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  • Fingers Crossed :D

    Had the latest hearing on the imputation of income on my ex wife today. Bit of background for everyone:

    1. She has always worked prior to our separation, shortly after the birth of each of our children, she would return to the workforce shortly thereafter.

    2. She went on "mat leave" (actually welfare) back in October 2010, final order signed November 2010, and she hasn't worked since.

    3. We're embroiled in a new legal battle, and I've asked that she be imputed full time hours, min wage.

    4. I have primary custody...11 days in 14 the kids are with me. This has been status quo for the last 4 years.

    She's trying to pass off the fact she has two new young kids at home as falling under the allowable exceptions of Section 19. However she's provided no evidence that either of her children has a "need" that would disqualify her from seeking employment.

    The judge is going to issue a ruling on Friday regarding the request. Thus far he's been a doorknob of epic proportions, but I'm hoping that he doesn't open up this can of worms.

    It would be a dangerous precedent...imagine, telling someone that sitting at home and popping out babies is an exception under section 19...essentially making it an allowable reason to be unemployed and not pay child support.

    My lawyer told me he wasn't going to charge me for the affidavit and court appearance on this issue. Nice enough guy, but even he's doubtful about pulling this off.

    Though thus far the stuff that she's been allowed to get away with boggles my mind...I've been on the opposite side of this topic before...CS issued against me the very first appearance...now that the tables are turned, here we are like SEVEN months later...not even an interim order.

    /request for good vibes

  • #2
    Popping out kids?

    While I do sincerely wish you good things on your hearing on Friday I have to say that your reference to the mother of your children is dismaying. I'm sure when she was 'popping' out those children of yours, you were fully involved in the decision to have children and endorsed her staying at home to care for them at the time.

    Be very, very careful in your quest for imputing income. I hope you are merely letting off steam on this forum and didn't express yourself in the same manner when meeting with the judge. Smarmy responses are not generally well received.


    I do hope the waiting for a decision on your matter works out for you and you can get on with the business of enjoying a new life.

    Comment


    • #3
      Originally posted by arabian View Post
      While I do sincerely wish you good things on your hearing on Friday I have to say that your reference to the mother of your children is dismaying. I'm sure when she was 'popping' out those children of yours, you were fully involved in the decision to have children and endorsed her staying at home to care for them at the time.

      Be very, very careful in your quest for imputing income. I hope you are merely letting off steam on this forum and didn't express yourself in the same manner when meeting with the judge. Smarmy responses are not generally well received.


      I do hope the waiting for a decision on your matter works out for you and you can get on with the business of enjoying a new life.
      I don't see anything bad he said about 'the mother of his children'... what are you talking about?!

      He may have supported her decision to have his kids and take mat leave, but that doesn't excuse her from having to work now and support the children.

      And I think most people understand the difference in talking on a blog vs talking to a judge. Just like we hope you are merely letting off steam on this forum when you talk bad about your ex, his gf, or his lawyer... and not talk that way in front of the judge.

      Sending lots of good vibes to you NBDad. Best of luck for Friday!
      Last edited by HappyDays; 05-27-2013, 10:23 PM.

      Comment


      • #4
        Happy Days - I agree that "most people understand the difference..." however I do know from personal experience that judges are quite adept in picking up on misogynist or insincere statements. It would be a pity for someone who has a valid claim to lose credibility due to poor choice of words/expressions. For example, due to the OP's statement, I am left with the impression that he has little respect for the woman, or the child birth event of his children, simply by his statement; he views women's roles as nothing more than an incubator.

        NBDad - While you obviously detest your ex, I think you will do yourself a great disservice if you put her down. I'd stick with facts and facts alone. The minute you make things into a personal attack you are sunk.

        All the best on Friday. You are undoubtedly a caring father.

        Comment


        • #5
          Please explain what he said that would make you feel "he has little respect for the woman, or the child birth event of his children... and views a women's role as nothing more than an incubator". Those are bold assumptions and I don't understand how you could possibly come to that conclusion.

