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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 12-19-2011, 10:35 PM
Teenwolf Teenwolf is offline
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Default Bad Faith & Imputing Income & Access

Here's my girlfirend's situation in a nutshell:

- Has a child with a guy; never married
- Child is 9 and parent's split up when child was 3 months old
- Access order in place and is respected
- Father has poor child support payment history
- Father was taken to court in 2007 for non-payment and non-disclosure of income
- Father did not submit income tax returns for 2007 court case
- Father stated in court (2007) that he wouldn't pay any amount ordered by the court; have documents to prove statement
- Court decision (2007) grossed up the father's income and ordered a higher retroactive monthly child maintenance payment
- Judge concluded that the father has been unwilling as opposed to unable to meet his child maintenance obligations from the onset
- Father did not pay any amount ordered by the court
- Two months after the court decision, father suddenly became unemployed and has had virtually no income since the beginning of 2008
- Due to a change in his employment, the father got a court order suspending child maintenance payments and arrears effective Jan 2008
- Father has not submitted income returns to the mother (as ordered by the court) since the court decision in 2007
- Father verbally discloses an annual income of less than $8,000/year (threshold for child mainteance payments) to the mother
- Mother filed application with the court recently to impute income and went through conciliation; the father did not submit income tax returns as directed
- Father agrees that his claimed income is siginificantly low, but claims medical reasons as justification
- To date, the father has not submitted medical documentation supporting his restricted ability to work
- The father has claimed to work 16 hours per month as a Doorman at a bar
- Mother has requested the court impute his income based on a full work week at minimum wage

I've done some reading and have learned that evidence of bad faith is not required to impute income, however, evidence of bad faith would certainly not bode well in the father's favor.

Question 1: Are the examples above evidence of bad faith? Examples such not submitting income tax returns for many years, stating in court that he would not pay any amount ordered by the court (and hasn't paid a cent since the statement was made)? Since 2008, the father has not paid any child maintenance, but did receive some inheritence and used it to buy a fancy car, rather then help financially support his child or pay some of his arrears; is this an example of bad faith?

Another issue with the court application is access costs. The mother moved 100km away for better employment. The father refuses to pay for all costs associated with his access and will not return the child to the primary residence. The father claims that it was her choice to move 100km and it's unfair for him to pay for all the gas. He also complains about his low income in relation to hers.

Question 2: Is there a legal requirement for the mother to meet him half way on costs associated with child access? I look at section 7 of the CMG and there is no mention of sharing costs associated with access. There is, however, a means for him under section 19, undue hardship, to apply to the court and get his monthly child maintenance amount reduced, due to "unusually" high costs associated with access. Am I wrong in stating that 100km is not an "unusually" high expense?

Question 3: Does it make sense for an individual to claim employment as a Doorman at a bar, but has medical restricitions that restrict his ability to work? How would the court view this?

Thanks!
  #2  
Old 12-20-2011, 12:35 PM
Berner_Faith Berner_Faith is offline
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Quote:
Another issue with the court application is access costs. The mother moved 100km away for better employment. The father refuses to pay for all costs associated with his access and will not return the child to the primary residence. The father claims that it was her choice to move 100km and it's unfair for him to pay for all the gas. He also complains about his low income in relation to hers.
I can't address some of the other issues you have brought forward, however I do have some experience with the relocation... we went through this with my bf's ex wife... we relocated for me to finish school and she claimed she would not drive the extra time without gas money... she was given two options by his lawyer...

1) Either meet half way between our 2 towns
2) He picks up to start his access time and then she picks up to start her's

She decided to meet half way, however in their agreement it does state that neither party shall have to drive more than 90 min to a meeting location if one parent relocates...in the even that the drive is over 90 min each, the relocating parent will be required to drive the extra time.

One more thing...if she has a court order why hasn't she registered with FRO?
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Old 12-20-2011, 12:54 PM
Teenwolf Teenwolf is offline
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Yes, a court order is in place, but it isn't in ON. The access order is outdated and pickup/drop off locations are no longer applicable. The CS order was suspended by another order after he had a change in employment circumstances; it's now four years later and he has claimed to have not had a job making more than 8k/year since the CS suspension order.

