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  • Change in Child Support

    So here is my situation. For the past 4 years my ex has been paying me child support by cheque according to the table amounts for our now G5. We have adjusted each year without any issues. His salary has stayed consistent around $50k each year.
    His income for last year was double due to working overtime and a large profit sharing bonus at $100k. His salary was in actuality only $50k.
    In January he quit his job to start his own company. He estimates his new income for his new job at $30k for this year.
    We have agreed to adjust up his child support for this year to reflect his 100k income. For next year and every year onward he has told me he will only pay child support at $30k.
    I told him I donít agree and that he has to continue paying at $50k income for 2016 an onward, unless his new company salary he makes more money.
    He told me he has every right to change his job and if it pays less he only has to pay child support on his new income each year. He told me his lawyer told him this.
    So if in 2016 if he unilaterally reduces his child support payments from $100k to $30k, what are my options?
    We have a signed agreement that says if he doesnít pay his child support I can file the agreement with FRO. But can FRO enforce the old payment at $50k? Can they enforce the present payment stay at $100k until a court order is made?
    Our agreement also has a clause that says if there is a material change; the person asking for the change must first pay for mediation before going to court. Does he have to apply for mediator for his change or do I have to apply for mediation because he decided change his child support to $30k without me agreeing?

  • #2
    Child support is paid on what he earns. He is allowed to change his employment as long as it is for valid reasons, and not any willful attempt to avoid supporting his children.

    Imputed income when support is based on an estimated income and applies in some situations. Some can argue he has shown he can make 50k so he should support based on that... despite the fact that he is making 30k now. That puts a large amount of hardship on his household which will also directly reduce the quality of life he can have when the children are with him.

    Your ex wouldn't be unilaterally changing his support. He would be providing you documentation with proof of income (such as T4 or income tax return) and referencing the child support tables. This is what he is mandated to do by law.

    You're not in a position to demand he pay support at 50k because of the past. Only a judge can order that, and it doesn't happen in every instance.

    You can file whatever agreement you have with FRO but it may not be enforceable through them depending on how it is worded.

    Personally I would wish him luck and hope his company grows. If it goes well, it may exceed the 50k he used to make. If it goes poorly, he may have to return to work in his previous field in a couple of years. He is entitled to live his life as long as he is meeting his obligations.

    Comment


    • #3
      Change in Child Support

      Originally posted by FightingForFamily View Post
      Child support is paid on what he earns. He is allowed to change his employment as long as it is for valid reasons, and not any willful attempt to avoid supporting his children.

      Imputed income when support is based on an estimated income and applies in some situations. Some can argue he has shown he can make 50k so he should support based on that... despite the fact that he is making 30k now. That puts a large amount of hardship on his household which will also directly reduce the quality of life he can have when the children are with him.

      Your ex wouldn't be unilaterally changing his support. He would be providing you documentation with proof of income (such as T4 or income tax return) and referencing the child support tables. This is what he is mandated to do by law.

      You're not in a position to demand he pay support at 50k because of the past. Only a judge can order that, and it doesn't happen in every instance.

      You can file whatever agreement you have with FRO but it may not be enforceable through them depending on how it is worded.

      You should also note that even if you do file with FRO, he can file a motion to change and have a new order decided by a judge. If hes being up front and providing all info, you run the risk of being seen as unreasonable and could not only lose but also have to pay costs. Hes not quitting his job and thumbing his nose at you, hes starting a business and who knows what his success could be going forward.

      Its not a material change. Hes starting his own business and his income is an estimate. He would have to show you proof of income or use his taxes to determine table amounts. He could very well make 50k and up, hes just advising you early enough that his income next year may not be what youre used to. If youre so worried, throw the extra youre getting on the 100k in savings and use it to help you through the lean times next year.

      He IS paying CS, hes just not paying you what you want. Anything could have happened to his income in the future: firing, injury, death...what would you do then? Not paying support is someone who takes off and doesnt look back. Hes adjusting based on his actual income.

