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  • compel disclosure?

    short story. Sep agreement filed, STBX says he makes 66k per year and usually makes an additional 40k in commission.

    we settled for a few months at a lessor amount (jan, feb, march) of supports until he got his commission check.

    2013 incomes are 110k for him and 40k for me (roughly, he won't give me taxes or won't have an NOA until end of juneish)

    He now needs to pay more, and of course, is refusing.

    since the agreement he has been promoted to Vice president, cries that his pay hasn't changed a drop. However, refuses to give me a copy of his employment contract. I strongly suspect he is hiding income.

    can he be compelled to give me his current contract, including schedules as to how he's paid commission, last 3 months of paystubs? the agreement states he must give me his complete T1 including schedules by the end of April.

    He states that the 2013 NOA will have no bearing on this years payment of support and that he will only pay what he has been paying (2k) period. Not a drop more. The agreement stipulates a call for a change if the incomes have changed. (they have) his 3 year average is 115k

    sick of the games,,,

  • #2
    If you have been updating CS amount annually that is what you should continue to do. It all works out in the end.

    Usually the way it works is from July-June CS payments are based on the previous years income. For example July 2013-June 2014, he should be paying on his 2012 income, then in July 2014, he would be paying on his 2013 income. This is the easiest way to do this. Like I said, it all works out in the end because if he is commission based, if he has a down year, he would still be paying on the prior years income. Unless you are going to update CS every paycheck he gets, you need to have a structured plan. You can't just change when it suits you. If he just got this position, it should not affect his CS obligations until next year. Unless his new position has come with a very large pay increase, it isn't worth your time/costs in court, because it will all work out in the end.

    Your agreement states what he is to give you. Unless it says he has to provide his employment contract you are not entitled to that. It isn't the end of April yet, so he has not done anything wrong by not providing information.

    Think about what you want to gain here...

    Looking at the numbers, if he makes $110K and you are in Ontario, he is paying $2000 you must have 3 children, updating right now to $115 would put the CS obligations to $2080... that is only an extra $80 a month or $960 a year... it will most likely cost you more than that to go to court and try to argue why this is now a change in circumstances... $80 a month, in my opinion, is not a change in circumstances...

    Comment


    • #3
      You are not entitled to his employment contract or other (likely confidential) similar documentation.

      You are entitled to a copy of his T1 by the end of April so that C/S can be adjusted going forward from May 1. If he hasn't provided you with that yet he isn't offside. And considering I haven't done my taxes yet because I haven't received all my RSP statements from the banks, it is quite possible he can't prepare his either.

      If April 30 comes and goes, and you don't get documentation, then you can send a formal request for the T1 per your order/agreement. If he does not comply, you can file a motion requesting disclosure of his T1 per the order/agreement.

      The chances of you getting any documentation ie. work contract etc. as really slim as these are generally strictly confidential and if he was to disclose it to you without a court order requiring him to, he could be jeopardizing his job.

      Comment


      • #4
        thanks so much folks. Lots of info here I'm not sharing, and the question is can I compel. I've found out from the lawyer, that, I could bring a motion for disclosure based on the facts that I'm omitting here. Their opinion it would be a slam dunk. But, like everything in front of a judge... could be risky.

        Thanks again for the replies

        Comment


        • #5
          Originally posted by lotsofquestions View Post
          thanks so much folks. Lots of info here I'm not sharing, and the question is can I compel. I've found out from the lawyer, that, I could bring a motion for disclosure based on the facts that I'm omitting here. Their opinion it would be a slam dunk. But, like everything in front of a judge... could be risky.

          Thanks again for the replies
          Lawayers make money from billing and many lawyers will tell you what you want to hear, if it means they will have an opportunity to bill more hours.

          Would you win a motion to disclose an NOA, sure, that is a slam dunk. His employment contract? Highly unlikely. As has previously mentioned by others, that is a highly confidential document in most cases.

          Comment


          • #6
            ok.... I get the employment contract aspect. A letter, proof of income? The issue is that he has been promoted to Vice President. Then has the audacity to claim his income and pay plan has not changed one bit. Refuses to disclose. and the manner in which it was done (sends a copy of an old contract from 2011, detailing 2012 stuff, not signed by employer, not even on letter head, showing his income before he was promoted) is highly suspect. I am pretty sure his total comp package has changed substantially. Ie. stock options, dividends, pensions etc.

