how difficult to move to offset? pls share stories

[gr8dad]

Quick summary:
Have 3 kids for 6 out of 14 days for the last 4 years.
Due to my being in a career transition (not fully employed at the time) and wanting to see the ex and kids settle - I agreed to let her buy another home and call it "primary residence" - words I have grown to loathe.
We agreed that I would pay her at a rate that I thought was VERY generous (1400/mth) given that I also provide energy, food, a good home, etc for 6 out of 14 days. I have been VERY actively parenting since they were infants. I am crazy about my kids. My track record as loving, caring father is not in dispute at all.

However, my income varies from year to year, and I am finding it very difficult to maintain this payment...especially since I also purchase, toys, games, occasional clothing (this is what I assume all my CS goes towards, so I am always asking her to buy new/more clothes...which I rarely receive) for my boys.

So, I sought to lower the payment slightly, and tried to discuss this outside of lawyers...this had a detrimental effect. She sought out a lawyer, and all of a sudden, she comes back asking for financials...fine, I provide them. Then I get hit that she wants to A) try to go for arrears (although she never once asked for a financial review or adjustment higher) and B) try for a full table amount (instead of the one that has been paid for 54 months in a row!) based on my last years income - which just happened to be a good year (130k)

Since she will not enter any discussions around the actual costs each of us have in raising kids - I feel like I am cornered, and I have no choice but to try for a motion for offset amounts. You see, she makes 93k, I have averaged 100k for last 4 years. I provide a loving home for my boys 43% of the nights - why should I be treated so unfairly? I even offered to pay for all of their expenses - and she could just pay her own way in life...she declined - what does that say? This isn't about the cost of the kids...its about her.

My lawyer believes I have an excellent chance of rebuking any arrears...he also says there is a "good" chance that I can get offset, provided I can prove I have had the kids 40% of the time or more. I have painstakingly review my calendar for the past 3 years, and yes, I have had them 41-42% of the time. We rarely move far off our set dates.

What I am looking for here is a little "hope" I suppose? I am so jaded - I feel the legal system is still stuck in the old days, when dads were not as involved as me, or only had the kids every second weekend...I am worried that because I would be the one seeking "change" and I am the male/father, that I could just get a judge who sides with this archaic insanity.

I would very much like to hear from anyone who has successfully done this. Feel free to share a quick summary on here, or send me a direct message. This stress is eating me up inside...I am trying to remain positive, and I have swallowed my resentment and always spoken kindly about the ex and never would let the kids see it....but I am starting to boil over.

I have gone further and further into debt as I try to maintain a decent lifestyle...she has a secure job, strong pension, plenty of equity in a home and makes nearly the same income I do. How can we still be here today? How could she feel she is deserving of a payor/payee situation?

Hope this wasn't too much of a rant - but obviously I don't trust "the system" to see things as logically as I do...it just seems so stacked in mothers/payees favor... :-(

[Mess]

Family Law Act
ONTARIO REGULATION 391/97
CHILD SUPPORT GUIDELINES

Pattern of income
17. (1) If the court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. O. Reg. 446/01, s. 5.

What this means is that if your income has it's ups and downs it would be averaged over three years. The legislation is quite specific. I suggest you print this out and show it to your lawyer and ask why the hell he doesn't know this.

Shared custody
9. Where a parent or 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 order for the support of a child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 391/97, s. 9.

The courts are very clear that the 40% threshold is 40%. If you are at 41% then you have Shared Parenting, there is no maybe.

(a) means that the amount you would pay under the tables and the amount she would pay under the tables would be setoff, or subtracted from one another. There is nothing new or radical about this. Print this off and ask your lawyer why the hell he doesn't know about this.

You don't have a "good chance" for shared parenting. You and your ex HAVE shared parenting. The weakness in your argument is only, why didn't you deal with this sooner? The answer is, you didn't know that this was the law, you had not received independent legal advice.

You absolutely need a lawyer who will be firm about these things, not "maybe" and "good chance." You have to present a clear position that up until now you did not know what the law was, and now that you know you are making a clear, unequivocal claim for redress of child support.

According to My Support Calculator, which is a basic version of Divorcemate, which is what lawyers use, you should be paying a setoff amount of $579 per month based on incomes of 130k/93k.

First of all, previous years this should have been less, since your income was less, but for now let's just work with this number.

You have been paying 1400/month for 4 years. This should have been 579. You have overpaid child support by $39,409.

Do the calculation yourself using your actual income for the last 4 years and get a proper figure. You do not support your legal case by lowballing. You present the actual amount owed, and then you allow negotiations for a lower amount. But your legal case rests on making an initial claim for an amount based on actual figures.

So in the meantime, we talking here about $39,409. This is the child support arrears that she owes you. You do not owe her any arrears.

Further, you MUST make a specific claim: That the Guidelines require that each parent pay the other, and the net setoff is paid by one. The other parent has NOT been paying child support as required by the Guidelines, and is therefore in arrears.

Take this approach. If the ex continues to be aggressive, ignore it and file an application with the courts. Once she is served, her lawyer will be clear with her that she has no case. At this point you go to the table and if you wish, negotiate a lessor amount.

[standing on the sidelines]

I wonder if he was sort of mixing SS and CS?

