Support Questions

[stressfultimes]

First of all, great site. I am looking for help here as I am lost in a sea of confusion. Here is a background of the situation.
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My wife and I separated in January of this year (2012).
We were married for 8 years and together for 9/10.
We have a 3 year old little boy.
We have agreed to shared custody, about*45% of the time spent with me and 55% spent with her currently.*
We have agreed to split all of the assets down the middle 50/50.
I work in real estate (self employed).
My wife is salaried but only works 4 days a week since returning from mat leave (it was not a mutual decision)
I will earn 80-85k this year after expenses.
My wife earns about 37k.
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The issue we have is over support and the calculation of my income.
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Her issues:
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1. Her lawyer is saying the offset of CS will not apply because of our income gaps, I earn too much not to pay full.
2. My income has hovered around the same mark after expenses always, except for last year, where I had one deal that put me higher. They want to base on last three years to make my income higher but I find this unreasonable, I can't pay her money that I don't have.
3. When she went back to work after mat leave, she decided to go back for 4 days instead of 5 against my wishes. She was earning about 50k before she left for mat leave. Nevertheless, since the marriage has broken down, I feel she has a responsibility to work to her capacity now.
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In short, I felt I was being very reasonable by offering to pay the offset of CS and the mid range of spousal support. Her lawyer wants to challenge my expenses to try and get my wife more income, she's*trying to make me jump through a million hoops hoping*I'll get tired of it.*
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If that's the case, I think in a perfect world I should base the offset CS on our actual incomes and base the mid range of spousal support on her working that extra day. Why should I pay for her to have a day off? I would love to have a day off with my son.
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Thoughts?

[Tayken]

We have agreed to shared custody, about*45% of the time spent with me and 55% spent with her currently.*
I will earn 80-85k this year after expenses.
My wife earns about 37k.

$459 per month paid to the other parent based on MySupportCalculator.ca

1. Her lawyer is saying the offset of CS will not apply because of our income gaps, I earn too much not to pay full.

Dear Lawyer,

Please provide the jurisprudence to your conduct and recommendation. The Child Support Guidlines are clearly set forward in legislation and shall be paid based on both parent's income in the "offset method".

I invite you to provide the jurisprudence to you and your client's position and kindly ask that you provide the supporting jurisprudence in support of your argument so I can respond in kind.

Should you and your client choose the litigated resolution to resolve this matter I will be seeking costs in accordance with Izyuk v. Bilousov, 2011 ONSC 7476 (CanLII). A copy of this jurisprudence is attached to this correspondence as Schedule "A" for you and your client's convenience.

Yours very truly,
Your name

Incl. Schedule "A" - Izyuk v. Bilousov, 2011 ONSC 7476 (CanLII)

My personal opinion... The lawyer would be crunched by a judge on trying to argue more than the offset amount of child support. Now, be prepared for a request for SS possibly though.

All tactics. If you don't have a lawyer I highly recommend you get one.

Good Luck!
Tayken

[Mess]

1. Her lawyer is saying the offset of CS will not apply because of our income gaps, I earn too much not to pay full.

First, do not ever take legal advice or information from your ex's lawyer. They are trying to bully you.
Second, they are full of BS. The Child Support table amounts apply up until you are earning $150k+. There is nothing in legislation that stops the set-off from being applied even if over that amount, but at that point judges have more flexibility.
Third, you are not in court, you are negotiating. They are chosing a purely aggressive negotiating style. The best response is to ignore it.
A negotiated settlement between you two doesn't have to absolutely fit the Child Support Guidelines, but it should be reached due to calm, mindful discussion of actual reasons that benefit all parties; you, your ex, your children. A negotiated settlement isn't something that results from bullying.
Frankly I think you should word this into your response. Offer co-operation and collaboration, but make it clear you are not going to be bulldozed by wild misrepresentation of the law.

2. My income has hovered around the same mark after expenses always, except for last year, where I had one deal that put me higher. They want to base on last three years to make my income higher but I find this unreasonable, I can't pay her money that I don't have.

First of all, make sure you are covering half of the child's expenses while they are with you. That means you should be buying half the clothing, books, toys, transportation expenses, daycare, recreation, etc.
If I were you I would open up an extra bank account. I would deposit a fixed amount into that account every month. This will be your own child support paid to you. Use a debit card or cheque (for daycare) to pay for everything for the child out of this account. The statements will show where the money is going. At some point you may end up in a motion hearing, you want a clear paper trail of expenses you pay, and you don't want a thousand little receipts. This won't include all your utilities or housing, but it should include a percentage of your groceries and all incidental expenses. Just keep the debit card in your wallet and pull it out even if you take your kid to McDonalds or buy some gas to drive to drop off at mom's house.
That taken care of, the reality of this situation is that Child Support will be based on the previous year's income, based on your tax return. We are all calculated a year behind that way. It is reasonable if you have ups and downs to base your income on a three year average. I would say that if the previous year when you had a high income, if that was when you were still together, you can clearly argue that the money has already gone to support the family. Just keep in mind that in the future you need to plan ahead if you make extra one year.

