FRO CS Garnishee questions.

[WC23]

Hi all

I live in BC, EX lives in ON.

EX has the the children.

EX remarried to Lawyer in 2004.

I'm trying to settle the CS with the EX...but they went ahead and served me.

Does anyone know how far back in years the Ont court will order CS and Sec 7 expences ?

How much can they take off my check in % per month ?

Can they go into my bank account and clear it out ?

Will my ex be awarded costs automatically ?

Thanks in advance.

[representingself]

Ouch... is the new Husband a Family Law Lawyer?

The standard for retoactive child support is 3 years from the date of the initial application, (but can go back further at the discretion of the Judge).

The court looks at a number of factors when determining whether a retroactive child support should be awarded, including:

1. the child's age;
2. delay in making the claim for retroactive support;
3. whether there was blameworthy conduct on the part of either the recipient or payor;
4. hardship to the child as a result of the non-payment;
5. hardship to the payor if a payment is made.

Have you been "blameworthy" in your conduct? How have you not meeting your CS obligations? Have you refused to disclose your income? Have you deliberately stalled negotiations?

Has your ex demonstrated "blameworthy conduct"?. Why did she delay in asking for support?

Ultimately child support is the right of the child... it is mostly common knowledge that CS is based on income, and the amount cannot be determined without financial disclosure.

That being said, a CP isn't supposed to be able to wait 10 years before asking for disclosure and then try and hammer you for thousands in back support.

But, if it can be proven that you made X amount of dollars and didn't pay commensurate with your income, AND the child should have and could benefit from an increased amount, then you will be ordered to pay.

There are hundreds of cases on Canlii that you can refer to.

Also, a pretty good explaination can be found at:

Retroactive Child Support

They (The Family Responsibility Office), can take as much as 50% of your pay to catch up child support arrears.

They can seize your bank account.

No, she will not automatically be awarded costs unless you do something that warrants an award for such.

Check out the Family Law Rules, for the guidelines on how costs are usually awarded.

[WC23]

She asked in 2001

She asked in 2001. However she new full well I was not working yet and had not been since 1998. Therefore the only income I had was the spousal support she had paid me. Aprox 3400 per month, for 5 months.
Yes he started as a Divorce lawyer, he is now in a different type of law.
He has been divorced twice previously.

[WC23]

Back ground

Background

BC family moved to Chile to enhance partner’s career on Oct 30/98 approx.
Partner’s works in Chile for 18 months while I'm the caregiver. Partner does really well and gets offered new position with company in TO.
I don't want to move to TO. Children’s family and friends are all in Vancouver.
Partner decides to divorce.
Partner meets future partner "separated Lawyer" "The estranged husband of ex’s co worker. Also from TO.
Partner forges my signature on documents so partner can leave Chile with the kids.
New Partner flies down to Chile on Fri eve and the two fly off to TO with the kids on Sat Afternoon.
I was away till Sunday morning. Got home for daughter’s birthday party to find they were gone with only a voice mail saying "feeling uncomfortable and had taken the kids someplace"

In shock

Found out where they went “to lover’s house, still there to this day”.
I was served a few days later in Chile. with restraining order based on false accusations.
Me "back in Vancouver" and suffering from PTS.
Their lawyers are now threatening me with court if I don't sign thier very complex 27 page separation agreement.
I decide to go to court in TO with the intention of living there.
They back away from court saying the Judge is on Holiday, "Oh we are very sorry why don't we talk instead".
My mistake to agree.
Base of agreement is to share kids, details best left to mediator.
Another bad move on my part was to agree to this.
Ex partner now uses mediation as a means to talk about everything but the children @ $300.00 per hour.
Part of separation agreement is to have restraining order removed.
It wasn't...don't ask me why I don't know.
Most likely to have ultimate power.
Back in Vancouver to sell house, collect my stuff and then off to TO.
All family goods were previously put in storage before trip to Chile.
Paid for by ex-partners employer.
Ex-partner refuses to allow me access to my stuff and has it all shipped to TO.
In those goods is my hunting stuff.
I still have a restraining order against me so going to TO, to be with our kids is a jail sentence.
Ex-partner starts sending me the bills for storage.
In TO the storage company says I'm not on the access list.
Ex-partner and new mate interfere with phone calls to our children.
I have reached the end of my rope and start to give up.

