Ludicrous "Sworn" Financial Statements!!

[decent fellow]

I need your friendly advice folks! Some background:

• Marriage broke down in 2003, with one child from the marriage. I remarried in 2005 and have since had 2 more children!
• In late January, I finally got it together and filed a Motion to Change Child Support (CS). We have had a shared parenting arrangement (44/56 split) for nearly 3 years now, and I want to have the CS determined using the straight offset calculation.
• My EX would only let me have the extra time if I paid full table support (i.e. without any offset, or consideration for my extra expenses). The EX has a stable job earning ~ $63000 annual salary. My earnings are > $150000, but I have a family of 5 to support (2 new children in new relationship), lots of debt, etc.
• I pay 100% of daycare, clothing, etc for when my 8-year old daughter is with me.
• First Court Appearance (Ont Court of Justice) is April 7, where I understand that not much happens, except that they will set a Case Conference Date at that time.

So, I received her Response to my motion on Feb 25, where she obviously did not agree. In her response:

a) She also has about 30 additional points of "background" to support her stance, many of which are either not true, or are exaggerations & misrepresentations... all made to bolster her case and make her look good. However, these are now in the Court's records!

b) Her sworn Financial Statement (Form 13) which is now part of the Court records shows expenditures that are simply unrealistic & crazy high, and then she has completed a Children's Budget suggesting that our daughter represents 43% of her TOTAL "sworn" expenses of $6700 per month... or $2900 per month(!!) for a child she has only about half the time. As examples, this $2900 attributable to my daughter includes: a) nearly $400 per month for food for a child she has for about 17 days per month... $24 per day for food! b) nearly $400 per month for car expenses, c) $500 for "savings, lawyers fees, and addition income tax required". I spent a lot of time doing my own honest budget (went through 12 months of receipts & credit card statements) in order to be accurate, and estimated my budget for my daughter was ~ $1175 per month, in addition to the full table CS that I pay.

After sitting on her Response for the past 10 days, I finally concluded late last night that I better respond to her points. Now, I am representing myself, and I just read that any reply by Form 10A needs to be served to the Respondant & filed with the Court within 10 days! So, am I screwed??

I just came back from the Court House, where I talked to duty counsel. He told me to still go ahead and complete Form 10A, but I would need a file a motion if I wanted to get my 10A put into the Court record. He said that not having the 10A in there is not "fatal" (gee thanks!), and that the Case Conference would be a good time to get out all the facts.

What are people's thoughts on the following:

1. Filing a Form 10A to counteract aggressive points made by the Respondant? Am I in trouble for not doing so in a timely manner?

2. Ludicrous "sworn" Financial Statements & Children's Budgets?

I still feel confident generally, but am a bit shaken that I missed the Form 10A filing deadline! (maybe I should hire a lawyer)

Thanks in advance everyone for any advice or thoughts you may have!

[NBDad]

Just a couple of observations here, sorry I can't be of more help, I'm in New Brunswick, so my understanding of the finer points of the Ontario system is shaky at best.

a) nearly $400 per month for food for a child she has for about 17 days per month... $24 per day for food!

Judges aren't stupid, unless the child is eating filet mignon for every meal...sheesh...ask for receipts to prove it.

b) nearly $400 per month for car expenses, c) $500 for "savings, lawyers fees, and addition income tax required".

None of these can be attributed to the child. Period. They are legitamite expenses for her HOUSEHOLD, but she cannot apply them as the cost of having the kiddo.

[Mess]

NBDad, you're right in a general sense.

decent fellow, you are over reacting. Form 13 requires her to list all household expenses. These aren't just child specific. $400 per month is believable grocery bills for her and the child. It's not possible to cook from scratch for a dollar a meal when you are a working parent, I know I've tried.

My grocery bill (2 kids, 50/50) runs about $150 per week. That includes my teenager coming home daily (even on days when she goes to her mum's later) after school and snacking for an hour while she does her homework.

Again, the columns in the form 13 are for total household expenses, and they include transportation costs and there is no feature to try to break down what percentage applies only to the child. It is to give the judge a general picture.

As far as form 10c goes, you should fill it out and you should be able to do this in a day if you take the day off and actually put solid hours into it.

The "Gee Thanks" comment was unnecessary. The clerk isn't the one who sat on it all that time.

The Case Conference is an opportunity for mediation, it is an opportunity to seek an interim order if one party is blatantly not co-operating and it is an opportunity to seek proper documents if they aren't all prepared. If you aren't prepared, the judge will likely scold you and set another conference date.

Nothing final is done at a Case Conference. That doesn't mean it will go your way, you could be hit with an interim order, but you will get your chance to make a fully prepared submission on another day.

Which doesn't mean to say you shouldn't do your best to get it done.

[decent fellow]

Financial Statements & Children's Budgets

Thanks Mess... sorry if I gave the appearance of overreacting... I am much more calm now.

Anyway, the $400 per month was the portion attributable to my 8-year daughter by herself (who spends 16-17 days per month with her mother). Ditto for the other expenses I mentioned below.

