Arguing against SS

[Ontario_Dad_41162]

Have a combined Settlement Conference/Trial Management Conference this week.

Situation is that the kids live with me full time - which is fine with her. I make $84k, she makes $62k.

She is asking for SS and I'm looking at all of the conditions as per SSAG and I don't see where she's demonstrated any entitlement at all, but I've been willing to pay for the next couple of years.

During the last conference, the judge suggested that she might be entitled to indefinite just simply because it was a "long term marriage". My argument back was that it was 14 years which is considered mid-term, and as such any SS is limited in duration. I even just recently thought to check their Divorcemate calculation sheet, and it shows a duration of 7-14 years.

So my question is this - do I just reiterate my opinion that she's not entitled to SS automatically and certainly not for unlimited and just go over my arguments again?

The thing is that the duration is probably the only thing that stops us from settling, we're close on the equalization - very close and we're close on the $ for spousal.

It's the same judge - if I can convince him that she's not entitled to unlimited, it might go a long way to help us settle. The thing is (and maybe do I say this?) that I will not agree under any condition to unlimited, and if my ex is not willing to compromise on that, then I'm willing to go to trial, I'd really have nothing to lose.

By the way, we're both self-represented.

Rick

[torontonian]

From what I understand, "indefinite" is not "unlimited", just means there is no date for review, only material change. For 14 years, I'd stick to your guns (7-14 years). Good luck!

[Ontario_Dad_41162]

From what I understand, "indefinite" is not "unlimited", just means there is no date for review, only material change. For 14 years, I'd stick to your guns (7-14 years). Good luck!

Yes - sorry - that's right -and the judge said that - that it's not necessarily forever. I just used the wrong term. My other problem with this is that this means that this will always be hanging over our heads and we'd be heading back to court to see if she's still "entitled" or not.

I am going to stick to my guns - I don't think I'm being unreasonable at all. This is a big concession for me to be paying any spousal when she's making very good money.

[Mess]

You aren't obligated to any order the judge suggests at a conference, although then you take your chance at trial. However if you feel the judge is biased in this situation then you might be better off at trial.

Keep in mind that the judge at the conference looks over the material for 5 or 10 minutes and there is no real challenge of facts or arguments taking place as there would be at trial. Your ex's position may look reasonable at a superficial glance but might fall apart if challenged.

How old is the ex? There is an informal "rule of 65", if their age and the years of marriage add up to 65, then the courts will often rule indefinate support.

Also look closely at your respective incomes. SS is after tax, after expenses, and with the amount of CS removed from the combined total of your incomes.

A "napkin" look at this, take her after tax income, add it to your after tax income and then remove the amount of child support from the total. Then calculate 45% of this. The courts would look to raise her income to this level.

I did a VERY rough calculation based on 2 children, with CS at $930 per month. The real figures will vary but I'm probably within 10%. For me, I see 45% of your combined income after CS is $49k. She is well over that. However I am an amateur with a calculator.

Have you had this run through divorcemate? How much does it say you should pay? Have you had a lawyer break down the numbers for you?

[samej]

What do you mean SS is after tax? Are you saying after you back out CS from the combined take home the SS calc would be 40-50% of the after tax amounts remaining?

From a CRA perspective SS is tax deductible from the givers income - top line deduction, and taxable in the receiver's - top line addition, yes?

[Mess]

Actually you're right, that was my error, it is gross incomes.

[Ontario_Dad_41162]

You aren't obligated to any order the judge suggests at a conference, although then you take your chance at trial. However if you feel the judge is biased in this situation then you might be better off at trial.

Keep in mind that the judge at the conference looks over the material for 5 or 10 minutes and there is no real challenge of facts or arguments taking place as there would be at trial. Your ex's position may look reasonable at a superficial glance but might fall apart if challenged.

How old is the ex? There is an informal "rule of 65", if their age and the years of marriage add up to 65, then the courts will often rule indefinate support.

Also look closely at your respective incomes. SS is after tax, after expenses, and with the amount of CS removed from the combined total of your incomes.

A "napkin" look at this, take her after tax income, add it to your after tax income and then remove the amount of child support from the total. Then calculate 45% of this. The courts would look to raise her income to this level.

I did a VERY rough calculation based on 2 children, with CS at $930 per month. The real figures will vary but I'm probably within 10%. For me, I see 45% of your combined income after CS is $49k. She is well over that. However I am an amateur with a calculator.

Have you had this run through divorcemate? How much does it say you should pay? Have you had a lawyer break down the numbers for you?

Thanks for the response. She definitely does not meet the requirements for the rule of 65 - the sum of her age and the duration at separation was 58.

