Retroactive Adjustments to Child Support

[lee1869]

The current amount of CS accruing is at a monthly rate set in 2004. It has never been adjusted since to reflect the payor's income and the tables. For financial reasons I have not been in a position to initiate legal action to have the adjustments made. Furthermore, he does not pay regardless of the monthly amount so I have not sought adjustments in court. On at least 3 occasions harsh collection was taken by FRO. He responded by going to court. I defended my position to CS by retaining a lawyer and exhausting my savings. However, once FRO ceased harsh collection he abandoned court proceedings and I did not have the financial means to proceed. Hence the reason it is not adjusted.
Speeding up to 2017. I have received correspondence form his lawyer in which he is seeking to have his debt reduced by having the accrual stop when she turned 18 in 2012. At that time she was finishing her secondary education at a semester high school and graduated in January 2013. She started post-secondary education in fall 2013 and was in full-time attendance from fall 2013 to spring 2015. We did not have the financial means to register her for her final year so she withdrew to work/save and is registered to return fall 2017 and will graduate spring 2018.

Since he is seeking adjustments and she is nearing the end of her education this may be the last opportunity for me to legally claim proper CS, and his portion of books and tuition.

My questions
- How far can I go back and seek adjustment to the CS amount?
- Is CS payable between graduation from secondary school and commencing Post-secondary school? There were zero options for her to be in attendance in an education program anywhere.
Is CSO payable for her final year (2017/18) since she withdrew from school and worked? I am thinking compassionate grounds may apply in this instance since his non-payment of CS left us with no alternative. We simply did not have the money for school.
- The existing order did not address post-secondary expenses at all. Is it reasonable to assume that, although unstated, he would be responsible for 1/3 of the books and tuition? She lived at home so there are no living expenses.
Currently there is only regular mail correspondence going between his lawyer and me. He lives in BC, his lawyer is in TO and I am 2 hours north of TO. The original order goes back to 1994 and was originated in Kitchener. If we return to the court, where would we go?

Money does not buy happiness and I am tempted to retain my sanity and just walk away. However, my daughter deserves more; she has gone without so much and worked f/t while attending f/t school. I am not financially positioned to go back into the courts. However, this will be my last opportunity to get it right so if it appears that the odds will be in our favour I may bite the bullet.

I appreciate all feedback, thoughts and experiences to help me decide how to proceed.

[rockscan]

The current amount of CS accruing is at a monthly rate set in 2004. It has never been adjusted since to reflect the payor's income and the tables. For financial reasons I have not been in a position to initiate legal action to have the adjustments made. Furthermore, he does not pay regardless of the monthly amount so I have not sought adjustments in court. On at least 3 occasions harsh collection was taken by FRO. He responded by going to court. I defended my position to CS by retaining a lawyer and exhausting my savings. However, once FRO ceased harsh collection he abandoned court proceedings and I did not have the financial means to proceed. Hence the reason it is not adjusted.

Figure out what he was supposed to pay monthly, what he did pay and what the difference is.

Speeding up to 2017. I have received correspondence form his lawyer in which he is seeking to have his debt reduced by having the accrual stop when she turned 18 in 2012.

Shes still a child of the marriage while in school. If she was working from jan to sept there could be an argument for no cs. Calculate your cs without those months.

How far can I go back and seek adjustment to the CS amount?

Normally its 3 years HOWEVER if you have asked him for financial disclosure and/or he did not disclose his income and it was higher, he could be seen as blameworthy and ordered to pay. I'll recommend a plan below.

Is CS payable between graduation from secondary school and commencing Post-secondary school?

If she graduated in January, worked until September and then went to school the chances of getting cs are slim. BUT you could demonstrate reasonableness by not requesting it.

Is CSO payable for her final year (2017/18) since she withdrew from school and worked?

CS is payable while shes in school. If she had to quit to work to pay for school he can argue she wasnt a child of the marriage.

The existing order did not address post-secondary expenses at all. Is it reasonable to assume that, although unstated, he would be responsible for 1/3 of the books and tuition? She lived at home so there are no living expenses.

This is the iffy part. What is the education of you and your ex? Did you have plans for your child to attend school? Is her program reasonable and will lead to employment (ie an honours degree in underwater basket weaving is not eligible)?

Currently there is only regular mail correspondence going between his lawyer and me. He lives in BC, his lawyer is in TO and I am 2 hours north of TO. The original order goes back to 1994 and was originated in Kitchener. If we return to the court, where would we go?

Where did he file? Thats where you go.

NOTE IM NOT A LAWYER BUT FROM MY RESEARCH AND WHAT MY PARTNERS LAWYER HAS ADVISED HIM THIS IS WHAT I SUGGEST:

File a response to his motion seeking to dismiss it with costs and seek a change of your own. This change is what cs should have been, what education expenses should be, when you want all this to end.

Calculations--months she was a child of the marriage would be the months up until the January date, months from September start to when she left school. Her school expenses will be tuition, books, any equipment (if shes in art or science etc.) reasonable transportation costs to get to school. Take the net cost (after tax) and divide proportionate to his income. If she got any GRANTS from OSAP you must subtract that from the total. 1/3 is kids portion and the rest you two split.

