Feedback on wording for CS in form 36

[upinontario]

So I am looking for some guidance on how to explain to the judge why my stbx is not paying table amount of support. As my previous posts have indicated, I am taking the home and contents (after mortgage owed and debts I am assuming I will walk away with about 60K - assuming I get close to what I would ask for the property).

I have drafted a page to attach to my form 36 as it states if the amounts are different for support you need to explain why. I am really looking for feedback here - I want to be thorough so the judge is inclined to just grant us the divorce and we can move on...at the same time I don't want to be too wordy and irritate him/her.

Thanks in advance.

__________________________________________________

APPENDIX #1

1. Both parties are deemed to be self-supporting. The child is well provided for, and the parties are able to communicate effectively regarding the children and financial matters, despite the breakdown in the marriage.
2. The husband paid a sum of $4000 to the wife, upon the breakdown of the marriage for child and household expenses.
3. The husband gratuitously transfers his share of the matrimonial home and its contents to the wife. This gives the wife the opportunity to remain living in the family home with the child, without suffering any financial hardships.
4. The parties hold two lines of credit, which the wife has agreed to assume responsibility for as they were used for the purchase of her personal vehicle and improvements to the matrimonial home including; the installation of a pool, pellet stove, and general redecorating. The wife will re-write these into the new mortgage or pay them out should she choose to sell the home but the choice is hers. We are accounting for these amounts by the way the equity is being split. Based upon the appraised value of the home and its contents, the mortgage owing, and the lines of credit; both parties agree that the wife will realize an equity of approximately: $xx
This is outlined below:
Appraised value of the home and contents: $xxx
Mortgage owing as of July 22, 2013: $xxx
Joint debt owing as of July 22, 2013: $xxx
Total equity in property: $xxx

These amounts are outlined in greater depth in the attached Separation Agreement dated July 22, 2013 in Sections: #12 through 14 & #17 through 20.

5. The husband is paying child support of $xxx per month, which is $xxx less than the table amount. However, the wife is accepting the husbands half of the family assets ($xxx) as prepayment for the remainder of the table amount of child support that is owed monthly.
6. The husband will pay medical and dental expenses.
7. The husband will pay for extra-curricular activities. The parties agree to discuss these activities prior to ensure that they do not conflict with the access schedule or cause financial hardship to the husband.
8. The husband will contribute 50% towards the cost of school related expenses such as; trips, supplies, etc.
9. The husband will contribute monthly into an RESP for the children, and will provide the wife with statements upon request.
10. As the husband lives approximately 100KMS from the children due to work purposes, he agrees to do all of the commuting to facilitate access.
11. Child support will be reviewed annually on the date of divorce finalization.
Based upon these facts, the husband and wife accept these terms in full satisfaction that the husband is fulfilling his support obligations. Both parties have taken into consideration the best interests of the children and agree that causing financial hardship to one another would be detrimental to the well being of the family unit.

[upinontario]

Should mention - we are jointly applying for divorce and the date on my agreement is wrong it is supposed to me May 22 - lol stupid word program.

[upinontario]

Would reeeeally love some constructive criticism from you guys...so much more experience than me.

[HammerDad]

Wow, I would never sign that.

6. The husband will pay medical and dental expenses.

If it read, Each parent will pay their proportionate share of all medical and dental expenses greater than $100.00, after taking into insurance coverage by each parent. - I would be more inclined to agree. As it sits, your ex would be responsible for 100% of the costs and that isn't how the law works.

7.

The husband will pay for extra-curricular activities. The parties agree to discuss these activities prior to ensure that they do not conflict with the access schedule or cause financial hardship to the husband.

Way to broad a clause and poorly worded in relation to the legislation. Section 7 expenses are the for extra-curricular activities which costs are extraordinary in relation to the incomes of each parent. It isn't meant for $60 swimming lessons. Plus, it doesn't appear to require consent of your ex. Further, who is going to determine whether or not it will cause a financial hardship? You? Your ex?


Notwithstanding the above, again, these costs are covered by each parent proportionately to their income.

8.

