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  #1 (permalink)  
Old 10-30-2016, 03:16 PM
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Default New and scared, case conference tomorrow

Case conference Tomorrow

Together almost 20 years
We have three kids
When together we over spent
When we separated I over spent more than my ex. (mostly to the kids) so she didnít have to.
50/50 access
We separated in 2012. When we separated, we agreed that I would work harder to find a way to make extra income through overtime ectÖ. and that was to pay for the cost of separating and setting up two homes etcÖ. She agreed that that was necessary and wouldnít make a claim for additional child support because we all knew where the money was going and why.

I constantly kept her updated through conversations mostly and some emails regarding income updates and set backs.

At the time of separation both our incomes were based on base salary.

Based on that base salary, the table amount for child support was 1000/month. We shared custody and access 50/50.

The ex stayed in the mat home, I paid $1820.00 a month for two years.

My ex wouldn't participate in drafting a sep agreement.

My financial debt was getting and then got unmanageable and as part of the usual updates my ex was aware.

When it got to point were it was going to threatening the ability of transferring the mat. home to her, she was now willing for the first time to draft a separation agreement (for two years I had been attempting to but she wouldnít engage and I was afraid of and didnít want to go to court)

So now, two years after separation, a sep. agreement is drafted for me to pay 1400 a month (400 over the table amount in child support, so she would qualify for the mortgage of the mat home) with a provision that I would pay that for 12 years until 2024. I signed over the mat home as part of the separation agreement and equalization. Even though I should have sold the house, I saw this as a win because I went down from 1820 a month to 1400 a month, my ex would keep the house and there for my kids would be ok and stable and not have to move from the community and school etc. My now not so new partner would move to Town and together we would maintain and rebuild. The separation agreement was never filed.

***Her part of the agreement was she was to file the divorce and i was to proceed uncontested.****

She didnít complete the divorce. I didnít realize (I know dumb) and when I finally followed up it was too late and I had not answered her application and had no standing in the court and it expired.

Still overpaying in support, still spending too much on the kids, my financial situation worsened again.

So now no divorce
No stability for me (tons for my ex)
No not so new partner not going to move to town because of lack of stability. (why would she really)
No combining finances to live in the same area as my kids.
Being evicted for rent arrears
Not able to sustain or maintain 50/50 access.
No family to move in with.
Filed a consumer proposal to settle debt.
Falling behind in section 7 exp. despite requests to change some of them to more affordable)
Bad credit
No first and Last months
Cost of living in that town too high

So my now not so new partner, said I could live with her rent free for a year, I could finalize the divorce, we could move back then. However as stated, that was in a different town (a 160 km away).

I moved to the town my new partner was in and now live with there. I have no other investments except a pension, bruised credit, no savings, significantly increased commuting costs to get to work. very little cash flow. Still havenít missed a child support payment (based on the separation agreement amount). See the kids every other weekend, meet them for lunches and go to their functions.

During the time my income increased because of overtime, my ex knew what was happening, when I moved out of town, my ex never asked for additional child support as a result of the change of access. ( however since have learned that she was using as a threat to leverage me in other ways) what she wanted for me to return (after having significantly sabotage it) and "pick up the slackĒ or elseÖ I couldnít move back until the divorce was settle. She stopped participating so I then started the process back up and filed the application for divorce.

As mention, I was always communicating what I was making and the financial troubles as well. I got financial counselling and started living more and more within my means. However my ex not so much.

Ex still wants me to move back and take up ďmy fair shareĒ of 50/50 access because now she is tired. still wonít follow through with the divorce, I still canít afford to move and live there by myself.

So I filed for divorce and she answered and I replied to her answer and now we have a case conference.

I have lived away for a year and a half.

She is claiming retro child support for that year she had full access, and lump sum payment for sect. 7 arrears (let say for example itís 23,000 all told)

Before I had to leave town, I had overpaid letís say for example 24,000 in support, took care of my debts, successfully transferred the mat home to her, did the lion share of taking the kids to events, coached them in their extra stuff and otherwise was the one to look after them when they were sick.

First three years i over paid 24,000
Last year and a half her expenses total 23,000
Does this matter in court?

