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  • Other Party Requesting Personal Documents - Do We Oblige?

    We are on our way to our second settlement conference in 2 weeks.

    My husband has served my stepson's mother with 2 offers to settle. She is refusing to take the offers (in terms of child support) into consideration because she is putting a claim forward that my husband is intentionally unemployed/underemployed.

    She consistantly "requests" (more like, demands) that he provide her with personal information such as...
    • Copies of the "conditions of employment" for all positions held since October 2008;
    • Copies of ROE's for all positions held since October 2008;
    • Documentation with proof as to why he was terminated or left positions;
    • Medical documentation of back injury;
    • Medical documentation of treatment received including length of treatment and date when treatment was stopped;
    • Full documentation of all job search efforts since October 2008;
    • Copy of our mortgage/lease agreement, indicating monthly cost of mortgage/rent and date when it was signed;
    • Documentation of courses enrolled in since October 2008 and the status of those courses, including date of completion;
    • Full financial statement for October 2008 to present.

    She threatens that if he doesn't provide her with this information willingly, she will ask the court that he disclose all the above information to her.

    Naturally, this makes us uneasy, and so we have a few questions we hope some of you can answer.

    1. Are we obligated to provide her with the above information at her request?

    2. Will she be able to get a court order for disclosure of the above information?

    3. What if we don't have or are unable to obtain some of the above information?

    In the 2nd offer to settle, my husband informed her that it is not unreasonable for him to experience employment fluctuation given the October 2008 market crash, the economic downturn, and the recession which followed and continues to exist.

    He let her know that he has made every reasonable attempt to find and maintain a secure full-time position, and will continue to do so until such attempts prove fruitful.

    He told her that it is unreasonable to expect that he take time out of his job search to compose full documentation of his job search efforts and seek out documentation irrelevent to his current job search and career-related education.

    He informed her that in the 2009 calendar year, despite having held 3 full-time positions, he was unemployed for a total of 4 months, during which time he collected EI benefits for a total of 3 months, leaving only 1 month of unemployment when income was not received.

    He even let her know that based on preliminary accounting, his income for 2009 will be in an approximate amount of $25,000, which is not unreasonable given the above information.

    We feel that we have already provided her with more than enough information, yet she continues to demand full documentation of the above listed items.

    Again...

    1. Are we obligated to provide her with the above information at her request?

    2. Will she be able to get a court order for disclosure of the above information?

    3. What if we don't have or are unable to obtain some of the above information?

    Advice is greatly appreciated. Thanks!

  • #2
    Are one of you making claim for undue hardship? Or are you requesting reduction in CS?

    I would provide it if you have it. It will only help your case, not hinder it in my opinion. I know it is a gross invasion of privacy, but all disclosure generally is. I had to give all sorts of information that just galled me including my phone bills(including personal cell), personal banking records, list of money borrowed from family etc. etc. My ex never provided one of those things. We are going through a trial now, and the fact that he resisted disclosure has caused the judge to make an adverse inference to my ex.

    Here is a recent case I found about reduction of child support. The exhusband won a reduction below the guidelines. It may give you some idea of how to go about your situation.

    CanLII - 2009 CanLII 72027 (ON S.C.)

    Comment


    • #3
      Originally posted by independentgal View Post
      Are one of you making claim for undue hardship? Or are you requesting reduction in CS?
      Neither. We're not making a claim for undue hardship, nor are we requesting a reduction in CS. We are asking for CS to be based on the previous year's total income, as depicted on my husband's notice of assessment. We are specifically asking for an order that ALL child support adjustments be based on the previous year's total income as depicted on the notice of assessment. No more of these "whichever method will yield the highest amount at the given time" calculations.

      She doesn't want to agree to this because of my husband's employment fluctuation/difficulties in 2009. She claims that his total income on his notice of assessment for 2009 will be "too low" and so she is claiming intentional un/under-employment.

      My husband offered her the 3-year average, but she is refusing that as well, and is still claiming intentional underemployment.