He had an obligation to advise when his income changed. You should request financial disclosure for all the years. If you have been asking, add that correspondence to your package.

Do you qualify to get assistance from the family law centre at your local courthouse?

[lee1869]

I am not eligible for legal aid and I have already spent more on lawyers than I have received in support so I am prepared to abandon the issue if I don't have a case.
I've been trying to source information on my own and it is only confusing matters more.

In order to proceed I need to determine:

When does she stop being a "child of the marriage"? She has a period of part-time attendance (Feb 2013 to Aug 2013) and non-attendance (May 2016-Aug 2017) in school? She graduated secondary school in January 20 but did not attend post-secondary until September as the program she was attending only started in September. Her program was a 2 year program with the option of 3. 2 years achieved a 4th class engineer certificate while 3 years will achieve a 3rd class which significantly improve her chance of employment. Between the 2nd and 3rd year we did not have the financial means to continue and worked and saved to return this September.

Is the first degree/certificate firm and fast rule for determining the end to CS?
I've heard CS is only payable to the first degree or certificate. The 3rd class ticket increases her employment opportunities exponentially and it was her intention to achieve that all along. But it is another certificate. He has a University degree that he completed approx. 2007 and he is a licensed mechanic - completed apprenticeship in mid 90s. I have a college business certificate.

Is blameworthy behaviour on the payer's part reasonable grounds to proceed? And to what extent must I prove?
I understand that if she is no longer a child of the marriage I have exhausted my window of opportunity to vary child support. However, I have also read that blameworthy behaviour on the payer's part may give me one last chance. ie: I have no financial or employment info about him since 2010, no current contact info since 2015, physical/verbal abuse experienced by myself and the child......

Unfortunately there is no reasoning with this payor and court is the only option. He has never had the child's best interest in mind; he stated when I left in 1994 that I won't get any of his money and he's stuck to that conviction. We have managed to get by but not without significant sacrifices. The child has worked 2 and 3 jobs concurrently with f/t school attendance.

[lee1869]

The thread started by Caring Dad in 2010 is similar to mine. Except he is the payor and I am the recipient. Does anyone know what the final outcome was in this case?

[rockscan]

Have you asked him for info over the years?

You are going to have to respond or let it go. If you think you can successfully argue it at a case conference then respond.

Youll need to figure out how much he should have paid and go for that. What you need to do first is figure out the months your kids were entitled to support and what it should have been. Base it on the income you knew and what was paid. Then figure out the school expenses. You should calculate tuition, books, residence if away and any grants etc.

The fact that your kids have had to limit their education due to costs could work in their favour.

[Beachnana]

You know you can tax deduct your legal bills for any incurred during process to get CS.

And go back a few years to adjust previous tax years

[lee1869]

No, I did not know this! 100% is deductible? or a percentage?

I have started exploring lawyers and one quote is approximately $4000 for initial paperwork and 2 appearances in court. Payor has always demonstrated he'd rather pay a lawyer so I expect he will drag it out as long as he can.

[Beachnana]

Well first you ask for costs and deduct that from the bill then you tax deduct the rest so depending on your tax rate you should get back
Another 30 % or so.

[Beachnana]

Line 232 of tax return. Only once had she
Been asked to prove her deduction
And she
Sent
Lawyers detailed
Billings
And the final
Order and they allowed $7000 to be deducted

[Tandem80]

What about lawyer fees to have to respond to the lies of a recipient that I am in arrears when I am not? Would the tax man allow payors to claim legal fees because the ex wife was not willing to listen to the payor explaining the support situation and go running to her lawyer each and every time costing me unnecessary legal fees, just to prove there are no arrears?

Good lord I have had to pay put $4000 in the last 2 weeks just to prove I have overpaid in support and owe $87 in section 7 expenses.

IT is crap if it doesnt work both ways.

[rockscan]

What about lawyer fees to have to respond to the lies of a recipient that I am in arrears when I am not? Would the tax man allow payors to claim legal fees because the ex wife was not willing to listen to the payor explaining the support situation and go running to her lawyer each and every time costing me unnecessary legal fees, just to prove there are no arrears?

Good lord I have had to pay put $4000 in the last 2 weeks just to prove I have overpaid in support and owe $87 in section 7 expenses.

IT is crap if it doesnt work both ways.

Welcome to my partners world. He has overpaid expenses and his ex refuses to accept that fact.

[Tandem80]

Why don't they just listen?

I had to get my lawyer to draw up a proposal $$$$
Respond to affidavit $$$$$

Just to tell her exactly what I have told her personally!!!

She doesnt even understand the terms of our agreement and neither can her lawyer if she has allowed her to bring forward expenses that are clearly stated in our agreement they are not included.

[rockscan]

My partners lawyer told us that the ex can file whatever she wants which means he has to respond. Getting her deemed a vexatious litigant is useless. Which means that even after this filing, she could go and file again in two years for something else. Plus if he loses his job, getting cs reduced would be a nightmare.

Unreasonable and self entitled people are what keeps lawyers in beemers!!!