Advice re Contents of Response to Request

[3johnsmith]

The father has requested to vary a final court Order which details days and hours of visitation. His argument is that the children are with him more than 50% of the time so he shouldn't have to pay child support for the two 17 year olds and for the 20 year old, he says he shouldn't ahve to pay child support as he is 'on his own' - all are full time students - two in high school and one in university. In fact the children agree that their schedule never varied appreciably from the court ordered schedule. The children who are now 17 years old or older disagree that they spend more than 50% of their time with him and in fact one is now a full-time university student out of the province of ontario. I cannot afford a lawyer but I also do not understand his argument at all and he does have a lawyer.
My question is will the court permit me to attach to my responding affidavit signed statements by each of the children that they disagree with the facts of the paragraph (relating to his allegation that they spend 50% of their time with him) of their father's affidavit filed in support of his request to vary. and question #2 is will the Judge hearing the motion allow the children to speak at the motion?
Thanks.

[Tayken]

The father has requested to vary a final court Order which details days and hours of visitation. His argument is that the children are with him more than 50% of the time so he shouldn't have to pay child support for the two 17 year olds and for the 20 year old, he says he shouldn't ahve to pay child support as he is 'on his own' - all are full time students - two in high school and one in university.

1. It depends on the income split. If they are 50-50 with both parents and there is no significant gap in your incomes then, he is correct.

2. The child in University is expected to contribute to their education. You will be responsible (as the child) for the University. Generally it is split, less the expectation of the child's contribution, based on your income difference with the other parent.

In fact the children agree that their schedule never varied appreciably from the court ordered schedule. The children who are now 17 years old or older disagree that they spend more than 50% of their time with him and in fact one is now a full-time university student out of the province of ontario. I cannot afford a lawyer but I also do not understand his argument at all and he does have a lawyer.

I highly recommend you get a lawyer. If you are working and your income is similar to the other parent. What you are being offered is reasonable. But, if your income is less than the other parent's then you can claim child support and S7 expenses for the university. But, you will be expected to contribute even at a minimum wage level.

My question is will the court permit me to attach to my responding affidavit signed statements by each of the children that they disagree with the facts of the paragraph (relating to his allegation that they spend 50% of their time with him) of their father's affidavit filed in support of his request to vary. and question #2 is will the Judge hearing the motion allow the children to speak at the motion?
Thanks.

I highly recommend *YOU DO NOT DO THIS*. No matter how old a child is the courts really look badly on parents who involve their children, no matter how old, in a legal dispute. I highly recommend you get legal advice before doing this as the other side to the argument is represented. A good solicitor would eat you alive in oral arguments if you attach a letter form your children.

1. A "letter" is not sworn and cannot be entered into evidence as the person providing the 'evidence' cannot be cross examined.

2. The letter is FROM YOUR CHILDREN. Do not do this. I can't stress enough that this 9 times out of 10 ends up being a VERY BAD idea.

3. No one other than you and the lawyer will be allowed to talk at the motion. The only way anyone would get on the stand is if the judge (VERY RARE) moves to an instant viva voche trial on the spot. This is incredibly rare!

What you should do:

1. Do your form 13.1 (Financial Statement) and serve it on the other party.

2. Complete your Form 35.1 (Custody and Access Affidavit). If the other party has not filed a Form 35.1 with their motion materials you should be sending a letter to the solicitor asking for it to be filed 4 days prior to the motion hearing or you will be requesting an adjournment under the Rules.

3. Respond to the sworn affidavit materials. Address each paragraph. Do not use "emotional reasoning" for your responses. Address only the "facts" and only address the "facts" back. If an emotional statement is made in a paragraph identify it as such. You don't have to respond to everything. Just the cogent evidence that is relevant.

4. Make an offer to settle matters prior to motion, leaving it open to 1 minute prior to commencement of the motion, to attend mediation/arbitration in the matter. With the offer to settle include the name of 5 mediator-arbitrators for them to choose from. The reason I recommend this is that should they go forward with the motion, you can ask for costs should they not get what they want and a judge will slap them silly if you offered alternative dispute resolution.

Good Luck!
Tayken

[3johnsmith]

Advice re contents of response to Request

Dear Tayken - thank you for responding.
More questions - you have indicated that the mother should file a financial statement but the father has not - as the moving party, is this not compulsory for him and given he has not, shouldn't he file one first?
If the mother is receiving some financial help from her family, does she have to include it?
The father has not claimed all of his income - he has a part-time job and rents part of his house out however, he has only included his income tax returns which do not mention this additoinal income.
As to the 50% of time the father says the children spend with him, the chldren totally refute this but if you say that the children shouldnt' respond, in the wife's responding affidavit, is it best for her to simply say that the children spent time with their father in accordance with the court ordered schedule which has been in force for the past 11 years with no previous complaint. If more is required, how can the wife get the court to understand if the children must remain silent yet they are the very ones who will suffer if the child support is cut off - seems ludicrous.
It seems ridiculous that the father can say things in his affidavit that are simply not true when there are three children (17 and 21) who completely disagree so it is painful to think they must remain silent.
Hoping for more suggestions - thank you so much.
jsmith

[Mess]

I would suggest if want to receive accurate advice that you let go of comments like "the children absolutely refute this."

