LoL@custody

[MS Mom]

We have always been WELL over 40%. WELL OVER. 3.5 years thus far. And if you read my post about trial last week the judge didn't care. And keep in mind, this isn't a poor mom making do with a little bit of child support... mom makes almost 40K tax free just from us, plus another 8-10K a year in CCTB, has a live in common law spouse and also runs her own business making at least another 40K a year.

What the law states and what the law does are often two different things. It is wrong. No one would suggest mom take less child support than is rightfully owed to her. But Judges easily expect that dad's will pay more than they should.

I encourage you to read my posts on trial and the bias that was had between the parties. For the record, the judge was female.

My experience has been that the 40% thing is just a guideline and nothing more. My ex attempted the same recalculation of cs on the 40% rule and wasn't successful. With no hardship on him paying guideline, the judge wasn't about it entertain it in case conference or settlement conference (years ago - now it isn't a problem since he hasn't seen her in 2 years).

I always wondered if my ex thought I was able to rent her bedroom or something on the 40% time he had her. As the custodial parent, my expenses were no less if she was with him 41% as opposed to 39%, so it's an argument I've never really understood to be honest.

Now that he has her 0% of the time it's not like cs has increased or anything either.

[Mess]

AFAIK there are four elements of common law (case law) that apply to the 40% threshold:

1. 40% is 40%, and judges MUST acknowledge this as shared parenting. There is no wiggle room in the legislation.
2. There is discretion as to how time is calculated. The safest route is alternate weeks, this cannot be argued against. If the schedule has mixed days, rotating days, etc., then a judge may count hours, or consider time at school to be with a "primary" parent. This is up to the judge's discretion, and yes, there may be bias and one parent may be favoured.
3. A judge does NOT have to decide to use the setoff. Section 9 a), b), and c) give a judge a lot of discretion about how to order child support, and at what amount. If the two parties have divergent incomes, or living arrangements, mortgage vs renting, or many other possibilities, then a judge may make a support order that diverges greatly from the setoff amount.
4. If the physical custody is >40% immediately from separation, then shared parenting and the setoff amount should usually be ordered. However if the 40% occurs gradually due to some later change, then a judge may decide that the "primary" parent has already made material financial decisions, such as arranging a mortgage, and will not order a change in support amounts. Is this fair? Not always. But it is within the law, and judges can and will make such a decision.

It is an uphill battle if you are seeking to change an existing CP/NCP scenario. If the incomes or living arrangements are not close to equal, the judges have a lot of discretion.

However one thing a judge MUST do if the custody is within 60:40 is to consider all of the issues brought forward. A schedule III comparison of household incomes should always be presented. Budgets should be supported by receipts and statements. If a decision is made without refering to actual facts of the case and giving appropriate reasons, then it should be appealed.

Serene, if you did not get the 40% acknowledged, the judge must give reasons. What were the reasons given?

MS Mom, I appreciate where you say, do you rent out the room the 40% of the time your child is away, but exactly the same logic applies to the room at the father's home when the child is with you. A case conference opinion is just an opinion, even if it is from a judge. You should appreciate that the father agreed to settle. The result was in no way certain.

[MS Mom]

AFAIK there are four elements of common law (case law) that apply to the 40% threshold:

1. 40% is 40%, and judges MUST acknowledge this as shared parenting. There is no wiggle room in the legislation.
2. There is discretion as to how time is calculated. The safest route is alternate weeks, this cannot be argued against. If the schedule has mixed days, rotating days, etc., then a judge may count hours, or consider time at school to be with a "primary" parent. This is up to the judge's discretion, and yes, there may be bias and one parent may be favoured.
3. A judge does NOT have to decide to use the setoff. Section 9 a), b), and c) give a judge a lot of discretion about how to order child support, and at what amount. If the two parties have divergent incomes, or living arrangements, mortgage vs renting, or many other possibilities, then a judge may make a support order that diverges greatly from the setoff amount.
4. If the physical custody is >40% immediately from separation, then shared parenting and the setoff amount should usually be ordered. However if the 40% occurs gradually due to some later change, then a judge may decide that the "primary" parent has already made material financial decisions, such as arranging a mortgage, and will not order a change in support amounts. Is this fair? Not always. But it is within the law, and judges can and will make such a decision.

It is an uphill battle if you are seeking to change an existing CP/NCP scenario. If the incomes or living arrangements are not close to equal, the judges have a lot of discretion.

However one thing a judge MUST do if the custody is within 60:40 is to consider all of the issues brought forward. A schedule III comparison of household incomes should always be presented. Budgets should be supported by receipts and statements. If a decision is made without refering to actual facts of the case and giving appropriate reasons, then it should be appealed.

Serene, if you did not get the 40% acknowledged, the judge must give reasons. What were the reasons given?

