Review of Spousal Support - HELP!

[seekinganswers]

Our quandry - all help and opinions are requested!

I have been visiting this site for months, and know there is a wealth of experience and expertise here, and we very much require both.

My partner pays spousal support to his ex-spouse, based on a settlement negotiated 'during' their settlement conference (i.e. with much assistance from the judge)

The agreement was reached in May of 2006 - we have just been told she is expecting a new baby in January of 2007. The father of that baby is planning to move into her home in the near future. One of the conditions that triggers a review of spousal support is that she live with another person for a period of 120 days.

My partner simply cannot afford to pay a lawyer out of the remainder of his income, legal bills to reach settlement were over 20,000 (she obtained legal aid for the settlement negotiations) - because there is no out of pocket expense to her, she has refused to be reasonable, and has forced many delays. We will therefore be self-represented for the review.

We have searched previous cases, and believe he has a case for a reduction or cessation of spousal support on many fronts.

1) In the time period since seperation she has made NO attempts to become self-sufficient (this is written into the agreement)
2) Now with being pregnant, she is unlikely to obtain full-time employment within the next 2 years.
3) She is in a relationship of some permanance with her new boyfriend (over a year, expecting a child), making him now 'obligated' to support her.
4) She has grossly exaggerated her expenses in order to appear to have greater needs.
5) We have custody of the children 46% of the time.
6) Spousal support was to terminate immediately if she reached a specified income threshold, and her boyfriend earns well over that threshold, effectively raising her household income past the agreed upon 'saturation point'.
7) With just her child support and part-time income (currently works 1 day a week) her expenses are easily met, save the gross exaggerations - i.e. hundreds of dollars a month for extra-curricular activites for the children, when they participate in NONE!!
8) Both children are in school at least part-time now - which was not the case previously.

Here are the questions we have currently:

• Is it best to mention all/most of the above points when presenting the request for reduction/elimination of support?
• Is it wise or worthwhile to bring up the fact that she was indeed already expecting, and likely planning to co-habitate with someone else when she signed the agreement, essentially lying by omission?
• And last, of course, based on your experiences and readings, what are the odds of reducing or eliminating support in this type of situation?

Also wondering if anyone knows for sure what process we will have to follow? i.e. do we just file a motion - requesting review? If so, can we present her/her counsel with an offer to reduce rather than terminate prior to doing so? If we can present such an offer, can we make it part of our proceedings if we have to file a motion?

Some other key factors:
She was always employed at least part-time, except for the last year of a 7 year common law relationship.
She is under 30 years of age, and in good health.
During the relationship, he paid tuition/childcare/expenses for her to become trained in a fairly lucrative field, however, she failed the certification exam and has not re-taken it (to our knowledge).
We have offered, and continue to offer to have the children more of the time, or on a different schedule to allow her more flexibilty to work/attend school, she refuses to do either.


Sorry for all the questions ... this is all so complicated ... and thanks in advance for any help you can provide!

[logicalvelocity]

seekinganswers,

welcome to the forum

The agreement was reached in May of 2006 - we have just been told she is expecting a new baby in January of 2007. The father of that baby is planning to move into her home in the near future. One of the conditions that triggers a review of spousal support is that she live with another person for a period of 120 days.

so it appears on the face of it that the former spouse is about to begin a common law relationship.

My partner simply cannot afford to pay a lawyer out of the remainder of his income, legal bills to reach settlement were over 20,000 (she obtained legal aid for the settlement negotiations) - because there is no out of pocket expense to her, she has refused to be reasonable, and has forced many delays. We will therefore be self-represented for the review.

Yes, your partner can represent himself. All the forms can be found here.

http://www.ontariocourtforms.on.ca/e...mily/index.jsp

The forms are in pdf and ms word format. If you don't have ms word, you can get a free open source office suite to view and complete the forms at this link. Open Office is compatible with MS word docs.

http://download.openoffice.org/index.html

If the former spouse does live with this new person, depending on his income, the former spouse may NO longer qualify for legal aid as to qualify for same, legal aid factors in household income rather than an individuals income.

In the time period since separation she has made NO attempts to become self-sufficient (this is written into the agreement)

In the consent order does it define what steps are to be taken such as education upgrading or just secure employment. If the statement "self sufficient" is stated just as it is, it is open for discretion and opinion.

2) Now with being pregnant, she is unlikely to obtain full-time employment within the next 2 years.

It is a valid excuse not to work, However many mothers work up until the last week so they can enjoy their maternity and or parental leave when the child is born. Many mothers return to the workforce within 6 months of giving birth.

Under the terms of the law, if these two people are living together and the child is born, they are considered spouses for spousal support purposes.
With that said, see section 33(5) and 33(6) of the Family Law Act, to add a party to a spousal support claim.

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK32

Adding party

(5) In an application the court may, on a respondent’s motion, add as a party another person who may have an obligation to provide support to the same dependant. R.S.O. 1990, c. F.3, s. 33 (5).

Idem

(6) In an action in the Superior Court of Justice, the defendant may add as a third party another person who may have an obligation to provide support to the same dependant. R.S.O. 1990, c. F.3, s. 33 (6); 2006, c. 19, Sched. C, s. 1 (1).

She is in a relationship of some permanence with her new boyfriend (over a year, expecting a child), making him now 'obligated' to support her.

Until the child is born they have to live together continuously or three years to be considered spouses for spousal support purposes. Once the child is born and they are living together, they will be considered spouses but not before.

4) She has grossly exaggerated her expenses in order to appear to have greater needs.

You could always question here under rule 20 and ask her to bring receipts to backup her claims and expenses on her sworn financial statement.

5) We have custody of the children 46% of the time.

