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  • Motion to change

    I am going to be filing a motion to change in the next few weeks and I have a couple of questions.

    Explanation:
    We have shared 50/50 custody of our two children.
    We have a signed final order that states that CS will be payed using the offset method.
    Every year we are to exchange tax returns, calculate a new amount and as of June 1, start paying the new amount.
    In addition, we calculate any over/under payment for the last year and that is to be paid either as a lump sum or over the next year.
    Order states that if there is a material change in circumstance we will use the most current income instead of the previous year's income when calculating the new amount.

    I am currently the payor. On Feb 1 next year I will be going on mat leave. My income will be drastically reduced. I am filing a motion to request that the CS amount be recalculated early using our expected incomes. This is to avoid me paying support for 4 months (realistically more because it's through FRO) after my income is reduced and to avoid a large overpayment being applied the following year (ex will owe that money back to me).

    This motion will cause a nuclear war. I am so stressed out about the whole thing. But - not important.

    My questions are:
    We are requesting a change that will absolutely be denied by my ex so we will end up at case conference. What is the process at that point? Do I need to 'request a motion' at the case conference or will it automatically be ordered since I filled out a 'motion for change' in the first place?

    Secondly - since my order mentions a change in circumstance will result in using current incomes during recalculation, do you think a judge would deny my request and make me wait until the June 1 changeover? I'm worried that the judge will state that the order deals with changes in circumstance already and dismiss my motion....thoughts?

    Lastly, if I file this motion - does it mean I am opening myself up to my ex re-arguing our current order??

    And as always, thanks for the input!

  • #2
    If I were your ex I would claim that you are "underemployed" following the "17" weeks of Maternity leave. Since Parental leave is technically a choice you are making to stay home with your child and not something that should change your support payments. If your ex took Parental leave would you agree to the same?

    I would ask the court to have your normal income imputed on you for every week you took of Parental leave (Following week 17 of maternity leave).

    Just my opinion.

    Comment


    • #3
      Originally posted by FB_ View Post
      If I were your ex I would claim that you are "underemployed" following the "17" weeks of Maternity leave. Since Parental leave is technically a choice you are making to stay home with your child and not something that should change your support payments. If your ex took Parental leave would you agree to the same?

      I would ask the court to have your normal income imputed on you for every week you took of Parental leave (Following week 17 of maternity leave).

      Just my opinion.
      I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.

      Also - I pay him based on his income, which is greatly reduced because he collects EI half the year. Should I impute his income because he's intentionally underemployed while on EI? (I know for a fact he could work but chooses not to because he's a member of a union and is on their 'list' so he waits on his ass for them to call him back to work.)
      Last edited by HappyMomma; 08-16-2013, 12:22 PM.

      Comment


      • #4
        Originally posted by CSAngel View Post
        I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.
        Good to know. That's interesting and something I will take a personal note of because my ex always wanted another child.

        Just out of curiosity. The case law you are referring to was it with shared parenting with set-off child support or primary caregiver with full table?

        Comment


        • #5
          Anyway to answer your question, it sounds like your agreement already includes the resolution to your problem.

          When you exchange taxes next year you calculate the actual over under that is to be paid by lump sum or over the year for the next two years.

          I don't understand why you need to go to court over it.

          Is the issue with FRO?

          Comment


          • #6
            Originally posted by CSAngel View Post
            On Feb 1 next year I will be going on mat leave. My income will be drastically reduced. I am filing a motion to request that the CS amount be recalculated early using our expected incomes. This is to avoid me paying support for 4 months (realistically more because it's through FRO) after my income is reduced and to avoid a large overpayment being applied the following year (ex will owe that money back to me).
            Here is the problem with your position at this time I think...

            The material change in circumstance is going to possibly happen on February 1, 2014. That is 5 months and 16 days until the material change will actually occur.

            Your application may fail on the fact that the change for which you are seeking an order for has not actually materialized yet. The judge may deny your Application at this time because the it is a future prediction to a material change. You may be forced to wait until the material change has occurred and not be able to pre-emptively strike this one.

            I advise you to see out the advice of a lawyer prior to proceeding.

            Good Luck!
            Tayken

            Comment


            • #7
              Originally posted by CSAngel View Post
              I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.
              I would proceed with caution on this argument. Remember there is another responsible parent involved in the birth of a child. As you share 50-50 access (residency) of the child for which support is being paid for the argument could easily be made that the other parent to this new child should be taking the other half of the parental leave time as one would expect them to be an active "co-parent" to this new child.

              You may not be able to blow hot-and-cold at the same time on an issue like this before the court possibly. A strong argument can be made that you should only be talking half the time and the other parent should be taking the other time.

              The alternative on a cross motion would be possibly to claim undue hardship (other party) and seek the income of the parent to this new child to contribute to the CS payments possibly.

              I warn you of Section 9 of the FCSG and to seek an adjustment in line with Contino possibly. This will take into account a really detailed review of both household's expenses and those contributing to them. (Possibly including your new partner and parent to the yet unborn child.) So, the court may determine based on the household incomes that you still have to pay and may actually increase the amount owed to the other parent. This could be argued as Contino is about evaluating the standard of living of both households.

