come to the board and he can ask his own questions? Kinda gave it away when you said "dad will be paying" not I will be paying. If I am wrong then I apologize.
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Old 08-06-2013, 07:45 AM
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Originally Posted by standing on the sidelines View Post
Why dont you get the Dad in question to come to the board and he can ask his own questions? Kinda gave it away when you said "dad will be paying" not I will be paying. If I am wrong then I apologize.
"Dad" may not be a very good typist. Who cares? They aren't breaking any board rules. If they do, I can handle it, thanks.
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Old 08-06-2013, 10:08 AM
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Actually it is "dad" I was just trying to be clear who's paying, etc.

I was told by my lawyer at the time of separation that in terms of section 7 expenses, household income DOES matter because the court looks at the means of the receiving parent - is that not true? Plus she's claiming undue financial hardship which also says household income is included. I'm even more confused now... Also I don't have kids with my new partner she has hers and we have 1 of mine living with us. Sorry if that was confusing.
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Old 08-06-2013, 11:13 AM
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Quote:
Special or extraordinary expenses
7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
CSG - Section 7

I didn't quote the whole thing, you can click the link and read it yourself.

It does specify that it takes into account the means of the parents or spouses, so this means it takes family income into account. That doesn't affect the percentage, but it does affect whether something is considered extraordinary. Why on earth do offer to pay up to $300 per year if you think something isn't section 7? This is where your problem comes from.

Notice that section (a) mentions child care expenses incurred as a result of the parent's illness. If she is unable to take care of the child due to illness, then the summer camp may be a legitimate expense. However you say she is taking vaction with him, so she should be able to care for him.

So it is a bit fuzzy, but it looks like, she is off work so the child does not need care, so the camp is not a section 7 expense.

You made mention of his age, 12. He still shouldn't be running around wild all summer; if she were working he should be in camp, and that would be a legitimate expense.

In general I would say to you that there is one answer for all of your questions: You have a signed agreement, you should be sticking to it. You are stepping outside of the agreement too often yourself.

When you do things like offer to pay for 50% of camp, or 50% of the bike, YOU are making these things a section 7 expense. Stop doing that. If you offer to pay half of anything, she is justified in treating as a section 7. If you want to argue that something should be paid for out of child support, stop offering to pay for it.

As far as the bike goes, buy the kid a second bike and call it a gift, or else stay out of it. You cannot parent the child when he is at his mum's, it is not up to you to decide how much exercise he gets or how he gets it. The bike is none of your business, unless you want to gift it. By offering to pay half, you are setting yourself up for an argument over expenses. The same with swimming, camp, etc.

You are the net payor. Just pay the amount you believe in good faith that you are supposed to pay. Just because she says the amount changes to what she wants doesn't make it so. Pay according to the agreement. If you have her NOA from 2012, pay according to that. Ignore anything she says.

And I mean IGNORE. Stop engaging with her in senseless debate over what she wants. You are just encouraging the situation by making offers to pay whatever. There should be no need to discuss this at all, just pay what you should according to the separation agreement. She has no grounds to go court if you do that. Don't even answer her, just send the cheque and ignore her.

For your child in college, the courts generally would say, any scholarships, bursaries, and RESP come off the top. The child pays a third of what's left, by working p/t or through OSAP. The parents should split the remainder in proportion to income. However this can vary depending on family situation. There is no set formula

Regarding spousal, you signed the agreement. The agreement says if she becomes ill, she can ask that spousal be revisited. So you revisit it. Revisit doesn't mean an automatic entitlement. Send her an unemotional, businesslike letter stating that in your opinion her family income does not justify the need for spousal. Period, end of letter. She may want to take it to court; if so, then see a lawyer, but until then, just keep it simple and say no and drop the subject. Don't get drawn into a debate about it.

Finally, don't use the support calculator to look at spousal. This is not a typical spousal claim and the "9 years" means absolutely nothing. If there were an entitlement to spousal, it would be because of illness, and there would be no specific time.

Apparently she has a career and a job that is good enough to provide her with disability insurance for illness. Since she is receiving disability, she does not have an automatic entitlement to spousal. This is not something you should be debating with each other. Don't engage and don't be bullied. If she goes so far as to take it to a lawyer, then get legal advice yourself. Spousal claims for illness are going to be complex and you won't get proper advice from this message board, unless a member has happened to go through the exact same thing.
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Old 08-06-2013, 11:49 AM
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Your situation sounds familiar. My ex also tries to come up with creative interpretations of S7, S3 and the divorce order in order to get more money out of me. Like your ex, he earns a more than adequate income and his household income (with two earners) is higher than mine.

What I have learned from experience (with thanks to the people on this board) is not to give an inch on anything, or the ex will try to take a mile. Your divorce order is golden. Don't offer anything which is not in the order. This means no spousal support unless you are ordered to pay it by a court, no offers to pay for swimming lessons or $2K of unspecified extracurricular expenses, no paying for the bike, no backdating the CS because she went on disability, etc. (I understand that you're concerned about the weight of the kid that lives with her, so in that case you might want to give the kid an extra bike for her place if you think he will make use of it to get in shape, but give it as a gift, not as part of CS).

Learn all the paragraphs of your divorce order as well as the FCSG and practice reciting the appropriate chapter and verse every time she comes up with a new request. Respond to the request once, stating why it is inappropriate given the terms of your order, and then ignore anything else from her. Don't offer anything in exchange, or you legitimate her behavior.