1. This indicates to me that you have already been dragging the children into the dispute. The children should not know about any of this or be affected by it. This is an issue between you and your ex.
2. The statement means nothing. The children are not experts in family law and have no idea how custody and access are seen by the courts.
3. You are still focusing on what the children think to back up your case. As Tayken says, this is a huge mistake to make. Do not depend on the children's opinions to back up your case.
4. Cases are decided by facts not opinions. Rare exceptions are the opinions of expert witnesses who even then are subject to cross-examination.
5. The decison about whether there is an equal time share between the parents will be according to a detailed examination of the actual schedule. Again, not based on the opinions of the children, and frankly not your opinion or your ex's opinion either.
6. If you want to dispute his assertions, you may dispute the actual dates the children spend with him. You should have factual proof to back this up.

We can give you better advice if you can describe to us the children's living arrangements over the course of a typical month.

You should reflect on why you are fighting this. The only consequence is money. The children are reaching adult age and support will end soon anyway. You need to make plans for the future.

If the children are indeed spending extra time with the father, then the father is experiencing a roughly equal expense to you. What he is asking for is not unfair. You need to able to present a fair and reasonable and fact-supported response. In order to do this, you have to let go of arguments that won't work (letters from the children) and focus on reasons that will carry weight.

[3johnsmith]

Thanks for your response but I feel I have worded my concerns in a way that you may have misunderstood my position. My bottom line is I just want to make sure the children have contribution from their father to their post-secondary education. I was only trying to get across that his affidavit that he has the children more than 50% of the time is untrue and that the children are the logical ones to say that but I take your suggestion that they should not be involved. The children have always followed the final court order which sets out the days of the week and the hours the children spend with their father and also the hours of the weekend they spend with him - it is very detailed and there has been no complaint by either side in 11 years however, your point that they are now almost all of legal age is taken making the schedule no longer really an issue and rather than focus on that, I see the focus should be on the future which really is the crux of the thing - that both parents contribute to the post-secondary expenses which both parents can afford to do so.

So......I do have a couple of other questions though and any information is very much appreciated.

Can you please answer the following:

1. If the father has not attached a financial statement in his motion materials to vary a final court order, is the wife required by the Rules to attach one to her response?

2. Generally, what does the court feel is a reasonable percentage amount for the parents to contribute to the children's post-secondary education - my guess is that the yearly cost is about $16,000.00 to cover tuition, accommodation, food, books but not including spending money.

3. If the father now pays his child support payments through FRO, would he pay his contribution to university costs to the FRO or ??

Thanks. All answers and suggestions very much appreciated. John Smith

[Mess]

1. One party doesn't get to ignore or break court rules just because the other party has. You should submit an accurate financial disclosure. If you have problems with your ex's disclosure, swear an affidavit stating that you have evidence that he has undeclared income from rental.
2. The court will usually state that the obligation for post secondary education is 1/3 the child, 1/3 for each parent. However there can be arguments made by both sides, this type of thing is fluid, it is not spelled out in legislation.
3. The FRO enforces court orders. If the post-sec expenses are built into a court order and you wish it enforced, try to have the amount prorated monthly. For example if tuition is $3600, then seek this incorporated into the order at $300/month so it will be easily enforcable. If you do this, I suggest you be attentive and co-operative to changes in expense each year, you should update the court order with a motion on consent each year when you calculate the school budget. If you have to return to court to fight all the time, this is money that could be going toward education expenses.

[3johnsmith]

I wonder if you can assist me in the wording for a father to pay 1/3rd cost towards post-secondary costs and I don't know who the money actually gets paid to so that it can be enforced (mother?). My draft wording is:fficeffice " the husband shall pay to the wife his contribution to the post-secondary school expenses of John Smith Jr. commencing January 1<SUP>st</SUP>, 2012, until the last day of the month in which he is enrolled full-time in a post-secondary institution as follows: <O(a) $444.00 per month and the parties acknowledge and agree that the payment is based on 33.33% of an average yearly cost for tuition,books, room and board for September, October, November, December, January, February, March, April and August of each year of $16,000.00 per year divided into 12 equal payments. Thankyou. Geri.<O
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