Ex-partner has always come to Van a couple times a year, with the Kids and the now husband.
They bought rec property on an island just outside Van which they spend a couple of weeks on a year.
I have been allowed to see the kids once by myself…in 2008 for a whole day. It was great!
I have seen the kids three other times, all were with ex’s family and ex’s new partner for about 1 hour each time.

Now
Nine years later
Ex-partners Lawyer sends email in March asking for CS and Section 7.
$1625 per month.
I and ex’s now fired Lawyer hammered out a deal that they agreed to in an email, to pay CS based on Table amount $1107 per month. Put the Kids on my dental, EH.
I declare bankruptcy in prep to pay CS.
Finally I’m ready to have this mess behind me and move on.
Out of the Blue the Ex serves me with papers asking the court for retro CS back to Jan 2001
Costs on a full recovery basis. Interest and Section 7 expenses.
Their combined income is around 300 to 400 K.

[representingself]

Partner forges my signature on documents so partner can leave Chile with the kids.

If this incident had been more recent, you could have easily claimed that your ex (and more specifically her new Lawyer partner), acted in bad faith.

I was served a few days later in Chile. with restraining order based on false accusations.

Unfortunately, this is a regular occurance in family law... but most times the accusations go nowhere if there is NO proof. Also, family court Judges do not consider past behaviour unless it is proven that you pose a clear danger to the children. Even violence towards their mother doesn't necessarily mean that you cannot be a good parent.

Me "back in Vancouver" and suffering from PTS.

Were you working? How were you supporting youself? Was this after 2001?

Their lawyers are now threatening me with court if I don't sign thier very complex 27 page separation agreement.
I decide to go to court in TO with the intention of living there.
They back away from court saying the Judge is on Holiday, "Oh we are very sorry why don't we talk instead".
My mistake to agree.

So this occured 9 years ago. I take it there was never an agreement reached?

All family goods were previously put in storage before trip to Chile.
Paid for by ex-partners employer.
Ex-partner refuses to allow me access to my stuff and has it all shipped to TO.
In those goods is my hunting stuff.
I still have a restraining order against me so going to TO, to be with our kids is a jail sentence.
Ex-partner starts sending me the bills for storage.
In TO the storage company says I'm not on the access list.

Did you ever get your stuff back.... has it been in storage all these years?

They bought rec property on an island just outside Van which they spend a couple of weeks on a year.
I have been allowed to see the kids once by myself…in 2008 for a whole day. It was great!
I have seen the kids three other times, all were with ex’s family and ex’s new partner for about 1 hour each time.

In Canada, access and child support are two separate issues. Unfortunately, you agreed to the move, so even though you don't get to see them, doesn't change the fact that you are still responsible for financial contributions.

Now
Nine years later
Ex-partners Lawyer sends email in March asking for CS and Section 7.
$1625 per month.
I and ex’s now fired Lawyer hammered out a deal that they agreed to in an email, to pay CS based on Table amount $1107 per month. Put the Kids on my dental, EH.
I declare bankruptcy in prep to pay CS.
Finally I’m ready to have this mess behind me and move on.

Its sad that one must be forced into bankruptsy in order to pay their child support....

So have you paid any child support at all in the past 9 years? Why is your ex seeking support now? Has something changed in her life... or is she using child support as a bargaining tactic to get you to do something (like consent to an adoption, etc,)?

Does the $1107 represent the true guideline amount. I believe that you would pay based on BC guidelines as you live in BC.

Even though people can "agree" to a lesser amount, I wouldn't recommend it. It leaves the door open for the custodial parent to seek a retroactive payment later on.

Out of the Blue the Ex serves me with papers asking the court for retro CS back to Jan 2001
Costs on a full recovery basis. Interest and Section 7 expenses.
Their combined income is around 300 to 400 K.

They can ASK for it.... but they wont get it.

What does your income look like in comparison. Seems to me that be forcing the bankruptsy, the child support is causing you undue hardship. If you can prove that their household income is substantially higher than yours, and you are suffering financial hardship, you may be ordered to pay a less than guideline amount.

It is HIGHLY UNLIKELY that they would win 9 years of retroactive support, especially since her new husband is an ex divorce lawyer. They have to have a damn good reason for explaining WHY they haven't asked for child support up to this point, and prove that you deliberately acted on bad faith in regards to support.

