Child Support - Maternity Leave Question

[Human Way]

Hello good people.

I have been reading this form for a few months now and have gleaned a lot of great information from it. I will give a little back ground and then my questions.

My daughters mother and I separated five years ago. (common in law) We worked really hard to doing things the Human Way. No lawyers, or courts. Just a lot of talking. Which worked for a while, but has left us with no formalized agreement on paper.

Lately we are talking about proper organization of child support. I have been paying her just under Ontario support guidelines for five years. As my salary goes up so does the payments. I didn't do much research on government guidelines as it worked for both of us.

Now, mom wants full guideline payments. We have a 40 / 60 split that varies from month to month. With the visitation going no lower than 35% up to 50% in the summer months. It is a fluid schedule that is based on the best for our daughter.

I want to suggest the shared custody formula. Our salaries are relatively equally. I would have to pay a couple hundred each month which im willing to do. It would be greatly reduced from what i have been paying each month which was a 100 dollars off the full tabled amount.

So here are my two questions?

1. Have i being paying too much in the past? That is, could I have been using the shared custody formula? (not that i want any money back, but rather could i use that formula in the future)


2. My daughters mother is on Maternity leave. Do the courts look at her annual salary when she was employed or do they look at what she is making now? How long can Maternity leave pay be used as a measure for child support payments?



Thanks for taking the time to read this. Your input is most greatly appreciated!

H.W.

[dadtotheend]

1.From the research you have done, you probably already know that in shared parenting arrangements (i.e. inside 60/40 time either way) the offset arrangement dictates CS i.e. higher income parent pays lower income difference b/w what each would pay if outside 60/40 time. So it does sound you have been paying too much if you inside of 60/40.

2.The courts look at annual salary, so her being on mat leave right now will affect the CS calculations. But most agreements call for an annual review, so if she goes back to work, the amount will normalize.

The very good news here is that the two of you have gotten along for 5 years. I imagine it may be troubling that she wants full guideline amount. It sounds like the critical factor is each or your determination as to the 60/40 split. That measurement has been the subject of lots of discussion and interpretation.

Hopefully you both can both continue to work together and find an agreeable middle ground. You sure have a good base upon which to be optimistic.

[dinkyface]

Try to determine your overall time % for the whole year. If it is 40% or more, you could argue for the shared custody CS arrangement, under which you would be paying very little (assuming you make just a little bit more than she does - outside of the one mat leave year).

Regardless of any potential change, I think that she might have a good court case to ask for retro-active child support for the 5 years i.e. 5 * 12 * 100 = $6000! If the yearly time split was 40-60 or wider, her case is stronger. Probably something you want to avoid!

Can you argue to keep the status quo, on the basis that you are right on the 40-60 line, and that '$100 below table amount' is a reasonable compromise between the shared custody rule (where you would pay much less) and what she is asking for (which ignores the fact that you also are bearing costs to raise your child). You can mention any facts that indicate you have a full role as parent - involved in school, activities, transportation, trips and list any significant expenditures beyond the minimum for a bit of clothing and food.

First, I'd suggest you ask her (in email, so that you have a trail) why she feels that the status quo is no longer agreeable. Have her put her cards on the table. Her decision to have another child and go on mat leave is NOT a good reason for you to pay more! (I'm assuming that's the reason)

[Human Way]

Regardless of any potential change, I think that she might have a good court case to ask for retro-active child support for the 5 years i.e. 5 * 12 * 100 = $6000! If the yearly time split was 40-60 or wider, her case is stronger. Probably something you want to avoid!

thanks for all the responses. Good information. Do you really think that she could after the missing hundred per month? Doesn't a verbal agreement count for anything? She can change her mind at any time? Yikes.

[Mess]

She can go after the 100 per month, and a verbal agreement means nothing. That doesn't mean she would win, it doesn't mean she would lose.

90% of suits don't end up going to trial, most couples settle out of court even after starting an action. Any judge at the preliminary conferences will strongly encourage you to reach a negotiated settlement or go to mediation.

