Hi all,
Brand new to the forum so be kind
Background:
Separation agreement granted 2012 (divorce later that year)
2 children of the marriage; joint custody.
Child support set at $550/month (non-table amount).
Section 7 shared 50% (primarily soccer fees), school fees shared 50%.
Ex responsible for cost of busing (approx $800/yr)
Schedule with kids: Thursday after school with me until dropped off Wednesday morning at school;
with ex after school Wednesday until the next Thursday morning (6nights/8 nights every 2 weeks).
All school holidays equally divided.
However, at the time of signing separation agreement “clause” or “point” was put in stating:
“in the event [my] parenting time increases in the future from the current 5 out of 14 days to 6 out of 14 days by agreement of the parties, such change in and of itself shall not be considered a change in circumstances sufficient to warrant a decrease in child support”.
My lawyer at the time said “you can never waive your future rights” so that line was put in at ex's lawyers insistence and there really would have been no way of getting any agreement without it – hopefully I don't regret signing the document with it in there.
At the time of signing, incomes were set @ $64,000 for ex & $66,000 for me
Present day:
Waiting for ex's 2013 NOA; in 2012 gross income of ex was $79,890
my 2012 line 150 $62,501
my 2013 gross income (taxes not done yet, gross income on T4) $73,953.80
Since February 2012 children have been spending Thursday after school until dropped of at school on Wednesday morning (one extra night)
Children are now nearly 12 & 15
My questions:
What is considered a “material change in circumstance”? I feel since we have joint custody, access for me is approx 45% over the year, I have (own) a family-focused home (both kids have there own rooms, room for friends to come over which happens a lot,games, bikes, on and on and the expense of maintaining this home and I bought a home in a neighbourhood close by the ex's in order to facilitate school districts and activities) altogether could constitute a change in circumstance.
As well, I have read that in regards to non-table support amounts, a change in income/means/needs of either parent is considered a change of circumstance. Nevermind that 12 and 15 year old kids and friends eat far more than 9 and 12!
I am seeking to make a motion to vary the order to::
I would also like to say that I purchase for the kids: bedding/socks/underwear/clothing/shoes/outdoor gear for activities (fleeces/hiking boots, camping equipment; soccer cleats -in fact the ex at one point told me I “need to take care of what the kids need when they are with” me) I realize this standard stuff but I feel it is important to point out that I provide for the children at ex's as well as with me and each week it becomes more difficult (for example, S14 will have 3 friends over eating ALL the food; he is going on more expensive activities -eg.skiing with friends). I pay for summer camps and activities, we take vacations every year and I save as much as I can in and RESP for each child (started after separation).
I should say that I don't mind to purchase items and take care of my kids in fact I enjoy it. It is getting harder to afford the child support to ex and to maintain our home, and the things the kids need/want/enjoy when with me- me going into my overdraft nearly every month does not seem to be in their best interests.
I am concerned that as she has a very high conflict lawyer and is difficult to work with (nearly 4 years of litigation to settle after I had given a draft sep. agreement with pretty much the same terms). Ex also often, if not always, gets the kids involved (for example when the mat home was sold kids said to me “if you don't sign the papers [divorce agreement], [ex] says we have to rent a house and we don't want to”). I know I can't change that behaviour but knowing the past history of ex's lawyer and how ex is often unwilling to communicate or negotiate I would like to be as prepared as possible. Ideally I would like to make an agreement outside of the courts but I can't be sure this will happen.
Also, the final and biggest question is : how much weight does the clause in our separation agreement have?
Can all the changes taken together constitute a material change in circumstances?
Can a motion like this be put forward and be self represented?
Thanks for any and all input,
Please let me know if I need to provide any further information or clarification.
Brand new to the forum so be kind
Background:
Separation agreement granted 2012 (divorce later that year)
2 children of the marriage; joint custody.
Child support set at $550/month (non-table amount).
Section 7 shared 50% (primarily soccer fees), school fees shared 50%.
Ex responsible for cost of busing (approx $800/yr)
Schedule with kids: Thursday after school with me until dropped off Wednesday morning at school;
with ex after school Wednesday until the next Thursday morning (6nights/8 nights every 2 weeks).
All school holidays equally divided.
However, at the time of signing separation agreement “clause” or “point” was put in stating:
“in the event [my] parenting time increases in the future from the current 5 out of 14 days to 6 out of 14 days by agreement of the parties, such change in and of itself shall not be considered a change in circumstances sufficient to warrant a decrease in child support”.
My lawyer at the time said “you can never waive your future rights” so that line was put in at ex's lawyers insistence and there really would have been no way of getting any agreement without it – hopefully I don't regret signing the document with it in there.
At the time of signing, incomes were set @ $64,000 for ex & $66,000 for me
Present day:
Waiting for ex's 2013 NOA; in 2012 gross income of ex was $79,890
my 2012 line 150 $62,501
my 2013 gross income (taxes not done yet, gross income on T4) $73,953.80
Since February 2012 children have been spending Thursday after school until dropped of at school on Wednesday morning (one extra night)
Children are now nearly 12 & 15
My questions:
What is considered a “material change in circumstance”? I feel since we have joint custody, access for me is approx 45% over the year, I have (own) a family-focused home (both kids have there own rooms, room for friends to come over which happens a lot,games, bikes, on and on and the expense of maintaining this home and I bought a home in a neighbourhood close by the ex's in order to facilitate school districts and activities) altogether could constitute a change in circumstance.
As well, I have read that in regards to non-table support amounts, a change in income/means/needs of either parent is considered a change of circumstance. Nevermind that 12 and 15 year old kids and friends eat far more than 9 and 12!
I am seeking to make a motion to vary the order to::
- reflect the change in schedule to the increased night ie. From tuesday after school to Wednesdy after school as that is what is happening (maybe even request week on/week off)
- child support to be calculated using the offset method, recalculated annualy
- S.7 (including busing) to be proportionate to incomes. I think if I use busing as “leverage” I may be more inclined to have some success with the ex.
I would also like to say that I purchase for the kids: bedding/socks/underwear/clothing/shoes/outdoor gear for activities (fleeces/hiking boots, camping equipment; soccer cleats -in fact the ex at one point told me I “need to take care of what the kids need when they are with” me) I realize this standard stuff but I feel it is important to point out that I provide for the children at ex's as well as with me and each week it becomes more difficult (for example, S14 will have 3 friends over eating ALL the food; he is going on more expensive activities -eg.skiing with friends). I pay for summer camps and activities, we take vacations every year and I save as much as I can in and RESP for each child (started after separation).
I should say that I don't mind to purchase items and take care of my kids in fact I enjoy it. It is getting harder to afford the child support to ex and to maintain our home, and the things the kids need/want/enjoy when with me- me going into my overdraft nearly every month does not seem to be in their best interests.
I am concerned that as she has a very high conflict lawyer and is difficult to work with (nearly 4 years of litigation to settle after I had given a draft sep. agreement with pretty much the same terms). Ex also often, if not always, gets the kids involved (for example when the mat home was sold kids said to me “if you don't sign the papers [divorce agreement], [ex] says we have to rent a house and we don't want to”). I know I can't change that behaviour but knowing the past history of ex's lawyer and how ex is often unwilling to communicate or negotiate I would like to be as prepared as possible. Ideally I would like to make an agreement outside of the courts but I can't be sure this will happen.
Also, the final and biggest question is : how much weight does the clause in our separation agreement have?
Can all the changes taken together constitute a material change in circumstances?
Can a motion like this be put forward and be self represented?
Thanks for any and all input,
Please let me know if I need to provide any further information or clarification.
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