MS Mom, I appreciate where you say, do you rent out the room the 40% of the time your child is away, but exactly the same logic applies to the room at the father's home when the child is with you. A case conference opinion is just an opinion, even if it is from a judge. You should appreciate that the father agreed to settle. The result was in no way certain.

The result wasn't certain at all. But, it became obvious when we discussed the particulars of the costs - ie. he never supplied clothing, all school related expenses (yes, including lunches) were paid by me. He's the guy that came by to pick up $1 for popcorn day.

But, what about the increased costs associated with no access? He fought tooth and nail for it and hasn't bothered with her since. He doesn't have to maintain a room for her at his home if he doesn't bother to come and get her.

[Links17]

Why don't you want to do it now, as you go? What stops you? Someone has to do something; yes, no, may be?

When you are done with your personal issues, I can almost guarantee you, you won't want to move your baby finger, 'cause it will seem irrelevant/not important to you any longer. It is now or never.

The crap in family court is happening only because the parties involved/discriminated there (men mainly) do absolutely NOTHING to change the situation. Do you, guys, have right to complain?

Remember, for everything we have in our lives today, someone fought, someone went to jail, someone got ridiculed and someone got killed some ages ago.

My point is or actually two points:
1. If you don't do a thing to change the situation - don't complain. Swallow it.
2. If you don't like the situation then do something to change it, NOW.

1. I am going to appeal over my issues which is a ballsy move by itself. If I don't like something I speak out, I am following the full judicial route before I cry foul. I took every possible precaution and had every proof and while I didn't get immediate results the message was well received and I got promises of resolution (end of spousal support + shared custody) within about a year and a half - if it comes to fruition I will be absolutely shocked and won't be able to complain about the legal system. My intuition tells me though that I've been given a carrot on a stick.

2. Change takes time - I'm just a wheel in the system. I can honestly I've been part of at least 1 major governmental policy (anti war movement) and some other national incident that most people are aware of. I detest injustice wherever I see it, even between children and I feel obligated to intervene if it is warranted.

I will do what I can to identify the issues that need to be fixed, have broad based support and tackle them in a strategic fashion. I actually think a presumption of shared custody might be a very good starting point because from what I've read in Australia that it has broad based support (80%-90% of people polled believe shared custody should be the default). Once you have default shared custody a lot of other things become irrelevant. Its really not easy though but I promise I will try.

I'm just some random poster on some random forum, I'll try my best but its an uphill challenge. The good part of is that I think I have the most powerful demographic that is probably seriously pissed off with the system on the side, MEN.... Their resources just need to be harnessed and directed.

[Serene]

Serene, if you did not get the 40% acknowledged, the judge must give reasons. What were the reasons given?

Again, we were sidelined on trial day by a pretrial. The judge strongly recommended we pay full guideline amount and we did offer and agree to pay that amount for more uninterrupted time with the children.

Yes we could have went to full trial and fought our way through things. I believe we would have been successful too. The issue for us is that we wanted to resolve things as this has been very tiring emotionally for us. I guess you could say it was easier to give her more money that to consume more emotional head space. We were also at risk of impeding dad's employment given the amount of time he has not been at work on account of this legal issue. It was just easier to throw her some money to get to a negotiated resolution. Perhaps we failed given we caved in, but it is what it is.

And for the record - NO, the judge never gave a reason for dad to pay full guideline amount. She acknowledged the over 40% and just asked if this was about money. When dad said no, she said great, pay her full CS. Funny thing is, she never asked mom if this was about money. The judge never questioned the mom at all. Not even when mom insisted that dad skype the children or only take them to extra curricular activities instead of spending his time with the children as he pleased. It was all very bizarre to say the least.

We have more continuous time with the children now. Not more much time in percentage than we had before but it is longer periods of time now. This new schedule has been in place for not even a week and mom has taken things to the extreme. She showed up at the kids extra curricular activity this weekend and literally hung off the children - even sharing their seat with them, holding their hands and made it impossible for the children to mingle with the other kids they were playing with. The coaches were asking who she was and why she was in the playing zone with the children. She was eventually asked to leave the playing zone and then came back a few minutes later. She chose to squat beside the children so I guess she went unnoticed from then on in. What was to be the kids extracurricular activity became a mom and me play date since no one else could even get the children's attention. No wonder the kids lack social skills lol. Then she bought them a meal even though we asked her not to as it would throw off our lunch plans. Then of course, she dragged out her good byes to them and made quite the scene. I know in my heart that our more continuous time with the children will be plagued by this type of behaviour. Sigh....

[arabian]

Hi Serene. What ages are the children? I had the impression that they were older - past the age of prolonged good-byes anyhow. Was it your weekend access time? I guess if the kids are in an organized sport (league play) the parents can both attend. Maybe an alternate extracurricular activity, for when you have the kids, has to be planned? Situation sounds terrible. Aren't the kids a tad embarrassed by mother's coddling?

