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  • Child Support Upon Death of Ex

    About a month ago, my ex-wife passed away suddenly at the age of 38. My children, for whom I had joint custody but was not the custodial parent, are now living with me full time and adjusting as well as can be expected.

    I have been advised that because I had joint custody I don't really need to go back to court to amend the order, as custody defaults to me in such a situation. That's the good news (if correct). Trickier is the issue of child support. My son is not mine biologically, though I have always acted in loco parentis and was paying a partial support amount for him under my 2009 court order. His biological father was paying full child support to my ex under this order as well.

    I have been advised by FRO that my ex's death has essentially nullified the bio dad's responsibility to pay and that his payments do not default to me now that I am the de facto custodial parent. They advised that I would have to change my order or get a new order under which his support payments would come to me. As FRO is notoriously WRONG about so many things, I thought I'd come and ask the wiser minds here before mucking about with my order.

    I'm stable financially and not in desperate need for the money, but it would be nice to have so that I can squirrel it away for college/university, as my son is now 15.

    Any advice you can offer about the child support issue specifically and anything else I may have to address upon my ex's death more generally would be greatly appreciated. Many thanks.

  • #2
    I have been advised by FRO that my ex's death has essentially nullified the bio dad's responsibility to pay and that his payments do not default to me now that I am the de facto custodial parent.
    THAT is a load of crap! (Your post actually managed to tick me off..total injustice!)

    The child didn't pass away, his mother did. How does his mother dying negate his child support responsibility? It must be wrong. I would understand you having to have the order amended and re-issued but nullied? That's nonsense. I'll search canlii for similar cases and I'm sure a lot of other posters will too.

    Comment


    • #3
      Originally posted by Pursuinghappiness View Post
      THAT is a load of crap! (Your post actually managed to tick me off..total injustice!)

      The child didn't pass away, his mother did. How does his mother dying negate his child support responsibility? It must be wrong. I would understand you having to have the order amended and re-issued but nullied? That's nonsense. I'll search canlii for similar cases and I'm sure a lot of other posters will too.
      Well this was my thinking. The child support money wasn't my ex's, it's my son's. I had assumed it would simply follow him. It's not like now that his mother has passed on he magically doesn't deserve support anymore.

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      • #4
        Didn't the FRO simply mean that the court order, which they enforce, is no longer valid? The FRO enforces court orders, the don't interpret family law etc.

        What does the bio dad say about all this?

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        • #5
          Yes, I agree with Bill. I'm wondering if you misinterpreted what they said...because them not enforcing or "nullifying" the previous order makes sense. Nullifying his responsibility to pay doesn't make any sense and doesn't correspond with the CS responsibilities laid out in the act itself.

          I'm thinking either you misunderstood what they said, the FRO rep said it incorrectly, or they don't know what they're talking about.

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          • #6
            why didnt the bio dad get custody of his son when your ex died??

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            • #7
              Originally posted by billm View Post
              What does the bio dad say about all this?
              I would think a simple phone call to the bio-dad would solve solve the problem.

              My assumption is that he is a stand up guy and will continue paying for his child - with or wothout an FRO enforceable court order.

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              • #8
                1) It possible that I may have misinterpreted FRO's meaning. The gyst I got wasn't that his responsibility to pay has neccessarily was gone, but rather that they couldn't collect it from him and give it to me without something from the court ordering that. Would I need to do a Motion To Change so that my order lists me as the support recipient instead of my ex?

                2) I've spoken to the bio dad and although he isn't refusing payment, he has a long history of dodging payment wherever possible (ie: hiding income, underreporting, etc). I would rather go through FRO because I expect problems and I doubt he would pay in the absence of something telling him he has to.

                3) Bio dad didn't get custody of my son because the ex and I had joint custody. I've been his dad since he was 10 months old. The bio dad has never shown any particular interest in being involved and has only been paying child support since our order in 2009.

                Thanks for the help, by the way guys. I was wholly unprepared for all this and a little lost as to process. Just when you think you are done with all the Family Law paperwork, life finds a way to bury you in it again.

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                • #9
                  Unless you adopted him, technically upon the death of your wife, custody should default to BIO dad, not you.

                  However, the kid is 15 and his wishes are a virtual lock in terms of where he would like to live.

                  You need to get an amended court order to have support directed to you.

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                  • #10
                    i have a feeling that this is going to open a whole can of worms. If bio dad is the way he is, he may try for custody instead of paying you anything.

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                    • #11
                      Originally posted by standing on the sidelines View Post
                      i have a feeling that this is going to open a whole can of worms. If bio dad is the way he is, he may try for custody instead of paying you anything.
                      I agree, however... if this guy has acted as Dad since the kid was 10 months old, I would assume they would have a strong bond... further more, at 15, if the child wishes to live with him, I don't see a judge ordering that he go to his bio-dad...

                      Has bio-dad been involved int he child's life at all? Or has he just paid his support? After losing his Mom, I am sure the last thing the child wants is to be forced to go live with a man who is a father, but not a Dad.

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                      • #12
                        Originally posted by Pursuinghappiness View Post
                        THAT is a load of crap! (Your post actually managed to tick me off..total injustice!)

                        The child didn't pass away, his mother did. How does his mother dying negate his child support responsibility? It must be wrong. I would understand you having to have the order amended and re-issued but nullied? That's nonsense. I'll search canlii for similar cases and I'm sure a lot of other posters will too.
                        What is the real question is why does the Biological dad not have custody of the children?

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                        • #13
                          Originally posted by Tayken View Post
                          What is the real question is why does the Biological dad not have custody of the children?
                          Asked and answered. Not to mention the kid is 15 so can pretty much choose where he wants to live.

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                          • #14
                            Originally posted by blinkandimgone View Post
                            Asked and answered. Not to mention the kid is 15 so can pretty much choose where he wants to live.
                            Still needs a court order to the fact. Furthermore, an expert would have to verify this. You wouldn't want to go into an Application with an affidavit from a 15 year old.

                            One quick call to CAS can have the child placed back or into crown ward. I would advise the "father" to make an Application requesting an expert determine the child in questions best interests. The child needs to express to an expert to determine what the court can do. Very few judges in the system will talk directly with a child.

                            Check out "The Voice of the Child" materials on the matter.

                            Don't mess around with this one is my recommendation. It could become very expensive if you don't seek legal advice from a solicitor on this one. The matter is way too complex to be solved on a message board for this one. It goes well beyond the norm.

                            Good Luck!
                            Tayken

                            Comment


                            • #15
                              Originally posted by blinkandimgone View Post
                              Asked and answered. Not to mention the kid is 15 so can pretty much choose where he wants to live.
                              The answer appears to be that the bio dad is a deadbeat. But, that doesn't mean that the "father's" rights are protected under the law because the bio dad is a deadbeat.

                              Comment

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