Retro spousal

[mcj2012]

Hi all,

here's my situation. I just finished a case conference.

My case: ex is sole owner of her corporation. she does not have employees, she consults clients. since separation we have only used her T4 amount because that's all I thought I needed from her. however, I inadvertently found out that she makes double her income through her corporation. I didn't realize that income could be grossed up for someone who is self-employed or who is incorp. All this time I thought it was only to use the T4 amount. I know, what a big mistake! Right now, she is making it hard for me to get her full financials, however, in case conference she was ordered to do so. We need this to look at how much I have overpaid. I am not even sure I will get retro, but in any case, I would like to see it. So literally 15 minutes before case conference, her lawyer took mine aside and said, if you go for retroactive child support then my client will go for retro spousal. Are you kidding me! even the judge was surprised when they announced that as it was not in their original response to my application.

background on why ex does not have spousal. I signed over the house to her at time of divorce...all of it. A house worth over $600K as I did not want the kids to suffer the pains of fighting over the house and I did not want the children to have to move during such a sensitive and emotional time. I also let her have all the money in her corporation at that time which was over $100 K (the only reason she was able to save this much money is because I paid every single bill in that house for years). I literally was left just enough to put a deposit on a small home. That was okay for me at the time because my peace of mind and time with my kids meant more to me. Also, when she calculated child support using the set off formula, she used her T4 income which was only half of her income, not all income from her corporation. I did not know this at the time and had I gotten a lawyer, I would have received better advice. To be honest, if we had used her real income at the time, she would have been close to making the same income as me at the time, so not sure they would have even given it to her then.

At the time we signed the agreement, we verbally said that all the assets she gained should take care of spousal (house + earnings in her corp). Problem is, I did not sign a so called release for spousal. Keep in mind, we did this all without lawyers and used an online separation agreement. I only learned from my lawyer yesterday about a so called release for spousal, wish I had known to do this. Also note, that the ex earns through her corp close to 150K - 200K a year (half of what she reports on her T4). So not sure she is hard up for cash right now especially with her new husband who is also a high income earner in the 6 digit figure, she has been re-married for 2 years now. With her mortgage now paid off, and a new cottage, boats and sea doos how can a judge even say she needs spousal at this point.

So basically, now that I am reviewing child support retro and asking the courts to take into account her true income, she threatens drop this case or I will go for spousal retro all at the 11th hours.

any thoughts on this? does she even have a claim?

[Links17]

Can you prove her corporate income?

Sometimes separation agreements get thrown out because they are unconscionable. This might be one of those cases.

You had no legal advice, another good reason to throw it out.

[mcj2012]

We have an order that she produce all her financials. Yes I can prove her income as she had to give me the last 3 years of her financials. We have more documents we require that she is refusing to provide. In the last few years her corp made close to 200k. She paid herself about 100k -120 on average is what she writes on her t4. My income is all on my t4 as i am salaried. Fluctuates between 250 - 270. Would live if they throw it out!

[piggybanktoex]

Wow......greed on a whole new level.......self-supporting on a equal level and a liar.

A case of having the cake and eating it too.

Hope you can nail her to the wall for this.

Get retro or maybe stop paying her until accounts balance.

That is disgusting behaviour......just saying.

[mcj2012]

@links17, why would they throw it out because we did not get legal advice. the clause on the separation agreement (which was probably standard) at the end says both parties had an opportunity to seek legal advice. So this clause maybe a problem.

[stripes]

This could be an empty threat. She can ask for all the spousal support she wants, but can she demonstrate that she is entitled to it? If you don't have any wording about spousal support in your agreement, in order to convince a judge that she should receive it, she would need to show that she deserves compensation for sacrifices she made during the marriage, or that SS is needed in order for her to become self-supporting. Her new husband is irrelevant - SS is about the consequences of her marriage to you, not about any new relationships either of you might have.

Some questions:

How long was the marriage, and what were your relative economic positions when you got married?

How long have you been separated for? (the longer it's been, the less likely that she can make a case that she needs SS, as she's obviously been supporting herself).

During the marriage, did she reduce or downplay her own earning power for the benefit of the household or of your career? (e.g. did she stay at home with kids while you worked outside the home, or work part-time, or did she move to accommodate your career?).

Is she currently able to support herself on her own earnings? (her new husband is irrelevant here).

SS and CS are separate things - you can't trade off one against the other, because one is the right of the child and the other is a matter between spouses and not a right. So by treating them as the same (you don't ask for retro CS and we won't ask for retro spousal), her lawyer is being sleazy.

I'd be inclined to call her bluff, tell her lawyer that she's welcome to go ahead and ask for spousal while you continue your quest for full financial disclosure.

[mcj2012]

@stripes:

10 year marriage. I was the bread winner when we first married, but she has worked as long as I have known her. She stayed home for the regular maternity leaves (twice). She quickly became a high income earner after finishing her MBA, (which I solely paid for). Even as a high income earner, the deal was I pay all of the bills and she keeps her income in her company for our family future needs. However, when we separated, the money was still in her corporate account I signed off on that income. for the sake of preventing a fight and having 50/50 share of my children. I did not want to fight for custody, I just wanted my kids, so that was the easiest way to make it all go away.

there was nothing she did for me to further my career as I did not attend school during the years we were married. She had a great job as did I.

