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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 12-09-2016, 04:12 PM
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Unhappy Spousal Support Entitlement

Hello,

Thanks in advance for your help.

I have been reading and searching the forums about entitlement, forgive me if I missed a thread that would have answered my question.

From this forum, I was directed to a CanLII case in which a judge states that the fact of marriage alone does not automatically create an obligation for spousal support. This is a case with no children and a 13 month marraige.

My lawyer is telling me that my ex is entitled because we were married. Today at a mediation intake meeting, again, I was told that my ex was entitled because we were married.

Does length of marriage (12 years) change entitlement. Do children (3) change entitlement? There should be no compensatory claims. If anyone gave anything up to raise the family it was me. (I am the larger income earner). I was the primary caregiver though she claims she was. "he said/she said" as my lawyer states. My mothers affidavit testimony confirming my claim will not be looked at my lawyer states. (she is my mother after all, she is biased).

It gets better. I would take you through the whole timeline but it was 5 years of turmoil and would take too much to write here and too much to read. However, it gets better. (or more complicated).

After going through emails and texts, I created a timeline in regards to child and spousal support. In the past 5 years I have asked for her income disclosure at least 6 times, so that I could adjust child support to the proper amount. She worked full time previously but then after a car accident, she was laid off and worked casual. I have asked to go to mediation a number of times, as well as sent her an email offer (probably won't be seen as a legal offer I know) I began paying child support based on 4 paystubs that were provided to me. After some time I reduced it slightly because she was not contributing to the children's sporting activities and one of our children came to live with me full time. After a couple of years, I sent her an offer over email and put her income at what she made prior to her accident. She didn't correct it. I also have an email from her talking about our s.7 split which lead me to believe that she was making her pre-accident wage.

A few months ago I was served for child support and spousal support, as well as arrears. I finally got her financial disclosure for the past 5 years, and she was making less than I had her calculated at, some years; way less. One year she didn't even work, she just lived off her payout from her lay off.

Well I am freaking out. She is way underemployed but has a good story to go with it. "Lay off", went back to school, plenty of proof of applying to different jobs. Lay off is in quotations because she was laid off yet her old job still exists, it's just being performed by someone else. It's bad enough that the child support is a lot but now she wants spousal and arrears!!!

I'm looking for ideas, case law, experiences.

She did make a claim for spousal in the beginning. We were in court for another motion and the support, including arrears, was adjourned. She was suppose to make another motion with 2 weeks notice but never did. Can someone do that? Hide their income for 5 years, accept the support I am paying without challenging it in court. Only sending the odd email saying you're not paying the tabled amount (though she wouldn't tell me what I should be paying). Not move for spousal support or an adjustment in child support, and then drop the arrears bomb? I thought I was overpaying child support lol. Imagine that.


I did mention that I have a lawyer but I will be self representing soon, I have run out of money and my last bit of retainer went for this mediation I have booked soon. (Pray that we settle and I don't need my lawyer anymore). I'm posting now because I don't have faith that mediation is going to work, if she even goes to the intake. (she has skipped an intake in the past). She is going for the throat. She recently received a settlement of over $100,000 from her car accident. (does that have any impact on spousal support?) I shake my head when I see her driving a new SUV and buying a house and claiming she makes less than minimum wage in a year.

Any ideas would be appreciated. Sorry for the long post. No holds barred, I would like to go into this with a realistic expectation.

I am Aghast
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Old 12-09-2016, 05:29 PM
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Arbitration sucks. All it is IMO is fancy 4-way meetings designed to make lawyers wealthy.

Your ex did file for SS at start of things, however, her failure to raise the issue for many years along with failing to provide full financial disclosure is not good for her.

I would recommend doing some research on the basis of SS. 13 yrs would be considered a medium-term marriage (certainly not long-term). How old is your ex? Do you have details on the insurance payout she received and supporting documentation? That might be really quite revealing as she probably had to really beef-up her earning income potential (I'd definitely request that documentation... success in receiving that may very well kill her position).

Keep posting and provide as much info as possible.
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Old 12-09-2016, 07:37 PM
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Thank you Arabian

Well my fear has been realized. She informed me that she is not going to go to her intake.

When you say research ss, are you talking about CanLII?

My ex is 44. She was 39 at the time of separation.

All I have in regards to he insurance settlement is a letter from her injury lawyer. It is titled TRUST STATEMENT. It has a Disbursement column with just her payout and a Receipts column which has 2 amounts that amount to a quarter of a million. That was her award, minus the lawyer's fee. Do you know what document I would be asking for, and should I be using a Form 20 to request it?

Thank you

I am Aghast
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Old 12-10-2016, 12:27 AM
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First of all......
1. The family court system is not dad/father/man friendly.
2. Lawyers are so jaded by the system that they automatically think the man should roll over and die.

Secondly
1. Her need or her interest in spousal support was non-existent at the breakdown. You look for caselaw to show that a parent that doesn't file for spousal support within that many years disentitles themselves in that they prove they don't want/need it. You argue that she made no sacrifice for the marriage as she worked full-time for almost all the marriage and by not pursuing she implicitly agree she had no case.

2. Her interest in SS now - after getting into an accident and/or because of an accident is unnacceptable. SS is for things that happened due to the marriage.

3. "I see her driving a new SUV and buying a house and claiming she makes less than minimum wage in a year." In trial you point to this to prove she doesn't need SS.

4. Her payout also will reduce the "pity factor"

You can litigate this as a SRL and win. You need to do your homework and in this scenario since you aren't paying anything right now, drag it out as much as possible (as an SRL). However, I want you to feel comfortable in trial. With the help you get here, you can get the best possible outcome.

