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Old 05-20-2013, 04:47 PM
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Default First Post - My Story

Hello All,

Long time lurker, first time poster...

This is the short version of my long story. Questions are welcome.

Married 2002
Separated 2010
3 offspring
High conflict, 3 years and counting court process. Separation agreement negotiated loosely around Minutes of Settlement Conference in 2012.
Spousal Support awarded and to be reviewed 2014.
Ex has imputed income at minimum wage.
Shared custody of 2 younger children, oldest lives with me full time.
Offset child support and S.7 as per Divorcemate.

I am the higher wage earner now but I suspect that will change once my ex finishes her masters degree. She worked until the children were born then refused to return to work.

Edit - very long rant here deleted lol

In 2010 she moves out and takes the 2 young children. The oldest refuses to go with her. I file my application asking for shared custody. She fights me tooth and nail.

As the kids begin full day kindergarden my ex also goes back to school to complete her degree. I voluntarily pay child and spousal support. After 9 months she gets her degree. She has more education now than she ever had while we were together. For the majority of our relationship she was employed full time as an admin. However, she does not return to work. I continue to pay support voluntarily.

For the second year of our separation she does not work or attend school. As our court case is in progress and full of lengthy delays she is not required to do anything. I suspect she used this time to study Family Law. She figured out how to take advantage of the system in order to extend SS.

So, just as the SC Justice is telling her to get a job, she declares that she is returning to university to get a masters degree. To the anger of the SC Justice, my ex uses Divorcemate's minimum length of SS time to circumvent the law that requires one to be self sufficient and support ones children in a reasonable time. This is a glaring error in the law at present.

Thankfully,the Justice imputes a minimum wage on my ex (should have been a wage equivalent to her degree but oh well, better than nothing I guess).

I wish my ex the best of luck at school as it would truly be in the best interests of our children.

Child and Spousal Support was set using Divorcemate. My ex also asked that she claim all the government benefits for the kids. She does not work so she gets $800 a month. That is more than if we split the benefits due to my income so I agreed.

Unfortunately no one entered this into the Divorcemate calculation. I realized this mistake about a year later. The difference is me over paying $500 a month. My lawyer wrote a letter detailing the mistake and asked my ex to consent to change SS. My ex refused saying that the support amount was negotiated as an integral part of the separation agreement package. She said that if she had know the Divorcemate calculation was wrong she would not have agreed to the imputed income. I understand her point. At the same time, I wouldn't have accepted the amount if I had know.

So, here we go. Back to court on a motion to change as suggested by my lawyer. I don't have any money left to pay my lawyer (to fix her own mistake) so now I am self rep.

The case conference Justice said the situation seemed unfair for me but I would still have to prove my case and my old lawyer would have to be present for questioning. The Justice also said that proceeding would be opening a can of worms but set a SC date anyway.

I asked for disclosure of my ex's attendance and grades from university as it is a condition of spousal support. Her lawyer objected due to "privacy". The Justice said that her affidavit referencing her attendance was good enough. The Justice was surprised that the agreement did not stipulate full or part time enrollment. I asked the Justice why evidence of any kind and proof of success or failure was not required. The Justice appeared annoyed with me and said that I wasn't getting it. I was stunned.

I am now struggling to prepare for the Settlement Conference on my own. Also, I want to be prepared if necessary, for a pre-trial conference and trial.

Meanwhile, I am thinking about bringing a motion for disclosure on the university attendance / grades to try my luck with another Justice. I would appreciate everyones opinions about that.

I am also looking for a copy of "Surviving your Divorce" 2011. Please PM me if you can help me get a copy.

That's it for now. I will update this post as things progress,

Atlas
  #2 (permalink)  
Old 05-20-2013, 05:46 PM
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Quote:
Originally Posted by Atlas View Post
For the second year of our separation she does not work or attend school. As our court case is in progress and full of lengthy delays she is not required to do anything. I suspect she used this time to study Family Law. She figured out how to take advantage of the system in order to extend SS.
You have a short marriage. She should get spousal for .5 years for each year, 4 years max, UNLESS she can provide factual, logical reasons why it should be more. The children are in school, she is free to work part time.

