Father Being Custodial Parent

[NBDad]

Also, you may wish to look into whether you are able to claim the "deductions" she has made as spousal support on your income taxes. Even if you can't get the retroactive payments back, you MAY be able to get a bit of a tax credit out of it.

She has NO case, you push this to court, she's going to get rocked. She would have been better off pursuing equalization of assets, if that hasn't been done already.

She makes far too much to need spousal.

[rmccallion]

Also, you may wish to look into whether you are able to claim the "deductions" she has made as spousal support on your income taxes. Even if you can't get the retroactive payments back, you MAY be able to get a bit of a tax credit out of it.

She has NO case, you push this to court, she's going to get rocked. She would have been better off pursuing equalization of assets, if that hasn't been done already.

She makes far too much to need spousal.

Yes - I've already gone that route. I've been able to send a letter to CRA to claim the spousal support that she has already deducted. There is no way I would get that money back anyways, she doesn't have any assets or money (although I don't know how she's affording Perry Mason lol) so the next best thing is to file my 2007 2008 and 2009 returns to claim the spousal support that she has deducted. If that claim gets accepted (and it should as I have a letter from her lawyer confirming the spousal support), this will be a nice chunk of change for me.

[dinkyface]

Do you have a court order for spousal? If not, then she shouldn't be deducting squat.

She's well over 45% of your net disposable, so she wouldn't normally qualify for any kind of spousal support.

Unfortunately, the guidelines set spousal to bring her to within 40-50% of your COMBINED net income (after tax, after CS).

At $400/mo SS, she is at about 39% of your combined net income (Using CS of $916/mo, and using Ontario tax rates) With no SS at all, she would be at 36%.

So according to the guidelines, the $400 seems more than reasonable to me (although, I agree that with $61K income she SHOULD be considered self sufficient).

(I wonder... is she paying tax on that SS? )

[Gary M]

So according to the guidelines, the $400 seems more than reasonable to me (although, I agree that with $61K income she SHOULD be considered self sufficient))

You're forgetting the grossed up CS deductions again.

Even leaving that aside, mid-range SS would be ~$350, so how is $400 "more than reasonable" ???

Gary

[dinkyface]

Sorry wrong formula!!

Custodial Payor formula: SS = 1.5 to 2% of gross income difference (after deducting grossed up table CS amounts from each's income), multiplied by #years married. (see http://www.divorcemate.com/library/SSAG_Paper_0906.pdf)

Her (paid, table) CS of 916*12 = 10992, grosses up to 15703 (using 30% tax rate??)
His (notional, table) CS of 1208*12 = 14496, grosses up to 24160 (using 40% tax rate??)

Her adjusted gross: 61000 - 15703 = 45297
His adjusted gross: 84000 - 24160 = 59840
Difference = 14543

Low range: 1.5% * 14 years = 21% -> $3054/12 (or $254/mo)
Hi Range: 2% * 14 years = 28% -> $4072/12 (or $339/mo)

[rmccallion]

Sorry wrong formula!!

Custodial Payor formula: SS = 1.5 to 2% of gross income difference (after deducting grossed up table CS amounts from each's income), multiplied by #years married. (see http://www.divorcemate.com/library/SSAG_Paper_0906.pdf)

Her (paid, table) CS of 916*12 = 10992, grosses up to 15703 (using 30% tax rate??)
His (notional, table) CS of 1208*12 = 14496, grosses up to 24160 (using 40% tax rate??)


Her adjusted gross: 61000 - 15703 = 45297
His adjusted gross: 84000 - 24160 = 59840
Difference = 14543

Low range: 1.5% * 14 years = 21% -> $3054/12 (or $254/mo)
Hi Range: 2% * 14 years = 28% -> $4072/12 (or $339/mo)

Geez Dinky, you gave me a heart attack before (but really, I knew it wouldn't be that high when I thought about it).

What was most useful though was that link to Divorcemate, I hadn't looked through that. I need to really take a look at this INDI/NDI calculation. I don't think that they've done it properly and they clearly haven't reduced my income by the CS component seeing that I'm the custodial parent. It also makes me wonder if I need to be having a lawyer "from my side" run the SSAG calculations. Based on the fact that there seems to be a discrepenacy on how the calculate the NDI, it makes me wonder how that happened, and if so, does it mean that they could have tinkered with the SS calculation part of it as well.

