Procedural advice: Form 15 Motion to change (2 separate final orders)

[kidsRworthit]

Good Day,

I have two final orders which I desire to change (update to reflect accuracy): each order containing 3 distinct elements requiring changes/updates.

Is proper procedure: to create/serve and file a Form 15 (Motion to change) for each specific (final) order; in anticipation of a requested motion date in Family Court?

[rockscan]

I don't believe you need three separate applications. It is simply a motion to change and you note the things you need changing.

But you say accuracy…is this something the court would see as minor and able to be worked out or is it a serious discrepancy? You may not necessarily need a motion to change. Also questioning how you have two separate final orders. Most final orders update a previous order…

[kidsRworthit]

I don't believe you need three separate applications. It is simply a motion to change and you note the things you need changing.

But you say accuracy…is this something the court would see as minor and able to be worked out or is it a serious discrepancy? You may not necessarily need a motion to change. Also questioning how you have two separate final orders. Most final orders update a previous order…

Hi Rockscan, and thanks for your response!

Court see as minor and able to be worked out?: to date (see below) two agreements turned into orders are being contested by Other Party. Certainly equating to many thousands of dollars...

Although the Other Party had consented to the 2018 Divorce Agreement, and 2022 Consent Agreement (now both orders),
there is now disagreement when the reality of less financial compensation is ultimately flowing to them.

Child Support terminating events was not something I included in the 2018 Divorce Agreement; and although a material change in circumstances has indeed been realized.
Son no longer a "child of the marriage" 19 yrs. old, not living at the OP's house, and not in a full-time program of education; the OP feels there exists a Child Support obligation owed to them (OP)

Overpayment of Child Support was agreed to in 2022 Consent Agreement (file number, with "-1" extension = so there are two file numbers/2 final orders.
This was what the Family Law counter staff advised.

I believe it may be best to file one Motion to Change (which includes 6 specific issues, and respective request for order), along with the request that a Material Change in Circumstances has occurred; and my 19 yr. old son is no longer a child of the marriage as he does not meet the "Farden factors".

As my daughter is completing her last year at uni, it is important that terminating events for child support are court ordered. Yes, high conflict Other Party = would prefer if Child Support (paid to OP) would carry on...

[rockscan]

Unless she files with FRO you don't need to file anything. Hes not in school full time and kid 1 is almost done. You stop paying for one now and then the second later.

She can contest it all she wants. If he isn't in school and has no plans to start school in the next month or so, no cs is paid. If he does go back to school rhen cs would start again.

Why waste your time and money filing something when you just stop paying? The onus is on her to prove he is a child of the marriage and file for the support. You don't need it in writing unless you need to prove it to FRO.

[kidsRworthit]

Unless she files with FRO you don't need to file anything. Hes not in school full time and kid 1 is almost done. You stop paying for one now and then the second later.

She can contest it all she wants. If he isn't in school and has no plans to start school in the next month or so, no cs is paid. If he does go back to school rhen cs would start again.

Why waste your time and money filing something when you just stop paying? The onus is on her to prove he is a child of the marriage and file for the support. You don't need it in writing unless you need to prove it to FRO.

Agreed with your insight^;
Although, despite me paying monthly CS in a timely and accurate manner; OP unilaterally invoked FRO to garnish my wages. (unfortunate high conflict OP situation)
FRO requires explicit court order for them to take any action on case. FRO cannot make calculations, rather require (court ordered) dollar amount to apply to CS overpayment.

Family Court (FLIC: via email response, at their verbal request) emaied me, suggesting two solutions:

1.You may wish to proceed by way of a Motion on Notice in person. You would set a date with us and provide us with the following documents:

1. Requisition Form
2. Notice of Motion – Form 14
3. Affidavit General – Form 14A
4. Affidavit of Service – Form 6B

Once you have been give a date, you can serve and file the materials with us.