Your statement "take advantage of the system" is emotional reasoning. Exactly what is it in the system that you feel she exploited to get spousal support extended? You haven't been to trial and you don't seem to be subject to an interim motion hearing order. If your current order is the result of a settlement conference the it is an order on CONSENT, your consent.

If you feel she played the system, tell us how. We would all benefit from it, and we might be able to tell you how to address it.

Quote:
So, just as the SC Justice is telling her to get a job, she declares that she is returning to university to get a masters degree. To the anger of the SC Justice, my ex uses Divorcemate's minimum length of SS time to circumvent the law that requires one to be self sufficient and support ones children in a reasonable time. This is a glaring error in the law at present.
She is not a slave to the courts or to you. She cannot be forced to do, or not do, anything. That is why it is called a free country. What happens is that she is imputed an income, which is the result you got. You too are free to go to school, or just quit your job and shoot pool. You too would be imputed an income. That is how it works, it is not a "glaring error."

Quote:
Thankfully,the Justice imputes a minimum wage on my ex (should have been a wage equivalent to her degree but oh well, better than nothing I guess).
The settlement conference could only result in an order on consent. If you want a different order you will have to go to trial. At a motion order a judge will usually not want to impute a wage because the evidence cannot be fully examined, witnesses called, etc.

Quote:
I wish my ex the best of luck at school as it would truly be in the best interests of our children.
That is a good attitude. You still come across as bitter that she is exploiting the system. If you had not settled and gone to trial you would have likely gotten her imputed a higher wage.

You say that you have one child full-time, is this still the case? She should be paying full support at her imputed wage for that child. This should be set off from the shared amount for the other two. She should not be receiving CCTB for the eldest, who is with you full time. You should be claiming the eligable dependant deduction for that child at least.

Quote:
Child and Spousal Support was set using Divorcemate. My ex also asked that she claim all the government benefits for the kids. She does not work so she gets $800 a month. That is more than if we split the benefits due to my income so I agreed.
That is against the regulations of the CRA. You are getting away with it because you are both agreeing to keep your mouth shut. I agree that it is in the best interest of the children, if your ex paying a full share of their expenses.

Quote:
Unfortunately no one entered this into the Divorcemate calculation. I realized this mistake about a year later. The difference is me over paying $500 a month. My lawyer wrote a letter detailing the mistake and asked my ex to consent to change SS. My ex refused saying that the support amount was negotiated as an integral part of the separation agreement package. She said that if she had know the Divorcemate calculation was wrong she would not have agreed to the imputed income. I understand her point. At the same time, I wouldn't have accepted the amount if I had know.
Divorcemate is not "the law", it is not a valid legal argument for anything. It is a spreadsheet program used for convenience. With shared custody your child support amount should be based on after tax discretionary income after expenses including full financial disclosure and a detailed budget. There is no "formula" for child support in a shared custody situation, but often the setoff as calculated in Divorcemate forms the basis for an out of court settlement. That is what you have.

Adding in the child tax benefit doesn't automatically mean $500 in your pocket. A trial judge would look at your comparitive budgets. You have an out of court settlement, she has sufficient income to take care of the kids, the will be better off - even as adults - if she has a higher paying career.

Quote:
So, here we go. Back to court on a motion to change as suggested by my lawyer. I don't have any money left to pay my lawyer (to fix her own mistake) so now I am self rep.
You are unlikely to get a much different result because the motion hearing is not a full trial and the evidence will not be fully cross examined. The judge will read your affidavit and then hers. She is already imputed an income. Unless you can show that your budget is drastically affected I think it is doubtful that you will get much of a result.

How long is the duration of spousal support? You should be halfway through by now. Will changing things now result in a net difference when you calculate legal costs?

You can still leverage the CCTB. You can state that if she isn't going to adjust SS, then you will contact the CRA regarding the shared custody. You should keep in mind about this that you should be using the eligable dependant deduction for your children, but you can't if she is receiving the full CCTB, as she must be seen by CRA as the primary physical custody parent.

Quote:
The case conference Justice said the situation seemed unfair for me but I would still have to prove my case and my old lawyer would have to be present for questioning. The Justice also said that proceeding would be opening a can of worms but set a SC date anyway.
All true.