I should mention...I am more interested in figuring out this NDI issue. I'm concerned about the spousal support of course, but my contention is that she's not entitled to spousal support and if I can make my case for that, then any issues as to how the support is calculated is a moot point.

In their Settlement Conference brief, they filed that one of the two reasons why she is entitled to spousal support is because she only makes 33% of the NDI. They provided me with the one page report from DivorceMate as "evidence". However, their calculation is bogus, it does not take into consideration that my net income is to be reduced by the notionial grossed-up CS. If I can this formula/calculation reviewed in context of the way that it should be with the guidelines, her NDI might be anywhere from 40-44% which would poke a major hole in their rationale IMHO.

[Mess]

Go to one or more divorce specialist lawyers and seek a second and possibly third opinion. Stress that you just want a proper Divorcemate calculation done, pay for it and get the printout for yourself. "Garbage in, garbage out", the software is only as good as the numbers that are entered, and I sat in my lawyer's office and watch her run various scenarios through the software, deciding on what set of numbers we would use. Don't kid yourself that the same answer will come out every time.

It will be worth a couple of hundred to get a legal opinion on this. Beforehand, make sure you have every bit of financial info written out, have an executive summary, your own spreadsheet, supporting statements attached at the back, etc. Minimize your time with a lawyer by having every question answered on the cover page. You can download a 30 day trial from Divorcemate and do it yourself too, and I suggest you try it, but in your arguments you probably want a (somewhat - you were paying) independent legal opinion with what you consider to be fair and accurate numbers.

Even if you already have your own lawyer, if you disagree with their calculations, you'll need something persuasive to back up what you are saying.

[rmccallion]

Wow, that's awesome, thanks so much. I had being thinking along those lines, that it would a good investment to get someone to spend a couple of hours with me to walk through the calculations. Their's just seems too sketchy for my liking.

[dinkyface]

Sorry about the false alarm rm.

Using this formula, NDI/INDI does not enter into it. But good to understand it just so you can argue better against their methods.

Your point about arguing based on entitlement is important: The theory is that FIRST they must establish that she is entitled to SS, then they can calculate. The fact that the calculations come up with a number they like is NOT sufficient to determine entitlement. The guidelines do not deal AT ALL with entitlement, other than just discussing some general tenets.

Maybe search for 'entitlement' in CANLII?

[rmccallion]

Sorry about the false alarm rm.

Using this formula, NDI/INDI does not enter into it. But good to understand it just so you can argue better against their methods.

Your point about arguing based on entitlement is important: The theory is that FIRST they must establish that she is entitled to SS, then they can calculate. The fact that the calculations come up with a number they like is NOT sufficient to determine entitlement. The guidelines do not deal AT ALL with entitlement, other than just discussing some general tenets.

Maybe search for 'entitlement' in CANLII?

No problem about the false alarm. As I said, once I started to breathe again and thought of it, I was pretty sure that they would try to claim as much as they could, so I figured that was the case.

You're somewhat right on the issue of entitlement. I'm trying to keep my focus on this. My position is that she needs to demonstrate entitlement first, then we can argue/discuss our relative positions if entitlement is determined to be the case.

However, based on the fact that they're using the NDI calculation as one of their two reasons of entitlement, it's just as important to deal with this. I don't want them to be able to go into court and state that they are so poor that they only get 33% and have the judge rule entitlement on that basis when the NDI is probably in excess of 40%. You see my point?

[kdham1964]

I think the first thing you need to do is get an order for CS. I understand that you don't want to spend the kids education funds on a lawyer, but CS is a non-negotiable issue. This will stop her from automatically decuting.

Based on your information, I agree that ss, if any would be fairly low. Bothe of you will be required to file financial statement (Form 13 or 13A, depending on circs) and the judge will consider this information. He/she will also decide if the SS (if any) should be retroactive.

In the meantime, it is the children's needs that are paramount. This is the issue that needs to be settled first. She may need to pay you for any amounts that she deducted from CS. Judges tend to be unwaivering on the issue of CS.

SS is determined by financial situation and need. I doubt that with her income she would be entitled to much, if any, and it would not be forever.

Good luck!