I was reading that certain expenses claimed by the parent (with only one child) are not really allocable to small children.... e.g Car expenses, adult recreation, "Extra income taxes", etc.

Can anybody give me some general guidance as to what types of household expenses are & are not allocable to children. And what are typical percentage allocations for those that are (specifically in a case of 1 child in shared custody with each parent). How about if one of the parents also has built a new family and now has 3 children (including the 1 in shared custody) :>)

Thanks again... by the way, this is a FANTASTIC forum... thanks to everyone who contributes... it is very helpful!

[mom2three]

QUOTE: Anyway, the $400 per month was the portion attributable to my 8-year daughter by herself (who spends 16-17 days per month with her mother). Ditto for the other expenses I mentioned below.

Where are you getting this figure? Nowhere on a Form 13 does it ask for a potion attributable to a child. Grocery expenses are indicated in box 38 and include all groceries for the entire household.

QUOTE:I was reading that certain expenses claimed by the parent (with only one child) are not really allocable to small children.... e.g Car expenses, adult recreation, "Extra income taxes", etc.

Once again, none of these expenses are allocated. The Form must be filled in by either the applicant or respondent and show the "TOTAL living expenses, including those expenses involving and children now living in your home" That is quoted directly from the form.

QUOTE: Can anybody give me some general guidance as to what types of household expenses are & are not allocable to children. And what are typical percentage allocations for those that are (specifically in a case of 1 child in shared custody with each parent). How about if one of the parents also has built a new family and now has 3 children (including the 1 in shared custody) :>)

As for household expenses related to children, the Form 13 clearly shows which expenses these are - columns 57-68.

Am I to assume that you "thought" the form was to be filled out based only on the childs expenses and not the whole of the household? That is where I think you are confused.

As for the amounts she has entered, don't get yourself into a sweat about it. Judges are very perceptive. If she has made blatant, obvious, exaggerated claims, they will pick up on it and her credibility goes down the drain. Plain and simple. So relax and do you bit. Remain honest yourself and grit your teeth and let the Judge be the arbiter or her expense account.

[decent fellow]

Financial Statements & Children's Budgets

Mom2three,

Thanks for responding. No, my #'s were not for the Form 13... they were from the form titled "Children's Budget" which is based on various inputted percentages of the expense #'s on Form 13. I do have her Form 13 which shows TOTAL household expenses. And here is my issue/concern:

I think that my EX is making a compounding overstatement of my daughter's expenses while she is with her:

1. Her TOTAL monthly household expenses (from Form 13) appear to be far too high in some areas, given that she only has herself and an 8-year old 56% of the time. Examples: Groceries & meals outside home ($800); Car Gas ($400) (she works 5km away from her house); Entertainment ($300) (she doesn't do anything or go anywhere with my daughter); "Other" ($1000).

2. Then she takes the inflated #'s above, and applies very large percentage allocations to our daughter. Then you get Child Budget results like: Groceries & meals outside home ($380); total car expenses ($400); Entertainment ($100); "Other" ($500).

The result is that she claims that our shared-custody daughter costs her ~ $2900 per month. When I did mine own Children's Budget for my daughter, I came up with what I think is a much more realistic # of $1150. Given the we have a 56/44 sharing, I could reasonably expect that my daughter could cost her mother somewhere between $1500-2000 per month... but $2900??

It doesn't make sense that one shared custody child "costs" over $4000 per month to maintain. I have 2 other children since that 2003 divorce, and if it cost even a fraction of $4000 to raise each child, then we would all be broke.

I do appreciate the fact that shared custody should result in globally higher costs to raise a child versus if they live full time in one home, but my EX's #'s seem "way out there".

In my reading's, particularly the Contino case, it appears that in Shared Custody cases the Household & Children's budgets are key pieces of evidence... so it would seem like these need to be as accurate & realistic as possible. If one side exaggerates & the other side does not, then there is an unfair imbalance.

Any thoughts?

[Mess]

I see now what is bothering you. I would say that your best bet is to cost things out appropriately in your own budget, and perhaps do a separate detailed sheet showing exact items and amounts.

Then the discrepancy with the mother's budget will be glaring and you can point this out.

[dinkyface]

Here's how I'd split out the lines...

Property tax, mortgage/rent, home insurance, maintenance -> 20-40% (on the basis that your house is bigger by at least an extra bedroom)
satellite/cable -> 10%? (you'd probably still have thisif living alone)
phone/internet -> 10% (you'd probably still have this if living alone)
utilities - water/garbage -> 20-30% (extra bath/shower/laundry)
utilities - gas/heat -> 10% due to larger house size
utilities - electricity -> 10-20% (extra lights/activity)
car - gas/maint -> depends on how much extra driving you do
car - insurance/lease -> 10-20% if you need a bigger car
entertainment - depends on your activities
food - 30% assuming you have her 50% time

clothing - check actual receipts
other/toys - check actual receipts
daycare/medical/education/extracurricular - check actual receipts
professional expenses relating to child support/access issues - check actual receipts

[decent fellow]

Shared Custody (calc of Child Support)

Thanks Dinkyface... that is very useful guidance... I've applied those percentages to the EX's child budget, and it makes a very big difference in the overall global picture.

