Motion for increased CS. What am I able to bring up in response?

[billiechic]

Well after the CAS got involved again, ex has taken first chance to file a motion to change. Retaliation??

He was on 100% of wages from an injury last feb (WCB) and apparently his benefit is now only 75%.

CS offset has always been determined using line 150 from previous years income tax, so I claiming this way is the SQ. He is obviously wanting to use his "current income" so that he will get a bigger increase. A wage reduction in November will only reduce his line 150 by about 5000, and not be in effect until July next year. So instead of an fair increas of about $30 a month he is going for over $100!

Is this argument sufficient? I do have status quo (if that applies to CS calculations) on my side. And that is the method in our final orders.

Also, my work contract ends Dec 31, and I will be out of work. My ex knows this, and I also told him a few weeks ago that I am having a very difficult time working my full 35 hours as my MS is acting up. I have been supplementing my paycheques by taking my vacation pay to make up the difference. It is likely that I will be on unemployment, or working fewer hours by the time this gets to court!

So he calls me at work yesterday (which he has been asked not to do-written communication) and tries to tell me that the court representatives told him he should call me and tell me he was filing. I said "they were probably hoping we would mediate. would you go to mediation with me?" he responds with no thats what courts are for. So contradictory to our agreement (agreed to mediate with OCL lawyer) and with no attempt to even talk to me about any of this, he has applied.

On top of all that, hes asking to change the agreement to pay 50/50 daycare costs, to make me pay my share instead. He doesn't even take her to daycare when she is with him, but still pays his 50%. He has made no attempt to negotiate with the daycare (ask if they can reduce his charges since she isn't attending, to reflect just holding her space).

So its obvious to me that he is just retailiating. I suffered a HUGE decrease in my wages for 4 months last spring, but I didn't ask for him to start paying me CS. I just continued to pay him, knowing that it would be reflected in a change come July 2011. That and I felt bad that he had lost his thumb and didnt want to stress him more (naive to show him compassion when he would never do that for me)

So I guess I'm looking for advice here. He has not even tried to work this out, has refused mediation and is going for my throat. I dont have the energy for this, I am struggling to keep working ft and take care of my kid. He has even gone against his promise to the OCL to move closer to her school and is driving her more than an hour each way 2 times a week (SK kid). the recommendations were BASED on usboth moving closer!

Is there any chance court will side with me? I don't have a problem paying the increase as it's set out in final orders, but this is ridiculous! What the heck do I argue???

[standing on the sidelines]

i wonder if you can argue that you will give him what he wants now but he has to work with you when your income changes in december??

[Mess]

First off, let me beat him up. Please.

OK, second. He is arguing for an immediate increase due to current income change, you show that you continued to pay the previous calculation even though your income had changed. You also show how your income will change in Dec when your contract is up. You argue that CS be based on income averaged over 3 years for both of you because of wide swings.

You have lots of factual info to back up 3 year averaging. Also you argue that you will out of work as of Dec 31 and you don't see the sense in revisiting CS once again in 30 days.

[billiechic]

hahaha! well if he files anything now, then I have 30 days to respond, right? As far as I know, I WILL be unemployed, and then I have NO PROBLEM with him asking to revist CS. Especially if I file my response in the 2 weeks where I can earn absolutely no income due to the EI waiting period. Bet that would bite him in the you-know-what!

Mess, again your advice is spot on. My income has not fluctuated much, I would have had at least a $5000 increase in line 150 had I not taken the pay cut during internship. But, i did choose not to fight for a change and struggled (a little) to keep paying him. It is only fair for the court to consider this as it shows integrity, whereas his move does not.

As far as I know he still hasnt filed, and based on new interactions today, I will be filing a motion to change tomorrow myself. Only a change in schedule for now, but I can add on to it if he asks for an increase in CS. That will open up for finacial disclosure, and so I will then ask for my equalization and proceed to divorce

[billiechic]

well he still hasnt served me anything, and I asked today when he planned to. no answer.."still getting papers together".

I informed him that I am now unemployed, and he says he will still go after 7 months of "backpay". Sure buddy, try to argue that the method of CS determination was unfair, despite it being ordered on consent 4 months prior and doing nothing to change it.

However, I am still wanting to have a change in the schedule. We are moving in with my boyfriend and his 6 year old girl mid February. The two girls (1 year apart), spent a week together over the holidays, and they get along like sisters. They are both very excited to have the other around, and we have arranged for them to take swimming lessons together every Wednesday.

So I have many things that will allow me to apply for a change. All I want is to switch the weekends, so that the girls are on the same weekend schedule. His ex has refused, and I know mine will too. I also want to remove my daughter from daycare while I am unemployed. And since he is STILL not working (11 months and counting) then it makes sense to stop paying and to keep her at home when she"s not at school.

I know he will fight me on all of it. He couldn't even sign for her passport application today without taking it home to "read it over". He now has her for 9 days straight, which goes totally against the OCL recommendations, and refused to give her to me for one overnight next Sunday. Its all about control, and not letting me "win". Even when my dfaughter stood there and told him she wanted to be with me the following weekend becasue she wanted the time to be fair. (no, she wasnt coached at all: she just knows that 7 days with mommy is not the same as 11 days with daddy- 2 days, then 9 straight)

Any advice about how to approach this? I would really like to solve it without court but he has already refused mediation several times

[billiechic]

oh, btw, he did cave and give me the first week of her holidays. guess he couldn't find a way to argue that it wasnt in her best interests.
and I made sure to have a voice recorder on so he couldn't backpeddle later.
Best $70 I spent all year!

[standing on the sidelines]

maybe offer him two weekends in a row, his normal one as it is right now and the next one as his new normal if he is willing to switch the weekends around. Offer the same to the new bfs ex and see if she is willing to bite. If not then enjoy whatever girl is there by herself when the other is with their other parent, think it as some one on one special time.

