could really use some legal advice here (with reference to laws/divorce guidelines)

[knight0369]

Well I've read and read and read some more, coming up with lots of answers but so much seems to be on a case by case basis.
Background:
wife left in 2008 with two kids. Moved them 4 hours from home for new job/training....honest expectations were she would return in a year of so after training completed and providing company offered her a position here. Child support verbally agreed upon (under the table amounts).
she never returned - turned down the job offer.
majority of access has been one wknd a month a few weeks out of the year, but to facilitate that access has required me to drive there to see them, because she refuses to or even meet me 1/2 way.
2010 - my lawyer sends her a letter asking to sit down and formalize a SA.
no response
2011 - lawyer sends another letter with a proposal that i adjust CS to table amounts (because she was making threats etc.). - no response...but i do raise CS to table amounts
2012 - get new lawyer in kids jurisdiction and file court paperwork to force the movement of the divorce

please help and advise....tired of wasting hundreds of dollars on stupid arguments between lawyers but still not getting anywhere. I finally have a case conference date for jan. 2013.
1. she's requesting but can she get it, back Child Support at the table amount. I feel without a court order or SA technically I never "had" to pay childsupport. She also went 4 years without making an issue of it.
2. She feels she has no obligation to assist in facilitating access to the kids, and when I mention requesting a reduction in CS to assist with expenses to get access she laughs in my face. Will judge order her to return kids to me to facilitate access at her expense since she moved? I've offered to meet her 1/2 way and if she refuses to have CS reduced by 25% for that month to offset expenses - she laughed at me again.
3. she has no concept of sharing the "net expense" of any S7 expenses. Is this "stated" somewhere? And how do you determine what qualifies as an S7 expense (extraordinary) and what should be covered with CS?
4. If CS can be raised by an increase in income but not lowered by a decrease in income what is the best strategy to get the "occasional" bonus removed from the gross income #'s I report.
5. We had a home (I owned for 2 months prior to wedding). my name on title, my name on mortgage. at date of separation, the house was upside down. She left 2008, I stayed in home. Mid 2012 I "leased to own" the home to a family...I could no longer afford to stay in the house on my own....She's claiming I had no right to sell the house without her written consent and that the contract I entered with new occupants is null and void (this will obviously cost me mega bucks if this is true).

Thank you for any assistance/guidance!

[Mess]

Child support is the right of the child from the moment of separation. The child support guidelines are the default amount, and the court will only deviate from them if you have good reason with documented evidence.

If you had a written agreement for a lesser amount, it's unlikely that the courts would grant retroactive support. You don't have a written agreement. The situation is dodgy either way and I don't want to tell you yes or no, but I will say you don't have any support in legislation. The best protection you have is that she never asked for more than what you were paying. You very likely will have to pay a retroactive amount from the day she first asked for it.

It is normal to either have her responsible for the cost of transporting the children for access after a move like that, or to have your transportation costs deducted from the table amount of child support.

You have a good argument there, and you may want to frame your payment of lower child support at first around the issue of transportation costs.

Section 7 expenses are detailed in the Child Support Guidelines. They are in "section 7" of the Guidelines. The only grey area is with expensive sports or lessons that usually appear when kids are in their teens, like hockey. You are looking at a vague area "in the middle", a cost too high to be covered under normal child support, and not so high that it is completely unreasonable for your combined incomes. We can make better comment if we know the costs you are concerned with, the ages of the kids, the type of sport/activity, your respective incomes, etc. There is not fixed amount that is "reasonable."

"Net cost" is a no brainer. If daycare costs are $7000 but she gets a tax deduction, the actual costs are somewhere around $5000 or less depending on her tax bracket. You don't pay a share of $7k, you pay a share of $5k. If it were me, I would send a letter/email stating simply, "My share of the cost of xxxxx is on the net cost after your tax deduction. Here is $xxx.xx. If you believe that you are owed more than this, you will have to get your lawyer to explain to you why not, since you will not trust my word. You have the option of taking me to court over this, but be aware I will seek for you pay my legal costs when you lose."

CS can be lowered by a reduction in income, but usually not if the reduction is temporary, like for a few months between jobs. In your situation look at Child Support Guidelines Step-by-Step. It has detailed worksheets for working out income that deals with things like bonuses, deductions, etc. Generally if you income varies you should try to get agreement to base it on a 3 year average. So this year it would be the average of 09-11, next year 10-12, etc.