[gr8dad]

Thanks Mess...I like how confident you are in the outcome, my lawyer is also "confident" - he indicates it absolutely boils down to the 40% figure, and that case law shows they even try to go into counting hours in a whole year!? At any rate, tI have those figures.
Standing - No, I do not have an SS, just CS
The reason for being in this in the first place is hard to remember - basically, like most men I believe, I took the chivalrous route and tried to support my ex and family - because for that first year in 2009 - she was only part time making 42k. from 2010 and beyond she has been at 85k and up. She is a provincial teacher.

I noticed just how onerous this fixed payment was based on my support of the kids...and approached her to renegotiate it in 2011 - we actually dropped it for a few months, then she said she "wasn't making ends meet". What the hell did she think was happening to the guy who was paying her the equivalent of the top $25k of his gross income?

I digress. So the bottom line is that IF the court agrees that you have been in shared residency more than 40% of the time - they ALWAYS work towards something resembling a set-off? I had been given the impression each Judge was different - and that I was up against it. That I would also have to prove that a set-off amount was somehow better for the KIDS.

Should I be preparing some argument that is based on "the financial stress on Dad - is having a negative effect on the kids" type of thing? I mean, it truly does at times, but the reality is I shield them from all this. The person it is affecting the most is me and my new fiancee. Why should one spouse be care-free while the other carries all the mail?

Does anyone have any knowledge of case law or personal experience where it was determined that, although 40% threshold had always been in place, it would not be in the childrens best interest to move to offsets (or something of that nature).

Thank you Mess for your input already

[FightingForFamily]

Well, you are talking about two adults who each make 90k-130k per year. No one is going to accept the whole "financial stress" argument because that is significantly higher than many people make.

For example, I make HALF your salary (63k) and I pay MORE support than you do (I pay $1652/month). Even I don't qualify for undue hardship.

If you have been in a shared custody arrangement but not formalized it properly because you didn't know the law, that is a problem, but not a big one, because the facts are the facts. Mess has a good strategy to prove that you have actually been overpaying by a large amount and that going forward you wish to follow the law. In the end you will hopefully compromise in the middle, maybe paying $1000 per month.

[FightingForFamily]

There is case law discussing the "cliff effect" of custody that moves into the shared custody range and starts being covered by S9 rather than S3.

Most judges won't automatically jump from "full" to "offset" support when time goes from 39% to 40% because it's unfair that 1% of time = hundreds of dollars per month. Sometimes if the recipient is in need that will actually keep support at the full table amount even though the custody is now shared.

Your case is a little different because you haven't been paying "full" or "offset" but somewhere closer to the middle.

It depends on your agreement. If you agreed to $1400/month without adjustments or review then you can't easily change it unless you can prove there has been an unforeseen change in circumstances. I would suggest avoiding going to court over it... I think you have good points to argue it OUT of court, but a judge will almost definitely not reduce your support to offset and may not allow it to be reduced at all.

[gr8dad]

No it is not written up as fixed payments without adjustment.

We randomly applied $76k in income to me, even though I was unemployed at the time.( I ended 2009 at 56k or so) And given she was part-time, we stuck with a payor-payee version.
Until a few months ago, she had never once asked to increase the amount...however I had requested to renegotiate it a few times.
Funny you mentioned $1000 - I had already offered that - both formally and informally. Trying to avoid a "cliff" for her sake.
The sad thing is - her lawyer must be getting her to dig her heels in - and I am left with no choice but to challenge the agreement :-(

[FightingForFamily]

Reviewing the child support amounts each year was actually added to the child support guidelines as part of the law. I believe this was in 2008. Each year parties are supposed to exchange NOAs/T4s or whatever is relevant in order to update support. So she is entitled to ask for it to be reviewed.

The problem in your case is that you have been overpaying and yet your ex still asks for more.

[Mess]

Things you must pay attention to:

1. There is a difference in case law when a) there is move from <40% to >40% and b) it has always been >40%.
2. In situation a) a judge will view that there is some unfairness in drastically reducing support for the receiving parent; financial decisions and committments have been made and suddenly there is a shift of 1%. (I don't make this argument, judges do. Take it up with them.
3. In situation b) support should be based on the setoff from the start. It is important that you stress that this is situation b), there is no change in access, and you have always been shared parenting.
4. Judges MUST consider all of Section 9. They cannot simply ignore the shared parenting.
5. You may not get a simple setoff figure. This is because of Section 9 b) and c). A judge must consider the needs of the households, etc.
6. This boils down to your monthly budgets and comparitive Net Disposable Income.
7. You MUST make your argument child-focused, but that doesn't mean financials don't matter. Your focal argument is that the children have a right to comparable lifestyles in each household. If the payments are truly onerous and stress your budget, you should be able to show this factually.
8. You should open with the argument that the ex is responsible for paying support just as you are, and that she has not been doing so. This is the idea of the setoff. Portraying the ex as a deadbeat is not fake or fanciful, it is factual in law. But you need to point this out.

[involveddad75]

Well said Mess, I am a 50/50 parent and have offset.

[NBDad]

Ask for her NOA's for the last 3 years, run the actual numbers for set off vs. what you actually paid and show the differences.

Chances are it'll come out significantly in your favor.

Offer a gradual decrease of 90 days to give her time to get her household finances in order and learn to account for the new amounts.

And for God's sake, get a provision in there for the yearly exchanging of NOA's and the automatic recalculation of CS based on the prior year's info.