            Not asking for the moon. but I'm certainly not going to just accept his "word" because he says so. He's been caught lying and deceiving far too often.

            Comment


            • #7
              Originally posted by lotsofquestions View Post
              ok.... I get the employment contract aspect. A letter, proof of income? The issue is that he has been promoted to Vice President. Then has the audacity to claim his income and pay plan has not changed one bit. Refuses to disclose. and the manner in which it was done (sends a copy of an old contract from 2011, detailing 2012 stuff, not signed by employer, not even on letter head, showing his income before he was promoted) is highly suspect. I am pretty sure his total comp package has changed substantially. Ie. stock options, dividends, pensions etc.

              Not asking for the moon. but I'm certainly not going to just accept his "word" because he says so. He's been caught lying and deceiving far too often.
              If your SA agreement says you exchange NOAs in June, and has no provision for a "Material Change in Circumstance" then you wait till June. If your agreement says a material change in circumstances means a review, then you can invoke that. Your best bet would be asking for last three pay stubs.

              Is he up to date in support payments? Is this for CS or SS or both?

              Comment


              • #8
                it does have a material change provision, it does say review. I have asked for 3 pay stubs.

                He is up to date currently. with a caveat. He was given a reduced cp/sp based on a mid point for his income (he had pissed away his bonus last year, and then cried poor) He started paying in December of 2013, He was given (in the agreement) lessor amount for Jan, Feb and March 2014. Pending the arrival of his 2013 bonus (he received same, over 43k last week) Starting in April, based on precedence, retroactive to January 2014, he should be paying in accordance with 2012 noa (his 108, mine 32) until his new NOA comes out in June, and then an adjustment can be made so that they are based June to June (someone up further had suggested I wanted a review by paycheck, which is ridiculous)

                I am not asking for anything other than equalization, however, it is really hard to seek equalization, when people are not forthright about their income.

                I will invoke the material change clause at the mediators, and once again ask for proper documentation in order to ascertain equalization.

                thanks again for the calm dialogue

                Comment


                • #9
                  Originally posted by lotsofquestions View Post
                  it does have a material change provision, it does say review. I have asked for 3 pay stubs.

                  He is up to date currently. with a caveat. He was given a reduced cp/sp based on a mid point for his income (he had pissed away his bonus last year, and then cried poor) He started paying in December of 2013, He was given (in the agreement) lessor amount for Jan, Feb and March 2014. Pending the arrival of his 2013 bonus (he received same, over 43k last week) Starting in April, based on precedence, retroactive to January 2014, he should be paying in accordance with 2012 noa (his 108, mine 32) until his new NOA comes out in June, and then an adjustment can be made so that they are based June to June (someone up further had suggested I wanted a review by paycheck, which is ridiculous)

                  I am not asking for anything other than equalization, however, it is really hard to seek equalization, when people are not forthright about their income.

                  I will invoke the material change clause at the mediators, and once again ask for proper documentation in order to ascertain equalization.

                  thanks again for the calm dialogue
                  I tried myself to negotiate something in terms of my bonus, but in the end it was just easier to take an average of three years(for total income), then adjust yearly based on last year's NOA income. This means both parties being a bit flexible, but it works. To be brutally frank, I think your system is overly complex and bound to cause friction.

                  Comment


                  • #10
                    LOL!! I agree wholeheartedly that it was unnecessarily complex for this year. I have sent a registered letter as of this am, invoking the material change clause, and asking for disclosure. I've also asked that we use the simple (even easier than the 3 year average, as he'd then have to pay even more its 115k) 2012 NOA for he and me until the NOA comes out end of JUNE and then we can use that NOA (2013) going forward until June 2015 (use the 2014 NOA) etc etc... simple and no friction.. tired of dealing with his crap actually. Just want to be paid, on time, fairly, and him to go away. He is so no longer important in my life.

                    I think the compelling the documentation question has been answered, and I've invoked the agreement. If he doesn't come through (he has 14 days to provide the info) I will bring a motion to have the agreement enforced.

                    thanks so much, this forum is such an amazing resource.