I understand that the judge just glossed over and that is part of it. The other part is that I was not able to file on time, so he didn't see my position. I'm not concerned at all by the judge's comments as I know that nothing is binding - my concern is that it gave her hope that maybe she is entitled and will make it more difficult to negotiate time limited.

I'll talk someone about this with the judge. I'm very partial right now to saying that if she continues asking for indefinite, then it will be next to impossible to settle this. From my seat, she'd have a lot more to lose than I would by going to trial other than maybe costs being awarded against me, but in the case where she is now self-represented (she had a lawyer before) then I expect that the only costs would be the costs of going to trial (not paying her legal fees) so maybe it's worth it.

They had run a Divorcemate calculation - it showed $300-400 for 7-14 years. A t the last hearing, the judge suggested that if spousal support were ordered, it would be for $300.

[staysingle]

Ontario Dad,
This link provides a good primer on the bullshit complexity and total latitude that judges have in deciding SS. Emerging Trends in Spousal Suport - Part I | Gene C. Colman Family Law Centre | Toronto, Ontario

I don't endorse any particular lawyer but this guys article is well put together,

Trial judges are not forced, in any way, to apply the SS guidelines and can make their own judgments. Appearing in front of a judge over SS carries great risk.

As an overview, the courts are no longer inclined to order time specific/ limited SS duration. This theme has been endorsed by the Supreme Court. Instead they rule on quantum and instruct to come back later when circumstances change. It's unfortunate but that's how they keep you 'at the table'.

Having said that, if you can get agreement out of court with your ex, many times the courts will uphold the agreement.

Good luck

[Ontario_Dad_41162]

Ontario Dad,
This link provides a good primer on the bullshit complexity and total latitude that judges have in deciding SS. Emerging Trends in Spousal Suport - Part I | Gene C. Colman Family Law Centre | Toronto, Ontario

I don't endorse any particular lawyer but this guys article is well put together,

Trial judges are not forced, in any way, to apply the SS guidelines and can make their own judgments. Appearing in front of a judge over SS carries great risk.

As an overview, the courts are no longer inclined to order time specific/ limited SS duration. This theme has been endorsed by the Supreme Court. Instead they rule on quantum and instruct to come back later when circumstances change. It's unfortunate but that's how they keep you 'at the table'.

Having said that, if you can get agreement out of court with your ex, many times the courts will uphold the agreement.

Good luck

Thanks - I will take a look. I know that SSAG are only guidelines.

Appearing in front of a judge over SS carries great risk

For who? Me or her? What's the risk?

[staysingle]

Thanks - I will take a look. I know that SSAG are only guidelines.

For who? Me or her? What's the risk?

The risk is to both! It will completely depend on the judge!

I have a male relative appear over an application from his ex . She was fired from her job 4 years post divorce long term 20 year marriage. At the time of divorce both had similar incomes so no SS was paid by either party. He walked out owing her 1700 per month. Outragous!

[Ontario_Dad_41162]

So that's the thing - I don't see much risk to me - more for her.

What she is offering is that I pay $300/month indefinite, which is probably the maximum that the judge would order. Maybe a judge will say that it should be $400 indefinite, but I'd be willing to take the chance at getting a judge who looks and sees that I have both of the kids, that she makes very good money, her career hasn't been impacted and says "okay, $300/month for 10 years".

[samej]

Actually you're right, that was my error, it is gross incomes.

Daayum! For a brief moment I imagined reopening my separation agreement LOL!

[staysingle]

I think your offer is reasonable and your position is strong. Just realize if you go to trial on the wrong day with a goofball judge you can exit worse off. That's the gamble! Again I think you have a strong hand to play

Good luck

[Ontario_Dad_41162]

I think your offer is reasonable and your position is strong. Just realize if you go to trial on the wrong day with a goofball judge you can exit worse off. That's the gamble! Again I think you have a strong hand to play

Good luck

That's the thing - I don't think that it can be much worse than her offer - that's my whole point. Unless she's willing to make it time-limited, I'm not sure that there's any incentive for me to avoid the trial. If she offers $300/indefinite then worst I can see the judge saying is $400/indefinite and I can't see that happening. I realize that so much depends on the trial judge, but objectively, I'd think that she'd much more to lose than I would, but maybe I'm just being too subjective on my own position lol.

[staysingle]

You are contradicting yourself a bit here. "The worst I can see the judge saying is $400.00 indefinite and I can't see that happening". You admit to seeing it could happen! and worse yet, 10+ k in costs.

Seasoned lawyers won't predict a judges decision on any particular day. Do be careful about your sense of objectivity.

In the end, capture as many views about this as you can and make a decision. Your stuff is on the line so deliberate carefully!

Good luck