I have no other assets except my pension (she is getting a portion of that as well) bruised credit, no savings. I donít know how I am going to pay what she is claiming ( I offered to pay it through a pension carve out but she refused, she needs the money now).

Remember we both use to over spend. I have stopped now and herís is coming to light and as a result, her debt has increased.

Also one of the kids is 18 now and looking at the trades and likely to get an apprenticeship. He has a part time job now and attending a specialized program at a high school this last year designed to get an apprenticeship. She is also claiming full table amount child support for all three kids now because I haven't moved back. She is also claiming the support in arrears for the last year I was able to get overtime and or the average of the last three years that my income had increased because of overtime.

The number she is requesting in arrears for child support and sect 7 are for argument sake about 23,000. Before I left town, I over paid for argument sake 24,000. would a judge see that and consider it a wash that I overpaid that amount prior to leaving even though I had no intention of ever leaving.

I want to be with my kids, ex isnít going to up root herself and her kids with out a divorce finalized (makes sense), ex wonít settle the divorce. I donít have the lump sum she is looking for.

All of this would not have even happened if she had filed the divorce when she was suppose to. Her reason was she didnít want to finish filing it because she wanted to stay on my benefits for counselling (which I didnít mind if she would have just continued to settle the divorce)

I am not sure what to expect or what should even happen here. I am a believer in child support and donít mind paying it. I am really upset that I couldnít afford to stay there and access my kids. And even more upset that the damage is done and with the passing of time it becomes less and less likely I could ever afford to move back with my not so new now partner.

My ex is even less likely to move to a more affordable townÖ. not to mention how that would impact the kids.

Areas I am looking for guidance on are, what if any weight is placed on the Separation Agreement regarding her not finishing the divorce case the ripple affect of everything else falling apart. Is there any responsibility for that given to her and what impact would the Judge give in terms of settling?

Regarding the Federal child support guidelines, my 18 year old son, has a job, is in a specialized program to get an apprentice, if he getís one will be well employed and attending school and able to collected unemployment ins in the times he is in class and not working on job sites. In helping him with lifeskill, He has been paying for his own cell phone now, his own clothes and mostly his own food when he is working and at school. This has significantly reduced what my ex requires regarding support.

Are these considered acceptable circumstances a judge could consider under Sect 3(1)(a)(b) and 3(2)(B) under the Federal support guidelines of the The divorce act. Again itís not because I donít want to pay, itís about trying to do the right thing for my son. (all of which should have been what would happen had we been together given our income levels)

Also because I signed over the matrimonial home, over paid in support payments by nearly double for three years to ease with the transition, is there any application of section 15,1 (5) (a) (b) in determining either amounts owing for child support because of the changed access or current support amounts to be determined base on the new access situation and because we had a separation agreement and I have not missed any of the specified child support payments and in the separation agreement I agreed to keep paying that amount until 2024 regardless because she needed the stability to qualify for a mortgage? I needed for my kids to be stable. ( my kids at that point would be 19, 25 and 28.) ( would this also potentially be considered special provisions)

Having said everything here, I would gladly pay through my pension carve the amounts she is requesting in arrears and maintain the 1400 a month until 2024. However she wants the money now and wants to up the monthly amount to 1800 until 2024. Even if I wanted to I don't think I could afford that reasonably... I guess I will ultimately do what I am ordered to... it's just really tight.

Any suggestions?
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Old 10-30-2016, 05:14 PM
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For a start:

1. prepare a spreadsheet outlining your income. In one column put income and the appropriate amount of CS in the next column and in the third column you itemize what you actually paid. A fourth column would show the overpayment or underpayment. Of course you should have documents to corroborate (back up) your spreadsheet.

2. You want to verify about how far back CS arrears is calculated. Some will argue that they only go back 3 years but in your instance I believe you want calculation to be from date of separation to show the amount you overpaid.

3. Do you have any documentation to prove what you and your ex agreed to at the time of separation?

Others on here will be able to offer advice on addressing the section 7. My point is that you should be well-prepared and organized. Did your ex exchange financials with you every year?
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Old 10-30-2016, 05:47 PM
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Default Thanks for taking this on late on a Sunday afternoon.