                    Comment


                    • #11
                      I'm not sure what the hurry is and I doubt a promotion would be deemed a material change in circumstance, especially if the promotion was in title only and not role, AND it didn't come with a substantial increase in salary.

                      Promotions are foreseeable. People get them all the time. It wouldn't necessarily be a material change in circumstance.

                      Your ex has until the end of April to provide you with his income (T1) as you mentioned previously. Right now he should be paying you based off his 2013 T1, meaning his 2012 income. That is how it generally works. This year, you will get paid based off of his 2013 income, which likely won't contemplate the promotion. You will get c/s based off of his 2014 next year.

                      You have a review schedule in your agreement which you are to abide by. If he doesn't abide by it and update based off of his 2013 income by April 2014, you then can proceed to update the c/s in accordance with your agreement. But just because he got a promotion in 2014 doesn't mean you get to skip the provisions you agreed to (ie. your review clause in your agreement).

                      Unless I am missing something here, and he hasn't disclosed for last year and is otherwise behind that regard, I really think you are jumping the gun and aren't likely going be successful (if not even hit with costs for unnecessarily accelerating the agreed review provision).

                      Edit - just to add, for one to be able to invoke the change in circumstance provision, the change has to be material. Meaning a dramatic shift in one direction or another. A raise to an individual who makes over $100k of 20-30% or so, likely wouldn't be material. A raise of 80-100% likely would. So it isn't cut and dry. Further, there is the income review clause in your agreement strictly for this type of situation. That is why that clause exists, as changes in income are foreseeable and you have a means to update annually.

                      IMO, given the info provided, should this go to court, I don't like your odds.
                      Last edited by HammerDad; 03-11-2014, 12:54 PM.

                      Comment


                      • #12
                        Originally posted by HammerDad View Post
                        I'm not sure what the hurry is and I doubt a promotion would be deemed a material change in circumstance, especially if the promotion was in title only and not role, AND it didn't come with a substantial increase in salary.
                        The key point is that any change to be "material" would have to be a substantial increase or decrease in salary. With my thumb up in the air and in support of HammerDad's wise advice I would say that this change to be material would have to be be over 5% increase in income.

                        Originally posted by HammerDad View Post
                        Promotions are foreseeable. People get them all the time. It wouldn't necessarily be a material change in circumstance.
                        To add to the point and support it further... Generally promotions are within the same organization.

                        A good citizen of CS would make an offer to increase CS upon a material change up-or-down in income.

                        Originally posted by HammerDad View Post
                        Your ex has until the end of April to provide you with his income (T1) as you mentioned previously. Right now he should be paying you based off his 2013 T1, meaning his 2012 income. That is how it generally works.
                        But, should a motion be brought for disclosure on a material change in circumstance (e.g. a change in employment) it usually will get heard. There generally is no good excuse to not provide financial disclosure at any time it is requested. Justices routinely question why the other party simply didn't provide the disclosure and update when they change employment or got a significant increase in income. The more interesting ones are the parents who bring motions when the other parent loses their job and wants to pay MORE CS. Most times the justice will order costs against the party who is not disclosing that they are unemployed or change employment and are now making less. (Especially the off-set paying parents.)

                        Originally posted by HammerDad View Post
                        This year, you will get paid based off of his 2013 income, which likely won't contemplate the promotion. You will get c/s based off of his 2014 next year.
                        A case can easily be made for an increase but, you have to think "penny wise pound foolish". To get the matter done through court you are going to have to put up a lot of money in legals. Generally increases in CS are not with the legal costs. Especially when it comes to increases resulting from promotions.

                        10,000 - 15,000 in legals and even if you get costs ordered it will be substantially less... So if you only get 50$ a month more it could take you months (120 if you are out $6000 even after getting a costs award) or even years to recoup the legal costs.

                        Originally posted by HammerDad View Post
                        You have a review schedule in your agreement which you are to abide by.
                        I disagree. I would advise anyone who has a material change in circumstance regarding their employment to provide full and frank financial disclosure to the other party and to seek a proper adjustment. If you do not and try to seek additional funds because you got less CS than you should have gotten and refused to provide disclosure to the other party... Don't expect a judge to be sympathetic at all with your nonsense. (As an example.)

