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

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  #11 (permalink)  
Old 12-13-2016, 06:07 PM
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Ok. There seems to be some confusion here. I apologize for that. Let me try to explain it.

There was no order for cs. I just paid it.

I was paying cs based on the amount she SHOULD have made in a year. This was calculated by averaging 4 pay stubs, that she had given me, over a year. In hindsight, from what I know now, this way of calculating was wrong. However, this is how I did it.

That gave me an amount. I looked up the tabled amount for me, the tabled amount for her and subtracted to get a number that I began paying her. I emailed her how I made the calculation and stated that if anything changed to let me know and I would adjust it. She said it was wrong. But it was a start and she could file a motion if she didn't agree right?

A year later, one of our children came to live with me full time. I reduced the cs slightly in order to account for the added expenses. I did not reduce it to what the tabled amounts would have had it reduced to. So at this point I thought I was over paying cs, but I figured it would be worked out later.

We went to a Settlement Conference where I disclosed my financials, she did not. The time at the Conference was spent on another issue. Not finances. (A little back story. She was arrested a few times for assault and for breach of recognizance. The latest judge ordered no contact with her children until a Family Court Judge could make a decision on that issue. So the Settlement Conference was used to deal with her getting access to the children back)

A couple of years go by. I have been asking for her financials, she says "you're not paying enough" I ask "what should I be paying?" No response. We have been to court I think 2 more times on a motion. I motioned for the OCL to be involved. She cross motions for support. We dealt with the OCL and left the support for my ex to return at a later date. She doesn't return the issue.

Last year we go to ANOTHER Settlement Conference. I disclose my financials. She does not. Instead of talking about the proper support. Our time is spent talking about where one of our children should go to school. Even though the OCL has made their opinion about it.

I moved to allow our child to choose the school they wish to attend. (our child is highschool age) It gets settled before being put in front of a judge. A couple of days later, she moves for support and arrears, and here I am.

Along with all this, she didn't contribute to S.7.

I have her financials now. I have the answers to MOST of the questions I had asked in the past, now that she submitted most the things I requested as evidence for her motion.

Did I make mistakes? Hell yeah. I should have disclosed my financials every year so that didn't come back on me. I should have made a motion to calculate the correct amount of child support. But so should have she.

I did not intentionally shirk my responsibility with cs. I was just uninformed as to the amount I should have been paying. And I voiced these concerns to my ex.

I like the term "blameworthy conduct". Could it be used on her for not disclosing her financials, allowing me to adjust the cs I was paying? I did ask her for her wages 5-6 times. Really, disclosing my financials would not have solved anything if she doesn't disclose hers and merely states. "you're not paying enough" without any indication to what "enough" would be.

I was reading and I understand, correct me if I am wrong, that 2 people can come up with their own cs payment arrangement as long as it does not grossly affect one of the parties.

Could I argue that she accepted the amount that I came up with for cs, by her inaction to correct it and her noncooperation with disclosing her financials?
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  #12 (permalink)  
Old 12-13-2016, 06:29 PM
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Interesting. Yes "blameworthy conduct" does indeed go either way.

What I find most interesting is that you were in court (presumably in Ontario) many times and court people/clerks never objected to any proceedings with absence of financial statements. You both have filed motions and did not do the prerequisite providing of financials.

Of course you have proof that you repeatedly requested financials (including filing the appropriate court forms)?
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Old 12-13-2016, 07:44 PM
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Failing to disclose financials is not considered blame worthy.

In your circumstances I believe the furthest they can retro is 3 years.
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Old 12-13-2016, 09:06 PM
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This is a good case (along with references) to look at with regards to blameworthy conduct:

http://www.canlii.org/en/ab/abqb/doc...&resultIndex=1


The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

(Emphasis added.)


I encourage you to read the whole thing....

Perhaps this is a case of "mutual blameworthy behavior" ?

Last edited by arabian; 12-13-2016 at 09:12 PM.
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Old 12-14-2016, 12:10 AM
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Dude, just pay the correct amount of child support going forward, as well as the arrears based on the information you now have about her income. You now have her financial information and she has yours. There is no point in haggling over who is "blameworthier", unless you want to make your lawyers rich. She should have given you her financial information. You should have given her yours, and you shouldn't have invented your own system for calculating child support. You are BOTH responsible for ensuring that your children receive appropriate financial support from both parents. You both screwed up. Make it right and don't waste more time arguing about whose fault it is.
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Old 12-14-2016, 02:56 AM
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Well I will start by saying that so far, the children have been taken care of. They have been well fed, well clothed, play sports etc. They have not suffered at either parent's house.

I will be sending an offer but I need more information. It is complicated. She went from making close to her normal wage, to making only a third of her normal wage to making a third more than her normal range, to not working at all for 8 months. I need to find a fair middle ground.

I am not haggling over who is more blameworthy. I am haggling over money. I would like to maintain some sort of a lifestyle. I drive a 13 year old car, I'd like to get something more reliable. Had I been privy to the information I needed. I would not be in cs arrears, and at this point in time I am not in a very good position to pay arrears, let alone the ss and arrears that she is asking for. She just won the lottery.

I didn't invent my own system of cs, I used the current tables. All I did was try to estimate what she was making, with what little information I was given.

I have some questions:
Are non-taxable accident benefits included as income? What was received was called care taker benefits.

Are accident insurance settlements considered for calculating cs?

Can I ask for the ex's mortgage application? This would tell the court what she told the bank she was making. I don't imagine a bank is going to give a mortgage to someone who can't afford the monthly payments, even if there was a 50% down payment.

How do I get the supporting documentation for the insurance settlement? What am I asking for?

I'd like to thank you guys for your input and help so far. I am getting some good ideas for arguments and for offers.

Any other ideas would be appreciated. Any other case law that you know of, similar to my situation would also be appreciated. I am still searching through case law but it is a slow process and I am a slow reader.
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  #17 (permalink)  
Old 12-14-2016, 07:58 AM
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There was someone on this forum a few years ago who was in a somewhat similar situation. The situation differed in that the payor was receiving ongoing disability payments from insurance company as well as was waiting for an insurance settlement. I do recall the person had to get financial disclosure from insurance company and it wasn't easy. The case law varied over what was and wasn't deemed to be income replacement. I recall that the injured party received caretaker benefits but could not prove that he hired anyone to take care of him. You might find some information by searching this forum and you could find out who the poster was and try to send a private message.
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  #18 (permalink)  
Old 12-14-2016, 09:21 AM
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Thank you arabian. I will look for that.
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Old 12-14-2016, 10:20 AM
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check out posts by GoDiegoGo - this is the poster (disabled). He had to defend his accident disability income. At the same time that he was posting there was a woman who was investigating her ex (perhaps his ex?) - she was able to obtain insurance company information as well as banking documents.
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Old 12-14-2016, 10:21 AM
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Maybe I missed it, but do you have shared custody?

If you do not have the kids at least 40% of the time, then her financials are irrelevant when it comes to determining the proper amount of CS.

So...

Kids with you less than 40%: You were blameworthy, you didn't have the right to get her financials, get ready to pay
Kids with you at least 40%: Unlikely to have any retro at all if you can prove you asked to exchange financials.

And yeah, as others have said, you don't get to make up deductions for CS, especially if you are the non-primary parent. You just pay.
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