Quote:
I asked for disclosure of my ex's attendance and grades from university as it is a condition of spousal support. Her lawyer objected due to "privacy". The Justice said that her affidavit referencing her attendance was good enough. The Justice was surprised that the agreement did not stipulate full or part time enrollment. I asked the Justice why evidence of any kind and proof of success or failure was not required. The Justice appeared annoyed with me and said that I wasn't getting it. I was stunned.
You are not her boss, she doesn't answer to you, you are coming across as controlling. She has a right to live her life without your interferance or judgement. What you DO get is to have imputed a wage. The financials are set up around that figure, as though she is working a full time job. If she then decides to take basket weaving classes, that is not your business. The existing disclosure requirement is highly unusual and no trial judge would order such a thing. It is something she probably agreed to as a compromise to get the agreement settled.

Quote:
I am now struggling to prepare for the Settlement Conference on my own. Also, I want to be prepared if necessary, for a pre-trial conference and trial.
You don't get a full trial for a motion order.

Quote:
Meanwhile, I am thinking about bringing a motion for disclosure on the university attendance / grades to try my luck with another Justice. I would appreciate everyones opinions about that.
You will be wasting your time. She is already imputed an income, the information will have no relevance to any of the issues you are bringing before the courts. A judge will see that immediately, and ask "Why do you need to know this." Your only answer is that you had that clause slipped into your settlement agreement. Because.... there is no useful need for that information. Your agreement does not require her to stay in school according to what you wrote here, so what possible need do have?

Quote:
I am also looking for a copy of "Surviving your Divorce" 2011. Please PM me if you can help me get a copy.
It will be available at the public library.
  #3 (permalink)  
Old 05-20-2013, 06:35 PM
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My marriage was 8 years. Divorcemate calls for SS at minimum 4 years to maximum 12 years.

I wouldn't mind claiming the tax benefits from CRA. It would be much easier that way. BUT...then I would be breaking the agreement.

Out of curiosity, can anyone point to case law where someone broke an agreement. I am curious what kind of penalty I would face when my ex takes me to court for that.

Besides, that's not the point. I don't want to wiggle around to fix an honest mistake. Mistakes happen. We should be able to fix them. There was a simple mistake and it should be corrected legally. If not the SS part of Divorcemate, I would still want to change the agreement to share the tax benefits before I claim them.


Atlas
  #4 (permalink)  
Old 05-20-2013, 09:37 PM
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CRA requires that you declare the level of custody and claim credits and benefits accordingly.

Family court cannot overrule CRA and the family courts know that. What you have is an under the table agreement that cannot be enforced by family court.

As far as the "honest mistake", it is only that if your ex is willing to correct it. From what you say, the SS should be lower because you agreed to this deal to let her claim the children. If she is not agreeable to the lower support, then it is not an honest mistake.

The Divorcemate output for number of years is due to the possibility that the custodial parent will stay at home until the children finish school. That is why you see 12 years there. If you were to do the input with an identical 8 years of marriage but no children, it would show 4-8 years, and even then, 8 years is the exception, not the rule. You know that she will not be a stay-at-home mum, she is not that now, she is in school. When she finishes school she will be employable.

Again, Divorcemate is just a fancy spreadsheet. It cannot make accurate determinations for things like spousal support length. It can only go by the few numbers input, and as you have seen, if the numbers are sketchy, then you get a wrong answer.

If this were me, I would look at the amount of tax refund I lose at my marginal rate due to not being able to claim the children, and compare that to the roughly 4K she will lose on the CCTB. The numbers will be close, and you will see that you are not giving her "free" money with this deal. You are first of all breaking CRA regulations, and second of all losing about as much money from your return.

Here is the thing: If you want to go to court and argue something, argue that you want to "do it by the book" and follow all regulations and claim the normal tax benefits. Then you will be paying the - hopefully - correct spousal support anyway. Since she will likely be in school 4 years, use that as a reasonable fact to support ending support at that time.

What I am saying is, go to court with reasons for what you are asking. If you want to trade A for B, and give someone a break, and do a deal, then that is what you do in the hallway when you are reaching an out of court settlement. But your court claims must be supported by facts, logic, and a structure that adheres to the Family Law Act and federal tax law. You have to show this in your pleadings, or else you are just making emotion-based claims.
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