2. You may wish to proceed by way of a basket motion in writing. You would file the following materials through the JSO Portal:

1. 14B Motion Form
2. 14A General Affidavit
3. 6B Affidavit of Service
4. 25 Draft Order.

Question: Given there exist two specific orders (Divorce Order and Order (general) on consent which address Child Support, I am uncertain as to this above advice as I felt a Motion to change (Form 15) was the appropriate vehicle to utilize.

Your comments/insight appreciated!

[rockscan]

I hate to disagree with FLIC but this seems very much like my husband's case. Kids are no longer eligible for support and case was with FRO. His ex filed with FRO as she thought they would calculate updated support but then learned they don't. In the end it was simply a motion for support and expenses. If he had been the one filing it would have been for termination of support.

Either one will work although I think a basket motion doesnt require conferences. Maybe someone else can weigh in.

In the end, cs will be determined and an overpayment if there is one may be applied.

[kidsRworthit]

I hate to disagree with FLIC but this seems very much like my husband's case. Kids are no longer eligible for support and case was with FRO. His ex filed with FRO as she thought they would calculate updated support but then learned they don't. In the end it was simply a motion for support and expenses. If he had been the one filing it would have been for termination of support.

Either one will work although I think a basket motion doesnt require conferences. Maybe someone else can weigh in.

In the end, cs will be determined and an overpayment if there is one may be applied.

^I agree with your comment. (two orders already exist = why not simply vary one or both; rather than request another Order?

From my understanding: a Basket motion entails consent from OP. The Family Court staff referred to Order on consent as a "Basket motion".

Ironically, I provided an a. Order (general) = Form 25, along with b. consent agreement (both a. and b. were signed by OP).
Justice signed off on Order, and FRO received copy of said Order (dated July 2022)
This addressed overpayment of CS since 2018. Due to calculations required, and identified overpayment situation along with request to discontinue support order; FRO simply removed original garnishment unilaterally requested by OP in 2019.

Additionally: in 2018, not being mindful of "Terminating events for Child Support" when I crafted the Divorce Order, I neglected to identify this important issue.
This would be another reason I felt a Motion to change/vary (Form 15) the original 2018 Order makes sense (triggering events winding down initial CS entitlement for "children of the marriage" in 2018)

As ROCKSCAN identified: If anyone else cares to chime in: please do so.

[rockscan]

You will need a new order for FRO and it will set the terminating events.

The problem is that the law is wishy washy so you can't set a termination date. It's stupid. They need to adjust the law and say support ends at age 18 and then have a separate law on post secondary. But there is probably a logical reason for it and the problem is people are unreasonable.

Most kids go to post secondary so it's not unreasonable for support to continue but some kids dont and those kids are not covered. Not to mention FRO should be able to accept it. My husband's agreement says cs stops when a child reaches 22 or completes a first degree. They stopped collecting support for the eldest as of her birthdate. All they did was cut the amount in half. But again, his agreement was clear on that. If your son isnt living at home he isnt eligible.

There is also a form on FRO on terminating support where you ask them to send her the form to terminate support. If she sends it back saying she is still entitled even though you know he isn't living with her that is good evidence to prove she is lying. You may want to try that too.

Don't beat yourself up on missing a clause on terminating events. They can be open to interpretation. Like kid isn't in school but still lives at home and is planning to go back but the custodial parent still wants support. Or they get cs until September when they decide to not go back. Some kids are done school at 20 but the order says 22 and the parent still wants cs. It's still interpreted individually.

[kidsRworthit]

You will need a new order for FRO and it will set the terminating events.

The problem is that the law is wishy washy so you can't set a termination date. It's stupid. They need to adjust the law and say support ends at age 18 and then have a separate law on post secondary. But there is probably a logical reason for it and the problem is people are unreasonable.

Agreed, I suppose it may be to address kids who start a full-time program of
post secondary education after 18 (say at 20); who may then again become "a child of the marriage".

