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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 03-02-2012, 11:23 AM
DunnMom DunnMom is offline
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Default Help for a Family Member

I went through self-repping a year ago to change our old Separation Agreement and I'm trying to help a family member through something and he was at the Courthouse this morn to file papers and the clerk said they were all wrong.

Details are:

They separated in May 2011, legal agreement dealing with Equalization & CS/Access/Spousal done up and signed September 2011.

Kids are 15 & 16

According to the Sep Agreement ... both parents have "joint custody". The 15 yr old lives with dad and see's mom occasionally. The 16 yr old was to be 50/50 access. Dad pays mom spousal for 5 yrs and minor CS (because he has 1 child full-time and they do 50/50 with the other).

Fast forward to now ... the 16 yr old has been living exclusively with dad since November 2011. Dad waited to see how it would play out and now it's going on 4+ months. 16 yr has stated to dad that she wants to remain living with him and see mom occasionally.

I told my family member that 1st he had to file the agreement at the courthouse so he can get a court file # ... he did this earlier in the week.

I then told him him to fill out a Motion to Change & a Change Information Form. He would need to get that filed and then serve his ex by special service.

He wants the original agreement to adjust for the fact that 1a) both children now live exclusively with him and b) that bio-mom start paying CS

He went this morning and the clerk told him he had all the wrong forms and that he needed to start an application, etc ... which is certainly not what "I" did last year when I went through this.

Advice?
  #2  
Old 03-02-2012, 02:53 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by DunnMom View Post
I went through self-repping a year ago to change our old Separation Agreement and I'm trying to help a family member through something and he was at the Courthouse this morn to file papers and the clerk said they were all wrong.

Details are:

They separated in May 2011, legal agreement dealing with Equalization & CS/Access/Spousal done up and signed September 2011.

Kids are 15 & 16

According to the Sep Agreement ... both parents have "joint custody". The 15 yr old lives with dad and see's mom occasionally. The 16 yr old was to be 50/50 access. Dad pays mom spousal for 5 yrs and minor CS (because he has 1 child full-time and they do 50/50 with the other).

Fast forward to now ... the 16 yr old has been living exclusively with dad since November 2011. Dad waited to see how it would play out and now it's going on 4+ months. 16 yr has stated to dad that she wants to remain living with him and see mom occasionally.

I told my family member that 1st he had to file the agreement at the courthouse so he can get a court file # ... he did this earlier in the week.

I then told him him to fill out a Motion to Change & a Change Information Form. He would need to get that filed and then serve his ex by special service.

He wants the original agreement to adjust for the fact that 1a) both children now live exclusively with him and b) that bio-mom start paying CS

He went this morning and the clerk told him he had all the wrong forms and that he needed to start an application, etc ... which is certainly not what "I" did last year when I went through this.

Advice?
You are close but, I believe that he would have to file an application (form 8) to get the process started. He should set out everything in the application and then things will move to a case conference. I don't think the original agreement if not filed with the court has to be filed first.

He would have to identify the "change in circumstance". With children of the ages you are talking about it really is about ending child support payments as the children are over 14.

You can file an affidavit with the Application too and attach the original SA and set out the facts about the change in circumstance.

Good Luck!
Tayken
  #3  
Old 03-02-2012, 02:54 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by DunnMom View Post
I went through self-repping a year ago to change our old Separation Agreement and I'm trying to help a family member through something and he was at the Courthouse this morn to file papers and the clerk said they were all wrong.

Details are:

They separated in May 2011, legal agreement dealing with Equalization & CS/Access/Spousal done up and signed September 2011.

Kids are 15 & 16

According to the Sep Agreement ... both parents have "joint custody". The 15 yr old lives with dad and see's mom occasionally. The 16 yr old was to be 50/50 access. Dad pays mom spousal for 5 yrs and minor CS (because he has 1 child full-time and they do 50/50 with the other).

Fast forward to now ... the 16 yr old has been living exclusively with dad since November 2011. Dad waited to see how it would play out and now it's going on 4+ months. 16 yr has stated to dad that she wants to remain living with him and see mom occasionally.

I told my family member that 1st he had to file the agreement at the courthouse so he can get a court file # ... he did this earlier in the week.

I then told him him to fill out a Motion to Change & a Change Information Form. He would need to get that filed and then serve his ex by special service.