3. When she went back to work after mat leave, she decided to go back for 4 days instead of 5 against my wishes. She was earning about 50k before she left for mat leave. Nevertheless, since the marriage has broken down, I feel she has a responsibility to work to her capacity now.

Indeed. The support should be calculated according to set-off, with her income at a full time level. Draw a firm boundary here, especially since they are demanding you pay according to your one-time higher income.

In short, I felt I was being very reasonable by offering to pay the offset of CS and the mid range of spousal support. Her lawyer wants to challenge my expenses to try and get my wife more income, she's*trying to make me jump through a million hoops hoping*I'll get tired of it.*

Don't let them wear you down like that, it is the intention of that style of aggressive negotiation. Just send them an offer based on what is fair: Setoff CS according to your three-year average and her working full-time. Pay this amount monthly, make sure the cheques are marked "Child support for December 2012" etc. Ignore any other demands.

If that's the case, I think in a perfect world I should base the offset CS on our actual incomes and base the mid range of spousal support on her working that extra day. Why should I pay for her to have a day off? I would love to have a day off with my son.
*
Thoughts?

Spousal support isn't just based on income. It needs to be proven that there is an entitlement. Did her career suffer because of the marriage? It appears not from your version of events. She has to prove it factually. You do not pay spousal support now, at all, not a penny, because this can be taken that you acknowlege entitlement. You pay child support, and you state that there is no entitlement to spousal, and if they disagree they need to provide fact based arguments.

[stressfultimes]

Thank you very much, this info is so helpful. I feel like my lawyer is being too accommodating. My wife originally stated that she was not seeking spousal support but that she wanted full table amount of child support. My lawyer said she will likely get entitlement simply because of the income disparity.

I wanted to be fair to her and make sure she was looked after, but now it seems like they're after every single penny and being unreasonable.

Its time to fight fire with fire!

Please keep the replies coming, every little tidbit helps me.

[dinkyface]

Assuming she is imputed to full-time (4 -> 5 days).

Assuming you are paying offset CS: 746-415=331 monthly.

Using TaxTips.ca - Canadian tax calculator, with her claiming the child as dependent, I get this
83000 taxable -> 60358 after tax -331*12 CS = 56386 net
46000 taxable -> 38074 after tax +331*12 CS = 42046 net

So, her net is 43.5% of your combined total net. Which I believe is within the 40-50% range that SS should bring you TO i.e. no need for you to pay SS to bring her within this range.

[stressfultimes]

You're a genius!! But my question is this....what is the likelihood that they will impute her income from 4 to 5 days?

We did not agree to the 4 days, the deal was that she would use the 5th day to complete her real estate courses and start doing the smaller deals that aren't worth my time as a commercial broker, but worth it if she were under a residential firm. She said she could manage keeping my son home with her until she completed these courses. She started and finished phase #1 but then her dad passed and it all went by the waste side. I didn't want to push her at the time because of what she was going through, so I left it alone.

Now, she claims it would be taking her away from her son but will be going back to work when he goes to school next September. She also argues that he now hasn't gone to day-care on that day for e years....one of which was after we separated.

She also claims that her work can't take her back 5 days now. Thoughts?

[Berner_Faith]

So you say you were not in agreement with her only working 4 days, but then go on to say you agreed that the 5th day would be used for a course, which you were in agreement to because it was going to benefit you both as a family unit. 3-4 years down the road, you now want her to work 5 days... it is very possible that she cannot work the 5th day, if she has only been 4 days for 3-4 years, work may not need her the 5th day.

I am salaried as well, and whether I work 1 day or 7 days a week, I get paid the same... what exactly would she gain by working the 5th day if she is salaried?

[stressfultimes]

We talked about it and realized she could earn more money by doing smaller commercial deals under a residential brokerage. So, she started and finished her phase #1. My son was born in 2009, she was on mat leave until end of 2010. Her dad passed about a month after she returned to work and it was a long road for her to recover. I left her alone and let her morn. Her mom also lived in a run-down house that was unsafe and way out of town, my brother-in-law and I bought a house and renovated the entire house for her to live in....so 2011 was a write off. We separated in January of this year. However, as you can see from my comments above, it seems as though there is no loyalty from her side. I see it as unfair for me to have to pay more support so she can continue to stay home when that was never the intent in the first place. Btw, her salary was pro-rated to exclude the day off. Same job, 46-50k before mat leave working 5 days, now 37k working 4.

