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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 10-05-2015, 10:46 AM
blendedinsanity blendedinsanity is offline
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Default Motion for Summary Judgment Questions

Hi everyone, so my step-son came this weekend which was great. Unfortunately it involved 34 emails but still we got to see him. On Friday my partner called a number the court had given him where he got 30 minutes of free legal advice just to confirm if he's on the right track, next steps, etc. and ultimately decide if he should re-hire his lawyer. 30 minutes was obviously not enough time to get complete answers but the lawyer said that he should file a Motion for Summary Judgment right after the case conference to dismiss her application on the basis that she doesn't have a material change in circumstances. After he had explained the whole situation there wasn't a whole lot of time to discuss this motion so we had a couple questions.

First - are there any risks/benefits to filing a motion like that at this stage? He said since she never even mentioned a material change in her application, didn't file any evidence with the application and didn't file a reply it should be a fairly straight forward motion but it seems nothing is straight forward in family law...

Second - if he files that does this mean this his counter application for contact only through Our Family Wizard, no badmouthing, etc. gets dismissed as well? It seems silly to pay for a motion to dismiss her application but then have to pay for another motion to get those things.

Third - this is not related to the summary judgment. One of the things she's claiming in her application is a couple of Section 7 expenses for 2 school trips including spending money, supplies for the trip like travel toothpaste, etc. He asked for receipts as part of her financial disclosure. On her taxes she has claimed thousands of dollars in child care, activities, etc. but never asked for any money for any of that (we know she didn't pay for that child care because she listed her mother using her maiden name who lives two hours away). She refused to provide the receipts and seems to think he's going after the child care issue to get her in trouble (which he's not) but don't you have to provide receipts to the court for any section 7 expenses you are claiming? The only thing she gave was the receipt for the school uniforms.

And is he right to assume spending money (we also gave him some), supplies, etc. are not eligible Section 7 expenses? She gets almost $1000 a month in support and the school trips were $400 and $600 but she tacked on $200 for the first one for the other stuff and $150 for the second one. He offered his pro rata share of the uniforms but she refused it because he wouldn't pay for shoes, belts, undergarments, etc.

She's also asking for money for ski lessons for their son. It's a family ski lesson with her and her partner and she wants him to pay his share. He had a standing offer of $300 for it (the actual lessons with equipment rental was about $500) but she refused and said that it was going to be about $3000 including the brand new equipment (he has NEVER skied before), lessons, a lift ticket for the season and a snowsuit. Is he obligated to contribute to all this when it is a family thing for them?

Thank you!!
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  #2  
Old 10-05-2015, 10:53 AM
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arabian arabian is offline
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You can file a cross-motion for summary judgement and OFW. Perhaps this is what the 30-minute lawyer was referring to?
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Old 10-05-2015, 02:43 PM
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Receipts must be provided for section 7, as well as her NOA to calculate the after tax credit proportionate share.

Whether the school trips would be considered Section 7 or not really depends on the household income. A combined total of $1000 works out to roughly $83/month, which may not be considered extraordinary at all and expected to be covered by child support. I would say if you're paying almost $1000 monthly, CS covers it. The other items are most certainly not section 7 for spending money, and supplies, unless there was special equipment required, would not be.

She turned down you paying anything because you wouldn't pay for everything? Talk about cutting your nose off to spite your face! Belts, shoes, underwear etc are regular every day items covered by CS, your partner was right to refuse.

Again, on the skiing, this is her family venture and not yours. He offered to pay a share of the lessons for the child and could contribute to some of the cost of equipment if he wanted to but there is no requirement to buy brand new top of the line stuff. Alternatively, he could find some suitable used items that he considers reasonably priced and give those to the kid and pay a share of the lessons for his kid only. IMO, this is akin to paying a share of her family vacation and he is well within his rights to say no.
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Old 10-06-2015, 12:57 AM
stripes stripes is offline
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Toothpaste, underwear, and spending money on school trips are almost surely not S7. As for ski lessons - the key thing here seems to be whether Dad is paying for Kid's lessons or whether he's subsidizing Mom's family lessons. He has no obligation to do the latter as he is not responsible for the joint expenditures of Mom's family, only for the extraordinary expenses of Kid. (He also isn't obligated to pay even if these were clearly ski lessons just for Kid - he doesn't have to agree with everything which conceivably might be considered S7. His consent is necessary. The only exceptions that I'm aware of are childcare needed for employment, postsecondary education, medical expenses, which he can't refuse).

This may be helpful (Step 7: Determine if there are special or extraordinary expenses - The Federal Child Support Guidelines: Step-by-Step)

********************

Special or extraordinary expenses are:

child-care expenses that you may have to pay as a result of a job, an illness, a disability, or educational requirements for employment if your child spends most of the time with you;
the portion of your medical and dental insurance premiums that provides coverage for your child;
your child’s health-care needs that exceed $100 per year if the cost is not covered by insurance (for example, orthodontics, counselling, medication or eye care);
expenses for post-secondary education;
extraordinary expenses for your child’s primary education, secondary education or any other educational programs that meet your child’s particular needs; and
extraordinary expenses for your child’s extracurricular activities.

