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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 04-05-2010, 02:35 PM
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Default Reinstating Child Support

First of all I am new to the Forum...so a big hello to everyone!

A little background...

I have three children aged 15, 17, and 19, and have been separated since 2005. My eldest child has lived with me fulltime since our separation. My younger two spend alternating weeks with me and my ex. Based on our court order, I paid child support using the "table-offset" method which consists of me paying the table amount for two children, then subtracting the amount derived by looking up her income for three children. This was the method we used until Sept 2008 when my oldest son (who was 17 at the time) dropped out of full-time high school and proceeded to work full time. As a result, the table offset method went to my income x 2 children, minus her income x 2 children. Net result was that I had to pay more child support.

And now for my question...

In February 2010, my 19 year old son returned to high school full time to upgrade his credits with hopes of attending University in 2011. As a result, I believe that my ex should have to begin paying child support again. In other words, I believe the child support calculation should go back to what is documented in our court order (my income x 2 children, subtract her income x 3 children). Unfortunately, my ex does not agree as she feels that the wording in the court order states "the earlier of the following", she should not have to pay child support for our eldest son. This is exact wording from the order:

8. Child support for each child shall terminate on the earlier of the following:
(a) the child no longer residing with the residential care parent ("living with" includes periods that the child is living away from home for education purposes or a brief vacation but otherwise maintaining a residence with that parent);
(b) the child turning 18 unless the child is unable to withdraw from parental support due to illness, disability, or education;
(c) the child becomes self-supporting;
(d) the child attains one post-secondary degree or diploma;
(e) the child turns age 23; or
(f) the child marries

From what I understand, the above is pretty standard stuff. However, my ex and I have a difference in opinion regarding my ex reinstaing support. I first brought the issue to her attention back in Dec. 2009. It is now over four months later and she does not seem to have any other opinion other than "she is still looking into the matter" and she will get back to me. In the meantime, she continues to cash my support cheques for the higher amount.

I am due to write her new cheques covering the period June 01 2010 to May 01 2011. Am I within my right to just lower the support amount (i.e: revert back to original court order table offset calculation?).

Many Thanks!!
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Old 04-05-2010, 02:49 PM
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She owes you for your eldest. Reduce the CS.
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Old 04-05-2010, 03:12 PM
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I agree, don't pay the higher amount because it will be next to impossible to get the arrears off of her.

If you want to be hard-core, send her an invoice for the arrears, indicate you will be deduction a portion monthly to pay those arrears.

Her only option is to go to court, and she will lose and pay your costs.

It would be nicer if you two could agree, but you are supporting the eldest, she should be "paying" support for him, and she is a dead beat. She is covering that up by receiving money for the other two, but that doesn't change the circumstance.
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Old 04-05-2010, 03:45 PM
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Thanks for the prompt replies!

I must admit that based on the limited research I have done on the topic, (including free legal consultation), my ex should once again be paying child support for my eldest, back to Feb 2010 when he resumed full time high school.

Mess - I wish we could agree too. She is at the point now where she is just not replying to my inquiries on the topic at all. I have even brought up the option of mediation, but once again no response. The way I see it, she is curently 3 months in arrears. I would like to avoid court, but may not have any other option. Legally, am I able to reduce her support until the arrears are cleared?

Thaks again!
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Old 04-05-2010, 04:06 PM
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Give her a full, written explanation in business-like wording, don't get personal or make any accusations. Explain the calculations and that you are acting according to your understanding of the order.