Like I said, the standard is 3 years for retro. You can determine the guideline amount based on your income, and subtract any amount that you already paid.

The current interest rate, as per the Courts of Justice Act is 2% per annum.

As far as the section 7 expenses, they are shared on a pro-rated basis, based on your incomes.

If she is making $400,000 a year, and you are bankrupt, then her 'portion' would be substantially higher than yours, so I wouldn't be too concerned about owing her tons of cash.

Also, BECAUSE she has asked for Section 7 expenses, then she have to provide you with their financial disclosure since 2001. You cannot determine her 'share' without proper disclosure.

As far as costs are concerned, if they can prove you have acted 'unreasonably', or you have refused their Offer to Settle, then you could get ordered to pay her costs... but as long as you conduct yourself appropriately, then it's not likely to happen.

[WC23]

Me "back in Vancouver" and suffering from PTS
Were you working? How were you supporting youself? Was this after 2001?
2000-2001
Was not working
Still on SS
So this occured 9 years ago. I take it there was never an agreement reached?
Yes a seperation arreement was reached. The divorce was granted on it.
Did you ever get your stuff back.... has it been in storage all these years?
No I did not get my stuff back and it was all sold at auction.
So have you paid any child support at all in the past 9 years? Why is your ex seeking support now? Has something changed in her life... or is she using child support as a bargaining tactic to get you to do something (like consent to an adoption, etc,)?
No
Do not know why she want's support now...maybe the slow economy?
She is not bargaining.
Does the $1107 represent the true guideline amount. I believe that you would pay based on BC guidelines as you live in BC.
Yes
Out of the Blue the Ex serves me with papers asking the court for retro CS back to Jan 2001
Costs on a full recovery basis. Interest and Section 7 expenses.
Their combined income is around 300 to 400 K.
What does your income look like in comparison?
2008 she made $193,000.00 she is now claiming that her 2009 income is only $125,000.00.
As far as costs are concerned, if they can prove you have acted 'unreasonably', or you have refused their Offer to Settle, then you could get ordered to pay her costs... but as long as you conduct yourself appropriately, then it's not likely to happen.
Ive done all the things that they have asked for just aliitle slowly because I'm doing this without a retained legal adviser...can't afford one.
I either give the money to her in CS or give it to a Lawyer.
I chose to save up to pay her.
What is unreasonable?.

Thanks.

[billiechic]

Did you make any effort to pay her child support since 2001? Why were you unemployed? Were you physically able to work?

These things will come into play if this goes to court. If you were recieving SS, why did you not use that to pay her CS?

[WC23]

No
PTS not able to work
Was not required to pay CS until after ex's obligation SS/mediation were fullfilled. Which she arguably did not.

[billiechic]

was that part of your separation agreement? generally you cannot decide to NOT pay CS. It has to be stated that CS would be deducted from SS in your separation agreement.

Have you seen a lawyer?

[WC23]

[quote=billiechic;28974]was that part of your separation agreement? generally you cannot decide to NOT pay CS. It has to be stated that CS would be deducted from SS in your separation agreement. It isn't stated that CS will be deducted from spousal support.

Have you seen a lawyer? No, can't afford one

[billiechic]

your child is entitled to support regardless of her income. Perhaps she was being nice as you were not working and supporting the child on her own. I doubt they will allow her a retroactive judgement to 2001 though.

Are you working now? Do you qualify for legal aid? How long have you been working?

You need to speak with legal council ASAP.

[WC23]

your child is entitled to support regardless of her income. Perhaps she was being nice as you were not working and supporting the child on her own. I doubt they will allow her a retroactive judgement to 2001 though.

Are you working now? Do you qualify for legal aid? How long have you been working?

You need to speak with legal council ASAP.

I'm working now and I do not qualify for legal aid.
I have been working since 2003

[billiechic]

Is there a reason you haven't been paying CS then? Even if the separation agreement was not signed, you should have been paying according to the guidelines

[WC23]

Access interference. Grief.
The separation agreement was signed.

[representingself]

If you have been working since 2003, you should have been paying guideline child support.

Even without a formal agreement, you are still liable for the payments.

You may be on the hook for some retroactive support... but not likely 9 years worth.