          All parents have a responsibility to support their children. His ex worked previously and should work now... nothing more, nothing less.

          Again, most people understand the difference in talking to friends vs talking to a judge... I hope you don't make all these false assumptions in court as well.

          Comment


          • #6
            You might also want to be careful about referring to "mat leave" as welfare. It's part of EI - you qualify for it by paying into the system while you're employed. (There's also technically no such thing as "maternity leave" in Canada - there's childbirth leave, for which anyone who gives birth to a child is eligible, and there's parental leave, which either the mother or the father or both can take, but that's a whole different issue).

            Comment


            • #7
              Happy Days - I've done extremely well in court thank you very much. FYI - if I have to spell it out for you fine. It isn't cool to refer to your children's birth mother as "... sitting at home popping out babies...." That was the point I was making.

              Stripes also has a very good point. Fortunately I have a lawyer who edits my affidavits (thank God). Anything submitted from our end is neutral and factual in content.

              When participating in litigation one has to think before speaking or sleep on things before sending off a hastily composed affidavit.

              Comment


              • #8
                I'm glad you've done well in court, and it looks like NBDad has done well too. Why would you assume he doesn't focus on facts?

                The comment was made in general and not specific to his ex wife, hence the word "someone".

                You tend to make wild assumptions and go on the attack based on those. It's good you have your lawyer to correct you in court.

                Comment


                • #9
                  HappyDays - perhaps you should re-read this thread. I have never stated the OP hasn't done well in court - that may be your opinion but I certainly don't share it.

                  If you cannot grasp the message I am imparting then perhaps it would be wise for you not to say anything.

                  If you think I am making 'wild assumptions and go on the attack' then you had better steer clear of family court litigation. It is a tough venue.

                  Yes I do indeed have a lawyer. I know, only too well, how emotional divorce can be and I also know how very easy it is to naively express myself in writing and have it misunderstood. | believe that you have misunderstood my posts on this thread. I certainly wouldn't want to think that you are needlessly trying to pick a fight? Naw. That never happens on this forum.

                  Comment


                  • #10
                    NBdad - all the best. Sorry to bring negativity to your thread. In hindsight I shouldn't have said anything at all, and for that I am sorry.

                    Comment


                    • #11
                      Most of your comments are naïve and condescending. In most threads, you make false assumptions and respond on those rather than the facts. Yet you want to remind NBDad to focus on the facts?!

                      “grasp the message you’re imparting”…. You accused NBDad of smarmy responses, misogynist and insincere statements, little respect for the mother of his children or the child birth event of his children, views a women’s role as merely an incubator, detests his ex…. Then you say he should stick to the facts, think before he speaks, and sleep on it before making hastily affidavits…
                      After all that you tell him hope it works out for you and all the best...

                      Then because of your wild assumptions that you use to attack, you say I should steer clear of family court litigation because it’s a tough venue. I have no problems listening to and debating your bitterness, but imagine how great the family court litigation process would be if people did what you say in sticking to the facts rather than what you actually do in making crazy assumption and attacking people based on them. Thank God for your lawyer in court, but too bad you don't have your lawyer with you here.

                      Comment


                      • #12
                        Um - I don't believe I need a lawyer in a public forum buddy.

                        You are getting way too emotional here.

                        Yeah it might be surprising to you but sometimes statements made by one gender, and read by the other gender, are offensive. Duh. You know, as well as I do, what my remarks were directed at. If you want to make more of them then that is certainly your right. This is, after all, a public forum.

                        Yes I do think you should steer clear of family court litigation unless competently represented by counsel. You are obviously a hot head and easily aggravated. My ex is like this. He hangs himself each and every time he speaks in court.

                        Bitter? You are probably quite correct. Well I'm thinking that each and every person who goes through an acrimonious divorce is bitter to some extent so I don't get your point here.

                        I think ANYONE should try not to make hasty decisions. Is there something wrong with this statement?

