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  #21 (permalink)  
Old 12-03-2014, 07:55 PM
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Quote:
Originally Posted by Links17 View Post
Umm, you're going to be paying table support.

Table support isn't a "guideline" its the Law and is only deviated in exceptional situations.

You have to prove undue hardship, nobody cares that your autistic child is not getting the care he needs, do you think you are the first in this situation?
What is undue hardship - probably nothing you ever imagined...

I agree back support will be limited.... but she might play the "I couldn't find him card" or some other excuse...

I agree also travel costs (if they are extraordinary) can used to reduce CS but its money out of your pocket anyways.
Thank you Links. I appreciate the level-headed answer.

I'm aware that undue hardship basically requires you to prove that you will go into poverty.

The one question. If table is set in stone why is my lawyer telling me that he can get the amount reduced? He already told me that undue hardship was not an option.

I was quite clear that I'm also paying for his opinion and experience. I know he would rather have us mediate, so an amount can be agreed to. She's refused the first request for mediation, and do a dna test.
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Old 12-03-2014, 07:56 PM
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Fly on the wall here but I have a hard time putting faith in moms legitimacy when she refuses the paternity test. If youre 100% sure why say no?
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  #23 (permalink)  
Old 12-03-2014, 08:01 PM
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Quote:
Originally Posted by nfc4ever View Post
She had drafted up a document it was complied by the walk in clinic at Ottawa U law school. I have a copy and so does she.

Lawyer says it's not enforceable, but establishes and expectation and willingness on the part of the ex.
Then the document is worthless I would think. What it does show, interestingly, is your acknowledgement of your child.


OF course lawyer wants you to mediate - he makes way more money doing that.

Do yourself a favour and get another legal opinion - a paid one preferably.
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Old 12-03-2014, 09:52 PM
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Quote:
Originally Posted by nfc4ever View Post
Thank you Links. I appreciate the level-headed answer.

I'm aware that undue hardship basically requires you to prove that you will go into poverty.

The one question. If table is set in stone why is my lawyer telling me that he can get the amount reduced? He already told me that undue hardship was not an option.

I was quite clear that I'm also paying for his opinion and experience. I know he would rather have us mediate, so an amount can be agreed to. She's refused the first request for mediation, and do a dna test.
Your lawyer is telling you this because he knows you would like to hear this. If you set off on a quest to pay less than table, at the end of the day you will still be paying table and your lawyer will have more money in his pocket. It's a no-brainer for him.

If your ex refuses to provide proof that this is your daughter, you have a case for refusing to pay child support. If this is indeed your daughter, you don't have a case. What grounds would you have for paying less than table? Some people get their CS reduced because of the costs of exercising access (for instance, if their ex moves thousands of km awaya with the child), but that typically happens when there's already a relationship and track record of access established. You say it would cost you $600 per visit to see your daughter, but there's no evidence that you're actually going to spend that money, because you have no history of visiting her. I doubt you would get table support reduced because you say that you intend to start visiting her - that's all speculative. Once you have a pattern established, then maybe.

Your financial straits are also not that dire. I make about the same amount as you, I pay offset CS (50/50), I have one 11-year-old car, I've taken my daughter on a "family vacation" somewhere other than summer camp exactly once in the last four years, and we live in a condo because I can't afford a house. This will be financially inconvenient for you, but your responsibilities trump your inconvenience. As an earlier poster wrote, you don't get to pick and choose which of your children you support.

Continue to push for a paternity test. If the results show that the daughter is yours, start paying CS. Read up on your obligations for postsecondary S7 - just because you paid your way through university and your ex didn't, that doesn't mean that you have no obligations towards your daughter.You can mediate about extracurricular S7 expenses (you aren't obligated to pay for things you haven't agreed to in advance, with a couple of exceptions) but really, you can't nickel-and-dime your way out of table support.

And consult a different lawyer, preferably one who doesn't just tell you what you want to hear.
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  #25 (permalink)  
Old 12-03-2014, 11:59 PM
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I don't see the basis for reducing child support. I would tend to agree that your lawyer is feeding you BS. Ask for his basis or how he has successfully done this before.

I would also say that regardless of the situation this is still pretty temporary its for a few years and so its not a psycho 20 year commitment luckily.

I wouldn't even insist on the paternity test. I would tell her you have no way of knowing it is your daughter and it has been 15 years and that's the end of it. Let her bring a motion to court without a paternity test and maybe the judge will just DISMISS her request because she couldn't prove it was your child and then she will be blocked from every bringing it up again (res judicata) - however this might not apply to child support.

I think you can get away without paying arrears, you'll pay table child support and S7 and you can insist on some access to rebuild the relationship I guess.