Negotiating or mediating would end up probably a little below the table amount in exchange for some other concession. What you have been doing is not uncommon, not unreasonable. The difference between you and everyone else is that you didn't write it out and sign it in front of lawyers, so it's not binding. She can change her mind, there is no contract.

No one can guarentee you a result, and it depends on what you can show about your situation. Anyone can make claims, being able to show what you actually talked about, what both of your motives were, how it worked out, etc would go a long way.

[Human Way]

Can anyone else point me to some information on how they calculate maternity leave when figuring out Child support payments that would be greatly appreciated. The difference between ones regular salary and Mat. leave income is substantial. I am meeting next week and would like to have the calculations figured out before hand.

On a personal level, I'm super nervous about this blowing up and getting bigger than it has to be. I hope with some logic and slow talking we can resolve this acting like father and mother, not like two strangers arguing about money and time.

Thanks for the response and support

HM

[dinkyface]

I think mat leave income would be treated like any other income. If she normally makes over $42300, then the amount would be $447 per week. Not sure why you need to know this, except just to get some idea of what to expect. CS agreements can just be based on the income shown on the last tax assessment.

[Human Way]

I am going to post a question that I asked in another form within this post. My first post explains a lot of what is going on in my life. Any ideas or feedback is appreciated.

My daughter’s mother and I are going through an entire overhaul of our self made agreement. We have been doing this for the last six years. I need some advice on day care cost. For the last five six years we have been splitting the day care cost 50 -50. Our daughter is now in grade one. My current wife and I are in a position to be able to get her to school and pick her up after school without the day care services.

The Bio mom needs to use the day care services so she can get to work and back. Our current child visitation schedule is a 40 – 60 split. My feeling at the moment is that if I don’t use the service on my days, I do need to pay for the day care service at all. If she needs to use the service she should pay for it on her days.

What do you think? Am I being greedy? I have been paying expensive day care for the last six years, and was looking forward to the financial break of my daughter going to school for a full day. I am willing to make some lifestyle changes so I can go and pick her up after work.

There are no court orders in place. We have made most our decisions based on what is best for our daughter. But this issues is a real sticking point in our negotiations.

Thanks for your input. It is much appreciated.

H.W.

[Mess]

Your child needs the daycare, it is a special expense, you and your ex share the expense proportionately according to your incomes.

[Human Way]

Update: The last meeting didn't go so well. Mom is demanding that i pay full child support and disagreeing to a 40 - 60 % split. I think the more i told her the more educated she became on the rules. Now 40% is out of the questions. I think the one on one negotiations have come to an end. I have pleaded my case of why we should come up with our own agreement, but know the rules and laws of Ontario seem to be first on her mind.

I really feel down. I so don't want to court. To me it seems like blowing up what i worked so hard for for the last six years. I wish one of you could tell me the magic answer that would make it all make sense. Not so naive to think that can happen.

The way i see it i have two choices. Give in and pay the full amount and get 35% visitation or status quo as she likes to remind me. OR go to court and fight for 40% or more. And adjust payments accordingly. Either way, i feel sick about it.

thanks for listening.

HM

[dinkyface]

The way i see it i have two choices. Give in and pay the full amount and get 35% visitation or status quo as she likes to remind me. OR go to court and fight for 40% or more. And adjust payments accordingly. Either way, i feel sick about it.

Or, go for more time while continuing to pay full amount. Not saying it's fair, though.

Did you figure out your actual time split over the last year? (hopefully you've been keeping detailed records) - are you SURE the status quo time split is 35/65?

[billiechic]

I've heard that when it is close to 40% (maybe 35 or more) that some judge will consider it close enough. Calculate your time, or start doing it now. If you have ben asking for more time and she denies it for invalid reasons you may be able to ask for more time. Have a look at case law, there might be one to help.

I know how you feel about going to court. I am so dreading that outcome as well.