The husband will contribute 50% towards the cost of school related expenses such as; trips, supplies, etc.

Only the costs are deemed extraordinary in relation to the parents incomes. For example, $40 for a school trip to the zoo, unless your income is extremely low and you receive near the minimum for c/s, it wouldn't be an extraordinary expense. School supplies are certainly covered under c/s, again, unless your incomes are hovering near min-wage.

9.

The husband will contribute monthly into an RESP for the children, and will provide the wife with statements upon request.

If he chooses to maintain an RESP that is his choice. You cannot cause him to. He will either have to pay now or pay later when post secondary comes about. But you can't force him to maintain the account.

10.

As the husband lives approximately 100KMS from the children due to work purposes, he agrees to do all of the commuting to facilitate access.

Who moved? In a fair environment, each parent would share the responsibility for transporting the kids. Generally the parent whose parenting time is beginning should be responsible for transportation. Meaning, if it is your time with the kids, you go get them as you are better off relying on yourself then your ex. The ex never has the same incentive to get the kids to you as you do.


Above all else, he is giving always approximately $30k in equalization if you figure you could sell the house for $60k now. So paragraph 3 and paragraph 5 seem to contradict each other unless there are further matrimonial assets that should be split.

[upinontario]

Thank you for your feedback! Just to clarify...this is my husbands wishes - not mine. I was happy with just keeping the house and keeping it out of court.

So to clarify, should I remove all the clauses about Section 7 and keep it in proportion with income? The problem is we are waiving financial statements to simplify things...so how do you determine who pays what?

Also, as for medical..my thought was husband cover up to $xx amount of dollars and we split after that.

Because he isn't paying the full amount per month...he felt that taking on these expenses fully would be more appropriate.

He is supposed to pay me about $500 per month...but is paying $300. I don't even want that but he is insisting and so would a judge in order to grant a divorce.

As for equity, the house will sell for about $350K (lower end of what I would ask) and after the mortgage and the two joint loc's we would have about $125K to split.

So I would be getting his half of the equity $60K give or take.

The RESP was his choice and he ask that it be included, I maintain my own so it makes no difference.

The real issue here is he is worried (as am I) that a judge won't understand that I am getting a fair amount of equity out of this property and will not grant our divorce because he isn't paying table amount.

I am not really sure why paragraphs 3 & 5 are contradictory to one another...it is outlining that he is giving me the home and its contents, pargraph four breaks down what he is giving up in equity by doing so, and paragraph 5 explains it in relation to child support?

Sorry I am really struggling with this wording, I appreciate all your advice.

[upinontario]

So just re reading what you wrote, could I leave out the school expenses & extra activities entirely? Or does a judge expect to see how a couple who has a SA and is not going to court will deal with Section 7 expenses?

[HammerDad]

So to clarify, should I remove all the clauses about Section 7 and keep it in proportion with income? The problem is we are waiving financial statements to simplify things...so how do you determine who pays what?

For extraordinary expenses, what I would say is:

Each parent shall pay their proportionate of extraordinary expenses, as defined in section 7 of [insert name of act here]. Such expenses shall be mutually agreed upon, and for clarity shall include:

1. - your kid is in competitive dance
2. - your kid plays rep hockey

Also, as for medical..my thought was husband cover up to $xx amount of dollars and we split after that.

No.

Lets take dental for example. The kid needs a filling. The cost is $500. You have dental coverage up to 80%. So, that would reduce the cost to $400. Then your husband has coverage, also for 80%. You then put that claim in. Dental costs are now actually $20, and therefore not extraordinary.

Section 7 defines extraordinary medical expenses as being expenses greater than $100 after all eligible claims are deducted.

Because he isn't paying the full amount per month...he felt that taking on these expenses fully would be more appropriate.

Just pay full c/s. Then there is no haggling over who should pay X more.

He is supposed to pay me about $500 per month...but is paying $300. I don't even want that but he is insisting and so would a judge in order to grant a divorce.

See above. It isn't worth trying to work around it.

As for equity, the house will sell for about $350K (lower end of what I would ask) and after the mortgage and the two joint loc's we would have about $125K to split.