                        Don't think I need a lawyer on this forum. Are you planning to sue me? Perhaps I'm too "naive and condescending" to understand your statement.

                        Don't get your knickers in a knot.

                        Peace and happiness and all that stuff.....

                        Comment


                        • #13
                          HappyDays - I just re-read your thread and I'm finding it quite hilarious how you attempt paraphrase me. There is a "quote" button. All you have to do is hit "quote" then you use your mouse and block the statements I have made that you want to refer to.

                          Comment


                          • #14
                            So your wild assumptions and attacks are not your fault, it's a gender thing?! Good to know.

                            Let me know if you need help finding all your comments I quoted.

                            Comment


                            • #15
                              Originally posted by NBDad View Post
                              She's trying to pass off the fact she has two new young kids at home as falling under the allowable exceptions of Section 19. However she's provided no evidence that either of her children has a "need" that would disqualify her from seeking employment.
                              Here lies a challenge for the responding party in your matter.

                              Federal Child Support Guidelines

                              (My emphasis added)

                              Originally posted by Federal Child Support Guidelines Section 19
                              Imputing income

                              19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
                              (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

                              (b) the spouse is exempt from paying federal or provincial income tax;

                              (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

                              (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

                              (e) the spouse’s property is not reasonably utilized to generate income;

                              (f) the spouse has failed to provide income information when under a legal obligation to do so;

                              (g) the spouse unreasonably deducts expenses from income;

                              (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

                              (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

                              Reasonableness of expenses

                              (2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
                              SOR/2000-337, s. 5.
                              The only allowable "need" that would qualify. If neither of the new children (siblings) require their mother to be at home due to a disability or other reason then it is hard to "win" on this argument these days generally. This is because the vast majority of intact families have two working parents (statistically speaking) and the children are cared for by private care providers (daycare, nannies, etc...).

                              Furthermore, some would argue that breastfeeding is a "need" which can complicate the matter.

                              What you are dealing with more is that the other parent is on welfare. As we saw in another matter in Ontario, justices don't like ordering costs, child support, etc... against people on "Ontario Works".

                              Originally posted by Justice Pazaraz
                              In any event, the practical result of a set-off at this time would be that Ontario Works – i.e., the taxpayer – would end up paying the costs award on behalf of the Applicant. This added set of “wings”, shielding the Applicant from personal accountability, would effectively negate the intended salutary effect of a costs order. Even the Respondent acknowledged that the Applicant should be required to pay costs from her own pocket. Otherwise, it won’t modify her behaviour.
                              Relating this quote back to your situation, any child support paid to you NBDad would be paid by the taxpayer and this is why you may not see any child support as a result.

                              Counter to my point and thinking about it from a different angle we could consider the following:

                              Originally posted by Justice Pazaratz
                              In the case at bar, we are dealing with a young child, an unemployed recipient mother, and full guideline support being paid by the Respondent. While the Applicant may currently be on Ontario Works, hopefully she will soon re-enter the workforce. Reduced child support (by reason of a set-off) would create a disincentive for the Applicant to remove herself from Ontario Works.
                              In your matter NBDad, you are dealing with a unemployed parent whom has two other children in their care now. Maybe, an order to pay child support, no matter how minimum, would create a incentive for the parent in question to rejoin the workforce? But, I haven't seen case law where a recipient of welfare has been given this encouragement because the burden then falls on the tax payer.

                              The challenge you face is that the parent in question is receiving welfare. There is little motivation for any parent collecting government services and support like this to seek employment. The Family Court won't enforce the "best interests" test against the government services being provided and transfer any of the money being paid to you directly generally. I hate to be the bearer of bad news on that one possibly.

                              Probably to put it all even into more concern is that the other parent in your matter is probably receiving Legal Aid on top of the government support payments effectively doubling-down on the public coffers for their "support".

                              Welfare + Legal Aid - "It gives you wings..."

                              Good Luck!
                              Tayken

                              Comment

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