      P.S. Your husband is right that he can adjust based on his current income. You dont get to pick what salary you like better. Hes pretty reasonable to be paying you the $100g rate when hes only making 30g. My other point about FRO stands. File the order with them and he can fight for a change. It might suck though having to pay for a judge to tell you youre wrong.
      Last edited by rockscan; 04-16-2015, 01:55 PM.

      Comment


      • #4
        Originally posted by FightingForFamily View Post
        Child support is paid on what he earns. He is allowed to change his employment as long as it is for valid reasons, and not any willful attempt to avoid supporting his children.

        Imputed income when support is based on an estimated income and applies in some situations. Some can argue he has shown he can make 50k so he should support based on that... despite the fact that he is making 30k now. That puts a large amount of hardship on his household which will also directly reduce the quality of life he can have when the children are with him.

        Your ex wouldn't be unilaterally changing his support. He would be providing you documentation with proof of income (such as T4 or income tax return) and referencing the child support tables. This is what he is mandated to do by law.

        You're not in a position to demand he pay support at 50k because of the past. Only a judge can order that, and it doesn't happen in every instance.

        You can file whatever agreement you have with FRO but it may not be enforceable through them depending on how it is worded.

        Personally I would wish him luck and hope his company grows. If it goes well, it may exceed the 50k he used to make. If it goes poorly, he may have to return to work in his previous field in a couple of years. He is entitled to live his life as long as he is meeting his obligations.
        I'm going to disagree with almost everything you just said.

        I've been doing a lot of research recently on imputing income and from everything I've read you CAN NOT just quit one job and take another one for less money because you feel like it. That is definitely considered 'intentional underemployment' and she could impute his income to 50K. You do not have to show that the change is to avoid support.

        I agree he is entitled to live his life as long as he is meeting his obligations, and his obligation is to provide for his children to the best of his ability. Which means not quiting a 50k/year job to work for 30k

        The business may do well but it looks like he's suggesting that he intends to pay CS based on 30K regardless of how well it does. Which he also can't do.

        Comment


        • #5
          He will have to explain to a judge why he took a lower paying job. They may or may not impute income to him. Most likely they would IMO.

          I would get a commitment from him that eventually the amount he pays you will go up or he stops the entrepreneurial stuff and gets a new job.... something to that effect.

          The courts look for excuses to maximize child support.

          Comment


          • #6
            You can file with FRO at any time, regardless of what it says in your court order.

            As long as the order is clear, FRO will collect and your ex will be forced to file a motion to change in order to change the amount.

            However, I'm guessing your order has him paying at 50k, not 100K. FRO will only collect what is specified in your agreement - they won't do calculations.

            Comment


            • #7
              So you're cool with adjusting when the amount goes, but don't want to agree with re-adjusting when the amount goes down. Nice!

              Should you file your current order/agreement with FRO they will seek the amount provided for in the agreement. You state that the agreement specifies $50k as the income, therefore FRO would seek C/S based off of that amount. You would have to file a motion to change the c/s amount to be based off of $100k, and then file the order once you have it.

              Your ex would then have to file a motion to change C/S to it what their next T4 provides. And then you would have to go back and forth each year to update, which won't likely be easy because any goodwill and willingness to cooperate you may have once had with your ex would be out the window.

              If you agree to increases in c/s, you should agree to reasonable decreases. $30k is an estimate. It may be more, but more importantly it sounds like your ex will still pay based off of $30k even if it is less.

              What I see is you're cool with a 100% increase in c/s for a year, but not cool with a 40% decrease for one year (and maybe more), even though you are still coming out ahead in the long run. Also you are willing to burn whatever cooperation you have once enjoyed with your in the mean time.

              And no, your ex changing jobs would not likely be found as a material change in circumstance that would require mediation. Your ex shouldn't need your permission to change jobs because they know they won't get it unless their income increases. Material changes in circumstance generally relate to the kids and the ability of the parent to exercise their parenting time.

              Comment


              • #8
                In addition if it does come to a judge, I've seen cases where a person goes self employed and imputes their income much lower. The judge will then look at his title and profession and get a statistical average of how much they earn and base his income off that.