So I would be getting his half of the equity $60K give or take.

I am not really sure why paragraphs 3 & 5 are contradictory to one another...it is outlining that he is giving me the home and its contents, pargraph four breaks down what he is giving up in equity by doing so, and paragraph 5 explains it in relation to child support?

They contradict or are confusing because they don't speak to each other. Further the word "gratuitously" means he is giving the house to you for nothing. That is incorrect. He is giving you the house as a lump sum child support payment.

Had you said that - The Husband hereby transfers his interest in the matrimonial home, such interest being $60,000 as agreed by each party, to the Wife. In consideration of the such transfer of the husbands interest in the matrimonial home, the parties hereby agree that the child support payment payable by the husband to the wife shall be $300 for the duration that child support is payable, save for and except in the event of a material change of circumstances in relation to the husbands income.

You only need one clause, not two. And if there are two, the clause relating to c/s should refer to the clause where he transfers his interest in the house to you and that the reduced c/s is in consideration of the transfer of his interest. And then remove "gratuitously" and insert "in consideration of the terms contained within clause 5"

The RESP was his choice and he ask that it be included, I maintain my own so it makes no difference.

The government will only support/credit 1 RESP account per kid. It makes no sense to have more than 1.

Edit - in relation of the extraordinary expenses, you should agree to each exchange your Notice of Assessment each year come August for the purposes of adjusting the proportional shares going forward.

[Mess]

I just want to add to what Hammerdad is stating.

In a "conventional" situation, you would receive full CS for the children. This child support is supposed to pay for the children's ordinary expenses. This includes minor medical costs (below $100) and the deductable from insurance for dental. It includes most ordinary school fees and costs of recreational sports. That is what CS is for.

According to you, the CS is not being paid because the husband is paying you in other ways, through equity in the house. So it is still being paid. So that money, the equity in the house, represents money that should be going to support the children.

You have significantly reduced mortgage costs, this is the payment of CS. Because of this, you should have money to cover all of the children's ordinary expenses.

If you are seeking for the husband to pay for the children's ordinary expenses, then you are seeking to be paid twice: Once through the equity you are being given in the house, and once again through cash payments for expenses.

[upinontario]

Okay, so the Section 7 stuff makes sense, and I will really reduce and even out what we have there to make it fair. Do I need to reference on my affadavit for divorce that we will exchange our notice of assessment or is it good enough that it be referenced in our SA?

Also, in regards to CS...I have had feedback that it is entirely acceptable to accept less than table because of the equity, but then you say just have him pay the full amount to simplify things...

Problem is then it really doesn't become fair if I get everything and screw him for support every month. What do people usually do - how do judges deal with these things?

I completely see how what I had written was contradictory and appreciate your clarification...really appreciate it

[Mess]

Also, in regards to CS...I have had feedback that it is entirely acceptable to accept less than table because of the equity, but then you say just have him pay the full amount to simplify things...

Problem is then it really doesn't become fair if I get everything and screw him for support every month. What do people usually do - how do judges deal with these things?

You are correct. You shouldn't be paid CS twice. You should either:
a) Receive the equity in the home, and no CS payments, or
b) Receive the CS payments, and pay your husband an equalization amount for his equity in the home.

You should not receive both.

[upinontario]

I just want to add to what Hammerdad is stating.

In a "conventional" situation, you would receive full CS for the children. This child support is supposed to pay for the children's ordinary expenses. This includes minor medical costs (below $100) and the deductable from insurance for dental. It includes most ordinary school fees and costs of recreational sports. That is what CS is for.

According to you, the CS is not being paid because the husband is paying you in other ways, through equity in the house. So it is still being paid. So that money, the equity in the house, represents money that should be going to support the children.

You have significantly reduced mortgage costs, this is the payment of CS. Because of this, you should have money to cover all of the children's ordinary expenses.

If you are seeking for the husband to pay for the children's ordinary expenses, then you are seeking to be paid twice: Once through the equity you are being given in the house, and once again through cash payments for expenses.