Most kids go to post secondary so it's not unreasonable for support to continue but some kids dont and those kids are not covered. Not to mention FRO should be able to accept it. My husband's agreement says cs stops when a child reaches 22 or completes a first degree. They stopped collecting support for the eldest as of her birthdate. All they did was cut the amount in half. But again, his agreement was clear on that. If your son isnt living at home he isnt eligible.

Understood and agreed.

There is also a form on FRO on terminating support where you ask them to send her the form to terminate support. If she sends it back saying she is still entitled even though you know he isn't living with her that is good evidence to prove she is lying. You may want to try that too.

Yes, I completed and sent this form in to FRO in April: Application to Discontinue Enforcement of Ongoing Support
https://forms.mgcs.gov.on.ca/en/dataset/006-fro-031

OP disagreed, so FRO said: status quo (default to 2018 Divorce Order amount), and you'll need a court order to make any changes...

Don't beat yourself up on missing a clause on terminating events. They can be open to interpretation. Like kid isn't in school but still lives at home and is planning to go back but the custodial parent still wants support. Or they get cs until September when they decide to not go back. Some kids are done school at 20 but the order says 22 and the parent still wants cs. It's still interpreted individually.

Agreed. Family Court is a patience and perseverance strategy for certain.
Or as someone wise quoted: "Family Court is a blunt instrument".


Motion to change (Form 15) to include request for order defining Terminating Events for Child Support:

Child support shall end for each child when any of the follow occurs:

a) the child ceases to be a “child” as defined in the Divorce Act,

b) the child no longer resides with the custodial parent, (“resides” includes the child living away from home for school, summer employment, hockey or vacation),

c) the child turns 18, unless he or she is unable to become self-supporting due to illness, disability, or other cause,

d) the child becomes self-supporting,

e) the child obtains one post-secondary degree or diploma,

f) the child turns 22 years of age,

g) the child marries,

h) the child dies. or

i) the payor parent dies.

[rockscan]

You don't need that. You know kid 2 is not living at home and kid 1 is finished school soon. So you have it as support terminates as of x date for kid 1 and y date for kid 2.

The list of possible scenarios is only needed when you have younger kids who may not be finished high school. You know the termination dates.

For instance, when my husband signed his recent order he knew kid 2 would be done school in three years so it says support terminates as of April 30 in that year.

[kidsRworthit]

You don't need that. You know kid 2 is not living at home and kid 1 is finished school soon. So you have it as support terminates as of x date for kid 1 and y date for kid 2.

Understood. Yet... the best laid plans may not be realized
I noticed "Terminating Child Support "events" verbiage while reviewing some CANLII cases; and thought it was well written to address general "future events".

The list of possible scenarios is only needed when you have younger kids who may not be finished high school. You know the termination dates.

Change is inevitable: it's not if, rather when and what type of change the kid(s) pursue = material change in circumstances (no longer a "child of the marriage"

In my case: a. kid 1 (21) is in year 4 uni, though may take another school year (or part year) to complete first degree;
b. kid 1 has aspirations to continue on to Masters program, with ultimate goal of Med school;
c. parents both completed 1 degree, are not high income earners, and hadn't planned (during marriage) kid 1 pursuing post-secondary education beyond first degree;

d. kid 2 (19) is playing Jr. hockey in NS (billeting with hockey family) and taking one online uni course/semester (part-time post-secondary education);
e. kid 2: should his dream of making the big leagues not be realized, he likely would pursue a full-time program of post-secondary education (say at 20)

In above scenarios, and based on my research (Farden factors identified in case law...), judges look at the "big picture" scenario for kid 1 and kid 2; prior to making an order...
Having Terminating Events Child Support Order: provides a basis for recognizing future changes in kids' lives, and addressing reality thereof as applies to a claim for CS.
Noting: the onus to prove CS entitlement (for an adult child): falls upon the parent requesting CS.


For instance, when my husband signed his recent order he knew kid 2 would be done school in three years so it says support terminates as of April 30 in that year.