Then pay the amount you calcualate. You are acting in good faith according to your understanding of the order. Let her take the next step if any. She will lose anyway. But of course she doesn't want to agree.
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Old 04-05-2010, 05:43 PM
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Hi- I am going to take a different stance on the situation .. your son is 19 years old and was up to recently working full time. Since you and your ex agreed to go to an offset method for 2 children when he left high school both of you basically agreed that he was no longer a 'child of marriage'. He had been out of school for 18 months which means that your clause isn't as straight forward as you think. I assume you are refering to this clause to justify re-instating support.

b) the child turning 18 unless the child is unable to withdraw from parental support due to illness, disability, or education;

this applies if the child turns 18 and continues on in school without a break - your son is 'not a child of marriage' so therefore it becomes the parent requesting the support (you) to provide proof that your child requires support again. It would be the same if he went right to university , you can't just say that the other parent has to start paying again - you have to establish need once the child has lost their 'child of marriage status'.
Basically you want it to be calculated the other way again to reduce your child support payment to her for your other 2 children. That isn't establishing need, that's wanting a reduced support payment. Did your son live at home the last 18 months without receiving support ? Did he pay room and board to help out? I can't tell from your post. If your son has worked for 18 months it establishes him as independant of parental control even if he lives with you. If he was under 18 years old this would be a slam dunk but you can't just decide to reduce your payments.and it isn't legal to reduce your payments either. Also I disagree that she will lose anyways, all the children will be considered to re-establish support, it is not in the best interest of the other 2 children to reduce child support for them. She is abiding by the agreement - it doesn't state that if at anytime in the future one of the kids decides to go back to school as an adult that child support starts again. I'm not saying that you are wrong either but it isn't as simple as it seems

Case law clearly indicates that child support can be revived if child resumes full-time education after hiatus from studies, but the court must carefully review each fact in the situation and consider the time that child was out of school and why.

Sorry if this wasn't what you wanted to hear but I would ask a lawyer before reducing any support cheques.
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Old 04-05-2010, 05:48 PM
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Quote:
Originally Posted by lonelylemongirl View Post
...I would ask a lawyer before reducing any support cheques.
I wouldn't. Start reducing the support cheques. She owes you.
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Old 04-05-2010, 06:25 PM
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Quote:
Originally Posted by lonelylemongirl View Post
It would be the same if he went right to university , you can't just say that the other parent has to start paying again - you have to establish need once the child has lost their 'child of marriage status'.
This is bullshit, sorry.

CS does not depend on need, and he does not "have to establish need". CS is a right of the dependant child. All he would have to do is establish that the child is depandant, not self-supporting, and the right is automatic. All that would be left is the financial calculation.

Quote:
Basically you want it to be calculated the other way again to reduce your child support payment to her for your other 2 children. That isn't establishing need, that's wanting a reduced support payment..
No that isn't basicly what he wants. He is supporting the child on a full time basis and the other parent is required by law to pay child support for that child.

That the support was offset by the support going the other way for two other children doesn't change that. It's a convenience that the two amounts are offset. They could just as easily exchange cheques each month.

You are arguing that the mother should not have to pay child support for a dependant child living full time with the father. No court would support that.
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Old 04-05-2010, 06:58 PM
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Just to clarify, my son did live with me for the 17 months in which he was not enrolled FULL TIME in high school. He was however enrolled in an alternative learning center where he attended 1 full day per week. He then worked 25 to 30 hours per week and earned co-operative work credits towards his high-school dilpoma. During that time he did pay me $200 per month room and board. I continued during this time to pay for the majority of his personal expenses. The reason for dropping out of full time studies was due to challenges making it to school "reguarly" and on-time. He was diagnosed in 2008 with a Sleeping Disorder, and also battled depression. He is now a highly motivated young man wanting to resume studies (87% average so far this semester)
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Old 04-05-2010, 07:12 PM
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Your ex is hanging her hat on technical mumbo jumbo. The kids best interests are what matters, not her greedy interpretation of the language in your order.

You are owed. I wouldn't bother to negotiate about it with your ex. Inform her and start reducing the cheques NOW. Let her take you to court, and she will lose.

It was all I could not to open fire on those ridiculous arguments made by lonelylemongirl. One can't help but wonder about her motivation, guy.

Last edited by dadtotheend; 04-05-2010 at 07:17 PM.
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