As for pulling her out of daycare he could you the excuse that you are not willing to look for work as you pulled her out.

He is being a dickhead about everything but at least you know that.

[billiechic]

I was planning on doing that, but it likely isn"t enough for him to bite.
My Bf alreadya asked his ex about the switch and isn't willing because her new bf has his kids on the same weekend (even though they are older and apparently not nice to the little girl. Guess they like their non-kid weekends)

I am only pulling her out of daycare because I can't pay for it. Im still paying him CS (offset). And he can't argue anything about me being underemployed without making himself look like a real idiot, since I was employed up until the end of year (contract ended and no further funding available), whereas hes gone 11 months now. In my field there is a huge unemployment rate right now, as many professionals were cut from the ministry. But I am using this time to finish my school (should have my Masters at the end of the spring)and continueing to be active in my area and presenting at conferences etc.

I want to be reasonable with him, but he just wont let that happen. Something about relinquishing control. He's been paying daycare for all that time becasue the daycare wont give him a break. Hes basically paying full price to hold her spot on the days when shes not there. I'm hoping taking her out of daycare, at least until one of us returns to work, will free things up financially for both of us.

[billiechic]

oh< and the switch to having both girls on the same weekend is something the both girls really want. We are still making time for parent daughter times, but mostly they really want to play with each other.

[billiechic]

any parent who fears a child will love them less is more a child than an adult.

Love has no limits and we all have an infinite capacity to love. Just becasue my daughter will have 2 more people in her life to love does not mean she will love her father any less. In fact, if he supports her new "family" then it is more likely she will find MORE reasons to love him, as he will be showing that he has the ability to put her needs before his own.

unfortunately, you are probably right iceberg.

I have brought up removing her from daycare on her time with me and he is putting up a huge stink (as of last night) He believes that because our order states that we each pay half of daycare, that means I cannot remove her without his consent. he says he will continue to put her in daycare and that I am still on the hook for half of his costs. Technically that is true, however it is not in her best interests to be in daycare while both parents are unemployed, since she could be spending time with a parent instead, and it is also removing valuable financial resources from areas that will be more important (like paying for food, housing and clothing)

Really, he is planning on keeping her in daycare just so I have to pay for it!

[first timer]

Your ex could also argue that while the child is in daycare, you could be using this time to find employment, even if its not in your field of work, some income is better than none. This I know from personal experience when I was laidoff from my job. My ex tried to claim I was underemployed because I accepted a job still in my area of work but not the same type of job (none available) and I was making only half of my old salary. I was commended for working instead of staying unemployed until I found a job (proved there were none) that would pay me my old salary. My CS was based on my most current, accurate information (current pay stubs). My ex was imputed an income because she stopped working for no reason. Since you are both in the same boat (unemployed), you can both argue the same arguments in court, hopefully common sense kicks in before this happens.

[Teenwolf]

Your ex could also argue that while the child is in daycare, you could be using this time to find employment, even if its not in your field of work, some income is better than none. This I know from personal experience when I was laidoff from my job. My ex tried to claim I was underemployed because I accepted a job still in my area of work but not the same type of job (none available) and I was making only half of my old salary. I was commended for working instead of staying unemployed until I found a job (proved there were none) that would pay me my old salary. My CS was based on my most current, accurate information (current pay stubs). My ex was imputed an income because she stopped working for no reason. Since you are both in the same boat (unemployed), you can both argue the same arguments in court, hopefully common sense kicks in before this happens.

All valid points; however, she also stated...

"My ex knows this, and I also told him a few weeks ago that I am having a very difficult time working my full 35 hours as my MS is acting up."

If she has legitimate health needs that restrict her ability to work, then the court will not expect her to earn as she previously did.

[billiechic]

i do have a legitimate medical reason that restricts the kids of work I can doi (especially in my field, which can have significant physical work). But that is not a reason for me not to work. He could argue that I am also unemployed, but this is a new thing starting Jan 1, 2012, whereas he has already been unemployed for 11 months. I do understand that he was recovering from an injury, and so I would accept a 6 month recovery time, but the last few months he should have at least been looking for work. He certainly has many useful and employable skills.

I will also be using this time to finish my masters education. I dont think that would be held against me, as I have been going to school for this part time while working full time for 3 years. Of course I have always arranged for my classes to be when my daughter is in school or when she is with her father, so as to not interfere with my time with her. I have done that for this semester as well.

However, I am already trying to obtain work, even part time. I seriously doubt the courts will come down on me for not working so soon after becoming unemployed. It is not my intention (or even financially possible) for me to continue even for a few months without some income.

I find it unbelievable that he claims to live on a monthly income of $1300 and still pay daycare, rent and financing on a new vehicle, when I can't! Perhap he is using his skills to work under the law?

[Teenwolf]

I find it unbelievable that he claims to live on a monthly income of $1300 and still pay daycare, rent and financing on a new vehicle, when I can't! Perhap he is using his skills to work under the law?

That is quite possible. Lets remember what it says in the act. A person can be excused to earn to their potential if there are reasonable health or educational needs. You have both. I'm not saying that you shouldn't work, but what are his reasons? You have two legitimate reasons for earning less than you previously did. And it's been less than a month since you became unemployed. If he's going to drop the hammer on you, he should take a look in the mirror.

[dinkyface]

As long as the daycare provider is willing to reduce the schedule so that it excludes your days, I cannot see any possible reason how he can object to what you want. You would still be on the hook for a share of HIS daycare time. The ONLY impact on him is that it reduces his costs!!!

... though you would only need to contribute to daycare that is necessary to permit the other parent to work/study (I assume he is claiming that he is looking for work or doing SOMETHING gainful during his daycare hours?)