I suspect that you are trying to be reasonable and co-operative and flexible, which works when you're dealing with someone similarly minded. However, when you're dealing with someone who believes s/he is entitled to whatever s/he wants and the rules are for the little people (as suggested by her habit of going on LTD whenever it's convenient), any willingness to negotiate on your part will be seen as weakness and exploited. She's not concerned with what is fair or reasonable, she's only concerned with what she thinks she can get.

A couple of random thoughts - as I understand the concept of hardship, it involves consideration of the entire household income and whether it is sufficient to provide the necessities of life for the members of the household. A household income of $200 000 for two adults and one child will not meet any test for undue financial hardship, so you can ignore her claims to that. Also, for S7 expenses, the income of the receiving parent (not household) is significant insofar as it helps to determine what is an "extraordinary" expense for someone with that income (including any child support received). $200 for swimming lessons wouldn't be extraordinary for someone earning $50K +$10K in CS, but might be for someone earning only $20K +$4K in CS.
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Old 08-06-2013, 11:54 AM
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Mess - thank you for all your comments. To clarify she has gone to a lawyer and I offered the 50% for the bike and the fitness classes to her lawyer in my reply because her lawyer is saying that since my son is severely overweight the fitness activities and bike are "reasonable and necessary". When I said I offered her I should have been clearer because that was offered in my reply to her lawyer. I clearly made a mistake offering this but I was trying to avoid more fighting and lawyer bills. I thought if I offered something it would be reasonable. Unfortunately I should have learned that no matter what I do to avoid fighting it is never enough for her. I guess I was confused about the spousal because her lawyer told me to check on that calculator website to verify my obligation for support - my understanding was that was an accurate calculation I didn't realize that it wasn't. With respect to camp she is currently on a road trip with him in the western United States she is most definitely able to take care of him. I completely agree that he shouldn't be running around all summer but between the 3 weeks with me (plus I work 5 days on, 4 off so he's with me the 4 off during summer months), vacation with her and two weeks of camp there shouldn't be a need for any further "child care". I just wasn't sure if there was something I was missing. Thanks again for all the information!! This board is a great resource. Wish I had found it before I replied to her lawyer the first time.
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Old 08-06-2013, 12:03 PM
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Originally Posted by stripes View Post
What I have learned from experience (with thanks to the people on this board) is not to give an inch on anything, or the ex will try to take a mile.
You are right that is definitely what she is like. Some days it feels like this is never going to be over and every year we are going to have to pay lawyers bills because she's not happy. She works for the Government of Canada at CRA funny enough and she definitely makes good money even on disability. She just was on EI sick leave for 4 months and no money for 3 which is why her income will be so much lower this year. The $65 swimming lesson isn't going to break her - she was in Mexico for a week at the end of March is is currently on a 10 day road trip with her BF and our son in Arizona and Nevada. They are also buying a house and she just bought a new car. The financial destitution is nowhere to be found except on paper.
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Old 08-06-2013, 01:10 PM
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I guess I was confused about the spousal because her lawyer told me to check on that calculator website to verify my obligation for support - my understanding was that was an accurate calculation I didn't realize that it wasn't. .
There are three things have to be decided with spousal support:
  1. Entitlement
  2. Amount
  3. Duration
The support calculator does NOT determine entitlement, and it would be impossible to create software that could determine it in a practical way without having 5 pages of survey questions to answer.

The calculator does a reasonable job of determining amount.

The calculator does a medium job of determining duration. In your case it CANNOT determine duration because the support would be based on illness, not length of marriage.

HER lawyer told you to check the calculator because he knew it would say you owed support. Don't EVER take legal advice from your ex's lawyer.

A judge would be very careful about awarding support or any amount of arrears when you have a split custody situation, because the judge would not want to put either child in financial hardship.

If your ex is making a hardship claim, then total family income is considered. That includes her boyfriend's 200k income. It also looks at the total family budget. You have other children in your household for example. You would do well to make a comprehensive budget and show what the effect of paying additional support would have on your family. Show what you Net Disposable Income is after taxes and all fixed costs - mortgage, insurance, food, transportation, etc. The courts should consider your NDI compared to your ex's household and should not put you in a worse position.

You have a good case, but you have to put it together. A judge won't do the math for you, certainly not collect the numbers for you. You have to present the numbers in a clear, complete way.
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Old 08-06-2013, 05:12 PM
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Why on earth do offer to pay up to $300 per year if you think something isn't section 7? This is where your problem comes from.

.....

When you do things like offer to pay for 50% of camp, or 50% of the bike, YOU are making these things a section 7 expense. Stop doing that. If you offer to pay half of anything, she is justified in treating as a section 7. If you want to argue that something should be paid for out of child support, stop offering to pay for it.
I'm still in the pre-trial stage... everywhere possible she has "sole custody" written down. They are living with her in a big house a block away..

I am in daily contact and very active in their lives (coaching their sports, going out lots, etc).

This year S17 called me up and said she won't pay for hockey (he's been playing forever... lives for it in the winter). I help coach and attend every game and drive to practice (nice one-on-one time with him).

What can I (or anyone) do??? How can I (or anyone) avoid caving without setting a "precedent"???

Putting kids in the middle like this is just ... aaaarrrgggghhh.
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