I have been preparing and spending the weekend trying to get things clear in my head.

Great advice about the spread sheet. I had cue cards, spread sheet is better though.

Yes we used the date of separation. There were no other periods that CS would apply.

When we separated, we kept the joint account, all my income went into it, I had access, she had access and we agreed that I would pay the mortgage and insurance at first totalling about 2000.00. Then the amount moved to 1800 after two months. Payments were never missed. I have a copy of a separation agreement I was trying to do that had numbers and scenarios on it that we passed back and forth and ultimately never agreed to in detail and that was never signed however it is documentation. That along with bank records (if I got them0 and emails could lead some one to reasonably come to those conclusions).

As far as financials are concerned, we didn't and don't have very much. I had a salary, she had a salary, we had the house that went to her, I had a pension that we got evaluated and she will have a part of. My salary is public knowledge along with the fact that I have emails advising on the status of finances increases and decreases. Because of this we both agreed that exchanging financials wasn't necessary and that we would use the base salary amounts. That is written into the agreement that we waived that both of us. She had her lawyer draft it up and I signed it without legal rep. (i know dumb) and even if I had legal rep I don't know that I would have changed it much because at the time my mindset was really all about creating stability for my kids.

Hindsight and all... It turns out I have come to believe that the entire agreement was actually unsustainable and it turned out to held together by a thread that snapped quite quickly.

As far a paying what I owe. I don't mind paying for the arrears both CS and Sect 7 even though there has been those situations. Ultimate its for my kids. One of the questions I am concerned about is how to pay.

I have offered to settle up through a pension carve out. She had declined.
I am not sure what other ways to go about paying back in addition to what may get ordered for CS from the 1400 in the sep agreement to possibly and likely 1800 until my oldest get an apprenticeship....

Typical when people don't have the cash on hand or an ability to borrow the funds, how are payments made, who decides what the amounts will be and when especially if the ex and I can't agree. I am saying I don't have much and she is saying I am behind and want it all paid now.

Thanks for you help so far.
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Old 10-30-2016, 05:54 PM
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That was quite the long read!

I'll try to summarize:

1) You had 50/50 custody
2) You signed some idiotic agreement without talking to a lawyer
3) You moved 160km away to save money and gave up shared custody
4) Ex is willing to offer you shared custody, but you say that you cannot afford it.
5) Ex is asking for retro CS, which will further hamper you financially.

My thoughts:

1) Move back to city with kids, regain shared custody while you can.
2) Worry about the money after.

If you don't regain shared custody soon, you will never be able to afford to have the kids. You have to get shared custody. Your income is not terrible if you are paying over $1400 a month for CS, so you can make it work.

Dump your girlfriend, be with your kids.
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Old 10-30-2016, 05:55 PM
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Default Case Law

Also,

I am relying on Fung - Sunter v. Fabian and Smith v. smith to guide my thinking through section 15.1 and 17 of the divorce act regarding the court orders the ex is asking for and the ones I am asking for in place of the one my ex is presenting.

Also I was asking for no court orders to be issued at all because I have paid and will pay what ever is agreed to with my ex and or the judge in the conference... is that misguided though?

Does any one know of any recent case law regarding circumstances of when a child of the marriage turns 18 what is considered appropriate and when should support payments stop. My ex is on the verge of letting another year go by where my oldest might stagnate and stall. We need to keep him moving either to a legitmate school or work full time...

Thanks again.
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Old 10-30-2016, 06:04 PM
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Default How speaks first and what do say to open things up at the conference

I am the applicant

Ex is the Respondent

Ex filed for the case conference.

Ex has lawyer

I am self represented.

Who goes first at the family conference and what do I start off saying...

thanks
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Old 10-30-2016, 06:17 PM
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Specific responses:


Quote:
Originally Posted by keebler View Post
Case conference Tomorrow
Based on that base salary, the table amount for child support was 1000/month. We shared custody and access 50/50.
Why were you paying table CS if you had 50% custody?

Quote:
The ex stayed in the mat home, I paid $1820.00 a month for two years.
Was it categorized as CS? Judges often consider these overpayments to be "gifts" rather than create a situation where the CS recipient owes arrears.

