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  • Motion to Change Final Order - Child Support and terms

    I am new to this forum, and must say that it is excellent. I wish I had this resource when I was going through my separation 7 years ago.

    To provide some history, after a very long (2+ years) litigation, EX and I finally settled the day before trail was to begin. The arrangement was joint custody, 50/50 access, and a provision for child support fixed at a specific value for a duration of 5 years to offset an un-equal division of assets. That order was later amended on consent & independent legal counsel so that child support be redirected to the child's RESP and expenses. In essence, ex pays very little, receives all tax and social benefits, and I cover all child care costs, and any excess monies go directly to the child's RESP for post-secondary education.

    Now ex brings a motion forward, trying to re-open up all financial details in order to get more money and lump sum payments by trying to get retro-active child support, which was agreed to by way of a consentual court order.

    I have some specific questions if anybody might want to chime in, since I am really stressed about this. I have considered going self-represented for some of these motions.

    1) The Motion to Change was served prematurely; there was a clause in the original court order that no motion or application could be brought forward w/respect to CS until a certain date. EX has ignored this (as she does most items in the Court Order) and issued a motion a few months prior to that date.

    On this basis, I was considering asking for a Procedural Motion to dismiss the application, ask for costs, on the basis that it is contrary to an existing order. Ex never asked for financial details (they have now been provided) and her and her counsel have not attempted to negotiate anything thus far, they started first with litigation.

    Does that sound like a reasonable first step? Any feelings about the likelihood of success? My thought is that this would be relatively simple and I could be self represented.

    2. I am fairly confident that no CS would be awarded retro-actively given it is clearly stated in the Order that this was meant to offset a division of assets.

    3. I know that my agreement is un-conventional, where EX receives no money directly and on this basis she likely has a case. This was done to reduce acrimony, done on consent, and done with independent legal counsel (for which I paid). The reality is based on our incomes, I am already paying above child support guidelines, so effectively the only change she is requesting is that money is paid directly to her and she will do what she sees fit, she also wants me to just sign over the existing RESP to do as she pleases.

    4. When we separated, my EX was very aggressive and played ALOT of games. Since the final order, she hasn't been much better. Most of this motion contains false allegations and arguments that simply are not true and for which I have concrete proof are lies and fabrication. She refuses to co-operate and follow the existing order (such as meeting with a parent-coordinator), alienates me from my child, and does her best to alienate him from my family. When we separated, the Judge told her quite simply that if this matter when to trail, it would likely result in a sole-custody situation and it didn't look so good for her. I firmly believed in a joint custody arrangement, but I have regretted that decision ever since.

    I often think when dealing with bullies, a strong defense is a strong offence, and if she is trying to re-open the Final Order, then all bets are off and it is my opportunity to correct problems and breaches to the order.


    I'd love to hear people's thoughts on this.

    Sincerely,

  • #2
    1. The likelihood of success on a motion to dismiss may depend on the time frame compared to the end of the 5 year agreement.

    You state that she is filing a few months before the agreement is expected to end. Her response will be that by the time all financial disclosure was made, a court date set, and a new order made, the previous agreement would have expired. It doesn't matter if it is bullshit, it only needs to sound reasonable. The reality is that your agreement is due to expire anyway. I do not think dismissal will happen if it is only a "few" months. 8 or 9 months, yes.

    If this were me I would get it over with. A judge would look at the situation and wonder why you need to delay reworking your 5 year deal by just a few months. Is it because you are just being obstinate and unco-operative? It can make you look like the one who does not want to negotiate.

    2. I agree that there is little or no likelihood of retractive CS, as long as you make a clear description that makes it obvious to the presiding judge that:
    a) There was ILA for both sides at the time of the previous agreement;
    b) The asset split was unequal for the purposes of offsetting CS (this may not be entirely supportable, such agreements have been overturned, but it certainly shows you were acting in good faith);
    c) That the other party did not approach you at any time to ask for financial disclosure or an update to the CS amount;
    d) You did not have a significant and/or unexpected change in income during the time period of the agreement.

    The duty to make regular financial disclosure can be grey. If the other party doesn't ask, you are not supposed to judged unfairly for not making a voluntary disclosure. However this is going to be looked at in terms of your actual income over those years. If you had a regular cost of living adjustment of, say, 1%, and this was understood by the other party and anticipated at the time of the signing of the agreement, then you can hardly be criticized. However if you had a significant, unexpected jump in income, for example due to a promotion, and never mentioned this, a judge could see this as an obvious failure on your part.