      We spoke with 2 lawyers about this and they told us that her claim is unreasonable, especially given the current state of the economy. They told us to just ignore her and not provide her with any information that would help her in building her case, as she will obviously use all of it against us... even if it's truthful and reasonable.

      We don't want to provide her with the information, but at the same time, we don't want to seem that we're hiding anything. It's quite the dilemma!

      Comment


      • #4
        What I would do?

        Give her a copy of the Notice of Assesment, and then wait and see what a judge says. Maybe even make the point to the judge that you are willing to disclose everything legally needed, and your understanding was that a Notice of Assesment was enough. Ask for his advice on whether or not you need disclose more. Perhaps even have the documents she requests in hand in Court that day, in case he indicates they are reasonable to disclose. Then you can hand them over right then.

        Be reasonable and open to direction from the Court, and I suspect you will be fine.

        Comment


        • #5
          Originally posted by wretchedotis View Post
          What I would do?

          Give her a copy of the Notice of Assesment, and then wait and see what a judge says. Maybe even make the point to the judge that you are willing to disclose everything legally needed, and your understanding was that a Notice of Assesment was enough. Ask for his advice on whether or not you need disclose more. Perhaps even have the documents she requests in hand in Court that day, in case he indicates they are reasonable to disclose. Then you can hand them over right then.

          Be reasonable and open to direction from the Court, and I suspect you will be fine.
          Except you will end up paying her the cost of the motion if judge will rule in her favour about disclose.

          Comment


          • #6
            Originally posted by sava123 View Post
            Except you will end up paying her the cost of the motion if judge will rule in her favour about disclose.
            Based on the advice received from a FLIC lawyer, her so-called "request" is unreasonable. If you read below, you will see exactly what documents she is asking for.

            For one, we don't have over half those "documents" nor is my husband willing to waste time attempting to obtain them, or sitting in front of an Excel spreadsheet attempting to formulate them while he COULD and SHOULD be seeking employment or working on his course.

            Secondly, why in God's name would my husband want to provide her with documentation/information that will assist her in building her case against him? Because both you and I know that she will find ways to use the information AGAINST him.

            You see what I mean?

            Comment


            • #7
              I am not sure I understand your battle???

              I get that your husband had periods of unemployment in 2009, and as such his CS obligation should decrease accordingly.

              You asked for a reduction and were denied. In fact, at the court appearance your husband had just started a new job, and the Judge increased his support payments to commensurate with same.

              Again, he lost said job, and so on and so forth.

              You want ongoing CS payments to reflect his actual income in 2009.

              The CP wants CS payments to be based on his current income?

              Is he working and making a decent income right now?

              If he is, then I don't understand what you want to accomplish...

              Lets say (for arguments sake) your spouse made $25,000 in 2009 and as such, he should be paying $211/month.

              However, lets pretend he is working now and making a salary which will yield $40,000 in 2010, (= $367 month for CS).

              You are asking the court to order CS to be based on the lesser amount?

              Did I get any of that right?

              Comment


              • #8
                Why not serve and file a sworn financial with respective income tax returns for last 3 years plus any income slips. All the information they need are there. This is the threshold set forth by the Family Law Rules.

                Comment


                • #9
                  Considering the inconsistency in annual income for the last 3 years --Why not request to vary to an amount consistent with average salary for last three years. Ontario Child Support Guidelines provides such reasonable relief.

                  Comment


                  • #10
                    LV I think they have actually offered that and she has refused.

                    I think having the documents (or as much info as she requested) on hand at the court that day is the best option. Do as LV suggests above and file as much information as the court would normally ask (3 years) prior, and come prepared with as many answers as possible. You never know if the judge will feel you are obligated to share, or not. But it isn't reasonable for her to have all that information. YOu might want to point out how unreasonable she has been in trying to settle this.

                    Comment


                    • #11
                      Hmmm, I don't think some of you are fully understanding the issue.

                      Let me see if I can make it clearer.