                Provided he is unreasonable in providing documentation that he is in fact making 30K after everything deducted from owning his own business.

                I think this is dicey, yes you can't take a lower paying job and expect child support to go down. True, if you were going from Accountant to Mcdonalds, but he's starting his own business which has unlimited potential which incurs capital cost going forward.

                Comment


                • #9
                  Originally posted by HappyMomma View Post
                  I'm going to disagree with almost everything you just said.

                  I've been doing a lot of research recently on imputing income and from everything I've read you CAN NOT just quit one job and take another one for less money because you feel like it. That is definitely considered 'intentional underemployment' and she could impute his income to 50K. You do not have to show that the change is to avoid support.

                  I agree he is entitled to live his life as long as he is meeting his obligations, and his obligation is to provide for his children to the best of his ability. Which means not quiting a 50k/year job to work for 30k
                  A judge MAY impute an income. But until a judge has provided the amount to be used, one must use the financial information provided. A judge may also impute an income somewhere between $30k and $50k, leaving neither party happy. It is within the judges discretion to do so.

                  A person may leave a job for whatever reason. The ex may have valid reasoning for leaving. Variance in c/s is why the guidelines were created. Incomes go up and down. The recipient of c/s should not rely on c/s as a constant or increasing amount. They must realize there are valid instances where for it to go down as well.

                  The business may do well but it looks like he's suggesting that he intends to pay CS based on 30K regardless of how well it does. Which he also can't do.
                  I don't read it this way. I read it as the ex assumes the business will provide him with $30k in the first year. That it may vary. Should it vary, $30k is the bottom range, but not the top. The top will be whatever they actually earn.

                  The OP's ex doesn't sound unreasonable. They are willingly increasing their c/s obligation 100% on the basis that it will be re-adjusted going forward. Do I agree with a person taking a 40% pay cut when they have c/s obligations? It depends on the circumstances. In this instance it doesn't sound like an intentional attempt to decrease their obligation (they already agreed to increase it). It sounds more like the ex is making an honest effort to start a business, made an assumption on income, and will adjust c/s should the actual income be more than assumed.......just like they adjusted before....

                  Comment


                  • #10
                    I think a lot depends on what the new job is. If he wants to run off and be a birthday clown at $30K, that's one thing, but if he's starting a plausible business venture in a field he knows well, with the expectation that his income will grow as the business grows, that's another. A temporary drop in income when getting a new business off the ground is to be expected, and presumably would be offset by increased income once the business is established. (Of course, the business could fail and there'd be even less income, but he could also lose his current job or get hit by a car tomorrow - everything has some risks).

                    It sounds like he is not averse to paying CS - agreed this year to increase his payments to $100K level even though his actual salary was only $50K - so I suggest that you wait this one out. You should still be adjusting CS based on tax information every year, so he can't just pay you at $30K every year if he's earning more. He should pay based on his line 150. And you have a year's warning of the impending drop in CS, so you have time to make other plans to make up for the decrease.

                    I don't think this is a material change in circumstance. Lots of people make financial sacrifices in the short term in the hopes of prospering in the long term, and it sounds like that's what he's doing. If his income drops from $100K to $30K, he'll be feeling the bite even more than you and the kids, but ultimately, everyone will end up in the same boat.

                    Comment


                    • #11
                      Originally posted by HammerDad View Post
                      A judge MAY impute an income. But until a judge has provided the amount to be used, one must use the financial information provided. A judge may also impute an income somewhere between $30k and $50k, leaving neither party happy. It is within the judges discretion to do so.

                      A person may leave a job for whatever reason. The ex may have valid reasoning for leaving. Variance in c/s is why the guidelines were created. Incomes go up and down. The recipient of c/s should not rely on c/s as a constant or increasing amount. They must realize there are valid instances where for it to go down as well.



                      I don't read it this way. I read it as the ex assumes the business will provide him with $30k in the first year. That it may vary. Should it vary, $30k is the bottom range, but not the top. The top will be whatever they actually earn.