                        Originally posted by HammerDad View Post
                        If he doesn't abide by it and update based off of his 2013 income by April 2014, you then can proceed to update the c/s in accordance with your agreement. But just because he got a promotion in 2014 doesn't mean you get to skip the provisions you agreed to (ie. your review clause in your agreement).
                        I am of the opinion that this would be viewed (if significant enough of an increase) as a material change.

                        Originally posted by HammerDad View Post
                        Unless I am missing something here, and he hasn't disclosed for last year and is otherwise behind that regard, I really think you are jumping the gun and aren't likely going be successful (if not even hit with costs for unnecessarily accelerating the agreed review provision).
                        If he went from "manager" to "vice president" in title you have in my opinion a strong case to seek an update on a material change. Generally, when someone refuses to provide financial disclosure it is because it is either (a) an advantage to them not to or (b) because they are embarrassed because they are making less in their new position.

                        In either situation CS should be adjusted accordingly. But, this is based on the fact that you have two parents involved in the matter who put their children's best interests. Generally these parents do not rely upon message forums such as this.

                        Good Luck!
                        Tayken
                        Last edited by Tayken; 03-11-2014, 01:04 PM.

                        Comment


                        • #13
                          Originally posted by HammerDad View Post
                          You are not entitled to his employment contract or other (likely confidential) similar documentation.
                          But, as soon as an Application is made to the court (Form 8) Rule 13 comes into effect. You can request any disclosures you want from the other party they can simply refuse to comply.

                          Justices often rely upon employment contracts to establish CS.

                          Again, the "confidentiality" goes out the window once someone files an Application. Justices easily and quite often hear matters on a material change based on a suspected change in employment income. As part of that hearing the justice will order the disclosure of employment contracts in accordance with Rule 13. This is often done when someone is applying even under Rule 15.

                          Details can be found here:

                          http://www.attorneygeneral.jus.gov.o..._change_EN.pdf

                          When is a motion to change made?

                          The most common reason people bring a motion to change is to change a support payment. A motion to change is often brought when one or more of the following happens.

                          The support payor is making more money than he or she was when the order or agreement was made.
                          • ...
                          Good Luck!
                          Tayken

                          Comment


                          • #14
                            I would argue that the change in job title isn't a material change in circumstance. It was foreseeable. They even agreed to a review clause because it was so foreseeable.

                            A 5% isn't much over inflation, which was between 2-3% last year. Such raises are common. I had a raise of nearly 20% last month. I agree that was a material change and advised my ex as it was a larger then normal raise.

                            For the change to be material, it would likely also have to be outside the industry norm. If everyone in a certain industry got a 5% raise, then it probably isn't going to be deemed a material change. It is more an industry standard.

                            IMO, OP's ex likely understands he has a review clause in his agreement and is going to update c/s based off of the review clause, as they have always done. The OP will get her increase in C/S per the agreement, and won't otherwise be adversely affected. She just won't get it in the timeline she wants because she agreed to updating annually based off of the previous years income.

                            Comment


                            • #15
                              Originally posted by Tayken View Post
                              When is a motion to change made?

                              Again, the "confidentiality" goes out the window once someone files an Application. Justices easily and quite often hear matters on a material change based on a suspected change in employment income. As part of that hearing the justice will order the disclosure of employment contracts in accordance with Rule 13. This is often done when someone is applying even under Rule 15.
                              Key point, a justice can order disclosure of confidential documents. But until one is ordered to disclose, one is subject to the confidentiality terms in the document.

                              The most common reason people bring a motion to change is to change a support payment. A motion to change is often brought when one or more of the following happens.

                              The support payor is making more money than he or she was when the order or agreement was made.
                              • ...

                              Good Luck!
                              Tayken
                              I agree that one can file a motion to change based off of change in income. But what I am suggesting is, that is unnecessary. The agreement contemplates changes in income and review/update of such annually. If everyone needed to do this, the courts would be swamped with people update payment terms. The reason why the clause exists is to keep these parties out of court and not waste the courts time with reviewing income that would otherwise be updated in due course.

                              Comment

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