CS, CS Arrears and Shared Custody

[dorano]

Good afternoon everyone,

I'm hoping to get some advise - my ex and I have shared custody of our two children (DS 2.5 and DD: 5) and in the recently agreed upon seperation agreement, it was determined I would pay him a monthly amount of CS (offset) and he would pay me a lump sum of CS arrears (Approx 2k stemming from daycare expenses in 2011/2012)

About two weeks after the seperation agreement was signed and finalized, he filed for bankruptcy. I only found out when I followed up on the lump sum payment I was supposed to receive and for CS moving forward. He then announced that he filed for bankruptcy, nicely didn't declare his daycare arrears as an amount to be included in the proceedings (he has no idea...) and would not be able to pay me back for some time, and that he could perhaps start paying 50$ per month well into the New Year. Meanwhile however, he NEEDS the monthly CS to make ends meet and be able to support the children.

I understand I have the option to file with FRO and force him to pay me back sooner, however I don't see this as benefiting the children in any way since we have a shared custody arrangement and he is VERY bad with money (clearly...).

I am extremely frustrated however because I am struggling with my budget, the money he owes me I owe to CRA (CCTB and UCB fiasco involving the ex regarding the benefits) and my benefits are being clawed back to go towards this debt. This leaves me with a reduced monthly cash flow, one fixed income and having to pay CS to the ex who owes me thousands of dollars. Somehow he believes that he needs it more than I do, which is quite wrong. Not to mention it feels like I am simply supporting his heavy drinking and smoking habits and not necessarily the children, but that's besides the point.
Also I feel its important to point out that in the last 4 years of marriage he was earning 35-40k per year, and since seperation has been unable to earn more than 25k per year.

Anyone ever been in such a situation? Am I crazy to be letting him get away with this (Not filling with FRO) and paying him CS monthly? I am telling myself its for the benefit of the children since I know he is struggling to afford the shared custody arrangement.

Any advise? Other than going to my lawyer who I cannot afford any longer?

Many thanks.

[Mess]

I do not believe that you will be able to file with the FRO for a lump sum payment. It must be set out in the order as a monthly payment for a fixed period. It is possible to have your agreement ammended and then have the amount deducted from your monthly support.

The only fiasco I can imagine with the CCTB and UB would be if you were collecting when you shouldn't have been. Keep in mind that you can hold off and they will deduct the amount from your next income tax refund (if the children are in daycare then you should have a substantial one.) This isn't fun either, but it may be less of a monthly burden.

The CS arrears should be protected from bankruptcy; he should pay you first out of whatever assets he has. Does he have any assets at all, RRSPs for example? You should file a claim as a creditor ASAP. It may be possible to be paid immediately, and the banruptcy trustee would have to ensure you are paid. However if you wait, any assets may already be paid out.

[dorano]

Thank you Mess - interesting fact about FRO since originally in our seperation agreement it was outlined as a monthly payment, and he requested to have it changed to a lump sum payment which only now I'm finding out he never had the intention of paying.

He had and has no assets - he had a brand new 2 door sports car for which he owed more than it was worth and was taken away.

The UCB and CCTB fiasco was in fact due to the fact that I was collecting the entire amount and paying daycare on behalf of both of us. It was an arrangement we had made and in hindsight, it was a bad idea and I'm happy its all "in order" now but I just wish he would have paid me what he owes me! I have all daycare receipts in my name at least...

I will attempt to file a claim as a creditor - and hope for the best.

[hadenough]

When did he file for personal bankruptcy? What is the total amount he owes you?

[dorano]

He filed just last month, and owes me a little over 2000$.

[OrleansLawyer]

I only found out when I followed up on the lump sum payment I was supposed to receive and for CS moving forward.

1 - Bankruptcy does not affect child support, including arrears in child support.

2 - Why don't you credit his debt to you by the amount of your monthly child support payment, then continue paying child support once his debt is paid off? Or, if he starves if you don't pay, deduct a certain amount so that he will pay you back in a reasonable time frame. Provide him receipts ("your debt of XXX has been reduced by YYY this month, and thus you owe me ZZZ moving forwards") for clarity.

[arabian]

File with FRO. Don't waste your time with becoming a "bankruptcy creditor" - more headaches than its worth.

[Janus]

2 - Why don't you credit his debt to you by the amount of your monthly child support payment, then continue paying child support once his debt is paid off? Or, if he starves if you don't pay, deduct a certain amount so that he will pay you back in a reasonable time frame. Provide him receipts ("your debt of XXX has been reduced by YYY this month, and thus you owe me ZZZ moving forwards") for clarity.

Given that CS is the right of the child, how can CS be used to pay off a debt incurred by the parent?

[Berner_Faith]

Given that CS is the right of the child, how can CS be used to pay off a debt incurred by the parent?

I think what OL was getting at was that the ex owes retro CS in the amount of $2000, while the OP has to pay him CS... so in order to gain her $2000 he owes her for retro, she could reduce his support by X amount a month, thus collecting the arrears she is owed.

[Janus]

I think what OL was getting at was that the ex owes retro CS in the amount of $2000, while the OP has to pay him CS... so in order to gain her $2000 he owes her for retro, she could reduce his support by X amount a month, thus collecting the arrears she is owed.

Oh, I know that, and it makes perfect sense. However, people on this forum (and the courts, for that matter) like to harp about how CS is the right of the child, when the reality is that it is just cash designed to increase the standard of living of the custodial parent at the expense of the other parent.

So, if we pretend for a second that we believe in the laughable notion that CS is the right of the child, and that CS is actually used to support said child, then reducing CS to pay a debt would be wrong, since it would be hurting the child when the parent is the one to blame.

[standing on the sidelines]

Oh, I know that, and it makes perfect sense. However, people on this forum (and the courts, for that matter) like to harp about how CS is the right of the child, when the reality is that it is just cash designed to increase the standard of living of the custodial parent at the expense of the other parent.

So, if we pretend for a second that we believe in the laughable notion that CS is the right of the child, and that CS is actually used to support said child, then reducing CS to pay a debt would be wrong, since it would be hurting the child when the parent is the one to blame.

It just means that the person getting the CS has to use more of their own disposable income to support the kids. It seems like the only way the payer will get the back CS that is owed.

[OrleansLawyer]

Given that CS is the right of the child, how can CS be used to pay off a debt incurred by the parent?

She isn't failing to pay child support; she is paying it, every month, from her left hand to her right.

What remedy is there against her? Once the arrears are paid she continues to pay child support as usual. If necessary, don't deduct the entire child support payment if it would bring hardship to the children.

then reducing CS to pay a debt would be wrong

She is not reducing a debt. She has already paid child support for those months. She is paying child support with her established credit.

it is just cash designed to increase the standard of living of the custodial parent

An inevitably by-product of increasing the standard of living of the child.