For CS, yuo have the legal obligation to update financials, but you can argue that if she doesn't update her financials she is agreeing not to update CS amounts but even still she can probably go back a maximum of 3 years unless you engaged in reprehensible behaviour. CS is "public order" which means the judge will order it even if the parents agree or not.

Start searching canlii.org, read the SSAG too.

Last edited by Links17; 12-10-2016 at 12:30 AM.
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Old 12-11-2016, 09:21 PM
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In your first post, you mention she received a settlement "over 100,000". In your second post, you say she got a settlement of 250,000. I know some of these injury lawyers take nothing upfront and then usually grab 30% of any settlement. However 70% of 250,000 is 175,000. Can you clarify for us how much she actually received? How did the accident impact her work status? You say she is underemployed which could be true. Is she on any type of disability payments? CPP or company payments? You need to find out the exact amount she received from her settlement and whether she is receiving any disability payments ongoing. They may be non taxable and in that case you wouldn't see them on her tax return. Is she receiving the disability tax credit?
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Old 12-13-2016, 12:27 AM
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Hi Desperate_Dad

She received 167,000. That was 250,000 minus the lawyer's fees.

How the accident affected her work status is complicated. She was cut off of disability payments from her work insurance company for non-compliance. When she went back to work she was laid off. (though her job still exists-explain that one) She continued to work in a casual role in a different department. Close to full time but not paid for time taken off ie. sick time and vacation. Then she was laid off again and not given a role in any department. She took a few months off of working and lived off of her lay off package, then went to school. Graduated and is now part time at a new company, basically doing the same role that she did before. Not what she went to school for.

I don't see any disability tax credit on her T4 or assessments that I was given.
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Old 12-13-2016, 12:53 AM
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Ok so they swiped 30% plus disbursements. 167,000 seems about right.

Does she need spousal support? NO she doesn't.

The disability tax credit is a non refundable tax credit. It doesn't appear on a T4. There are huge benefits to getting the disability tax credit but based on your description, she doesn't get it.

You need to fight her spousal support claim all the way to trial if need be.
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Old 12-13-2016, 01:39 AM
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ok. Thank you

Now for some more. I am doing this in bits to keep it as uncomplicated as possible, because it is very complicated.

So she is looking for cs arrears as well. I went through the numbers over the past 5 years and I am in arrears between $2,000 and $11,000.

Why the large range? I calculated the amounts based simply on her line 150 and that brought me to the arrears of $11,000. Then I made some adjustments, which admittedly, I don't know if they will be considered in court.

I added insurance benefit payments which are non taxable and not claimed on her t4. She had to chose from receiving 80% of her wage or a fixed care giver amount. She chose the fixed caregiver amount because she already got 80% from her work. We didn't use the caregiver amount for caregiving. When added together, she was making more money than being at work full time. Is this type of benefit considered income?

In another year, I added an amount of 8 months at minimum wage. I did this because before she went back to school, she did nothing for 8 months, she did not make 1 dime. She lived off her lay off payout and I suspect some work under the table. (One of my children told me she was working at a restaurant. I didn't ask which one. I should have but I didn't want to interrogate my child, this information was given up freely. Also I have an image of a text ,of my ex telling my child that she was with her boss.). Would the court impute a modest amount since she was intentionally unemployed?

@Links17 I have a legal obligation to update my financials, which I did not. Of course she does as well, which she did not, even after being asked to, so I could pay the proper amount of cs. My argument will be that she frustrated my ability to pay the proper amount. Is this a reasonable argument? Can it be argued that I shouldn't have to pay arrears because she would not give me her income which I needed to adjust cs? Keeping in mind that I didn't adjust it even though my wage increased, however I thought I was overpaying as it was. And I would have been if she was making what I thought she was. Also, she didn't suffer by not being paid the proper amount. She still rented a house which cost more than my rental and she drove an SUV. I understand that cs is the right of the child , but the children didn't suffer. I wasn't going on trips and buying sports cars, the money still went to the children.
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Old 12-13-2016, 09:20 AM
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It is unlikely that the court will impute an income to her.

You and your ex were legally required to exchange financials every year. I am quite surprised that your ex has not registered with FRO (or has she?).

Yes you should indeed be freaking out. From what I can see this mess (child support arrears) is all of your own doing and chock full of blameworthy conduct on your part (did you increase CS every time your income increased?). You seem to have a fair amount of information about her accident income yet you failed to receive or provide financials every year?

Have you provided your ex full financial information for past 5 years?

There is nothing complicated about this matter.

You are trying to deflect is all. You have child support arrears and you want to detract from that by throwing up smoke bombs about your ex's claim for spousal support. The two matters will be decided separately. You know that.

Oh and another thing - at one point you unilaterally reduced child support because you felt like it.

Last edited by arabian; 12-13-2016 at 09:29 AM.
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Old 12-13-2016, 12:08 PM
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There are two issues here:

1. Child support: From what I can tell, you decided to pay less than you should because you didn't think she was contributing to school activities. You also didn't give her your updated financial information even though you evidently had her T4s. Bad moves. This is what the courts call "blameworthy conduct" - in other words, her claim for retroactive CS is strong because you did things you shouldn't have done (and didn't do things you should have done).

2. Spousal support: I have no idea what to do about this one. Driving SUVs, working under the table, car accidents and "going for the throat" are all irrelevant. I suggest you make an arrangement to pay the child support you should have been paying since the date you "adjusted" it, and then deal with SS separately. You can't trade one off against the other.
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