I don't believe my GF will be agreeing to either of the options you mentioned. The father has not met her halfway on anything and hasn't voluntarily paid a CS payment since 2006. Meeting him halfway is just condoning his irresponsible behaviour to circumvent the CS system. We are also not aware of any legislation that warrants meeting half way on access costs.
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Old 12-20-2011, 01:01 PM
Berner_Faith Berner_Faith is offline
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What your gf want to agree on may not be up to her..the fact is SHE moved away, the reason doesn't matter...it is highly doubtful that she will not be responsible for any access costs because she moved away.

Meeting half way is not condoning his behavior... it is in the best interest of the child to see the other parent, and if he can prove that he has presented her with options and she is denying having any involvement in him exercising his access time she can be seen as unreasonable.

Just because he doesn't pay CS doesn't mean he doesn't get to see his child. You are right, there are no legislation that warrants meeting half way, however tell your gf to stop being so petty, that is the child's father and the child deserves to see the child...she was the one who took the child further away from the father, she needs to take on some responsibility.

To me it sounds like because she is not receiving CS she is not willing to allow the father full access...many here will tell you that they take part in option 2.

Another question...did your gf speak to the father before moving the child further away? If not, he may not be responsible for access costs.
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Old 12-20-2011, 01:25 PM
Teenwolf Teenwolf is offline
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I'm fully aware that the court can dictate whatever they wish. My previous post was what my GF would agree to, and she won't be meeting him halfway without an order to do so.

Petty? Are you reading what I wrote? The father is intentionally being under-employed and working in the underground to avoid CS payments. She is not stopping his access and has never attempted to do that. She has never denied him access time stated within the order. I have never stated that he doesn't get to see his child. The father religiously has the child every second weekend. How does not meeting him halfway on access costs equate to impeding his access? If it's due to his low income, read the third sentence in this paragraph.

You're right, she did move away on her own accord, but it's 100km - not across country. The current consent order states that agreement is only required for out of province moves. As a result of the move, she has a much better job and her quality of life (and her son's) have significantly improved.

With all this said, she is willing to take on some of the costs of access thru his reduced CS payments. He'll need to start paying them for that to happen.
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Old 12-20-2011, 02:06 PM
HammerDad HammerDad is offline
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Just as a word of advice.....

Neither party should be adversely affected by the decisions of the other party. So, in most cases, the party who creates the burden is expected to be responsible for the burden...

In this case, you g/f moved. This has caused a burden (whether you want to describe as time and/or money). In most cases, it would be her responsibility to absorb the ramifications of her decision, meaning extra costs and time of driving etc. Had the ex moved, it would be their responsibility.
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Old 12-20-2011, 02:23 PM
Teenwolf Teenwolf is offline
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Fair enough, but he can get the relief thru reduced CS payments. That's the avenue available within the CMGs.

I believe one needs to look at all the circumstances of the situation. This is not a situation whereby both parents are acting in good faith. This is not a situation whereby the NCP is experiencing hardship that is out of his control. If it were, then it would be reasonable to help each other out. The father is deceitful in his employment and income and has never offered full financial disclosure. He currently claims a monthly income of $169. His income has been virtually non-existent for the last four years, based on his unsupported claims. This is not reasonable for a 38 y/o man who has a financial obligation to support his child.

Why do I say that meeting him half way is condoning his behavior? Because it is. He chooses to have virtually no income. It is reasonable for him work a standard work week vice 16 hours per month. Nothing is stopping him from working significantly more than 16 hours per month; however, that would equate to a requirement for him to pay CS. He doesn't want this and acts accordingly. As a result, my GF absorbs all the financial costs of raising the child. If she readily agrees to meeting him half way with access, then she's essentially condoning his behavior. If he was working to his capacity and doing what he could to help out financially, it would be a different story.

Using your statement, "Neither party should be adversely affected by the decisions of the other party. So, in most cases, the party who creates the burden is expected to be responsible for the burden...", wouldn't this principle apply to his decision to not work or not report income, which adversely affects my GF and the child?

