Am I getting screwed here?

[LivingTheDream]

Here's some background before the questions:

Ex and I have been separated and now divorced for 5 years. Have 3 children 8,6,5. Missed one court date in Feb 2007 (which lawyer told me I had no need to be present for) and ex asked for and received full cutody with support payments to the guildline.

Have always had children nearly 50% of the time and in 2008 judge ordered access based on schedule ex and I have had for years (was told by judge and lawyer that my being granted joint was touchy based on her being granted full custody the year before). Judge also told me the access is better because it is defined in the court order.

My ex makes roughly per year more than I do (which is 47000 part-time). I have paid the guildline payments based on a 35000 income for two years because my employment is not guaranteed to give me full time hours and because she got babysitting costs of 120/month put in during the missed court date for which she never had. *She has the kids on her time off (works shift work). *Therefore, she receives just over 800/month. *It's just easier to leave the payment at that (which is a slight overpayment on my behalf)

The two households split everything evenly (she buys the kids stuff for her place, I do for mine, etc) and we proportionately split all sports and extracurricular activities.

I also take kids to their medical appointments, schooling functions, etc and am very involved in their lives.

Here are the questions:

I assume that the court grants support payments to a parent based on the assumption that they will have an increased responsibility because the other parent makes more and/or is not involved with many of the daily aspects of the kids lives or is deemed irresponsible to have custody. I have in the order that I have equal legal say in all medical, educational, religion, etc. The only difference that I see from this being joint is the 'access' tag. Am I correct in my assumptions? Could I make a case for joint?

How does the court look at income for a part time employed payor? Do they average income based on years past (sliding sclale) and then I can pay the sum if higher based on the averaged income?

If she is custodial, can I still claim half the children as dependants for tax purposes as we split everything?

I am paying 800/month for the children with 48% time (she has the children roughly 12-14 days more a year) and an ex who makes more per year. Is there any way of lowering the support if I couldn't get joint?

Thanks in advance for any feedback. I've been wanting to ask these questions for sometime, but after seeing some real deadbeat Dad's who don't pay anything for their children and still want nothing to do with them, I'd like to not be one of the Dad's who really is involved with everything in his kids lives, yet gets treated like others who aren't.

[NBDad]

So just to clarify...you have the children 48% of the time, still pay FULL table amount, and don't claim them on the taxes?

Yeah, you got screwed.

In your situation what you SHOULD have:

1. Offset table amount of support. (Look at what you would pay her, what she would pay you, and the difference goes to the person with the LOWER income. Since she makes MORE than you, and you have the kids more than 40% of the time...she should be paying YOU support).

2. You already have SHARED custody per your existing status quo. (heck with what the order says)

- Shared custody is where both parents have both joint legal custody and joint physical custody of their children. That is, both parents are joint decision makers in their children's lives, and the children live approximately equal amounts of time with each parent. In essence, the children have two homes, one with each parent

Get that made official, like yesterday. Access means she has final say and can veto you on any decision. Joint custody is where you both make major decisions, but one parent has the children in excess of 60% of the time.

You can be written in as SHARED custody, and have the times spent with each parent documented in detail. ie. week on week off, etc. My own interim order lists the TIMES as well. (ie. 5pm Thursday to 5pm Sunday)

3. You are entitled to the CCTB/UCCB 6 months of the year. CCRA looks at access very differently from Family court. CCRA is bound ONLY by the income tax act, so once THEY make a decision that you are in a shared custody situation, the ONLY thing that can change it short of a successful appeal (and good luck with that one) is a change in custody.

4. You should be allowed to claim the children on your taxes as equivalent to spouse at least every other year. With three kids, you should be able to work something out with your ex.

- If she refuses, the courts cannot really do anything, (again it's that pesky income tax act that CCRA is governed by that prevents them from being involved with that). Your choice at that point is to either do nothing, OR to go ahead an claim them anyway. What will happen is that CCRA will pick up on the conflict and NEITHER of you will get the credit.

You wind up no further ahead, but she'll wind up behind. Might take doing this once or twice to force an agreement, but sometimes you have to play hardball.

[LivingTheDream]

Thanks for the words!

To clarify - this is ALL final court ordered stuff. The judge made it VERY clear when my lawyer fought this point that she didn't care about my 'over 40% because it is a guidline and not law'. She was also the judge who told me about the access. Although it leaves tricky legal ground, I have in that order a different section regarding my say in stuff (hence my not worrying about veto power)....my ex was just looking for the term 'custody' to make herself look good...and the judge also make refernence to that.

The tax stuff is complex so I will likely try to hash that out or go through Revenue Canada and see what happens. I'll be no worse off.

The support thing drives me nuts though. Has anyone heard of or been successful at having it reduced?