[Mess]

The way i see it i have two choices. Give in and pay the full amount and get 35% visitation or status quo as she likes to remind me. OR go to court and fight for 40% or more. And adjust payments accordingly. Either way, i feel sick about it.

You can request that she go to mediation with you. There is a possibility she will see reason if there is mediation, especially since you got along well enough the last 5 years.

Going to court doesn't mean you will end up in trial. 90% of suits are settled out of court. At your case conferences the judge will state what a likely outcome of a trial will be, and often will make suggestions for a settlement agreement. You would very likely get a suggestion that you are close enough to 40%, or that she should move up to 40%, or that she should back off from the table amount and stay with your existing agreement, etc. The point of negotiation is to settle on the Table amount, otherwise there is no negotiation.

The case conference will be a wake up call and give both of you an idea of what you realisticly can expect, and what would be considered fair. I found mine worthwhile and it really made my ex move her position (in my favour, drasticly, but I had a very strong case.)

[Human Way]

Thanks for the responses. After a nights sleep it doesn’t feel much better. I think im going to take your advice and try at least mediation. Something has to give here.

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I have kept detail records for the last six years. Every visit. Every over night. I just thought if it was really 35 percent that I was screwed. Now that she is aware of the 40 percent rule she has become very adamant about not every going there. Saying that our daughter is happy with her, and why change it? I know why. The worst part is she throws it in my face that I’m just greedy to want to spend time with her. It’s funny how fast things can deteriorate.

[NBDad]

Our current child visitation schedule is a 40 – 60 split

Do you have documentation to back this up? You indicated that the status quo ranged from 35%-50% based on what was best for your child at any given month. If not, start documenting it NOW. Get as much supporting documentation as possible. (ie. letters from the school, daycare, etc, etc.)

Couple other questions/observations:

1. Maternity Leave shouldn't affect the existing CS payments. "Usually" what is fair in a 40-60% split is that the CS amounts are reviewed anually based off the previous year's tax return. When it's established the first time you can do a couple of things, go off the previous year, the highest of the previous 3 years or the average of the previous 3 years.

(She will probably want to use the valuation that puts YOU at your highest income, and her at her lowest, be warned).

YOU will want to take the high ground and use the valuation that's "in the middle". (ie. of the three if one puts the difference at 10K, one at 8K and one at 5K....she'll want to use the 10K...you offer the 8K). Unless the difference is drastic, it won't affect the CS payments by that much, AND it makes YOU look like the reasonable one.

Regardless, you want to make sure there is a clause in there that the CS amounts are adjusted annually. That way it protects the both of you. In your situation she may jump on that, since next year it'll mean an increase for her due to Maternity Leave lowering her income. It'll suck for that year, but in the long run is a good idea.

2. Who is currently collecting the CCTB? If you can prove 40%, then legally you are entitled to the CCTB/UCCB for the child for 6 months of the year. (only the UCCB is "taxable" income)

3. You can argue the fact that your existing agreement (aka "status quo') is close enough to 40% so you believe that the amount you have been paying in CS is actually more than you should have been. She *might* be able to make a case for retroactive CS, (that extra $100 or so), but if you have kept sufficient records and can prove access times month/month, that part is likely not worrying about too much at this point.

4. In any event, see if a mediator will be successful in resolving this as a first step. (Assuming she agrees to go with you) It's been mentioned, and there is probably not any harm in requesting she provide you with the reasoning in writing for her wanting to break with the existing status quo.

5. Do not do anything verbally. All communications surrounding access/support/etc should be done in writing (via email/letter). Verbal arrangements aren't admissible...arrangements in writing ARE. Regardless of what else is going on, keep your emails short, polite and to the point. Consider it "business" correspondence it that helps put you into the proper mindset. Have an uninvolved friend/etc perhaps proof read it before hand. As with all email, when you are finished with it, go grab a drink, take a walk, etc and then come back and read it again before sending it.