[Serene]

Children are 7 and 12. It was our weekend access time indeed.

I would think the children were embarrassed. However, this is one of those things you don't ask the child as it wouldn't be appropriate. Having mom leaning on a 12 year old and holding his hand throughout the activity isn't appropriate at all. I wouldn't even think it is appropriate for a 5 year old either. I mean, the intent is to have children in an activity for them to PARTICIPATE in an activity. Mom and child play times should be a separate event. Parents who want to support their children in an activity typically do so from a distance. To note, she was the only parent amongst 80 or so kids exhibiting this behaviour... sigh....

[billm]

My experience has been that the 40% thing is just a guideline and nothing more. My ex attempted the same recalculation of cs on the 40% rule and wasn't successful. With no hardship on him paying guideline, the judge wasn't about it entertain it in case conference or settlement conference (years ago - now it isn't a problem since he hasn't seen her in 2 years).

I always wondered if my ex thought I was able to rent her bedroom or something on the 40% time he had her. As the custodial parent, my expenses were no less if she was with him 41% as opposed to 39%, so it's an argument I've never really understood to be honest.

Wow, just wow.

Its a simple concept that he incurs significant if not equal costs for his 40% of the time, yet he was paying CS as if his access was 0% (ie no costs).

How you fail to recognize this, and expected him to pay you 100% of his CS guideline costs to raise the child, all while he was raising the child 40% of the time, is truly sickening, and not in the best interests of your child.

[MS Mom]

Wow, just wow.

Its a simple concept that he incurs significant if not equal costs for his 40% of the time, yet he was paying CS as if his access was 0% (ie no costs).

How you fail to recognize this, and expected him to pay you 100% of his CS guideline costs to raise the child, all while he was raising the child 40% of the time, is truly sickening.

Bill:

What is truly sickening is him going to court to have his CS reduced because of the 40% threshold and then deciding to completely ignore her for two years.

What is truly sickening is that the 40% thing was about money for him, not the child. Had the 40% recalculation taken place he would be paying reduced child support and not using access any of the time.

What is truly sickening is showing up to your custody hearing via telephone because you live 2500km away but won't relinquish control.

What is truly sickening is that HE tried to use access to avoid his financial responsibilities and now successfully avoids both the financial responsibility and parental responsibility.

What is truly sickening is that you don't have any grasp on what I'm dealing with here but are willing to bash anyway.

[MS Mom]

Wow, just wow.

Its a simple concept that he incurs significant if not equal costs for his 40% of the time, yet he was paying CS as if his access was 0% (ie no costs).

How you fail to recognize this, and expected him to pay you 100% of his CS guideline costs to raise the child, all while he was raising the child 40% of the time, is truly sickening, and not in the best interests of your child.

Tell me Bill, why doesn't child support go over guideline when you are responsible for the child 100% of the time and therefore 100% of the costs. If guideline can be reduced to address a 40% contribution in expenses from the access parent, why isn't it increased to represent a 0% contribution from the "access" parent. Who, by the way isn't even requesting access any longer.

[Links17]

Tell me Bill, why doesn't child support go over guideline when you are responsible for the child 100% of the time and therefore 100% of the costs. If guideline can be reduced to address a 40% contribution in expenses from the access parent, why isn't it increased to represent a 0% contribution from the "access" parent. Who, by the way isn't even requesting access any longer.

In quebec it does, failure to exercise access can result in a 20% increase in child support.

[MS Mom]

In quebec it does, failure to exercise access can result in a 20% increase in child support.

No such provision in Ontario from what I can figure out. I'm not looking for increased CS in my most recent Motion to Change. All I want is the status quo reflected in our agreement.

He doesn't even request access. Why? Probably because that would mean using his vacation time to see his child or potentially having to pay airfare for her to go there. And money is all that motivates this guy, so I imagine it will be years and years before she sees her dad again.

Now that's the sad thing. Not that he didn't get a marginal reduction for 40.5% access time that he's never bothered to shop up for.

[Janibel]

In quebec it does, failure to exercise access can result in a 20% increase in child support.

That's how it should be, parents who are unwilling to participate in their own children's care are penalized for it. Vive le Quebec!

[MS Mom]

That's how it should be, parents who are unwilling to participate in their own children's care are penalized for it. Vive le Quebec!

I agree Janibel. He doesn't participate in anything. He tries to control a lot, but participates in nothing. He doesn't even call her on her birthday - not even collect like I've invited him to do.

[mcdreamy]

I thought the support tables pre-supposed that the majority of child expenditures were born by the CP. Is that not the case?
[I've never really looked at how they were initially calculated in 1997].