Regarding the mat home, there is theory and there is practice. You should not have arranged to sell the home without her permission. However if she had denied permission, you have a strong enough case to get an order for sole possession. You didn't dot the i's and cross the t's and this will bite you in the ass. The matrimonial home is joint property. However if she can't buy you out, and you can't afford it, it's not like the courts will force you into receivership. You really need to follow up on this though.

[knight0369]

Thank you for the response MESS.
with regards to child support, pretty much as soon as she started to verbally make a stink about it (2011), I adjusted support to table amount. This is my stance, that prior to 2011 to 2008 she made no verbal or written claim arguing against what we had agreed upon.

section 7...she makes $70k, I make $90k she's chasing me down for $176 for 1/2 of the gross cost for 11wks of Karate and dance (9 & 7 yr olds)....I know its not much and I'm not being petty....but tired of being nickled and dimed to death. She makes good money and I pay +15k a year in child support.

with regards to house: pretty hard to get her to sign something when she refuses to answer requests from lawyers to finalize agreements...my bad I guess for not pursuing it harder and spending more money to "try" to get her to do what's right.

[Mess]

You would have been fine with renting the house, just not selling. I think you would be fine with rent to own, considering you "should" have a settlement by then, but you should really deal with it by seeking exclusive possession and right to sell in a motion order. You have good reason, and you can use her complaints to justify seeking the order.

Make sure you don't discuss anything on the phone, you are certainly at the point where you need documentation of all of her demands and complaints.

The karate and dance classes are well within the level that should be covered by CS.

[FightingForFamily]

1. You can be ordered to pay retroactive support, she is entitled to ask for it but she may or may not be entitled to it. The issue is complex. Some discussion about retro support is here:

http://www.thefrosolution.com/retroactive-child-support.html

As it discusses, you can expect her entitlement to retroactive support back to the date of her formally requesting it. If she has only asked for it recently, her entitlement to retroactive support should reflect that. The fact that you HAVE been paying, have increased your support voluntarily, and that she never asked for the support in previous years means it's unlikely she would get everything she might be seeking.

2. Access costs are a real consideration before the courts. There is plenty of case law showing that the parent who left with the children should assist in the costs of access or expect support to be reduced, sometimes by up to 50% per year. As always, evidence here counts. You'd need to provide evidence of your expenses and how it impacts your budget.

3. Most S7 expenses are laid out in good detail, except for what is considered "extraordinary". This is on a case by case basis determined by the lifestyle of the families before/after divorce and what is reasonable or in the child's best interests. Regular CS is expected to cover almost everything for daily life. What kind of extraordinary expenses were you in conflict about? It also depends on how much CS you actually pay relative to the costs of such expenses.

4. CS should increase AND decrease based on changes in income. Unless the change in income is willful underemployement, it is reasonable to change jobs. As always CS is computed at the end of the year (July 1st after tax season) for the subsequent year. It shouldn't be adjusted monthly.

5. She is entitled to half of the equity of the home at the time of separation. You'll need to talk to a lawyer about what this means in terms of an upside down mortgage... it's possible she actually owes YOU half of the debt for the home. But it's also true she had an equal stake in deciding when/if to sell it and if you wanted or needed to do it without her consent you would need a court order for exclusive possession.

[formydaughter67]

I might add to your question about bonuses. It is in my opinion that bonuses show up on line 101 of your T4 as well as line 150 on your T1 tax return. If it shows up in line 150 I was told it was considered income and therefore that is the figure your CS is based on. I think CS is calculated on your last years T1 tax return.
I do not think you can hide or shift a bonus as it is considered income and your employer will end up having to show it on your T4. So if you get a huge bonus one year and nothing or very little the year after ..in other words if it is sporadic....two options would be to have your employer keep record of the bonus amounts it owes you and break them up so that they are more evenly disbursed. The other thing you can do is do what section 17 of the Federal Child Support Guidelines sets out and I will paste it here:

• 17. (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
• Marginal note:Non-recurring losses
  
  (2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.

• SOR/2000-337, s. 4.

I interpret this to mean that if your income is quite a bit higher one year and that increase is more a one time thing and you expect that your income will fall back to the normal amounts going forward ...in other words you just got a rather large bonus due to an exceptional year your employer had than you can file for a three year average to base your CS on that figure instead. Your CS will still go up but not as spiked as it would have the year after your huge bonus. I would imagine that a year or maybe two after that one year with the large bonus , and assuming there are no subsequent large bonus's, that you can use the next 2 - 3 years again average to get the CS back down to the pint before the year with the large bonus.
Dear members....do you think I have interpreted this correctly? I am no expert after all...lol