              Good Luck!
              Tayken

              Comment


              • #8
                Originally posted by Tayken View Post
                I would proceed with caution on this argument. Remember there is another responsible parent involved in the birth of a child. As you share 50-50 access (residency) of the child for which support is being paid for the argument could easily be made that the other parent to this new child should be taking the other half of the parental leave time as one would expect them to be an active "co-parent" to this new child.

                You may not be able to blow hot-and-cold at the same time on an issue like this before the court possibly. A strong argument can be made that you should only be talking half the time and the other parent should be taking the other time.

                The alternative on a cross motion would be possibly to claim undue hardship (other party) and seek the income of the parent to this new child to contribute to the CS payments possibly.

                I warn you of Section 9 of the FCSG and to seek an adjustment in line with Contino possibly. This will take into account a really detailed review of both household's expenses and those contributing to them. (Possibly including your new partner and parent to the yet unborn child.) So, the court may determine based on the household incomes that you still have to pay and may actually increase the amount owed to the other parent. This could be argued as Contino is about evaluating the standard of living of both households.

                Good Luck!
                Tayken
                Since I am the lower income earner, it does not make sense for my partner to take part of the parental leave. It is already going to be tough for us. The case law I read on this did not address this at all - it simply stated that the mother had the right to the leave and reduced CS.

                Question - I understand he could argue the validity of parental leave at motion, however, could he also reopen the whole CS calculation if we already have an order stating that we use the offset method? All I'm asking for is to make the calculation earlier in the year so that he doesn't end up repaying a large overpayment the next year and I don't end up with next to no income for 4 months.

                Using Contino vs Contino, I could also end up with reduced payments since 9b and 9c, as you stated, would require a detailed analysis of our incomes and expenses - it would need to take into account the fact that I have other children to support and I have increased costs associated with the shared custody arrangement - of which I have proof. However, I really don't want to go there though - SO MUCH WORK and too risky

                Thanks for your input Tayken - you've given me lots to think about.

                Comment


                • #9
                  Originally posted by FB_ View Post
                  Anyway to answer your question, it sounds like your agreement already includes the resolution to your problem.

                  When you exchange taxes next year you calculate the actual over under that is to be paid by lump sum or over the year for the next two years.

                  I don't understand why you need to go to court over it.

                  Is the issue with FRO?
                  The issue is that my income will be drastically reduced for 4 months before the recalculation kicks in - and then because it's through FRO, the new order will be a few months getting processed which means I'll end up paying likely another 2 months minimum before it's fixed. That would cause us real hardship.

                  Comment


                  • #10
                    Originally posted by Tayken View Post
                    Here is the problem with your position at this time I think...

                    The material change in circumstance is going to possibly happen on February 1, 2014. That is 5 months and 16 days until the material change will actually occur.

                    Your application may fail on the fact that the change for which you are seeking an order for has not actually materialized yet. The judge may deny your Application at this time because the it is a future prediction to a material change. You may be forced to wait until the material change has occurred and not be able to pre-emptively strike this one.

                    I advise you to see out the advice of a lawyer prior to proceeding.

                    Good Luck!
                    Tayken
                    Good advice - it was actually my lawyer who told me to file right away since the court process is slow (and we know this won't be on consent). I'll definitely review this with her though.

                    Thanks!

                    Comment


                    • #11
                      Originally posted by CSAngel View Post
                      Since I am the lower income earner, it does not make sense for my partner to take part of the parental leave. It is already going to be tough for us. The case law I read on this did not address this at all - it simply stated that the mother had the right to the leave and reduced CS.

                      Question - I understand he could argue the validity of parental leave at motion, however, could he also reopen the whole CS calculation if we already have an order stating that we use the offset method? All I'm asking for is to make the calculation earlier in the year so that he doesn't end up repaying a large overpayment the next year and I don't end up with next to no income for 4 months.

                      Using Contino vs Contino, I could also end up with reduced payments since 9b and 9c, as you stated, would require a detailed analysis of our incomes and expenses - it would need to take into account the fact that I have other children to support and I have increased costs associated with the shared custody arrangement - of which I have proof. However, I really don't want to go there though - SO MUCH WORK and too risky

                      Thanks for your input Tayken - you've given me lots to think about.
                      This is why I asked if the case you had read was shared with set-off.

                      Your decision to have another child was made by you and your new partner alone. You are affecting the other parents finances based on a decision he was not a part of.

                      Again I ask if your ex took a year of parental leave would you allow the same reduction?

                      If my ex did this. I would again argue imputed income. Failing that I would use contino and possibly undue hardship.

                      I can tell you as a new 50/50 parent. My budget is pretty much balanced with not much room for movement at this time. If my ex did go on Mat leave and my Set-off jumped significantly it truly would be undue hardship.

                      Just food for thought I don't think your argument is as cut and dry as you make it seem. The child support guidelines are VERY flexible when dealing with set-off support and not as cut and dry as when one parent is paying the other table.

