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  • Just received notice of court case (custody, child support) - have questions

    I have just been served notice that a court case has been started against me in the Ontario Court of Justice. I have a few “getting started” questions. I feel I have been fair and accommodating with my soon-to-be-ex, however she is being represented by legal aid while I intend to defend myself alone (out of necessity). I'm pretty nervous about doing so.

    Quick note: despite my best efforts, no separation agreement has ever been signed. All of our correspondence has been documented through e-mail, however.
    1. I was given the package with the documents by a third party, and the AFFIDAVIT OF SERVICE is included in the package, unsigned and unmarked. The notice is dated October 26. I was just served on December 4 (!) and the court date is set for January 18. Is any of this of any consequence?

    2. I don’t intend to dispute the terms of custody, which are that she be granted full custody while I have visitation conditions which I'm fine with. We’ve been separated for nearly 20 months and shared equal custody up until a few months ago (she had signed an informal document stating as much).

      My children started school in September, and I live in a different city from their mother and school. Feeling that I could not win a fight to demand they live with me and attend school in my city, I made the decision to allow them to go to school in their mother’s city, and now only see the children every other weekend. This is not what I had wanted... I worked hard to establish shared custody and intended to move back near the childrens' mother before they started school, however the job market there is lousy while I have a stable job here, so that plan hasn't worked out. But it is what it is, and I accept that as a consequence of my decision, however desperate, to leave the city when we split (I had nowhere else to go but to family).

    3. I intend to dispute the accusation that I have not paid proper child support. We've had shared custody of our children for 18 of the last 20 months that we've been separated. The mother has not worked that entire time, despite being fully able to; she has chosen (in my opinion) to live off the government and sit at home, even now, while the kids attend school full time. In fact, I suspect she is being required to file this case by the government, since they are paying her unemployment and require evidence that I have paid my fair share of support.

      I therefore have been paying her table amount, except I have considered her income to be equivalent to someone working full-time on minimum wage. I didn’t pay anything for the first 5 months of separation because I was as unemployed as she was, but she’s still asking for child support going back to the date of separation. (Side note: while we were both claiming unemployment, she claimed both children as dependents, and I claimed neither, despite me having them 50% of the time, which perhaps was a mistake on my part.) Additionally, I had the children in part-time day care when they were in my custody. She flat-out refused to contribute her fair share (documented), despite being legally obligated under section 7 expenses, so I deducted her share and noted as such on the child support cheques I wrote to her.

    4. I have been paying my share based on my current wage at any given time. It’s my understanding that table amounts are based on the amount of income reported on the previous year’s tax return. I believe if I had paid her according to the previous year’s income instead, I would’ve been required to pay her less than I have (my income has increase a bit each of the previous 2 years). Is a judge likely to give me credit for the amount that I’ve "overpaid" toward future child support, or just say “that’s too bad for you”? Although then the judge might say that I have to pay for those 5 months that I had been unemployed, right?

    5. Finally, I have shouldered 100% the responsibility of transporting the children between my residence and hers, both in time driving and in expense (an average of 600km per week; 150km each way, pick-up and drop-off). She has refused to contribute time or money. I believe she owes me a portion of that (not fully half, as it was me who moved to a different city, but I believe she is responsible for more than 0%). I believe I’m also owed the value of 50% of our assets at the time of our separation, all of which remained with her when I moved out, including a vehicle in her name. Can I bring any of that before the judge in consideration of who owes whom how much money, or is that something I would have to file my own civil case for?


    I don’t make a lot of money and have no savings. I’m scared that the judge will not agree with my decision to consider her wage to be equivalent to a working person, despite my belief that I have the moral high-ground and legal precedent -- although I’ll need to track down examples for the precedent. If I’m required to back-pay that amount, I simply won’t be able to afford it, and I expect it'll eventually just start coming out of my paycheque.

    Thanks all. Any suggestions or advice or concerns would be most welcome.

  • #2
    Hi Aeoln,

    First thing you will realize when visiting this site is that you are not alone. You have many experienced and seasoned people here who can offer you some sound advice on how to proceed.
    My advice, understand and clarify your position on the 3 key matters of:
    1 - Custody
    2 - Support
    3 - Equalization
    Once you know what you want along those three areas, you can build your case and determine the amount of effort you will expend on each area. One you have formulated your framework for this - you can then consult a lawyer to see if your approach is sound and where the weak spots are.

    i.e. if you are content with the current custody arrangement, due to your circumstances, then you know you don't need to fight in that area.
    Any decision you make will have consequences down the road. Look at your wants/needs statement and determine, what decision should you make to attain your goals from a short term/mid term and long term perspective. i.e. if you give up joint custody, will she play you down the road? if you give into unreasonable support requests, how will it affect you down the road, etc

    It is always best to look past the emotions and focus on not just the kids, but yourself. Don't sacrifice yourself for the kids, because then you won't be good for either. Find that balance. And the balance starts with find the sweet spot with your ex.

    Behaviorally, separation comes down to money and control. And the three key areas that get affected are Custody, Support and Equalization.

    Start from these three foundational things and build from there. Use a structured approach and document everything.

    1 - create a folder to track all correspondence between you and her/lawyer. Faxes, letters, emails, sms texts, phone logs, etc
    2 - create a folder for all your case arguments and evidence to support those arguments
    3 - create a folder for all of your separation agreements (multiple versions, etc)
    4 - create a folder for all of your financial statements (multiple versions, etc)
    5 - create a folder for all the various acts (Exhibit E1 - Family Law Act R.S.O 1990, CHAPTER F.3.doc, Exhibit E2 - Consolidation Divorce Act R.S.C., 1985, c. 3 (2nd Supp.).pdf, Exhibit E3 - Childrens Law Reform Act - R.S.O. 1990, CHAPTER C.12.doc, Exhibit E4 - Family Law Act - Ontario Regulation 391-97 - Child Support Guidelines.doc, Exhibit E5 - rc65-10e-MARITAL STATUS CHANGE.pdf, Exhibit E6 - t1213-10e-REQUEST TO REDUCE TAX DEDUCTIONS AT SOURCE FOR YEAR.pdf, Exhibit E11.0 - Family Responsibility and Support Arrears Enforcement Act, 1996.doc, Exhibit E13.0 - ONTARIO REGULATION 114-99 Family Law Rules.doc, Exhibit E15.0 - A Guide to Family Court Procedures.pdf, Exhibit E17.0 - SUPERIOR COURT OF JUSTICE MEMORANDUM FOR TRIAL.doc, etc)
    6 - Create a folder to document all the various case laws from CANLII that support your arguments.
    7 - Create a folder to stage all your evidence files. Financial Analysis, etc..

    Search this forum for answers/advice to the specific questions you have, search CANLII for previous cases on the topics you are interested in and see how the judges enforced/interpreted the law to make their decisions.

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