This issue isn't a game of not paying CS, so he doesn't get access. I realize that CS and access are separate from each other. However, I don't view this issue as an access issue; there's no attempt here to change the stipulated access rights. It's an issue of expenses. CS and additional expenses are all in the same basket.
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Old 12-20-2011, 02:48 PM
HammerDad HammerDad is offline
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Only getting one side of the story it is hard to tell.

Yeah, NCP doesn't work much. However you have stated NCP claims medical reasons for their inability to work. They would have to have evidence to back up or a judge would have to weigh the claim accordingly. If judge found the reason valid, then a court of competent jurisdiction has deemed it reasonable for NCP to be working reduced hours. Although....how NCP works as a doorman with medical conditions is beyond me.....

But so far what I have read here is a court has suspended c/s as NCP has a medical reason for their inability to work. CP has moved 1 hour away. This move has created conflict and placed a burden on NCP to exercise their parenting time. Would you have preferred that the NCP faught the move and prevented CP from moving?

Your view of "unreasonably high" expense must also be qualified with equating it to a person of equal means. Meaning, is the costs for transportation in this case unreasonably high for someone of limited means. You must compare apples to apples. So lets say NCP's car gets reasonable gas milage, for even numbers sake 10km per litre. So a 200km round trip would take 20l. At todays cost of gas, that equates to about $25. Now, I blow $25 a night on random crap....but to NCP, $25 per trip is about ~4% of their disclosed grosse income. So NCP would be paying 8-9% of their monthly income just to exercise access, and that is only with meeting 1/2 way or doing just pickups. I do think a judge may well find the costs of THIS NCP having to pay that level of their income to exercise their parenting time when the NCP isn't responsible for creating the burden.

Just sayin.....
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Old 12-20-2011, 03:13 PM
WorkingDAD WorkingDAD is offline
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Quote:
Originally Posted by Berner_Faith View Post
I can't address some of the other issues you have brought forward, however I do have some experience with the relocation... we went through this with my bf's ex wife... we relocated for me to finish school and she claimed she would not drive the extra time without gas money... she was given two options by his lawyer...

1) Either meet half way between our 2 towns
2) He picks up to start his access time and then she picks up to start her's

She decided to meet half way, however in their agreement it does state that neither party shall have to drive more than 90 min to a meeting location if one parent relocates...in the even that the drive is over 90 min each, the relocating parent will be required to drive the extra time.

One more thing...if she has a court order why hasn't she registered with FRO?
even after 6 years in Canada it still amuse me why people here measure distance in minutes? You ask someone how far is that - answer 20 minutes drive.
I would never agree to wording "neither party shall have to drive more than 90 min to a meeting location". Drive with what speed? What is there is construction? what if it just slow? What about winter time?

I meant may be I do not understand something but I would understand something like "neither party shall have to drive more than 100 km to a meeting location " but 90 min... I do not know from my point of view it just extra possibilities to argue ... just my 10c - sorry if I miss
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Old 12-20-2011, 03:14 PM
Teenwolf Teenwolf is offline
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Yeah, it’s only one side of the story, which is typically the case in a forum like this.

The NCP does claim medical reasons for his inability to work; however, that is a new development, after the latest court application. The court order suspending CS was not due to medical reasons - He was laid off four years ago. He’ll need to prove that he has been unable to work for the last four years due to his health needs. I don’t expect him to meet this burden of proof. He showed up at conciliation last month with nothing to support his medical claims. Nor did he bring any proof of income, other than a copy of a personal check from his employer, which didn’t even indicate his year-to-date earnings. This lack of openness and proof has been his pattern of behavior since day 1 and I don’t expect things to change for the court hearing.

Thanks for the description of “unreasonable high”. It makes sense, but I don’t think $25 will be deemed unreasonable after his income is imputed, due to his intentional under-employment and/or unemployment for the last four years. I’ve been reviewing the case law and have found cases very similar to my GF’s situation and I believe the NCP has an uphill battle to justify his poor employment record for the last four years. The only thing that will save his butt is a medical expert opinion attesting to his inability to work. I don’t believe this will happen. And you can bet your last dollar that he will have to explain in court his inability to work, yet can break up fights and throw people out of a bar.

Whether the court battle happened before the move or after doesn’t really matter. The info above would have come out one way or another. His unacceptable behavior has gone on for far too long.
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