An expense for education or extracurricular activities is extraordinary only if:
it is more than you can reasonably pay based on your income and the amount of child support you receive; or
it is not more than you can reasonably pay, but it is extraordinary when you take into account:
your income and the amount of child support you receive;
the nature and number of educational programs and extracurricular activities; the overall cost of the educational programs and activities;
any special needs and talents of the child; and
any other similar factors that are considered relevant.

*****************
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Old 10-06-2015, 10:26 AM
blendedinsanity blendedinsanity is offline
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Quote:
Originally Posted by blinkandimgone View Post
Alternatively, he could find some suitable used items that he considers reasonably priced and give those to the kid and pay a share of the lessons for his kid only. IMO, this is akin to paying a share of her family vacation and he is well within his rights to say no.
Blink - she will not accept "used" items. She's currently trying to push for a $2500 laptop and printer. Their older son who lives with us has a brand new printer that was used once. My partner offered that to her to cut down the cost and she refused saying her son does not use used stuff. She then said that his refusal to contribute to the $2500 laptop is another reason she needs sole custody - he offered to contribute to a reasonable laptop but its not good enough. He suggested that she rent equipment until they know if their son even likes skiing and she refused saying other people had used it, he needs new. Everything has to be top of the line. We bought him a couple pairs of jeans when he was with us on the summer vacation. They were from the Gap outlet. She sent them back saying they were poor quality. Their son is 14 and he picked the jeans out himself. We just kept them at our place for when he visits.

Stripes - he made these offers for the ski lessons, a contribution towards a reasonably priced laptop, the uniform costs alone, etc. hoping that they could settle this custody stuff and just move on. Her current "offer" to settle would cost him 23k plus losing joint custody. You can tell from her emails that she genuinely believes she's going to have a television drama moment in front of the judge where he's going to tell my partner he's a horrible father and to just give her more money and let her call the shots. For their son's sake we can only hope he gets a judge that sees right through her. Its a small town though and the judge was called to the bar in 1976 so he's worried that the judge may be pro-mom.

I never thought I would be "happy" to have the ex I have. He was removed from our house for assaulting me, I get no child support because he's on welfare and I pay for all transportation to and from visits over an hour away plus sometimes have to give him money for food so that the kids can see their dad. But at least he's not vindictive and dragging me through court.
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Old 10-06-2015, 10:51 AM
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From what I have read it is my understanding that with CS the child is supposed to be able to continue the enjoy the same standard of living had the parents not divorced. In other words, if the child would have had the top-line, name-brand clothing when the parents were together, then child should continue to do so. Of course the payor's income is relevant in terms of affordability.

Of course it makes sense to recycle things but if child never had to do this before then I think it would be unlikely that he is forced to do it now, particularly if the payor parent's income has not changed.

This is my "read" on how things are decided but perhaps others with experience can chime in. I knew a woman who successfully kept her son in expensive boarding school and purchases of $1,800 designer purses for 17 yr old daughter simply because it was a standard set while the couple were married. The father had remarried and had a new family but it was deemed to be totally irrelevant.
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Old 10-06-2015, 11:02 AM
rockscan rockscan is offline
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From what my partners lawyer told him its a case of what is reasonable. Is the child showing a talent as a high calibre ski athlete? No? Then its not reasonable. If he was skiing before they divorced and it was a continuation of the lifestyle he had then its reasonable.

All of these requests are unreasonable. Shes holding the kid hostage while making these unreasonable demands. I mean really, if you dont buy a new computer and printer Im fighting for full custody? What judge is going to say no dad in a kids life because he didnt get new stuff.

He made several reasonable offers and shes either refused or stepped it up. Call her bluff. Let her have a judge tell her shes an idiot and then go for costs. People like this disgust me. He not the bank of dad and its unfair to the kids,
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Old 10-06-2015, 11:19 AM
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There is much case law on the subject. Here is a case of a family with 5 kids and high-income:

https://www.canlii.org/en/on/onsc/do...&resultIndex=7

I agree that the "demands" of the mother seem ridiculous to many of us, however, I believe that the standard of living prior to separation would be relevant.
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Old 10-06-2015, 11:38 AM
rockscan rockscan is offline
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In my partners case his ex constantly overspent while married giving them a perception of a high standard of living when in reality they were heavily in debt. His lawyer told him she cant come at him for expenses she cant afford on her income plus child support. My partner called her bluff and she stopped coming at him. Granted she found the money for the stuff anyway but he wasnt on the hook for it.
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Old 10-06-2015, 12:11 PM
blendedinsanity blendedinsanity is offline
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Arabian - He's actually using that argument to his benefit. They wouldn't have purchased a $2500 laptop if they were still together - she flat out admitted in writing that since he's on the hook this year for 87% of the cost due to a lump sum amount he got last year in a contract settlement at work, she may as well get the best. She called it a commitment to innovation and excellence and said his current laptop would be used for entertainment. Since it sounds like she's being forced back to work by long term disability, next year the split would be about 60/40 so she's trying to push it all through now.

Rockscan - the case conference is in a couple of weeks so hopefully she will get a reality check there. They've been split up for 6 years and have spent tens of thousands of dollars on legal fees. Just seems so pointless and such a waste of money that could have gone to the kids education.
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