complicated scenario for child support

[robert23]

Hi,

Until now I've been a lurker here and I've gleamed lots of very useful information. Thank you all!

My ex and I had been sharing custody of our 3 children until a couple of months ago when she made some serious claims to CAS about me resulting in her gaining temporary sole custody of the children while I was investigated. I have cooperated with CAS during their investigation and they have now closed their investigation and file and I have filed a motion requesting that we restore our previous temporary shared custody arrangement. We also already have our trial scheduled for this fall.

I am the applicant as my ex left the marital home to move in immediately with her boyfriend. After several months, she asked for shared custody and I consented. For almost 2 years there has been no child support paid either way. As soon as she got sole custody of the children a couple of months ago she had her lawyer file a motion seeking child support. She is also seeking spousal support but I don't think it's relevant to this question.

I am disabled and live on a small pension (> $2k per month ). The ex has lived with her boyfriend from the date of separation and they are definitely considered common-law now. He identifies himself as step-father to the children and he clearly supports my ex and the children when they are there. My ex submitted a financial disclosure over a year ago showing she had almost no income and since then she has not worked at all. She claims in her affidavit that I have much more income than she does.

I am not sure how to file my answer. In my original application to the courts I did ask for child support but I don't think that gets resolved until trial. If my motion is successful, the shared custody will be restored before my ex's motion is heard for CS, but I have to file my answer soon without knowing if custody will change. I don't know if it's relevant but I'm frustrated and wish to point this out to the courts if possible that my ex's lying to CAS led to her temp sole custody of the children where she in turn immediately sought full CS and went after the CPP Children's Benefit that I had always received (~$700 per month). The previous 2 years of CS either way has not been resolved and I also think the fact that her common law spouse supports her (he makes good money and it's why she hasn't had to work) should be factored in as well, because otherwise she has the courts believing she has no income and is in dire straits which is clearly not the case. They just bought a home together last year and a couple of vehicles!

I am not looking to have her or her bf pay me anything...before, now, or after. I just cannot afford to pay her anything and this whole turn of events has been incredibly unfair. It's a long story but I'm still in shock how she could make outrageous claims about me and CAS steps in with a protection order until I could prove myself innocent!!! Thankfully I was able to disprove her allegations but now she's looking to be awarded child support for the months she had the children full-time even though she was the cause of it! (Don't get me started on how unfair it is that there are no apparent consequences to her for doing this either!)

Any suggestions?

[Rioe]

Imputing an income is what you want to be researching. This means doing all the CS calculations with a pretend income assigned to her, instead of the zero she is claiming.

The imputed income can be full time minimum wage, whatever she made the last time she worked full time, or whatever she is capable of earning based on her education and work experience, as appropriate. You use that amount, in conjunction with your line 150 (is disability pension taxable income? I have no idea) income, to determine the offset CS amount that should change hands, and the section 7 proportion to use for extraordinary expenses.

Start hardball, by imputing the highest amount of the three, and offering no additional CS for the time they were solely with her due to the pointless CAS investigation as it should not have happened. Then you have room to maybe let her negotiate you down a bit, to imputing minimum wage, or paying a bit extra for full CS months, etc, whatever you think she might go for to stay out of court. Or if her imputed income is higher than yours, you could "generously" let yourself be negotiated back down to the zero offset you had before all her CAS shenanigans.

A court should not let her get away with zero income; a grown adult with children should be supporting them. If she and the boyfriend want her to not work, then clearly, he is supporting them all.

However, a court may also not let you get away with not paying table CS for the time she had them solely, no matter why it happened. The reality is that she did have increased expenses for them during that time, and the courts always focus on the children's needs and best interests.

[robert23]

Thank you for the quick reply Rioe! When I have some pressure off of me I will do some calculations based on your example scenarios and see what works...and I like your idea of "generously" letting her negotiate me down to zero off-set (as I'm sure she will have more income than I based on her full years working while we were married as an example of her income generating potential). But honestly, I don't want her to pay support to me and I don't want to pay support to her. I want it to go back to what was working for over a year....shared custody. The problem is with both our low incomes, there is a hell of a financial incentive for her to try and "win" permanent sole custody. (And the worst thing is that the best interest of the children completely gets lost in all of this!)

What I need to do right now though is figure out how to answer her motion. I've almost completed my form 13, I have my 3 past years of tax assessments, and I just need to do an affidavit I believe. My fear is that if I don't explain some of what I posted here in an affidavit, a judge may not know any of this then and simply award her full support. I'm even wondering if I would qualify for undue hardship and not sure how I can calculate that. I'd also like to request that my ex and even her boyfriend disclose their finances (my ex's would be an update, as she did disclose once before back in 2012) but I'm not sure how to request that. Do I just ask for that in the affidavit? Is it even fair for me to ask for the judge to order that the ex's bf disclose his income too (and if so, do I request that in the affidavit too?)?

I'm self represented and she has a legal aid lawyer. I don't even get how she qualifies for legal aid when they have been living together for 2 years now but she does, and when she got the lawyer she has now she taunted me that he "was a real kick-ass lawyer" and she was going after me for everything she could get!

I do understand that she has increased expenses by having the children full-time but like I said, she immediately went after my CPP children's benefit portion which gave her almost an additional $700 per month right off the bat (and of course I lost that which really added to my stress and burden as that covered my rent) plus she contacted CRA and got the child tax credit switched fully to her so now she gets ~$1500 per month from that too! There is much more to this story but in the interest of brevity I'll leave it out for now....and although I'll never be able to prove it I know she did what she did for the financial benefits, not because she feared for the children. With her reporting no income and not having to declare that her common law spouse supports her there is a lot of incentive for her to keep doing what she has been doing and if she can keep getting away with it and/or get more court ordered money from me, she knows I won't be able to afford my home anymore and I'll end up moving somewhere where I can't even provide a suitable home for the children to stay in....guaranteeing that she will be able to get away with all of this for good :-(