                      We want for child support to be calculated using 1 way, every time. Up until now, the calculations have been done in whichever way yields the highest amount, whether it's last year's income or current income... whichever is the higher income, that's the one child support has been based on. The adjustments have been made up to 3 times in one year due to increases of income, but never made due to decreases in income. We want to follow the guidelines and simply use the previous year's income to determine child support 1 time each year. Is that clear?

                      That is what we're asking the court for.

                      The recipient doesn't want to agree to that because my husband's total income for 2009 will be approximately $10,000 less than his total income for 2008, due to employment fluctuation as a result of the economic downturn. In 2009, my husband worked 8 out of 12 months and collected EI benefits for 3 out of 4 months of unemployment. Therefore, his income, understandably, will be lower for 2009 than for the previous year when he was employed full-time for 12 months.

                      She doesn't want for child support to go down. She won't ever agree to adjust to a lesser amount, but will fight whenever there is a slight change in income that would yield her a higher amount.

                      We just want for CS to be representative of my husband's actual income. Just as his financial support would be in a family where the parents are together. Can you really expect a parent to pay more than he earns because he earned a higher income in the previous year? That doesn't make sense.

                      In 2010, when his income returns to that of 12-months work, and the total income increases, the child support will increase again.

                      So in 2009, when his income decreased, why wouldn't child support decrease?

                      The CS recipient was offered 2 options. The first was to adjust child support once per year based on the previous year's total income. The second was to adjust child support once per year based on the average income of the previous 3 years. Either way, the most important aspect of this for my husband and I is to have 1 adjustment per year using 1 same method each time.

                      Well, the recipient is refusing both options.

                      She claims she should be entitled to calculate child support using whichever method yields the highest amount of support at the time.

                      For example... she feels that if on "Adjustment Day" my husband's current salary is $40,000 while his previous year's total income was $35,000, then child support should be based on $40,000. But if on "Adjustment Day" my husband's current salary is $35,000 while his previous year's income was $40,000, then child support should be based on $40,000.

                      We want to stick with one method. Either you ALWAYS use current income, or you ALWAYS use previous year's income to calculate. No flip-flopping to use the higher amount of income.

                      Does that make sense?

                      Anyhow, because she knows that she cannot ask the court to order that support be calculated using whichever method yields the highest income at the time of re-calculation, she has decided to fight against my husband's lessened 2009 total income with a claim of intentional under/unemployment... claiming that there is no way that child support should be determined using his 2009 income during the 2010 "Adjustment Day" because he was "intentionally underemployed." And she is asking that my husband provide her with documents to assist her in building this claim.

                      Is that any clearer?

                      Since we don't have over half the documents the recipient is demanding toward her claim of intentional underemployment, my husband and I were thinking of offering her a sworn affidavit which includes any documentation we do have in our possession that we feel is pertinent to the case.

                      So you think such an affidavit will be enough in the eyes of the judge?

                      Comment


                      • #12
                        I think you need to go with your gut and assess what is reasonable to provide, especially if if presents the court with a view that you are being reasonably cooperative, and it furthers your argument.

                        Specifically, the education plan could be presented, perhaps with some supporting documentation. They are probably asking to see the ROE's to see that he was dismissed for cause as there is an area on the form describing the reason for termination. Give it to them if it helps your cause i.e. a layoff.

                        Let common sense prevail and don't get your shorts in a knot about what they are asking for from a privacy or nuisance point of view.

                        If you go to the settlement conference having furnished some materials to the other side ahead of time, then you won't be wasting the court's time. If you provide nothing, you run the risk of having the conference be a waste of time and being asked/ordered to provide disclosure in preparation for yet another costly conference.

                        Let them be the one that is told to do something while you present as moving the matter forward for settlement.

                        Comment


                        • #13
                          So, would you think it alright to simply provide a sworn affidavit of 2009 employment history with exhibits of relevant documents that we do have... and simply ignore her demands for all other documentation?

                          Comment


                          • #14
                            yes and no. The sworn affadavit is a good idea. It shows you are willing to provide documents and are attempting to move forward. But don't ignore her other requests JIC the court deems them reasonable by some odd chance. Try to collect whatever you can, have it with you at the CC so you can provide it if the judge deems it necessary. Just don't give it to her unless the court requires you to.