Child support should then be calculated by taking each parent's respective income cross referencing it against the child support tables and guidelines as if they were paying each other then subtract the difference to determine the offset amount of support.

6) Spousal support was to terminate immediately if she reached a specified income threshold, and her boyfriend earns well over that threshold, effectively raising her household income past the agreed upon 'saturation point'.

In the eye of the law, they are currently not considered spouses for spousal support purposes. The boyfriends income is irrelevant at this point in time unless they have lived continuously for three years or in a relationship of some permanence and have a child together. Permanence in defined as cohabiting together.

7) With just her child support and part-time income (currently works 1 day a week) her expenses are easily met, save the gross exaggerations - i.e. hundreds of dollars a month for extra-curricular activities for the children, when they participate in NONE!!

If they are no section 7 extra ordinary expenses, I am not sure why you are contributing to a non existent expense. Be sure to calculate the annual "harper" child care grant into her income ($1200 plus per child per year.) The child does not even have to be enrolled in daycare to receive same. This grant goes to the recipient of the CTB.

8) Both children are in school at least part-time now - which was not the case previously.

It would appear on the face of it that if she was capable to work one day a week, she could most likely work two or three.

Here are the questions we have currently:
Is it best to mention all/most of the above points when presenting the request for reduction/elimination of support?

Is it wise or worthwhile to bring up the fact that she was indeed already expecting, and likely planning to co-habitate with someone else when she signed the agreement, essentially lying by omission?

And last, of course, based on your experiences and readings, what are the odds of reducing or eliminating support in this type of situation?

If it was myself personally, I would wait till their child is born and they are living together. That would be the opportune time to vary the current consent spousal support order. You would have a material change on your hands. You could present those points to demonstrate the material change. The onus is on you to demonstrate the material change of circumstances. Every Judgment swings on the facts. I think once their child is born and are living together, the chances are good that you could eliminate or reduce the current consent spousal support. You do present a good point, knowing whether she was pregnant or not at the time of signing; you could request medical disclosure to validate the date it was confirmed by her physician that she was pregnant.

Also wondering if anyone knows for sure what process we will have to follow? i.e. do we just file a motion - requesting review? If so, can we present her/her counsel with an offer to reduce rather than terminate prior to doing so? If we can present such an offer, can we make it part of our proceedings if we have to file a motion?

You have to bring forth a motion to vary. Yes you could present her with a new offer, if she doesn't accept it and you are successful with your motion, the offer will come into the equation in regards to the award of costs especially if the offer is very close to what the court has held.

If we can present such an offer, can we make it part of our proceedings if we have to file a motion?

Generally offers to settle are to be kept from the record. However you could always file it as an exhibit to your partners affidavit to support the motion. The Judge may disregard it totally. The other party could move to have the paragraph or exhibit struck.

She was always employed at least part-time, except for the last year of a 7 year common law relationship.
She is under 30 years of age, and in good health.
During the relationship, he paid tuition/childcare/expenses for her to become trained in a fairly lucrative field, however, she failed the certification exam and has not re-taken it (to our knowledge).
We have offered, and continue to offer to have the children more of the time, or on a different schedule to allow her more flexibility to work/attend school, she refuses to do either.

Those are relevant factors but they are superseded by the fact that there are young children involved. You may want to request disclosure to verify why she has not retaken the certification exam. You could also verify with whomever is offering the exam a list of dates. This would useful. I suspect the courts will want to know why she hasn't rescheduled the exam.

We have offered, and continue to offer to have the children more of the time, or on a different schedule to allow her more flexibility to work/attend school, she refuses to do either.

If the boyfriend does move into the home of the children this could construe to be a material change of circumstance and perhaps you may want to have custody and access reviewed.

this is all so complicated

separate the issues and keep focused on same. Don't get side tracked or frustrated by the process. As I mentioned, if they are living together, and their child is born, legal aid will factor in his income to qualify for legal aid assistance. I suspect if they are footing the bill for their own lawyer, you will have a quicker settlement.

lv

[seekinganswers]

Thanks for all the information - it's excellent!

We realize we can't commence proceedings until we are sure her boyfriend has moved in, but we also know that is only a matter of time - based on comments from the children. (sad, but true)

Do you have any idea what kind of 'proof' we will require that he is living there - we expect her to strongly object to having spousal support terminated, and her previous affadavits have been incredibly 'creative', so we anticipate her covering up her new relationship to prolong the support ... we would like to be as prepared as possible, especially since we will self-represented.

Thanks again!

[logicalvelocity]

seekinganswers,

We realize we can't commence proceedings until we are sure her boyfriend has moved in, but we also know that is only a matter of time - based on comments from the children. (sad, but true)

I always say if you give someone enough rope they hang themselves. Have patience and wait until there child is born. If they are living together and their child is born, they are considered common-law spouses and as such the individual would have an onus under the law to support his common-law spouse.

One simple method to verify someone's address is to search their license plate number on-line at the Ministry of Transportation website. They charge a small fee and offer two versions, certified and non-certified. Under the law within 7 days I believe a person is to notify the ministry of a change of address for vehicles and licenses.

You could also hire a private investigator to watch the home for a week. The investigator perhaps could log the comings and goings of the individuals etc. A private investigator is bonded and can act as your witness if you feel they may mislead or hide this material fact that the individual is living in the home. You can't beat video tape and if taken by a bonded PI, it is highly credible evidence.

Once you absolutely know for sure, you could also request financial disclosure from the ex spouse. In this disclosure it should indicate whom is living in the home and if they are making a contribution to same. If you have previous evidence indicating same and the sworn financial information does not indicate this circumstance, I suspect the courts would definitely rule in your favour, as credibility is everything in family law.

lv