So, in a shared custody situation like our, I understand that (a la Contino) the starting point is a straight offset calculation. Then judges will look at global children's expenses and make sure that coverage of these is balanced proportionately to each parent's income (gross or net?). And then they look at each parent's ability to pay. And then they make any further changes that they deem appropriate based on individual cases' circumstances.

Have I got that right?

Anybody have any real experience with this type of share custody child support analysis?

[Mess]

I do. Contino is fact, yes, but the table offset will be the main calculation. Budgets and ability to pay won't enter into it, unless it is extreme enough to make a huge difference.

What I mean, if you pay 800 a month rent, and the ex pays 1000 month rent, the judge doesn't just automaticly put that extra 200 a month on her side of the ledger. If the budgets are reasonable, they won't factor in, it will just be table.

It is when the there is an extreme need in the budget, and it has to be shown and proven, that it will factor in. Same with ability to pay, this is only affected by an undue hardship claim. Ability to pay is inherant in the income numbers, so the only way to argue it is with an undue hardship claim, which is very narrow. It must be because of debt incurred to support the family (not gambling debt, or lifestyle debt) and the debt payments must push the household NDI well below the other parent's household NDI. You can't just claim undue hardship, you have to prove it.

Now, yes, the table amounts can get modified but it is not just a case where every time they take the house budgets and then add the difference, don't think of it that way.

[decent fellow]

Thanks Mess... you make it sound easy... but my cynical side tells me otherwise.

When I was renegotiating spousal support in late-2007 (daughter starting fulltime elementary school... and finally got an end date for that on May/2011), like on every opportunity I had over the years I asked for more time with my daughter (I started with only ~ 20% in 2003, and have finally made my way to 44% in 2007). The only way she would give me the final day every two weeks to get me to nearly 50/50 was if I continued to pay full table amount (i.e. without offset). If I did not agree to that, then she would not give me the extra time... I felt blackmailed to say the least. So what is a father to do... naturally I take time with my child over money... I was going to have to pay full table support without the extra day anyway. I'd be curious if anyone has any thoughts on THAT point.

I am hoping that by waiting 2 years (not too long or short of a time), that this would prove that I did not take the extra time "just for the money". I pay for all the clothes for my daughter for when she lives with me, and I pay for all her afterschool daycare expenses for days she is with me... the EX's mother ("Nana") watches my daughter afterschool when she is with the EX (for free).

I don't believe that the cessation of spousal support in 14 months will cause financial hardship for my EX... she still earns $64,000 plus potentially "straight offset" calculated child support of ~ $1200 per month (tax free)... this is a pre-tax equivalent wage of ~ $85,000. But the EX & her lawyer will probably lean on the cessation of SS as support for their position. What is your take?

Over the past 4 years, my new wife and I have had 2 babies come into the world, my earnings have decrease quite a bit (though I still make a decent wage), while the EX's earnings have increased from $35,000 to $64,000. Financially, I have been feeling the pinch over the past couple years.

My new wife works and makes a decent wage comparable to my EX's... but I don't believe that my wife's wages should be part of the equation unless I was filing a hardship claim, right? Or is it if my EX was filing a hardship wage?

My EX will not compromise on $'s, she certainly feels 100% entitlement... Lord knows I've tried over the years, but she just will never bend... which is why I have finally gotten to this point where I felt that I just have to file this Motion to Change. I figure I have just this one shot to set things straight (at least from my perspective).

I know every case is different, and there's probably a dozen ways to skin this cat, but...

[NBDad]

You don't need to file a hardship claim, you have the child > 40% of the time, so you can make a motion to vary thru the courts to have support based on offset table amount. You have an existing status quo stacked against you, you have been paying the full table amount for 2 years now.

HOWEVER, if you have proof of her blackmailing you into it (ie. via an email or a letter) then you could always argue that you felt pressured into paying her more money in order for more time with your daughter.

[Mess]

The language would be, you agreed under duress, and had not received legal councel.

[decent fellow]

Mess, it is true that I did agree under duress.... however, I did have a lawyer at that time... so am I screwed now?

[NBDad]

Depends on the judge, depends on the day of the week. Judges have a crap ton of discretion on support orders, so as long as you are making reasonable arguments, you have a no better and no worse shot than the other guy.

If you have PROOF she basically blackmailed you into it, I suspect that would help your case a fair bit. (Basically you agreed to it to have the time with your daughter, but enough is enough, it's been two years, you've had several material changes in circumstances and haven't requested it be changed, but now you are only asking for what is fair/etc)

I always advocate making the offer to the other party BEFORE you head to court, at least that way you come off as the reasonable person (heck, you'd only be in court because you had no choice in the matter, the other side is forcing you to do it ). Gives you a better shot at getting costs as well. (and while it may not cover your entire cost, even something is better than nothing at all).

Depending on how amicable the relationship with your ex is, you might want to consider that option, even if you KNOW it'll get refused.

PS. Whose collecting the CCTB/UCCB for your child currently? It is split? Or does one of you have it solely?