                      Comment


                      • #12
                        Originally posted by CSAngel View Post
                        I've already read case law on this and no, parental leave is for the child, they won't penalize me for taking it. IF you choose to take unpaid leave after the one year, you will, indeed, get nailed with imputed income, but not during the one year.
                        Could you please provide your case law examples of this? It would be gerat to know that "they won't penalize" the child of the marriage because their is a new child (not of the marriage) now.

                        From my research and findings in shared offset child support payments judges have inputed incomes to parents whom "chose" to not work without a valid reason, and having another child is not valid that the other child suffer for the addition of a new extended family.

                        www.canlii.org

                        Lachapelle v. Vezina (2000) 11 R.F.L. (5th) (S.C.J.)

                        Kettner v. Kettner 2006 CarswellMan 158 (Q.B.)

                        Sedlmair v. Sedlmair (1999) 5278, 3 R.F.L. (5th) 294 (B.C.S.C.)
                        Savoie v. Lamarchereflex, (1990), 71 D.L.R. (4th) 481 (Que. C.A.)
                        Hearn v. Bacque 2006 CarswellOnt 3561 (S.C.J.)


                        As per the Child Support Guidelines;
                        1. (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
                        2. (4) (b) orders varying a child support order;
                        3. (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
                        5. Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
                        15. (2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.
                        19. (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;


                        <!-- / message -->

                        Comment


                        • #13
                          Originally posted by CSAngel View Post
                          Since I am the lower income earner, it does not make sense for my partner to take part of the parental leave. It is already going to be tough for us.
                          I hear justices in the court room constantly say "tough cookies" you should have considered this FACT prior to having another child. You are obligated to support your existing child. It is a really ugly argument to try and make in court. Tread lightly on that statement. I can make mince meat out of it in a responding affidavit and I am no lawyer. Imagine what a qualified lawyer would do with that argument.

                          Originally posted by CSAngel View Post
                          The case law I read on this did not address this at all - it simply stated that the mother had the right to the leave and reduced CS.
                          Provide the link to the CanLII posting you are mentioning. That would be helpful. The other parent has the right to seek adjustment of CS in accordance with Contino and Section 9.

                          Originally posted by CSAngel View Post
                          Question - I understand he could argue the validity of parental leave at motion, however, could he also reopen the whole CS calculation if we already have an order stating that we use the offset method?
                          You claimed the material change so yes. He could in his response seek a pile of different things potentially. But, the other party really doesn't have to... They can simply in the response to seek an adjustment in accordance with Contino. This is under section 9 (off-set) and is jurisprudence that sets forth a detailed evaluation of both household's income and the true "needs" of the child recieving support.

                          It is more than just full financial disclosure. It is the "colonoscopy" of financial disclosures in a family law proceeding.

                          Originally posted by CSAngel View Post
                          All I'm asking for is to make the calculation earlier in the year so that he doesn't end up repaying a large overpayment the next year and I don't end up with next to no income for 4 months.
                          Again, it all hinges on the fact that a justice really may have their hands tied in the fact that the change has not materialized yet.

                          Originally posted by CSAngel View Post
                          Using Contino vs Contino, I could also end up with reduced payments since 9b and 9c, as you stated, would require a detailed analysis of our incomes and expenses - it would need to take into account the fact that I have other children to support and I have increased costs associated with the shared custody arrangement - of which I have proof.
                          You answered your own question here:

                          Originally posted by CSAngel View Post
                          However, I really don't want to go there though - SO MUCH WORK and too risky
                          Something to seriously consider.

                          Originally posted by CSAngel View Post
                          Thanks for your input Tayken - you've given me lots to think about.
                          My recommendation would be to start saving off of each of your pay check an amount to balance out your expenses while you are away on parental leave. In addition you may not be able to take the full leave and may have to return to work after 3 months or sooner so you can meet the financial needs of the family.

                          Good Luck!
                          Tayken

                          Comment


                          • #14
                            Originally posted by FB_ View Post
                            This is why I asked if the case you had read was shared with set-off.

                            Your decision to have another child was made by you and your new partner alone. You are affecting the other parents finances based on a decision he was not a part of.

                            Again I ask if your ex took a year of parental leave would you allow the same reduction?
                            Absolutely - as I said - I already pay an increased CS amount because he takes EI regularly. Parental leave would at least be a good excuse to not be working

                            This will actually be my second maternity leave since my ex and I separated. I didn't pay him during the first one.

                            We had a case conference over it and the judge 100% sided with me and told my ex "tough cookies - she could have been fired, life happens". He also told him to start paying me the moment he started working again (he was on EI at the time). He never did of course.

                            So my previous experience was that mat leave was an accepted reduction in income.

                            Comment


                            • #15
                              Originally posted by Canadaguy View Post
                              Could you please provide your case law examples of this? It would be gerat to know that "they won't penalize" the child of the marriage because their is a new child (not of the marriage) now.

                              The father's wife was going on mat leave and he had his payments reduced:

                              CanLII - 2007 BCSC 449 (CanLII)

                              The other case I use for reference is the one you listed - Lachapelle v. Vezina
                              Last edited by HappyMomma; 08-16-2013, 01:59 PM.

                              Comment

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