He wants the original agreement to adjust for the fact that 1a) both children now live exclusively with him and b) that bio-mom start paying CS

He went this morning and the clerk told him he had all the wrong forms and that he needed to start an application, etc ... which is certainly not what "I" did last year when I went through this.

Advice?
Also, what about mediation, arbitration or mediation-arbitration? You don't need to go to court to resolve the matter. A mediated agreement would be much better and less hostile for sure.

Good Luck!
Tayken
  #4  
Old 03-06-2012, 10:27 PM
DunnMom DunnMom is offline
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I'm so confused ... I know that if you are simply seeking a change in Child Support (table amount) then a Motion to Change/Change Info Form is the way to go.

He's being told he has to file an "Application" because it involves "custody" but custody is not an issue (IMO) ... it's to remain "Joint Custody" ... the only difference is that now bio-mom should be paying CS as opposed to bio-dad because of the change of cicrumstance.

As I said .... original agreement signed Sept 30th/11 said son lived full-time with dad and daughter lived 1 week with dad/1 week with mom. That lasted for 6 weeks and then daughter decided that she wanted to stay with dad as well and see mom when mutually agreed upon (ie. EOW, dinner mid-week now and then, etc). Daughter has all her belongings now with dad and has since November. Neither kids' have spend a night at mom's since November. They have seen her & spent time with her and daughter has gone away for a weekend with her but refuse to spend the night at bio-mom's home.

The "Application" process seems to be for younger kids who 1 parent had sole custody & now there is to be a change. In this case "custody" is still going to be "joint"

(Mediation will not work ... mom simply says she's willing to have the kids with her and therefore doesn't feel she should have to pay CS since they are choosing to not live with her)
  #5  
Old 03-06-2012, 10:34 PM
billiechic billiechic is offline
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Go see FLIC. They will tell him what to fill out.
  #6  
Old 03-07-2012, 02:56 AM
Mess Mess is offline
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Quote:
Originally Posted by Tayken View Post
Also, what about mediation, arbitration or mediation-arbitration? You don't need to go to court to resolve the matter. A mediated agreement would be much better and less hostile for sure.

Good Luck!
Tayken
Mediation will cost upward of several thousand dollars. I don't see anything here to mediate, the children live with the father, the father should stop paying CS to the mother.

The mother is already "paying" CS, that is the setoff. What changes is that the father no longer pays the balance to the mother.

CS has be calculated according to table, that isn't changing. The children's access schedule has changed, it is not a suggestion that it might change. If it was a suggestion, this could be mediated, but there is no question here about access, the children are old enough to choose where they sleep and have done so.

To Dunnmom: Neither of us were present and your relative was inexperienced and going by your verbal instructions. My first guess is that they didn't explain things to the clerk properly. I agree with billiechic, they should talk to FLIC or at least to Duty Counsel. They should repeat the following as a mantra: Custody is not changing, it is remaining joint; all that is changing is the setoff calculation due to change from 50/50 access... repeat....repeat....repeat...
  #7  
Old 03-07-2012, 10:09 AM
DunnMom DunnMom is offline
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To Dunnmom: Neither of us were present and your relative was inexperienced and going by your verbal instructions. My first guess is that they didn't explain things to the clerk properly. I agree with billiechic, they should talk to FLIC or at least to Duty Counsel. They should repeat the following as a mantra: Custody is not changing, it is remaining joint; all that is changing is the setoff calculation due to change from 50/50 access... repeat....repeat....repeat...[/quote]

THANK YOU MESS !!!! I agree with you. He has to file at the Milton, ON courthouse as they live in Oakville but he 1st went to the Brampton courthouse to see FLIC because he works closer to the Brampton one and figured he was just asking for advice & to clarify what I was telling him.

They confirmed what I told him. That yes, he needed to File a Motion To Change/Change Info Form ... so I helped him with that and then Monday he went to the Milton Courthouse with forms in hand and they said NO, he needed to File a Form 8 (Application).

I agree with you & the Brampton FLIC though ... CUSTODY is remaining "JOINT". He makes $80,000, she makes $40,000. Currently he pays her $145/month. That is calculated by girl living 50/50 with parents and boy living 100% with dad.

Based on this change with both children residing full-time with him, and given her income of $40,000, she should be paying $579.00/mo in CS

I will tell him to go back to Milton and rinse/repeat ... if he waits until next week I am on vacation & perhaps can go with him. (PS - it is my brother who is going through this)
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