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Recovering S7 & Child Support Overpayments (Support Payor)

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  • Recovering S7 & Child Support Overpayments (Support Payor)

    Looking for advice and perhaps case law.

    I just went through my 5th motion to try to update child support to reflect income and to account for the child leaving home to attend post-secondary. This should not have been complicated, but mom would not consent and forced this matter to court. My son is now 20 years old and was previously in a shared 50/50 schedule, being a high income differential, I was paying fairly substantial offset.

    Long story short, an endorsement has been provided and I have overpaid child support by roughly $10,000 and mom still owes perhaps $1,000 towards S7 expenses. I am still waiting for an order, therefore FRO continues to garnish my income for an old order making the problem even more challenging.

    The judge seemed to be exceptionally forgiving to mom and there are no provisions to compel her to actually pay for S7 expenses (despite not paying them for an excess of 19 months prior) nor any ability to repay the overpayment of child support (I continued to pay via FRO because it required a court order to change and mom would not release).

    It has been almost 3 months, mom still has not paid nor do I expect her to pay it. Is my only remedy to go back to court to request enforcement?

    Thanks in advance,


  • #2
    Was there no endorsement in any appearance halting the original order? You will need an order to stop the current enforcement.

    Comment


    • #3
      Thank you, yes, a new order will be required to amend the existing enforcement. But mom refused to halt existing support (even with an endorsement, she still will not remove it) and the courts would not halt support either.

      I am frustrated because it seems to be a mess created by the courts (again, we are both supporting this child in a 50/50 so either home being impacted should be viewed as bad). The judge in question took almost 4 months to render a decision and it was seriously lacking any substance.

      Comment


      • #4
        Then your lawyer should have asked for clarification.

        If there is an endorsement for updated support then you should be able to create a support deduction order for FRO. Or at least ask the judge for a deduction order.

        You need to stop expecting your ex to do what you want. You also need to expect a judge to do their job which is write an order. How on earth have you had five motions and it still isn't right? Get in front of a judge and list out your demands. If you are not having success yourself, get a lawyer. If your lawyer is fucking up, fire them. At some point you need to have an order that lays out what you need.

        And I say this knowing another poster on here, who I worked with offline, got an order to limit enforcement of fro and to pay a minimal amount monthly while it was before the courts before finally going to trial (his ex was self repped and a hot mess) and getting a correct order that FRo used to finish the matter.

        Comment


        • #5
          I think that is my problem, I expect the judges to do their job and in this case it was very lacking. The endorsement is written in such a way that FOR will not enforce it and because I am the support payor, FRO will not recover the overpayment.

          This is really what I am looking for advice, on how to get an order to recover the over $10K in child support for when the child was away at University while I was paying full offset.

          Thanks,

          Comment


          • #6
            They probably can't enforce it because the existing order has you as the payor.

            You need an order that lays out the following separately:

            1. The existing support order is terminated immediately and both parties must sign the necessary withdrawal forms to complete the process.
            2. The other parent owes you $10,000 in retroactive support payable xx dollars monthly and enforceable by FRO.

            This way FRO terminates the old order and executes the new order AND they can garnish her.

            There are two other options here. First is that you owe support for another child (I can't remember if you had another child) your overpayment is applied to that going forward. Second is you make your ex an offer that if she withdraws from FRO immediately, you agree to reduce the overpayment she owes you. That might motivate her to stop it and save some time and money.

            I hate to say that you may never get that money back because your ex is steadfast and the courts are kind of bullshit but there may be a way out. My husband had a $2000 overpayment he was able to apply to the $5000 he owed because his ex refused to update with FRO.

            Comment


            • #7
              Yes, this whole thing stinks and it seems to always to always ignore situation of joint custody / shared parenting.

              You are correct that there is an existing order, however the mother (nor the judge) will not terminate it on the unlikely event that the child may return for a visit sometime in the near future. FRO won't enforce an overpayment and mom knew she was creating an overpayment (as did the court by allowing excessive delays), but somehow, that should be my financial liability? Is it really just considered to be OK for a parent to be out $10K+?

              If the judge will not sign an order having mom repay this, I guess my only recourse is to go back to court for another 2+ Years?

              Comment


              • #8
                So your last order didnt have an end date on it?

                If you received a final order then yes you will need to file a new motion. But keep pushing the matter forward since it is easy to solve as the kid isnt living at home or in school. And make it clear that the overpayment is significant now.

                Comment


                • #9
                  Thank you, that is helpful. Just trying to avoid further legal costs.

                  Does anybody have any recent case law where a judge has ordered overpayments to be paid as child support?