Agreed. Assuming the date(s) is(are) definitive, the requested order could identify as such...

NOTES:
1. since the court order removing my obligation to pay CS (FRO not garnishing wages), I am directly supporting both kids financially (eTransfer).

2. Assuming there's no disability, illness nor other cause: at 21 & 19, "adult" kids are certainly in a position to assume increasing financially responsibility; rather than anticipate a "custodial" parent to continue to cater to (control) them.

3. unfortunately Parental Alienation previously identified by court ordered Psychologist, and sadly there's additional negative court identified behaviour by OP

[rockscan]

Doesn't matter. Kids aren't entitled to support. By the time everything is heard kid 1 will probably be done. At this point you want to make sure you aren't getting into a situation where you have paid her money you will never get back.

In response to your comments in the quote box—your ex would need to file a new order for cs entitlement for kid 2 should he not do well in hockey. As for kid 1, again it would be an argument for entitlement.

Regardless, file the paperwork rather than worry about all the arguments. You can deal with that with the judge.

[kidsRworthit]

Doesn't matter. Kids aren't entitled to support.
Agreed. OP feels parents maintain an obligation to support kids, irrespective of their age.
Family Court has continuously proven otherwise through case law...

By the time everything is heard kid 1 will probably be done. At this point you want to make sure you aren't getting into a situation where you have paid her money you will never get back.
Agreed on first issue.
Presently, due to overpayment of CS, I have clarified via detailed spreadsheet; my intention is to include this as Exhibit in Motion, seeking:
Overpayment of $xxxx.xx to be identified in form of credit towards Payor of FRO file # 12345,

In response to your comments in the quote box—your ex would need to file a new order for cs entitlement for kid 2 should he not do well in hockey. As for kid 1, again it would be an argument for entitlement.
Agreed

Regardless, file the paperwork rather than worry about all the arguments. You can deal with that with the judge.

Agreed - received conflicting approaches/guidance (in person and via email) from FLIC

Appreciate your insight ROCKSCAN!

[rockscan]

Meh, my husband's ex's offer was ridiculous. Their agreement outlined the same points you listed earlier. Both kids took time off before university, both chose to go away (adding at least $15,000 per year to the costs), both were taking programs that would require a second degree to get work and both kids refused to speak to him. The offer he received was to basically have kids pay nothing towards the costs and have cs go to age 25 and have a second degree paid for in addition to lots of other extras. She got none of it.

[kidsRworthit]

Meh, my husband's ex's offer was ridiculous. Their agreement outlined the same points you listed earlier.
Yikes! sorry to learn...
Despite the existence of an agreement; it's not uncommon for narcissistic personalities to "forget" or blatantly disregard that to which they previously agreed to in writing...
Some characters patently disregard clear and unequivocal language specified in court orders; and some despite a finding of contempt; carry on with this shenanigan behaviour

Both kids took time off before university, both chose to go away (adding at least $15,000 per year to the costs), both were taking programs that would require a second degree to get work
Judge would ideally acknowledge signed agreement as baseline, then additionally apply Farden factors (CS) in an effort to diffuse one sided "position" of his ex...

and both kids refused to speak to him.
Hopefully, his kids are now speaking to him...
Been there (and worse), and I've thankfully reunited with mine. [slow and negative process to have a (second) court ordered Psychologist mend the fence (damaged intentionally by the OP]

The offer he received was to basically have kids pay nothing towards the costs and have cs go to age 25 and have a second degree paid for in addition to lots of other extras.
Wow - unreasonable, and unfair. One parent is not an ATM with unlimited resources...

She got none of it.

Justice seems to have been realized.
Though in the process, damage has naturally been incurred. [lost financial, emotional resources, ratcheted up tension, kids potentially further "poisoned" by high conflict parent (who doesn't comply with spirit of endorsement(s), orders and agreement(s)]


Quote resonates with me: nobody "wins" in Family Court; one side just loses less...