                      The OP's ex doesn't sound unreasonable. They are willingly increasing their c/s obligation 100% on the basis that it will be re-adjusted going forward. Do I agree with a person taking a 40% pay cut when they have c/s obligations? It depends on the circumstances. In this instance it doesn't sound like an intentional attempt to decrease their obligation (they already agreed to increase it). It sounds more like the ex is making an honest effort to start a business, made an assumption on income, and will adjust c/s should the actual income be more than assumed.......just like they adjusted before....
                      I don't disagree with you. I was trying not to provide my personal opinion - just facts based on what I've read.

                      I WISH my ex was as agreeable as the OPs!

                      Just a note - My order specifically spells out that we are to adjust support based on our previous year's income every year and yet I was told when I went on EI that the change in income IS considered a material change.
                      Last edited by HappyMomma; 04-16-2015, 02:43 PM.

                      Comment


                      • #12
                        For the purposes of CS, a material change of condition includes a change in either party's financial position, and I can't imagine that significant of a drop wouldn't count as a material change.

                        I would notify him he has triggered a material change that you disagree with and require mediation. And, from what you've posted, he would be responsible to pay for same.
                        Start a discussion, not a fire. Post with kindness.

                        Comment


                        • #13
                          Originally posted by HappyMomma View Post
                          Just a note - My order specifically spells out that we are to adjust support based on our previous year's income every year and yet I was told when I went on EI that the change in income IS considered a material change.
                          You are, again, correct.
                          Start a discussion, not a fire. Post with kindness.

                          Comment


                          • #14
                            Originally posted by mcdreamy View Post
                            For the purposes of CS, a material change of condition includes a change in either party's financial position, and I can't imagine that significant of a drop wouldn't count as a material change.

                            I would notify him he has triggered a material change that you disagree with and require mediation. And, from what you've posted, he would be responsible to pay for same.
                            Would a significant increase not also be a material change? If one is, than so is the other.

                            And what success does the OP expect at mediation. It sounds like the ex already quit and started the new business. The only measure of success for the OP would be finding a c/s range in between $30k and $50k.

                            Depending on the ex's reasoning, a judge is not likely going to give either party the satisfaction they want. The OP says the ex been paying c/s regularly for 4 years. It's always been near the same and adjusted accordingly. The ex worked their butt off and gained a large increase in income and increased c/s accordingly. Up to here, the ex appears to be quite reasonable. The ex quits their job to start a business on their own. Details of whether it is in the ex's field and other reasoning wasn't provided by the OP to determine if the Ex's intentions are reasonable or not. But that is a fairly important part, as it may shine light on whether a judge will deem the ex's decision reasonable.

                            IMO, this entire ordeal will light any goodwill that may have existed on fire. The ex in this case likely sees that the OP is more than willing to increase c/s, because hey, it benefits the OP. But they won't agree to any decrease because it doesn't benefit them. OP will likely be forever in the ex's eyes "the greedy ex". And any sort of cooperation the ex may have once provided will cease. If this ended up in court I think the OP would likely see some measure of success, likely having c/s imputed somewhere between $30k and $50k. It is question of what they are willing to risk in the process.

                            Comment


                            • #15
                              There is tons of case law out there for this type of situation on intentional under employment. The OP's ex cannot reduce his income without good reason. His choice to change careers from say a truck driver to a clown and only make $30k each and every year is not reasonable to accept less child support for the rest of the years.

                              White v. White 2002 NSCA 66
                              Weire v. Therrien (2001), 2001 28136 (ON SC), 20 R.F.L. (5th) 199 (Ont. S.C.J.)
                              Waldron v. Dumas, 2004 YKSC 50, at para. 10
                              Donovan v. Donovan, 2000 MBCA 80 25
                              Hanson v. Hanson, 1999 6307 (BC SC)
                              Pagani v. Pagani, 2000 BCSC 75
                              Drygala v. Pauli, 2002 41868 (ON CA), [2002] 61 O.R. (3d) 711
                              Mullen v. Mullen, 2004 SKQB 65

                              Comment

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