[NBDad]

What exactly does your order say in regards to the support? From the sound of your situation you should't be paying her, it should be the other way around.

[LivingTheDream]

It states that I am to pay her according to the tabled guidlines based on my income from the previous year.

As a side note - when I brought up this fact in court (her income, my amount of time with the kids) the judge told me that it sounded like I was trying to use my time with the kids as a way to escape paying support.

You'll also notice I've NEVER once said anything about not paying...I'd just like it reduced. I'm a realist...I know I'll pay regardless. I'm a Dad. It's the stereotype.

[Mess]

Hi,
You posted twice somehow, and I answered in your other post, said pretty much what NBDad said..

Get a good, really good divorce lawyer, and file an appeal, based on the judge incorrectly applying the law. There are tons of precedents for Shared Parenting and there should have been no question. Alternatively file a motion to vary support and try to work it from there. A good lawyer would advise you which course would be best.

You're looking at paying probably close to $100,000 in support until they are grown, more if they continue to post sec. All unnecessarily.

Your argument should not be that you want to get out of paying support, your argument should be that you need support to provide properly for your children when they are with you. The idea of the offset method is that each parent pays the other, even if it cancels out when incomes are equal. The money you are paying your ex is money that should be "paid" to yourself to support your chldren.

I see from what you said where it might have all gone south at the court the first time. Judge's hate it when it looks like a parent just wants to get out of paying support that is due. However you must frame it so that you show that this is what your ex is doing.

Your ex should have known better and for her to seek this result is immoral.

[LivingTheDream]

Hey there!

Thanks for the wisdom. If there were morals involved, this forum likely wouldn't be here! Ha ha

I'm not sure why the judge had the hard line about support. I had clearly stated why and even brought itemized credit card statements, receipts, etc detailing what I bought the kids over a certain time frame. I even took photos to prove such. The judge just stated what I mentioned earlier and she moved on.

I've crunched numbers and I'll be around $156,000 said and done (excl post secondary) - just based on my income now. Heaven forbid I get a better job!!!

If I only had the kids a couple of weekends a month, then I'd understand the support payments. I don't even want support payments. My partner and I do just fine now (considering I pay 10 grand a year in cash to my ex). I just don't feel the need to give her money for nothing.

It's just frustrating.

[LivingTheDream]

I read your post in the other column I posted by accident. A lot of great things there. I clearly didn't have a specialist. I'm going to start contacting people first thing tomorrow. As for my part-time job, I work in the social services field doing night shifts. My full time equivalent would be 42000. I stay PT so I can have the flexibility to get the kids from school and what not; not worry about childcare, etc.

[billiechic]

YOu were definitely screwed. But there is hope. Get a good lawyer and I thinkyou will be successful. There is no need for you to support you kids in both homes, and that is what you are doing. Just remember to keep chid-focussed and You have a good chance of having shared custody ordered.

[LivingTheDream]

Thanks for the encouragement. It's always been child focused...and has been on her end as well. She just wants the money. Plain and simple.

[billiechic]

Wanting the money isn't child focused. It is either selfish, or misinformed. I'm hoping it is misinformed and this will be cleared up just as simply.

[#1StepMom]

She just wants the money. Plain and simple.

Isn't at the truth far too often, in far too many situations?

Every issue my stepson's mother has fought for in court... ever... always had dollar signes tacked to it. She has never brought forth an issue that would not - in one way or another - possibly INCREASE the amount of support she gets from my husband. Even things that seem ridiculous based on the guidelines, she has fought for, and won far too often. She now has a strong belief that whenever she asks the court for an order for more money, the judge will agree with her reasoning and grant it. Heck, this time around, she is asking the court for my husband to pay his proportionate share of all daycare costs, plus 100% of all daycare costs incurred during his access! Go figure!

Anyhow... stand your ground. You are definitely right, and the order the judge made was wrong in every sense. I'm surprised you didn't appeal it - though I know how extremely difficult it is to make an appeal - been there, thought about it.

Definitely spend the money to get a lawyer to clean this mess up for you. It may be expensive, but it will be money well spent. It's unfortunate that it was the Family Court that caused this mess. But then again, that often is the case too.

We too are now trying to clean up the mess a Family Court judge made, and we too will be hiring a lawyer to do it, because it is clear that a self-representing non-custodial father will get taken to the cleaners (or slaughter-house, as my husband calls it) each and every time he tries to stand up for his paternal rights.

All the best to you!

[LivingTheDream]

Oh yeah! It was a cattle-call for sure!! Ha ha ha! As for the appeal - well that's where a good lawyer would have come into play. That was never even brought up. But it sure as hell will be now! Thanks again and all the best to you and your husband!