[stressfultimes]

Doing commercial deals on that 5th day I mean.

[Exquizique]

Perhaps I am oversimplifying it, but I wouldn't even go into the whole issue of working 4 vs. 5 days and all the other details. Bottomline: She is capable of earning, and has earned, a maximum of 46-50K working fulltime. Therefore, that should be the income imputed to her. End of story.

[stressfultimes]

Agreed, but what is the likelihood that this will get imputed by a court? She is going to try to argue that we agreed to it and that its status quo. I guess from what I read, she has a responsibility to earn to her full capacity before seeking spousal support.

[Exquizique]

Agreed, but what is the likelihood that this will get imputed by a court? She is going to try to argue that we agreed to it and that its status quo. I guess from what I read, she has a responsibility to earn to her full capacity before seeking spousal support.

Truthfully? Trying to guess the likelihood of what a judge will order for a particular case is like gambling. You can arm yourself with however many case laws, but every situation is unique and there are so many variables - how one present's one's case, quality of legal advice/representation, the judge, documentation etc. - that at the end of the day, if a case does go to court, it's all just a gamble, in my opinion.

Your best bet of achieving the outcome you want/prefer, whether negotiated or court-ordered, is to adopt a firm and fair/reasonable position that is backed by facts, based on evidence and works within the limits of the law, and stick to it. Depending on what the stakes are and what you are able to live with/without, being able to compromise will be a big help as well.

You are still in the early negotiation phase where both parties will try to draw a line in the sand and push for as much as they can. Like Mess said, the other lawyer is trying to bully you and hope that you are unaware of the law and your legal rights, and will feel intimidated enough that you either cave or get so flustered/frustrated/angered that you make the mistake of coming up with an equally untenable position to counter with.

Mess' advice is sound. Educate yourself. Understand the law, know your limits, keep focused on the goals, and deal with the other side in a calm, rational manner by presenting them with a fair/reasonable position (that will also appear fair/reasonable and supported by law to a judge). If you make your case strongly enough, the other side will be more willing to negotiate rather than have a court decide if they are convinced that you have a stronger case than them.

That said, in my opinion, based on what I've read in various cases and the information that you've shared so far (and looking at this aspect and this aspect alone): There's a good likelihood that income will be imputed at her pre-maternity leave maximum full time income, given that she was never prevented from earning that much and had only been earning the reduced income (whatever the reasons behind it) for about 2 years/a little over 2 years (in the context of a 10 year relationship) before you guys separated, and there's nothing (medically etc.) preventing her from returning to full time work going forward, no matter what she claims. But then again, i'm not a lawyer nor the judge who will be deciding your case.

[dinkyface]

I see she has not made any claim that she is working on certification/education on her day off -- that would be a hard one to argue against.

Here are my responses to her arguments:

1) "it would be taking her away from her son but will be going back to work when he goes to school next September. "
A short term argument ... keep in mind that you probably won't settle this for another 6-9 months, so really this is irrelevant. He's going to JK in Sept 2013 (10 months from now)?

2) "he now hasn't gone to day-care on that day for e years....one of which was after we separated. "
Irrelevant - she's saying that somehow because he never went to daycare on Thursday (for e.g.) that he cannot go to daycare on Thursday now? That's just bizarre.

3) "her work can't take her back 5 days now."
This is a short-term argument at best. In the longer term, she will encounter opportunities to fill the extra day ... IF SHE TRIES. And one of the (supposed) goals of SS is to promote self-sufficiency.

[stressfultimes]

Thanks again, one more question. I have been paying my proportionate share of household expenses but staying at my parents house for part of the time to avoid conflict. Should I be paying this proportionate share or just half? I'm afraid that this is setting precedence for CS and SS. When I deposit cheques, I always write "household expenses on the cheque"

[Canadaguy]

Thanks again, one more question. I have been paying my proportionate share of household expenses but staying at my parents house for part of the time to avoid conflict. Should I be paying this proportionate share or just half? I'm afraid that this is setting precedence for CS and SS. When I deposit cheques, I always write "household expenses on the cheque"

It is not setting a precidence. Best to leave as is to not rock the boat and create conflict because you aready agreed on it. Just make sure you communicate an end date (eg: the day you 100% move out or the day the house sells, etc).