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  • Increase in CS due to section 9c

    I've been searching Canlii for cases where section 9c is taken into consideration for CS but so far I've only seen cases where one party was asking for a reduction in the amount of CS - Does anyone have a link to a case where a party was using 9c to request an increase in support payments??

    Thanks!

  • #2
    Originally posted by CSAngel View Post
    I've been searching Canlii for cases where section 9c is taken into consideration for CS but so far I've only seen cases where one party was asking for a reduction in the amount of CS - Does anyone have a link to a case where a party was using 9c to request an increase in support payments??

    Thanks!
    Section 9 reads as follows:

    Originally posted by Federal Child Support Guidelines
    Shared custody

    9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
    (a) the amounts set out in the applicable tables for each of the spouses;
    (b) the increased costs of shared custody arrangements; and
    (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
    The argument would have to fall possibly under "undue hardship" for consideration for an increase under section 9.(c) of the guidelines in my personal opinion. Again, my personal opinion and not draw from any fact or jurisprudence.

    When considering 9.(c) and any other element of the Guide Lines the whole body of the law is considered by the presiding justice. Note the fact that it explicitly states "of each spouse and any child for whom support is sought".

    "Means" and "needs" and "other circumstances" are very vauge statements to rely upon.

    Means - Do both parties to the request have the "means" to better support themselves and the children in question?

    (a) Can they find better employment?
    (b) Are they under employed?
    (c) etc...

    Needs - The combined income of both parties is often considered and the offset calculation methodology takes that into consideration. Under the section of "shared custody" in this part of the Guide Lines the expectation is that the cost of the children will be "shared" between the parents. It should, in my honest opinion, be read with a consideration to the heading and in context to the legislature that defines the Guide Lines.

    This is where section 9.(b) can over run an argument for increases in child support under 9.(c) as the justice has to consider the "the increased costs of shared custody arrangements" 9.(b).

    Ultimately, it then falls on 9.(a) really in my honest opinion which is the consideration of "the amounts set out in the applicable tables for each of the spouses" which is the ultimate determining factor of CS in a "shared custody" situation under the legislature.

    It ultimately will boil down to a fair judgement in consideration of the full and frank financial disclosures made by both parties to the matter in accordance with Rule 13 of the Family Law Rules.

    Ultimately, child support is the right of the child and not the right of either parent. Careful consideration will be made on any request for consideration either in a increase or decrease in accordance with Rule 9 or Rule 10 of the Federal Child Support Guide Lines.

    One has to consider the cost of presenting such an argument for an increase in child support. One has to demonstrate on a prima facie basis evidence to the court that the amount of child support as determined by the Guide Lines is not appropriate and should be re-considered. My understanding, which is limited, is that you would have to demonstrate a material change in circumstance and claim undue hardship under Rule 10 of the Guide Lines.

    As stated and although there are those who vehemently disagree with me... Bringing forward this kind of argument is very difficult (near impossible) and often results in a legal bill that when tallied at the end often surpasses what little (if any) increase of CS you could get on such a claim.

    Also, the risk of bringing this forward and having a judgement made against you and costs being awarded against you as a litigant could result in a compounding loss financially but, one has to consider the impact the emotional stress that litigation puts parents through and the reciprocal impact on the children in question's "best interests" as a whole.

    Parents "fighting it out in court" for increases in child support generally doesn't have a positive impact on their ability to parent children and the down stream impact to the chid/ren in question should seriously be considered by both parents and especially the Applicant in the matter.

    Litigation does not result in happier and better parents after everything is marked final and ordered. This in turn does not result in happier and well adjusted children quite often which is the most concerning thing that in these kinds of disputes.

    Good Luck!
    Tayken

    Comment


    • #3
      Couldn't agree more Tayken.

      My ex just won't settle. He's about to jump off a cliff and there is just no way to save him.