    So there are circumstances where you may be seen to owe retroactive support. You should also pay meticulous attention to both of your respective budgets and be able to show that the child's needs are being reasonably met in each household and that the standard of living is comparable.

    3. Be careful with this. As I understand the nature of RESP (we have them but not cashed in yet) if the plan goes unused, the money deposited by the parents is returned to the parents. So the plan would be seen as containing YOUR money, unless and until the plan is utilized.

    I certainly understand your intent here, and do not fault you, but from an accounting standpoint the RESP is currently your asset if you have been making the contributions. Please double check what I am saying with your accountant. Further, the child is still the child of the marriage over the age of 18 if they are enrolled full-time in post-secondary. As such, you would be responsible for support and tuition expense at that time. What the RESP is really doing is allowing to save money for child support in years to come, not pay child support now. Again, I respect your intent, but as a legal argument it may not hold water.

    4. If you are intending to challenge the custody level, then these points are relevant. However you have too much going on and you should move that there are too many complex issues for a motion and push for trial. If you just want to settle the CS issue, then focus on the financial details and get a ruling.

    IMHO your ex has demonstrated that she can't be trusted to adhere to a signed contract. You should send an offer to settle. If this were me I would say, no retro, Guideline setoff going forward, proportional split of section 7, and yearly disclosure of both of your financial records, including full tax returns. Section 7 should be calculated according to full income (including things like CCTB) and after any tax credits are received for expenses (including the child's sports and arts deductions for example.) Spell this out, and request the same things in your motion.

    Comment


    • #3
      OK, thank you for the information. I would like to add some information that may be pertinent.

      3) With respect to the RESP, the account is held jointly and represents a) joint contributions, b) grants from the government, as well as c) the contribution I've made for the last 5 years. About half of the RESP would be contributions that I have made in-lieu of CS (again with ILA). The amount is payable directly to the child if he/she does not use it for post-secondary eduction, so in no way am I to draw money from this account. That was the spirit of the agreement when it was made and EX was OK with that.

      Now EX is asking that this be transferred to their name, and if they keep it in the RESP, that it would only represent EX's portion of Post Secondary expenses, and it would be used on a pro-rata basis. I am inclined to not transfer this amount, it was done for valid reasons and with ILA, the child benefits greatly from it, and it would also allow for joint contributions in the future... it really isn't relevant who has control of the account given that it is the child's and to be used for their eduction or transferred in full.

      Any feeling if an order would be made to hand over the account?

      4) I agree that an offer should be made... CS going forward, no retro, section 7... But my big concern is the RESP account... If EX doesn't accept it, then I will proceed with the motion.

      I do have big issues with regards to Custody and Access, but I am reluctant to go to trail... I avoided it on the onset, but it may be the right time now. I guess it will all depend if she accepts the offer.

      Thanks again,


      Gilligan

      Comment


      • #4
        Let's be clear on the RESP.
        1. When the child is 18, and in post-secondary, you will still be respoinsible for CS (along with your ex, in a shared parenting situation.) An RESP doesn't change this in the court's eyes.
        2. You are responsible for CS now.
        3. The amount you deposit into an RESP cannot be seen to represent your CS both now, and in the future.
        4. You have to pick one. Even then, the situation is unconventional.
        5. The courts look at post-secondary by looking at the full cost of tuition, books, living expenses, etc. They take any scholarships and bursaries off the top, and take off amount from RESP. The remainder is then split 1/3 to child, and the remaining 2/3 split by the parents proportionate to income.
        6. The courts will not recognize that your RESP contribution as equivalent to child support right now.
        7. If you have a private arrangement that if the child does not go to school the amount reverts to the child, you have no guarantee that your ex will honour this. She has already voided your existing signed agreement.
        8. The courts will see the RESP as a current asset, not paid child support, no matter what you say.
        9. The court is highly unlikely to force a transfer of the RESP funds into your ex's name because there is simply no reason given for doing so. It is a ridiculous thing to ask of the courts. The only way it makes sense is if this is in lieu of some other amount owed. The courts will not transfer funds for no reason.
        Your ex is asking for ridiculous, unsupportable things. You already know that she will not respect a private settlement. She won't get all this from the courts. I do not recommend going to court lightly, but she has no case. She may seek a conventional setoff child support amount going forward. She may not seek transfer of existing funds to her name unless she can give a compelling reason.

