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Old 05-25-2016, 10:55 PM
GraceUnderPressure GraceUnderPressure is offline
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Default Advance equalization payment quagmire

Before I begin, I just want to say thank you to everyone here. Iíve been trolling for a while now, and Iíve learned a boatload from you folks. Iíve read through a lot of your scenarios, and I havenít come across one yet that resembles the situation Iím in. So here goesÖ

My ex-wife and I used a mediator starting last March to draft a separation agreement. By July we had disclosed all financial information and the mediator prepared a draft separation agreement and a net family property spreadsheet. We scheduled a lawyer-assisted mediation session for mid-July.

Our separation agreement required that I pay the lump-sum asset equalization payment within 30 days of the signing of the agreement. On the assumption that the signing of the separation agreement was imminent, as a gesture of goodwill I forwarded my ex-wife close to $9,000 as a partial advance of the asset equalization payment in early July.

Shortly after that, we participated in the lawyer-assisted mediation session where we resolved all outstanding issues. We agreed that I would pay the table amount of spousal and child support retroactively from June 1, 2015 (she moved out May 1, 2015). I forwarded the retroactive amount to her immediately after the session, and began making regular spousal and child support payments in accordance with the separation agreement.

As time passed, it became clear to me that my ex-wife had no intention of signing the separation agreement. There were several minor modifications made to the separation agreement, and several questions and points of clarification that my ex-wife asked for over the period from August to October. Growing frustrated, on Oct 31 I decided to withdraw the goodwill gesture of the partial advance of the asset equalization payment, and effectively treat that money as fronted support money. I didn't think it was fair that I was paying interest on the money I had to borrow to advance to her that she wasn't entitled to receive until the separation agreement was signed. I communicated this to my ex-wife early November and halted all support payments.

I implemented this change by publishing an account balance spreadsheet, which was presented at a mediation session in January of this year, and articulated my intention to continue not to make support payments until the account balance was drawn down below zero. Henceforth on the regular support payment dates I published updates of the spreadsheet to my ex-wife instead of making payments. I continued to do this until the account balance was drawn down below zero, at which time I restarted the support payments. I continue to update and publish the spreadsheet to my ex-wife as a permanent living record of all my obligations and payments, ensuring the account balance is always zero after each payment.

My ex-wife is now claiming that my support payments are in arrears for the time when I stopped the payments, and has commissioned her lawyer to draft an interim agreement where I am required to admit to this and pay up, which I refuse to play along with. She also has told me that she is not claiming the amount of spousal and total support on her tax return that my spreadsheet indicates. She is now refusing to attend a mediation session to try to resolve this as well.

To sum up, I thought I was being a nice guy last July and trusted her to complete the separation process then. Perhaps it was wrong of me to temporarily stop support payments to draw down the advance I gave her when I concluded that she wasnít going to sign an agreement any time soon. But now Iím stuck where Iíve reported support payments on my tax return that are different from hers, and Iím no closer to getting a separation agreement signed. Iím considering self-representation because my lawyer and her lawyer havenít yielded any useful results - letters go back and forth and itís costing me a fortune. Any opinions or advice would be most appreciated.
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Old 05-25-2016, 11:53 PM
stripes stripes is offline
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I think you made a mistake when you changed your mind and decided that the money you had given her as an advance on equalization payment was actually an advance on support payments, and stopped paying support. You can't enter into agreements and then unilaterally change your mind if you don't like something the other party is doing, and you especially can't do this if child support is involved (not clear from your post). It looks like you stopped paying support in order to force your ex to sign an agreement, which is really not cool.

It sounds like you have two issues: how to synchronize your taxes with your ex, and how to move forward with your separation agreement. On the first issue, if you reported that you paid (say) $5000 in spousal support and your ex reported that she received only $3000, CRA will only allow you to deduct $2000 on your taxes. The onus will be on you to prove that you really did pay $5000 in SS. That will be difficult to do if you have only have evidence of one lump-sum payment that was intended to be equalization. (My partner is in a similar situation - his ex underreported the SS he paid her, but fortunately he has a year's worth of cancelled cheques and copies of their court order specifying the monthly SS amount to prove to CRA that he did pay her what he was supposed to).

If you stopped paying child support for a time, CRA has the power to reduce your refund by the amount of CS that is outstanding (again, unless you can prove that you actually did pay CS - and a lump-sum payment isn't going to prove that).

I think you should let the $9K advance on equalization go. In hindsight, maybe it wasn't the best strategic move, but it's done (and really, with interest rates this low, how much can the interest on the loan be, even if you borrowed the entire $9K?).

For your second problem, how to get the agreement signed, it's hard to know what to advise without knowing what the outstanding issues are. What are the points of disagreement with your ex? Is there urgency about getting the agreement signed, e.g. is one of you in a hurry to remarry?
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Old 05-27-2016, 10:22 AM
GraceUnderPressure GraceUnderPressure is offline
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stripes, thanks for your time to reply. Admittedly, the stress of this hasn't exactly brought out the best in me. The way this actually unfolded was like this: we were standing in line at the license bureau in early July and I said "How about I give you some money to help you buy a new car". If that is construed as entering into an agreement, then that's my bad. It actually took several months of badgering our mediator to get that $9K recorded somewhere - I kept bringing it up in mediation. By November it finally landed in our separation agreement as a separate paragraph in the section under "Lump-Sum Equalization Payment". I had already decided to draw it down at that point because I was afraid of it getting lost in the accounting. It wasn't an act of coercion.

I've put in a request with my lawyer to get a list of outstanding issues on her side. Like I said I will never understand why she didn't sign last July. At our lawyer-assisted mediation session back then, both lawyers and our mediator commended us for negotiating towards a win-win. I will never understand why she didn't want to sign a few days later, and why this is now dragging on. Yes, someday I would like to remarry, but I'm in no rush - I'm still recovering from my first marriage! Mostly, I just want closure - I not a fan of this kind of stress and uncertainty in my life.
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