                  Thanks,

                  Comment


                  • #10
                    Originally posted by Gilligan View Post
                    Long story short, an endorsement has been provided and I have overpaid child support by roughly $10,000 and mom still owes perhaps $1,000 towards S7 expenses.
                    You are correct that there is an existing order, however the mother (nor the judge) will not terminate it on the unlikely event that the child may return for a visit sometime in the near future.
                    Sounds like you don't have an order and only believe you overpaid despite the judge thinking otherwise.

                    Child may return home is one of many reasons cs should continue.

                    Comment


                    • #11
                      Hi there,

                      Yes, waiting on the actual court order and costs order (the judge has been very slow so far and I'm not holding my breath).

                      The endorsement was somewhat clear on how many months support was payable (not while he was in school), however I have paid child support non-stop and paid 100% of all post-secondary expenses ($25K+ / year).

                      I don't have any issues with paying child support if / when the child returns home, however there is an outstanding overpayment and payment required for Section 7 expenses that isn't being paid.

                      Without putting the child in the middle of this, how do I recover this money? Is the expectation that I just leave over $10K for a possible future support obligation and the the other parents (again, 50/50 shared parenting) keep said money?

                      I'm not trying to be difficult, but I don't hold my exes income hostage for a possible future obligation that doesn't yet exist. Is this really the way the courts will see it?


                      Comment


                      • #12
                        It's hard to follow your situation. Like RS said, this should be easy.

                        Originally posted by Gilligan View Post
                        Yes, waiting on the actual court order and costs order (the judge has been very slow so far and I'm not holding my breath).
                        Are you referring to a motion to change, waiting for trial?
                        Or do you have an endorsement already saying you are owed?

                        The endorsement was somewhat clear on how many months support was payable (not while he was in school), however I have paid child support non-stop and paid 100% of all post-secondary expenses ($25K+ / year).
                        Sounds like you got this at a conference and now you would bring a regular motion to adjust support. If you already had a motion on the issue then you would know if you're owed. Otherwise you're still waiting for trial to see if/what you overpaid.

                        Is the expectation that I just leave over $10K for a possible future support obligation and the the other parents (again, 50/50 shared parenting) keep said money?
                        When the motion is heard, you'll have an order to give to FRO; but if cs is finished you may need small claims?

                        I'm not trying to be difficult, but I don't hold my exes income hostage for a possible future obligation that doesn't yet exist. Is this really the way the courts will see it?
                        You're being garnished? If it doesn't exist yet, after a motion, wait the process for the final order; otherwise it may be that the money is not overpaid.

                        Comment


                        • #13
                          Sorry, I'll try to be clearer.

                          I approached the mother as soon as the child accepted their offer for University in the summer of 2021. The mother refused to update child support or contribute to Section 7 expenses leaving me no choice but to bring this before the courts. The child is now in his 3rd year, working in a coop placement which is also 5.5 hours away from home.

                          I filled a motion to change, had the case conference, settlement conference, and motion. An endorsement was issued in the summer. While this was ongoing, mom did not consent to stop FRO (I was paying offset via FRO as we are 50/50 and there is an income differential).

                          I know exactly how much has been over paid and what the mother is required to pay for Section 7 expenses. However mom won't pay and FRO won't stop garnishing wages until a new order is issued (I'm currently working on it).

                          Again, the math isn't complicated, I'm looking for case law to have payments reconciled. Especially if Mom knew support wasn't owed, but collected it anyhow.

                          Comment


                          • #14
                            I would call the courthouse and ask about the status of the decision. Im confused again with the “motion” you mention after conference, settlement. You filed a new motion?

                            Is FRO garnishing your wages or you are paying voluntarily? If you are being garnished then you may need to file a motion against FRO to cease garnishment. Your ex has not consented so your battle is with FRO.

                            Have you called FRO and tried to speak to someone? Escalate it to a higher up if needed and/or call your local MPP and see if their office can help.

                            Comment


                            • #15
                              There is no new court action (at least if I can help it).

                              I have an endorsement, the overpayment is clear, although it is not spelled out precisely. Meaning, I have what I paid for child support, and new provisions have been added for when support was supposed to be paid. (resulting in an over payment).

                              For example.... in 2021, I paid for 12 months (it was registered with FRO), however child support was only payable for 8 months, which results in an overpayment of 4 months.

                              Same applies to 2022 (overpayment of 8 months), 2023 (overpayment of 7 months), and FRO enforcement continues until a new order is issued. This child is away, and will not return in the foreseeable future, however the child is entitle to child support should he return (this is not in dispute, however make the endorsement / order messy and not enforceable).

                              Add to this, there are Section 7 expenses that remain unpaid by mom.


                              I am simply seeking advice on the wording and best approach to have mom settle on this overpayment without going back to court or eating it up in legal fees.


                              Comment

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