I would say on @ 150 - 200K, no mortgage except a small mortgage (less than 100K) on a cottage she shares with her new husband. no car payments, regular bills. (I saw all this on her required financial statement that she had to produce for the courts). she is quite capable of living in luxury with her current income. along with the thousands of dollars I pay in child support...she is living the life and does not want to give it up. We have now been separated for 6 years. If I had to give her spousal retro and going forward, just would not make sense. She is already doing far better than I am as I pay thousands a month in child support and still have my kids 50% of the time. I have a much larger mortgage as I lost all the equity I built when I gave her the home.

We told her lawyer we are still requesting the financials regardless of their threats. We would just like to see the big picture.

[mcj2012]

Sorry just had to add...I am told she is replacing her Mercedes with a new one this year (while I drive my old pick up truck!)...sorry, just venting now!

[arabian]

You have every right to be pissed off. I had the same feelings when my ex purchased a home overlooking a golf course while I was left holding the bag for company debt. In the winter months he would zip off to Scottsdale with the Skank while I dealt with CRA from my rental accommodation.

Getting mad is probably a good thing for you - will help you keep your resolve to get things straightened out.

[stripes]

From what you've said here, it doesn't sound to me like your ex would have much of a case for SS. A ten-year marriage would generally be considered medium term (i.e. Probably not long enough to have a permanent negative impact on her earning capacity), and if six years have gone by and this is the first you've heard of SS, her case is weakened. She has an advanced degree and has shown she is capable of earning a living.

(BTW taking two year-long parental leaves to care for young children is a contribution to your career. Her staying home meant that you could continue to work full time and climb the ladder, so she did subsidize you. This doesn't necessarily mean that SS is in order).

Be careful of two things:

Keep irrelevant material out of the negotiations. It doesn't matter what kind of house she lives in or whether she has a SeaDoo. All that matters is what happened during the marriage and what impact it had on her economic capacities. Save the emotional stuff for friends or for processing with a counsellor.

Try to avoid feeling too sorry for yourself. Are you really paying "thousands" a months in CS? If you've got 50/50 offset, I'm not sure how that's possible unless you've got seven kids. The FCSG tables give just under $1.5K for two children using the income figures for you and your ex that you provided. Also bear in mind that no matter how what figures you use, you make more than double what your ex does, so you should be paying a lot of child support. At $250-$270K, you can afford it. She should be paying her share too, of course.

[mcj2012]

thanks for the advice stripes.

After CS+Daycare+RESP (for 2 kids) yes she gets quite a bit of money from me a month. also the CS is based on her 80K T4 when we initially signed the agreement. after the initial agreement, she started paying herself from 100k-120K on her T4 but this does not include her corporate income (I only saw the last few years as she had to attach that to her response).

I realize I might not get retro because I completely messed up not education myself on my rights and not receiving legal counsel. But even going forward, I just want it to be fair as I don't make more than double my ex does. her corporation which she is sole owner in some years brings in 200K a year (from what I can see on the limited financials she has given.) In fact I compared our incomes after grossing up in one year, she actually surpassed me. So I do not want to continue to pay based on her initial T4 of 80K. which she is fighting to remain the same (claiming I wanted it not to vary, her latest excuse although it says nowhere in our agreement that it is non-variable) . I also think it's quite selfish. Sure we can forget the past, but come clean going forward, you have the funds to contribute to child support as much as I do, why not make life easy and just pay your share!

the only order she had on her response to my application, was to "dismiss this application"...very telling!

[Links17]

Child Support is the right of the child. Unless you were straight up negligent any misdirection she has done to reduce child support will be retro fixed for the past 3 years.

I think spousal support for her is about a snow ball's chance in the bahamas (not hell....)... Giving her the things you did at the divorce was a mistake. The system takes whatever you "give" , marks it as 0 then asks you to pay what "she deserves".

Her current lifestyle is relevant despite what stripes says. If she was broke on her ass, pimping herself out on the street the judge would give her money.

[mcj2012]

are you saying they won't take into account how much I gave her when we divorced. wow! yes a definite big mistake I made. Funny, I avoided the fights and lawyers so that I could just have my kids 50% of the time and not have them go through painful and emotional BS that comes with a long trial and here I am doing it anyway.

so if any of you out there are thinking for one minute to save money, time hassle and fighting with the ex...don't...get a lawyer! Because without knowing your rights and getting sound advice your are screwed. If you cannot afford a lawyer do your research. I didn't and now I am thousands of dollars later and in court! In fact, in the case conference, when the judge mentioned that he read the agreement his comment was "it's obvious that you did not get legal advice!"

I wonder if I have a chance to set-aside the agreement? afterall, I did not see her true income at the time. she only told me what was on her T4, never even saw the damn thing. However, I did sign the agreement...so not so sure about how successful I would be in setting aside the agreement.

[arabian]

There is some interesting case law which you may want to peruse:

https://www.canlii.org/en/on/onsc/do...resultIndex=11

https://www.canlii.org/en/on/onsc/do...resultIndex=15

If I find more relevant cases I will add to this thread- I see there are many cases which touch upon your circumstances on CanLii. Presumably you live in Ontario?

[piggybanktoex]

Yes, because getting a lawyer really helps you not get screwed by Family Law. ; /

Says no higher earner, ever.