To be entirely honest, I earn a good wage - and I really don't want a dime from my husband. He would like to contribute and he has been so wonderful in terms of sorting out the house (which he put a tonne of sweat hours into). He is willing to do whatever it takes to just keep things out of court. Honestly, I wish we didn't need a judge to go sifting through things...I don't know why we cannot just jointly say "hey, we are sorting all this ourselves, saving the courts time and money...." and get what we are seeking which is our divorce.

I want to keep this fair for him, and try to convey to a judge that I am happy just to have the house.

I know that a judge will be hesitant to accept and grant a divorce where no support is being paid which is why I agreed to a lesser amount.

Again, appreciate the feedback

[upinontario]

I just want to add to what Hammerdad is stating.

In a "conventional" situation, you would receive full CS for the children. This child support is supposed to pay for the children's ordinary expenses. This includes minor medical costs (below $100) and the deductable from insurance for dental. It includes most ordinary school fees and costs of recreational sports. That is what CS is for.

According to you, the CS is not being paid because the husband is paying you in other ways, through equity in the house. So it is still being paid. So that money, the equity in the house, represents money that should be going to support the children.

You have significantly reduced mortgage costs, this is the payment of CS. Because of this, you should have money to cover all of the children's ordinary expenses.

If you are seeking for the husband to pay for the children's ordinary expenses, then you are seeking to be paid twice: Once through the equity you are being given in the house, and once again through cash payments for expenses.

So out of curiousity...how do these situations work. I mean if he is just transferring his title to me is that the same as giving me the equity? Just wondering how I will have reduced mortgage costs?

[HammerDad]

So out of curiousity...how do these situations work. I mean if he is just transferring his title to me is that the same as giving me the equity? Just wondering how I will have reduced mortgage costs?

By not having to re-mortgage to buy him out (or alternatively take out a loan) you have reduced costs.

[Mess]

So out of curiousity...how do these situations work. I mean if he is just transferring his title to me is that the same as giving me the equity? Just wondering how I will have reduced mortgage costs?

Let's suppose your home is worth 300,000 and you have a 150,000 mortgage.

He is giving you his share in the home, worth 75,000. You should be paying him this money. Ordinarily you would have to remortgage the home and now you have a 225,000 mortage.

If you have this in cash sitting around, then very likely it should be split in equalization as well.

In answer to your question, you word things this way:

Child support would ordinarily be $500 per month paid by Mr. Ex to Mrs. Ex. Mr. Ex is transfering a lump sum of $75,000 to Mrs. Ex, in the form of equity in the matrimonial home, in lieu of child support payments.

This amount represents 150 months (12.5 years) of child support payments.

There is no way to fully protect your ex from having to pay child support in the future. If you lose your job and make some poor financial decisions, and cannot support the child in the future, the courts would still require him to pay monthly child support. For this reason, lump sum child support payments are never recommended.

[upinontario]

Let's suppose your home is worth 300,000 and you have a 150,000 mortgage.

He is giving you his share in the home, worth 75,000. You should be paying him this money. Ordinarily you would have to remortgage the home and now you have a 225,000 mortage.

If you have this in cash sitting around, then very likely it should be split in equalization as well.

In answer to your question, you word things this way:

Child support would ordinarily be $500 per month paid by Mr. Ex to Mrs. Ex. Mr. Ex is transfering a lump sum of $75,000 to Mrs. Ex, in the form of equity in the matrimonial home, in lieu of child support payments.

This amount represents 150 months (12.5 years) of child support payments.

There is no way to fully protect your ex from having to pay child support in the future. If you lose your job and make some poor financial decisions, and cannot support the child in the future, the courts would still require him to pay monthly child support. For this reason, lump sum child support payments are never recommended.

Thank you guys that clears things up immensely. Now if situations changed child support may need adjusting...but that's assuming u would go after him for it.

In circumstances like this does the justice system tend to get further involved? Or do they accept that we have sorted it and are happy with the results? I think another poster mentio ed if we are not submitting financial statements and agree to the amounts for the value of the home etc..there shouldn't be issues?

Huge kudos to you botb for helping me get on the right track :-)