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

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  #21 (permalink)  
Old 12-14-2016, 11:39 AM
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Shared custody. 50/50. 3 children.
Then a year after separation, shared custody 50/50. 2 children and 1 child full time with me. So split custody I guess.

I wasn't making up deductions lol. I was using the tabled amount with the information I had. If she doesn't give me her financial information, how can I recalculate the offset? I had to go by the old financial information I had. I actually thought that she would have been making MORE than what I had calculated but I still didn't have that information to calculate the correct amount.

When one of our children moved in with me permanently, I reduced the cs payments. Not as much as the tabled amount would have allowed me, so in effect, I was paying MORE than the tabled amount according to the only financial information I had.

I SHOULD have made a motion for cs, but I didn't. I am at fault in that aspect.

I guess my argument against arrears will be that she too SHOULD have brought forth a motion, or at least sent me her financial information. Even an end of the year pay stub would have worked. Also, it doesn't seem that she suffered, or struggled with the lack of support.

Will that argument have any teeth? Is there anything else I should be bringing up or looking for?
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  #22 (permalink)  
Old 12-14-2016, 11:47 AM
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When did she first ask you for arrears (not a court motion, just an email saying "You should pay more CS")? That date starts the clock as to when arrears MIGHT (not "will") be payable. Do you have proof that you repeatedly asked her for specific income information and she refused to provide it (again, a written record like email, not a verbal conversation)? If so, that will help you because it will show that she didn't take the steps to enable you to pay the correct amount. The fact that you now think she should have sent you the information won't help, unless you can show that you repeatedly asked her for the information and she refused to provide it at the time.

Whether or not it looks like she "struggled" is irrelevant here. CS is not need-based (or apparent-need-based).
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  #23 (permalink)  
Old 12-14-2016, 12:01 PM
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Something I should add.

There are court orders.

There is an order for OCL involvement.

There is an order for custody and access schedule. (Shared 50/50)

There is an order for exchanging of the children (to avoid conflict and follow undertaking)

There is an order for when each parent can attend a sport (this is a high conflict separation. I am happy to say that it is much better now)

There is an order for communicating through a third party, and who the third party will be.

There is an order for written notification of taking the children out of the county (not a spelling mistake. I do mean county, not country. So we have to give written notification if we take the kids to the beach. Her request)

There is an order for for not removing children from the province with out written consent. (pretty standard I imagine)

There is an order that I attend the ex's home between a certain time period, to open a storage door on a travel trailer and return the keys to a specified location. (her request)

All orders were on consent.

The one request NOT made and not ordered is cs and ss. If my ex felt that I was underpaying cs and should be paying ss, the opportunities were there to bring it up. Instead an order to open a storage compartment took precedence.

On some of these motions however, the issues of cs and ss were listed. I don't know why it was not brought up before the storage compartment. (her motion, I guess she gets to decide what she wants to argue) In one motion, the issue of cs and ss was adjourned, and for my ex to give 2 weeks notice before proceeding with the motion. (that was a couple of years ago)
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  #24 (permalink)  
Old 12-14-2016, 12:06 PM
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I have every email sent between us.

Yes there are a number of emails of me asking, and an email making an offer. I have an email or a text of her stating that her lawyer advised her NOT to disclose her financial information.

I read somewhere that when determining whether or not cs arrears will be granted, the past financial struggles of the recipient will be considered. As well as whether ANY cs was paid. I am sorry, I cannot recall where I read that. If it was case law, I hope I can find it again.
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  #25 (permalink)  
Old 12-14-2016, 02:06 PM
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Do you have emails that go like this:

Mom: You should be paying more CS.
Dad: Okay, please send me your income information so that I can calculate the correct amount, and by the way here is my income information.
Mom: No, I won't give you my income information.

Or like this:

Mom: You should be paying more CS.
Dad: Okay, please send me your income information so that I can calculate the correct amount, and by the way here is my income information.
Mom:----
Dad: Just wanted to remind you about exchanging income information.
Mom:----
Dad: Following up on our last conversation, could you send me your income information?
Mom: -----
Etc

This is what you need. If you don't have a document trail like this, a judge will assume you are as much at fault as Mom, if not more, for underpaying CS.

As far as "past financial struggles" of the recipient, I don't believe that's relevant at all. Many CS recipients have high standards of living than the payors. My ex (we have 50/50) married a woman with lots of family money, bought a new house and a new Mercedes convertible (signature car of the midlife crisis man) while I drive a 14-year old compact car and live in a small condo. But I am the net payor because I earn more than he does. Your ex could be living in Casa Loma with Wayne Gretzky and you would still be on the hook for child support.

The only situations I'm aware of where no CS was paid are when the payor successfully made a claim for "undue hardship" - that paying CS would be so financially burdensome that s/he would be unable to maintain the necessities of life. That doesn't sound like your situation. Sometimes CS is reduced if there are significant travel costs for the paying parent to have access to the children.

In a 50/50 situation with offset, it is in theory possible to pay an amount different from the table guidelines (Contino v Contino, also section 9 of the FCSG), but the starting point is the table - in other words, you have to have a really good reason why the table amounts wouldn't apply. Simply the facts that your ex has more money than you do, and that you never had a consent order about CS and SS is not good enough.

Janus knows about varying offset payments and may be able to assist.
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  #26 (permalink)  
Old 12-14-2016, 09:48 PM
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I wouldn't willingly pay child support in a 50/50 situation.

I consider it to be fraudulent in that it permanently advantages the poorer parent. While the kids just lose from one household and gain in the other (i.e: net-zero at best).

I just pay it because there is no effective forum to oppose it.
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  #27 (permalink)  
Old 12-15-2016, 11:10 PM
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No stripes, I wasn't that pushy but I did leave it at "let me know if your wage changes so I can pay the proper support" or something to that effect.

The financial hardship I read about had to do with paying arrears, not for paying cs going forward. I will have to look for it.
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  #28 (permalink)  
Old 12-16-2016, 09:19 AM
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I believe you will find information you are seeking, along with reference to relevant case law, in this case:

http://www.canlii.org/en/on/onsc/doc...resultIndex=14
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  #29 (permalink)  
Old 12-20-2016, 12:11 AM
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EXCELLENT arabian!!!

That helps!

An update. The ex has agreed to attend mediation. We go in a couple of days. That case law will help me negotiate. It has more than the arrears. It speaks to the return to school, the inability to get a job in the same field even with over 20 years of experience, an imputed amount.

I just need some more case law that relates to accident settlements. I'm such a slow reader.

Thanks again.
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  #30 (permalink)  
Old 12-23-2016, 01:36 AM
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Hi guys,

While looking through case law about tort settlements, I came across this one that deals with cs and ss arrears, as well. The arrears part of the case starts down around paragraph 107.
http://canlii.ca/t/gvjbz

What great wealth of information, and promising for me. I think I have the evidence needed to prove all the points in question when the court contemplates arrears.

Also after looking at my court record table of contents. I filed a financial statement in 2012 and 2013, I emailed my ex what my wage was in 2014. I missed 2015, but then again in 2016 I filed another financial statement. Good news I think, unless a judge focuses on the one year that I didn't disclose my income.

An update on mediation:We went and it was going smooth, we ran out of time when calculating arrears and we didn't get to ongoing support. We have to reconvene in the new year. I just hope the ex will still go again in the new year. I should have done this years ago.
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