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Mediation, S7 Expenses, and Imputed Income

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  • Mediation, S7 Expenses, and Imputed Income

    I have mediation coming up, and was wondering if in mediation, a party (mediator, etc) is able to impute an income figure to my ex in regards to the split for s7 expenses? Or do we need to go in front of a judge for imputing income?

    Both my lawyer commented that her financials do not make sense, and our response asked for more details. She lists expenses of someone earning in excess of 100k, but only shows line 150 of 20k. The assets / liabilities show no excessive debt, and she has no current partner listed on her tax returns.

    Feedback would be appreciated.

  • #2
    Originally posted by nfc4ever View Post
    I have mediation coming up, and was wondering if in mediation, a party (mediator, etc) is able to impute an income figure to my ex in regards to the split for s7 expenses? Or do we need to go in front of a judge for imputing income?
    A mediator has no power to order anything. They make recommendations on how to settle matters. If you are going to mediation to have an income imputed on the other party you are going to the wrong place and are going to be completely disappointed.

    An arbitrator or a judge on motion or at trial can impute an income. But, why would you want to impute an income for S.7 expenses only? If S.7 is being paid then surely child support is being paid too no?

    Originally posted by nfc4ever View Post
    Both my lawyer commented that her financials do not make sense, and our response asked for more details.
    You really need to discuss your position for "mediation" with your lawyer and as soon as possible. If you are going to mediation that usually means both parties are close on resolving an issue. If you are dealing with imputing incomes that usually requires a motion / trial to get an order for.

    Originally posted by nfc4ever View Post
    She lists expenses of someone earning in excess of 100k, but only shows line 150 of 20k. The assets / liabilities show no excessive debt, and she has no current partner listed on her tax returns.
    That portion of the Form 13/13.1 you are read is rarely relied upon. They are estimates and most people don't know how to do the formulas unless they have tools from DivorceMate etc...

    Originally posted by nfc4ever View Post
    Feedback would be appreciated.
    It would be rare that a party would agree to impute an income at mediation. The only way something can become an "order" through mediation is if both parties consent (agree) to the terms of the settlement. Then it can be converted to an order.

    Good Luck!
    Tayken

    Comment


    • #3
      Unless you're dealing with mediation-arbitration, (med-arb), the strength of any agreements you reach in mediation are dependent in the willingness of the parties to abide by what they agreed to. Mediation doesn't have legal force. My ex agreed to several things during mediation, then refused to carry them out because he didn't think his agreement in mediation meant he actually had to follow through. And unfortunately he was right.

      Mediation is good if you're looking for a neutral place to discuss issues and arrive at a compromise you can both live with, but if basic facts are in dispute (like how much your ex earns), mediation is probably a waste of time.

      Comment


      • #4
        My ex walked out of mediation after the mediator said he would not work with her pulling #'s and guesstimates for annual income - he wanted to essentially impute income to her for CS and SS calculations for the sake of moving forward on resolution. Didn't work and unless your ex is reasonable and looking to find an agreeable middle ground you may be stuck going to court. It sadly looks like I might...

        Comment


        • #5
          I'm the payor of CS, so her income doesn't really impact CS.

          The ex has been mostly co-operative so far in the process. Some things have taken some prodding. The mediator won't book a session until she provides full financial disclosure.

          We've pitched 2 offers to settle, she rejected based on S7 items wanting all of them in the agreement. Her written response was that "I'm not asking for anything that I'm not entitled to".

          We now have an interim agreement for CS and Access in place, counter-signed by both parties and filed with the court. My lawyer did a good job of getting me to bite my lip to get through the first two hurdles.

          Some of the S7 I totally agree with, and some of it I don't. The extra-curriculars that she's proposed for ONE child exceed what my wife and I spend on THREE children for extra-curriculars. At odds are $4,000 for sports and a school trip. As now it would be a 80-20 split with me as the 80. Based on what we think her true income should be it should be closer to 50-50. So its really a $1200 difference per year for three years. Or in other respects its one month of ABA therapy that my son (with my wife) would have to forgoe annually. [Yes, I know the courts don't give a poop about my other 3 kids]

          The only good thing about all of her delays is that I'm going to have a new NOA shortly that is lower than the 2013 one, and more in line with 2011, and 2012.

          Part of me keeps thinking of writing a blog about the whole situation to help me vent and keep my sanity.

          Comment


          • #6
            Originally posted by stripes View Post
            Unless you're dealing with mediation-arbitration, (med-arb), the strength of any agreements you reach in mediation are dependent in the willingness of the parties to abide by what they agreed to.
            1. Med-arb is a form of "polite" arbitration and should not be mistaken as "mediation" in any way shape or form.

            2. An agreement signed between two parties can be enforced and if written properly is often as enforceable as an order of the court. (To quote the Honourable Madame Justice Mossip.) It is incorrect to suggest that they are "dependent on the willingness of the parties to abide by what they agreed to". If both parties have independent legal advice and the agreement is sound they can and will be enforced by the court. (Just like a contract between two parties are.)

            Originally posted by stripes View Post
            Mediation doesn't have legal force.
            As a process no. But the outcome of a mutual agreement does.