      Comment


      • #4
        Originally posted by Tayken View Post
        Ultimately, it then falls on 9.(a) really in my honest opinion which is the consideration of "the amounts set out in the applicable tables for each of the spouses" which is the ultimate determining factor of CS in a "shared custody" situation under the legislature.
        From the Contino case...

        http://canlii.ca/t/1lxpf

        The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families. A contextual approach which takes into account all three factors enunciated by Parliament in s. 9 of the Guidelines must be applied.
        9.(a) is but one of three factors that are to be equally weighted. 9.(a) is the easiest to determine of course, but that is no excuse for forgetting 9.(c).

        Comment


        • #5
          Originally posted by Janus View Post
          From the Contino case...

          http://canlii.ca/t/1lxpf



          9.(a) is but one of three factors that are to be equally weighted. 9.(a) is the easiest to determine of course, but that is no excuse for forgetting 9.(c).
          Proving (b) and (c) is no easy task. As the justice notes...

          Also, the resulting jurisprudence stemming from the SCC decision really needs to be considered...

          For example...

          [59] The Supreme Court of Canada dealt with the approach to be taken by the court on the exercise of discretion under section 9 in the case of Contino v. Leonelli-Contino 2005 SCC 63 (CanLII), 2005 SCC 63. The steps to be taken are 1) a determination of the parties’ income; 2) a determination of each party’s monthly expenditures attributable to the child, based on their respective budgets; 3) determination of the ratio of income between the parties; and 4) consideration of the net worth of the parties.
          Good Luck!
          Tayken

          Comment


          • #6
            Yes, proving (b) and (c) is not easy, but the SCC clearly stated that it must be done nonetheless. They explicitly rejected formulas and multipliers.

            Comment


            • #7
              My ex is asking for Full-Table amount even with a shared access citing Contino.

              Oh she also wants more than 2x DivorceMate Max spousal based on offset. Almost 10x spousal based on Full Table.

              Long Motion is in May.

              She is not willing to settle.

              Edit: btw our gross income is 61%-39%. NDI after off-set child support is 53.5/46.5.
              Last edited by FB_; 12-19-2012, 03:39 PM.

              Comment


              • #8
                On the bright side, when she loses, you'll be able to claim costs

                Comment


                • #9
                  Originally posted by Janus View Post
                  On the bright side, when she loses, you'll be able to claim costs
                  I just don't understand her lawyer. My lawyer is also confused.

                  Comment


                  • #10
                    Her lawyer will get paid, don't worry about that.

                    Comment


                    • #11
                      Originally posted by Janus View Post
                      On the bright side, when she loses, you'll be able to claim costs
                      Agreed....

                      Comment


                      • #12
                        Originally posted by FB_ View Post
                        I just don't understand her lawyer. My lawyer is also confused.
                        What is there to be "confused" about.

                        In accordance with the Law Society of Upper Canada's own governing Rules a lawyer has a professional obligation is to act as representative and vigorously defend their client.

                        Good Luck!
                        Tayken

                        Comment


                        • #13
                          Originally posted by Tayken View Post
                          What is there to be "confused" about.

                          In accordance with the Law Society of Upper Canada's own governing Rules a lawyer has a professional obligation is to act as representative and vigorously defend their client.

                          Good Luck!
                          Tayken
                          I guess I will only find out in the end. Maybe I am the one who is confused.

                          Comment


                          • #14
                            Originally posted by FB_ View Post
                            I guess I will only find out in the end. Maybe I am the one who is confused.
                            Negative advocate lawyers eventually get their client to have costs awarded against them by pushing every useless and unsubstantiated allegation forward.

                            Remember they are trying to create both emotional and financial stress on you.

                            Respond to the relevant, identify the irrelevant as such and move on in the negotiations. If they log jam then you bring a motion forward, attach the evidence to the log jam they created and ask for costs.

                            Comment


                            • #15
                              Originally posted by FB_ View Post
                              I guess I will only find out in the end. Maybe I am the one who is confused.
                              Negative advocate lawyers eventually get their client to have costs awarded against them by pushing every useless and unsubstantiated allegation forward.

                              Remember they are trying to create both emotional and financial stress on you.

                              Respond to the relevant, identify the irrelevant as such and move on in the negotiations. If they log jam then you bring a motion forward, attach the evidence to the log jam they created and ask for costs.

                              Comment

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