        Comment


        • #5
          Actually, if you say that you are paying above CS guidelines table, then this is the occasion to correct it.

          CS paid to joint RESP would not count unless it is transfer to her name and if it is CS, then she has right to ask the RESP change to her name. If you want to keep it joint you might have to pay retro child support.

          I would recommend that you offer to correct your agreement by sharing the day care expenses and paying the CS the conventionnal way as you indicated that would be less than what you are paying now.

          You also mentionned that the arrangement is 50/50, then your CS should be offset.

          Comment


          • #6
            This is all great information. I can really see the RESP as having several arguments. In the end, we agreed that CS was to be paid into the RESP to help the child, as well, it had several advantages such as grants, etc... In the end, we agreed to this model and we both had ILA, so I guess the likelihood of getting any kind of reversal is somewhat low. The agreement was for this to help the child, which it obviously will.

            I do agree, it is now in my interest to go with a more conventional approach with regards to CS since I am dealing with somebody who is unreasonable and cannot abide by any agreement that has been made. At least in the eyes of the courts, there will be no argument left.


            Thanks

            Comment


            • #7
              It wasn't a bad arrangement as long as you both honoured it. Your ex will no longer honour it and is seeking to get control of it.

              The nice thing about a conventional agreement is that you at least know what to expect and there should be no reason to return to court over and over.

              Comment


              • #8
                Agreed... it really is unfortunate that EX could not see the value in continuing this arrangement but as you said, it takes 2 people to honour the agreement.

                Comment


                • #9
                  oh man...she duped you ! if those direct transferred payments wont count as cs paid she will go after retro later. she must haattee you man

                  Comment


                  • #10
                    my ex is getting more and more mean ...just divorced after 3 yr separation. he pays guideline for one child. I think hes gonna make me hate him sooner or later. ive moved on gradually but he wants to use my future remarriage as a way to get child support lowered....dunno if he will dupe me or not so I read away and read all day up on this subject

                    Comment


                    • #11
                      Well, my case had been plead and I am awaiting a judgement at this point. The judge was not to impressed that this was brought forward, given it was a consentual order that was honoured by myself and that the ex is now wanting to undue and settlement that was done with ILA and on consent. We'll see what happens.

                      Lesson from me would be not to deviate from offset guideline support or risk having it revisited by a vindictive ex. Even if they don't win, it gives them the wiggle room to argue the matter.

                      Remariage doesn't have much to do with CS, and in the end it is just the parents income that comes into play. At least in my situation, we are both remarried and there was no impact of household income, so I just pay a big amount of child support leaving my home at a lower standard of living. When my ex is also remairred, with her spouse making more money than the ex and my support payments are just above and beyond that.Their household income doesn't even come into play.

                      Comment


                      • #12
                        UPDATE

                        This went to court, in June and the judge found that there was absolutly no case for retro-active child support. As well, the judge ordered that the RESP remain joint. We consented to commence child support and a split on S7.

                        I made 2 offers, the first one was identical to the judgement, the second offer was to give my ex about 90% of the RESP. Greed prevailed and the EX refused both offers and woudl settle for nothing but retroactive child support + complete control of the RESP.

                        Still waiting for a costs judgement.

                        Comment


                        • #13
                          What were the grounds for having no case for retro child support. Isny having no proof of psyment grounds enough?

                          Comment


                          • #14
                            Originally posted by Mess View Post
                            Let's be clear on the RESP...

                            If you have a private arrangement that if the child does not go to school the amount reverts to the child, you have no guarantee that your ex will honour this. She has already voided your existing signed agreement...
                            This is true.
                            You have a private agreement regarding this, until one of you decide to disagree.

                            If you are both "joint" account holders of this RESP, you both have access to withdraw the RESP funds (the contributions, minus any government grant money) at any time. Either one of you could in theory, withdraw all the contribution money, and use it as a down-payment on a new toy for yourself (I won't comment on how this would look bad on someone of course, if it came to court - but one is free to do so, currently - unless a judge has directly prohibited this somehow, in court order, which I doubt).

                            Just wanted to make that clear, because that is how a joint account works. One account holder, does not need permission from the other, on how to use the contributions. If a child does not go to school, the contributions belong to the account holders (the RESP subscribers, not the beneficiary (child)).

                            Comment


                            • #15
                              Originally posted by Gilligan View Post
                              ...As well, the judge ordered that the RESP remain joint. We consented to commence child support and a split on S7...
                              Interesting.

                              Comment

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