            Originally posted by stripes View Post
            My ex agreed to several things during mediation, then refused to carry them out because he didn't think his agreement in mediation meant he actually had to follow through. And unfortunately he was right.
            Well, the only time that something reached in mediation isn't enforceable is when they are nonsense clauses that court itself wouldn't bother to order or contempt a party for not following.

            90% of most "seperation agreements" are nonsense "feel good" clauses that have no legal weight. If you have a good lawyer they should identify those clauses that are simply wasting paper when printed.

            For example: Any clause that demands parents provide weekly updates to each other after an exchange is complete and utter nonsense. No court will enforce such a clause. I always advise people to remove this nonsense.

            The vast majority of custody and access agreements can be limited down to 5 pages at most for joint custody and equal residency really. All the stuff on how and when to communicate etc are useless.

            Focus on that which can be enforced. Everything else is a waste of time and resources.

            Originally posted by stripes View Post
            Mediation is good if you're looking for a neutral place to discuss issues and arrive at a compromise you can both live with, but if basic facts are in dispute (like how much your ex earns), mediation is probably a waste of time.
            Agreed. In any situation where conflict is present mediation is usually not very helpful. Most parties should go for psychological counselling prior to mediation to insure that the emotional baggage is left outside of the negotiations. The Law has no emotion...

            Good Luck!
            Tayken

            Comment


            • #7
              Originally posted by whyme? View Post
              My ex walked out of mediation after the mediator said he would not work with her pulling #'s and guesstimates for annual income - he wanted to essentially impute income to her for CS and SS calculations for the sake of moving forward on resolution. Didn't work and unless your ex is reasonable and looking to find an agreeable middle ground you may be stuck going to court. It sadly looks like I might...
              Most good mediators will require that both parties complete Form 13/13.1 in Ontario. If your mediator doesn't require this to be provided prior to mediation starting in their contract... Time for a new one.

              Good Luck!
              Tayken

              Comment


              • #8
                Originally posted by nfc4ever View Post
                I'm the payor of CS, so her income doesn't really impact CS.
                I automatically assume joint custody and equal residency. In a situation where there is a larger than 60-40 time share between parental residence you are correct. Only your income is needed but for S.7 both parties income is needed.

                Originally posted by nfc4ever View Post
                The ex has been mostly co-operative so far in the process. Some things have taken some prodding. The mediator won't book a session until she provides full financial disclosure.
                You have a good mediator then. My recommendation would be to bank the money you think is owing and not pay any S.7 at this time until an agreement is reached. Then pay the appropriate proportion. As the majority access parent the other party in your matter will quickly reform their position if they accumulate enough S.7 expenses.

                Originally posted by nfc4ever View Post
                We've pitched 2 offers to settle, she rejected based on S7 items wanting all of them in the agreement. Her written response was that "I'm not asking for anything that I'm not entitled to".
                The reply to "entitlement" would be that statements like that would be best tested against evidence and on motion in the Superior Court of Justice.

                Originally posted by nfc4ever View Post
                We now have an interim agreement for CS and Access in place, counter-signed by both parties and filed with the court. My lawyer did a good job of getting me to bite my lip to get through the first two hurdles.
                Ultimately, it is the other parent who is going to suffer not having a proper S.7 agreement. If your agreement states nothing about them do not pay them and force her to seek an order or into agreement. Again, bank the money as you will have to pay them eventually.

                Yes, I am recommending a negative to bring a positive outcome. Rare of me to do this but, it is very common tactic in negotiating settlement of things like this.

                Originally posted by nfc4ever View Post
                Some of the S7 I totally agree with, and some of it I don't. The extra-curriculars that she's proposed for ONE child exceed what my wife and I spend on THREE children for extra-curriculars. At odds are $4,000 for sports and a school trip.
                These are generally do not fall under the special and extraordinary expenses component of the FCSG generally. The rule I advise is if the child is going to the olympics then the expense qualifies. If not... It is recreational. No one is obligated to play hockey - especially if the parents cannot afford the costs.

                Same with school trips. Just because the school offers it doesn't mean that it is "mandatory" - not special or extraordinary. They happen if parents (note the plural) can both afford it.

                Originally posted by nfc4ever View Post
                As now it would be a 80-20 split with me as the 80. Based on what we think her true income should be it should be closer to 50-50. So its really a $1200 difference per year for three years. Or in other respects its one month of ABA therapy that my son (with my wife) would have to forgoe annually. [Yes, I know the courts don't give a poop about my other 3 kids]
                Therapy qualifies as an S.7.

                Originally posted by nfc4ever View Post
                The only good thing about all of her delays is that I'm going to have a new NOA shortly that is lower than the 2013 one, and more in line with 2011, and 2012.
                Time does have this kind of impact on situations like this.

                Originally posted by nfc4ever View Post
                Part of me keeps thinking of writing a blog about the whole situation to help me vent and keep my sanity.
                Not worth it. I have been reviewing a number of local blogs of disgruntled parents and the resentment, jealousy and anger comes through. As well, these blogs are excellent evidence against you in a court of law. Most of those blogging have no clue about what they are writing about.

                I did a critical analysis of one recently. I plan on doing some more.

                Any lawyer worth their weight will advise you to delete all social media and other possible evidence. A "blog" only serves to make your situation worse if the other parent discovers it.

                Good Luck!
                Tayken

                Comment

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