Don't feel bad for yourself, one guy was married to a woman for 15 years, they had 4 kids together eventually he found every single one of those children was fathered by a different man and yes he was ordered to pay child support for the 4 kids.
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  #26 (permalink)  
Old 12-04-2014, 12:32 AM
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There are exceptions that have been and can be made if the child has no access and refuses to have a relationship of any kind with a parent. It's not common, but it has happened.
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  #27 (permalink)  
Old 12-04-2014, 10:15 AM
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The OP must first get a paternity test. A lot hinges off of it. In the mean time, they should open a separate bank account and start transferring the guideline c/s into it. Because if the kid is his, he will have to pay those arrears anyway and it is best to soften the blow. If the child is not his, he has a vacation account.

The agreement made prior to the child's birth is completely worthless. First, agreement made prior to birth aren't valid to begin with. Second, neither parent may wave c/s as it is the entitlement of the child. The agreement may also be a double edged sword for the OP. Yes, it does show that the ex waves c/s and that may establish the expectation. But the flip side to that is by signing that, he in effect acknowledges paternity. That the child is his and thus there is no need for a paternity test as he already has said he was the dad. It also shows that he believed he was the dad, as he signed the agreement. The OP says he had reason to believe he wasn't, but it not clear if that information came to light before or after he signed the agreement. Either way, the OP knew that he MAY be the father, and should've taken steps back then to determine if was the father.

There are any number of reasons why the ex is doing this now making it irrelevant to bother speculating. What needs to be done now is get the DNA test and plan for the future should it come back positive. The judge won't likely cut the OP much slack if he is the dad, as he should've been paying c/s for years. That his new family benefited from not paying support for all those years and now must budget factoring in C/S and s7 expenses (extraordinary costs for activities etc. and post secondary).
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  #28 (permalink)  
Old 12-04-2014, 12:39 PM
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I wouldn't even consider how much child support will be until a DNA test is done. You can do it yourself, with her cooperation of course. I had one done recently and had the results within a week.
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  #29 (permalink)  
Old 12-04-2014, 04:35 PM
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There's two great things I've learned on this site so far:
a) that the Canlii database exists and how to use it.
b) how to report rude and abusive behaviour.

Thanks to everyone for your help!
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  #30 (permalink)  
Old 12-04-2014, 06:23 PM
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Quote:
The one question. If table is set in stone why is my lawyer telling me that he can get the amount reduced?
Lawyers say a lot of stuff. On what basis did he suggest your CS obligation could be reduced?

If this child is yours, you also have to plan for S7 and educational expenses on top of CS, so you should expect to being paying more than table...not less...that's simply the reality.

Quote:
Either way, the OP knew that he MAY be the father, and should've taken steps back then to determine if was the father.
Its hard to imagine how a person sleeps at night not knowing this information...or wondering how the child is doing. However, at this point, its highly suspicious that this woman won't agree to a DNA test for this child. Its a very simple, non-invasive test...there's really no reason not to consent. Its the child's right to know who her absentee father is.

Quote:
The judge won't likely cut the OP much slack if he is the dad, as he should've been paying c/s for years.
Regarding retroactive support...this case cite is interesting:
CanLII - 2011 ONCJ 599 (CanLII)
Quote:
3: LEGAL TEST

[7] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars­well­Alta 976, sets out factors to be considered in determining whether or not retroactive child support should be ordered:

1.
reasonable excuse for why support was not sought earlier;

2.
conduct of the payor parent;

3.
circumstances of the child; and

4.
hardship occasioned by a retroactive award.

[8] If it is determined that retroactive child support ought to be awarded, the next question is the amount of the award that included a determination of the date of retroactivity. The Supreme Court has adopted the date of effective notice as a general rule, up to three years in the past. An exception to this general rule can be the payor’s blameworthy conduct.
4: ANALYSIS

[9] I find there is no reasonable excuse for why support was not sought earlier. The applicant mother offers no explanation why she took no steps to locate the respondent for 10 years, other than to ask friends about his whereabouts.
[10] I find that the conduct of the respondent father is blameworthy. He knew he had a daughter and he gave her no financial support whatsoever until the court proceeding began when the child was 16 years old.
[11] Very little evidence was provided regarding the circumstances of the child.
[12] Very little evidence was provided regarding what hardship would result for the respondent father from a retroactive award, other than the respondent father’s submission that he has another child to support.
[13] Although the court provides that a support payor’s blameworthy conduct can be reason to go back farther than three years in the past, I find that in this case it is offset by the support recipient’s failure to make any real effort to locate the support payor and to seek child support. Thus, I am guided by the date of effective notice as the starting date for retroactive child support. The precise date of effective notice was not provided, just sometime in the fall of 2008. Thus, I will use 1 January 2009 as the starting date.
[14] The respondent father’s income in 2009 was $33,376 and thus he owes $309 per month for 2009 (12 months); his income in 2010 was $36,604 and thus he owes $338 per month for 2010 (12 months) and for five months in 2011 until the ongoing child support commenced on 1 June 2011. The total of retroactive child support owed is $9,454.

Last edited by Pursuinghappiness; 12-04-2014 at 06:32 PM.
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