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Paying share of expenses (and SS question)

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  • Paying share of expenses (and SS question)

    Hi all,

    I am so confused. Back some years ago when I went to court, the judge allowed child tax benefits, child support payments to be added to line 150 (my income) to arrive at my share of said 7 expenses. So, for example.... instead of my line 150 to be income earned of 10K, she added the other monies I would get for my sons' disability, child support etc to equal income of say, 30K. So, my husbands income was 100K and she said mine was 30K, making my share of said 7 expenses to be 30% to my ex of 70%.

    Anyhow, I found out just a year ago, my ex who had not been handing over t4's and noa's was earning more money than he disclosed. Because of this, I was not only paying more than my share of expenses in past, but he was also paying me insufficient child support amounts.

    Well, now our children live with him. He wants me to continue paying 30% of expenses even though I have lost child support, gov't monies and now I have to pay him child support. Should I not ask that this be revisited given all I have shared? Should I not factor in the amounts of money in past he did not disclose and therefore I was not getting the appropriate amount of child support? Shouldn't that money owing, be deducted form monies I might owe him?

    Lastly, I agreed to supposal support for 8 years based on his income and fair splits of divorce mate. Shouldn't the last two years of my spousal support go up given my recent findings of his new and higher income he has been lying about?

    Crazy, I speak to different lawyers and they tell me different things. Anyone have any first hand experience with my type situation?

    Many thanks.

  • #2
    As others have mentioned in different cases, also look at how much you could possibly gain vs. how much you would be paying your lawyer. Is the potential financial gain worth the guaranteed financial costs and mental pain for you?


    • #3
      Request full disclosure of his income for the last three years. Depending on what that amount is you can apply it to your portion of expenses and cs.

      Remember too that not all expenses will be considered extraordinary in light of his income. A $500 expense for someone earning $25000 per year is extraordinary. For someone earning $125,000 a year its not. Plus he has to ask your permission before incurring the expense. Im sure some of these expenses are necessary for your disabled child but again, based on his income, you could argue they aren’t extraordinary.


      • #4
        From what I have read on CanLii judges do not like to award back child support as a windfall. You are obligated to exchange financials every year. If your ex was fraudulent then you have something but then be prepared to show how, had you received the proper child support, would have made a difference in the children's lives. If your ex can show that he disclosed income then I do not believe you would have a winning situation.

        I believe focus would be on the time gap from when you discovered your ex's dishonesty and the time when you file a motion. Again, you had better have a good explanation as to why you did not pursue the matter immediately.

        Spousal support is different than child support. There are no mandatory tables to follow. You have to review your original divorce agreement. Pay particular attention on the wording and the "intention" of the agreement.

        I believe a judge who reviews your situation would deal with your situation in parts (past child support and past spousal support paid vs. up-to-date calculations of what he should have been paying). Then, if you are successful an amount owing to you for a) child support and b) spousal support (if it was based on income calculation) would be determined.

        The next part would be calculating your current respective financial situations in pretty much the same manner.

        Beware that if you bring forward a motion to change that your ex is likely to answer with something you may not like and be unable to defend. For example, depending upon your age, can you produce evidence of movement towards self-sufficiency. Yes, I didn't miss the part about disability but often that isn't permanent (even though the government accepts it your ex could request current expert medical documentation).

        Finally, if you want to challenge your ex's income for purposes of determining support, be prepared to have compiled plenty of documentation. You can't just say "I think" he makes more than he says he does.... you have to have something substantial to make the claim.


        • #5
          This is a long read but you might find parts of it useful:

          "The Supreme Court of Canada’s decision in D.B.S. is the leading case on the issue of retroactive child support. This case raises the issue of whether the threshold test which the Supreme Court established in that case relating to retroactive support claims applies in circumstances where either an agreement between the parties or a previous court order clearly requires that child support be adjusted annually in accordance with changes in the payor’s income and the support recipient subsequently commences a proceeding to enforce that requirement. For the reasons that follow, I conclude that the test which the court set out in D.B.S. does not apply in such circumstances.
          [58] In D.B.S., the Supreme Court of Canada canvassed in detail the various interests and concerns that come into play in retroactive child support cases, including the child’s and custodial parent’s need for financial support, the need for flexibility in order to ensure a just result, and the interest of payor parents in ensuring certainty and predictability when obligations appear to be settled. The court ultimately articulated a threshold test for pursuing retroactive child support. This test is a highly discretionary one which requires the court to consider the following general factors before allowing a retroactive claim to proceed:
          1. Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier.

          2. The conduct of the payor parent, and in particular, whether there is evidence that the payor has engaged in blameworthy conduct relevant to the child support issue. The court characterized “blameworthy conduct” as “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support”. It emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments.

          3. Consideration of the present circumstances of the child.

          4. Any hardship that may be occasioned by a retroactive order...."


          • #6
            My partners lawyer has provided us with a great deal of insight on the DBS decision. To boil it down, if a support payor has been found to have failed at disclosing changes to their income and updates to child support, they are deemed to be blameworthy and can be held accountable for past years of support.


            There is also a responsibility on the part of the support recipient to request disclosure and demand an update. For instance, if the agreement has a clause for annual update (and most do) and the recipient failed to request until such time that it would create a hardship for the payor, there will be questions as to why the recipient waited so long.

            In this case though, OP is now faced with her children choosing to stay with their father and being forced to pay cs and s7. This is a multi layered case with several issues.

            The first step would be to discuss the cs owing going forward and what her income is for that purpose.

            Second would be to determine what s7 expenses there are and what her proportionate share is. Something that was extraordinary for her may not necessarily be the same for her ex who makes a significantly higher amount of money.

            Finally the issue of back support. You wont get cs paid to you that was owing but you may be able to argue that the amount he should have paid should be applied to your cs going forward. This is where the complication lies. If you know what his income was the last three years, calculate the amount he should have paid against the amount he did pay. Suggest you apply that to your amount owing going forward at least until you are working and earning a live able income.

            Mediation may be a good thing for you both.


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