Quote:
So now, two years after separation, a sep. agreement is drafted for me to pay 1400 a month (400 over the table amount in child support, so she would qualify for the mortgage of the mat home) with a provision that I would pay that for 12 years until 2024.
Why on earth would you agree to pay more CS than the table amount? Either way, you haven't overpaid at all, because the agreement said that you should pay $1400. While it is tricky to agree to pay less than table, the courts have no problem with you agreeing to pay more than table.

Quote:
The separation agreement was never filed.
Was it signed? Then it is valid.

People sign contracts every day without filing them.

Quote:
She didnít complete the divorce.
Who cares? Are you marrying your "I love you but I'm cool with making you give up your kids" girlfriend? If so, then you need a divorce, otherwise it is irrelevant.

Quote:
Ex still wants me to move back and take up ďmy fair shareĒ of 50/50 access because now she is tired. still wonít follow through with the divorce, I still canít afford to move and live there by myself.
Look at the difference between table and offset CS. I bet that difference would be enough to allow you to move and live there by yourself. The vast majority of non-custodial fathers never get an offer like this. Accept it.

Quote:
She is claiming retro child support for that year she had full access, and lump sum payment for sect. 7 arrears (let say for example itís 23,000 all told)
She will get the retro CS. The retro S7 is more dubious, but you never know.

Quote:
Before I had to leave town, I had overpaid letís say for example 24,000 in support
If by "overpaid" you mean "paid what the separation agreement said which was more than table support"... well...

...you didn't overpay a thing.

Quote:
I have no other assets except my pension (she is getting a portion of that as well)
Wait, what? I thought you gave her the mat home, I figured that was in exchange for the pension. Why did you give her the mat home?

Quote:
I want to be with my kids
Didn't you move 160km away from your kids, and now that you have an offer to return you are still not returning?

You want to be with your kids like a sleep-deprived parent wants to be with their screaming infant. It sounds good to say it, but you sure as hell don't mean it.

Quote:
Areas I am looking for guidance on are, what if any weight is placed on the Separation Agreement regarding her not finishing the divorce case the ripple affect of everything else falling apart. Is there any responsibility for that given to her and what impact would the Judge give in terms of settling?
Pretty much no weight at all. The best case scenario is that a judge orders her to file for divorce.

Quote:
Also because I signed over the matrimonial home
That has nothing to do with child support. You just gave her a gift. The only thing you can get from that is maybe your ex not ransacking your pension, though if you signed the agreement years ago you might be screwed on that.

But the house doesn't count for a thing when it comes to CS.

Quote:
Any suggestions?
Regain shared custody somehow immediately.
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Old 10-30-2016, 06:23 PM
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Quote:
Originally Posted by keebler View Post
Typical when people don't have the cash on hand or an ability to borrow the funds, how are payments made, who decides what the amounts will be and when especially if the ex and I can't agree. I am saying I don't have much and she is saying I am behind and want it all paid now.
If you are in Ontario she will file with FRO. You will work out a payment plan with FRO. If you get into financial problems and stop paying FRO they will take your license and garnish your salary and make your life a living hell.

You will pay, somehow, I wouldn't worry about it.
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Old 10-30-2016, 06:26 PM
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Quote:
Originally Posted by keebler View Post
Who goes first at the family conference and what do I start off saying...
Try not to sign anything tomorrow unless you actually understand what it is you are signing.

The good news is that probably nothing will happen tomorrow, so you have some time to figure things out.
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Old 10-30-2016, 06:39 PM
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Quote:
Originally Posted by keebler View Post
Does any one know of any recent case law regarding circumstances of when a child of the marriage turns 18 what is considered appropriate and when should support payments stop. My ex is on the verge of letting another year go by where my oldest might stagnate and stall. We need to keep him moving either to a legitmate school or work full time...
Buddy, you're not the only one going through a situation like this, read on:

http://www.ottawadivorce.com/forum/f...-paying-20320/

http://www.ottawadivorce.com/forum/f...ill-pay-20383/

http://www.ottawadivorce.com/forum/f...reement-20458/
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