                            Comment


                            • #15
                              Originally posted by #1StepMom View Post
                              We want for child support to be calculated using 1 way, every time. Up until now, the calculations have been done in whichever way yields the highest amount
                              I think I can see where you are coming from.... but I still don't understand the point to your battle. It seems to me like you are wasting a great deal of time and effort fighting a moot point.

                              You tried to get a Judge to order a lesser amount, based on temporary unemployment, and you were denied because he had started working again. That, in and of itself should prove to you how difficult it is to gain a reduction in child support.

                              The Judge then ordered the new CS amount to be based on his current (higher) rate of pay, which should also prove to you, how the Judge will determine the CS obligation. Basically if the Payor is making more, he will pay more.

                              Originally posted by #1StepMom View Post
                              In 2010, when his income returns to that of 12-months work, and the total income increases, the child support will increase again.
                              With that statement, one would assume that he is now working full time, earning a steady income, which is projected to be higher than the amount he made in 2009.....

                              If you were to base his CS solely on his 2009 Income Tax Return....the NCP would receive significantly less money for the 2010 calander year, then she would if you based CS on his current rate of pay.

                              You want the Judge to grant you a break for the 2010 year, by allowing the Payor to pay, based on his lesser 2009 earnings, even though his current earnings are much higher....

                              You think that would be fair.....

                              Sounds reasonable enough.

                              Except for the fact that it isn't going to fly.... I really can't see a Judge allowing this.

                              What you are offering is not in the "best interests of the child"..... more money is always better then less money... that's just how it is.

                              The Judge isn't going to look at this and say...

                              "yeah sure, lets make you pay XX for the next 12 months, instead of XXX, because you made less money LAST year???

                              Originally posted by #1StepMom View Post
                              So in 2009, when his income decreased, why wouldn't child support decrease?
                              You tried that, and didn't provide a compelling enough argument.

                              Originally posted by #1StepMom View Post
                              The CS recipient was offered 2 options. The first was to adjust child support once per year based on the previous year's total income. The second was to adjust child support once per year based on the average income of the previous 3 years.
                              Would you agree to a lesser payment for your child, for an entire year, knowing full well that the NCP is making much more money?? I seriously doubt it.

                              Originally posted by #1StepMom View Post
                              Either way, the most important aspect of this for my husband and I is to have 1 adjustment per year using 1 same method each time.
                              Once your husbands employment status becomes more stable, this will become a moot point.

                              Adjustments will be made on a annual basis, based on previous years income tax return. So there will be nothing to argue about. You will gain your "most important aspect" of 1 adjustment per year, using the same method each time.

                              Originally posted by #1StepMom View Post
                              She claims she should be entitled to calculate child support using whichever method yields the highest amount of support at the time.
                              Not necessarily her fault, if he was earning a stable income, she would have nothing to whine about. And based on your previous comments, he is finally earning said income.

                              I can understand it if he was sick, and couldn't work and was fighting to get a reduction in CS, but that is not your case, he is working, making a comparable income now...

                              So why can't you just pay the table amount, if he is making the money?

                              Originally posted by #1StepMom View Post
                              Anyhow, because she knows that she cannot ask the court to order that support be calculated using whichever method yields the highest income at the time of re-calculation, she has decided to fight against my husband's lessened 2009 total income with a claim of intentional under/unemployment...

                              "And she is asking that my husband provide her with documents to assist her in building this claim.
                              The Payor is the one who asked for the initial adjustment, and the Payor is the one who wants to pay a lesser amount, even though he is now making more money....

                              By handing over the documents, you are not building her case, you are securing yours. Your argument for the reduced amount has to be based on something, anything, other than "fairness" to the CS Payor, or you WILL loose.

                              If he was honestly trying to maintain employment, and seek new employment.... then he has nothing to worry about.... unless you are trying to hide something, I don't see the harm in providing full, frank and honest financial disclosure.

                              But IMHO, when all is said and done, common sense tells me the Judge will base ongoing CS on his current rate of pay anyways.

                              Comment

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