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Question – Should I seek Child Support?

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  • Question – Should I seek Child Support?

    Question ā€“ Should I seek Child Support?

    I am a divorced Dad with full custody of 2 young children (4 & 8 yrs old). My ex-wife was working for up to a year after separation but now states she barely works. We signed a divorce agreement which states every year her support would be reviewed based on her income (this year she says she made only $7000). Her current amount for support is $0 since I did not want to drag on the legal proceedings past 2 years and agreed to it as long as we could review her support every year (written in separation/divorce agreement).

    Problem I have is she has moved and will not give any contact info - except through her lawyer which takes 2 to 3 months for a response. She also will not pay or agree to even basic extraordinary expenses for the kids. She has not asked or seen the kids for over 2 years. I know she still lives in the area and works occasionally at her old job. She just went on maternity leave (has had 2 children with her new partner since separation - which was Feb 2008).

    The item that worries me is that I always made twice her income and that she may want to go after alimony if I ask the court to have her income imputed (ā€“ she agreed to no alimony in the divorce/separation agreement). I make a decent income so should I just forget having her support her children. I get frustrated that she has gone into hiding again (both physically and her finances) and will not provide anything for her children.

    Should I file for a "Motion for Change" to get her income imputed and have her pay the FRO so I do not have to deal with this issue anymore.

    Iā€™m also concerned that once I inform her lawyer that I want CS support (and go to court) he will drop her as a client and I will not be able to serve her court documents). He has in the past - during negotiations with lawyers for our divorce/separation ā€“ said he would not admit to being her legal counsel or go to court with her. Then he signs our separation agreement and her financial records as her witness/ legal counsel. Do I try to get a court date but find out I can not serve her?

    I live in Ontario. It frustrates me that she abandoned her kids and since I have full custody she believes she does not need to provide any support.

  • #2
    If you file and she drops her lawyer and you can't find her, you are no further behind than you are now.

    Regarding alimony/spousal support, how long were you married? Your children are quite young. For a short marriage, you would normally only pay support for about half the length of your marriage. So if you were together for 4 years, you would pay for 2 years.

    Meanwhile she cannot have an income of 0 for child support purposes. Yes, you can have an income imputed, and this income would also apply to any claim for spousal support from her. So you would not be supporting her from an income of 0. She can work and has chosen not to and is being supported by her new spouse. It is also possible in these circumstances to look at their family income as being her income. Normally you would not look at her spouse's income, but she cannot claim an income of 0.

    It is possible that you might pay a couple of years of spousal, offset this against child support for your two children based on their family income, say it cancels out. You are in no worse a position than you are now.

    If she has two children with her new spouse, presumably they are not living in motels or a trailer. It should be possible to find her. Her lawyer can refuse to accept service, however if you have reason to believe this is contrived I would not hesitate to file a complaint with the Law Scociety. Maybe it goes nowhere, maybe you can nail him. You are no further behind than you are now if you file a complaint.

    Even if you can't find her address, you should begin the application process, and then you have a clear history you can show of her avoiding service and hiding her whereabouts. If you don't file, then there is nothing you can show. You would be no further behind than you are now if you file and she continues hiding.

    In short, all of your choices may accomplish little or nothing in the immediate future, but sooner or later she will surface and you can have her served. Meanwhile you have lined up all of your ducks and can show that you have made every attempt and she has been willfully avoiding her responsibilities.

    Comment


    • #3
      It is possible that you might pay a couple of years of spousal, offset this against child support for your two children based on their family income, say it cancels out. You are in no worse a position than you are now.
      Incorrect. If you pay spousal support, EVEN IF IT CANCELS OUT BY THE CS SHE PAYS YOU, you still get to claim the Spousal as a tax deduction.

      You would wind up further ahead, albeit only a little, but doing this.

      If you cannot find her to serve her, but have made reasonable attempts to do so, you can request that matters proceed without her. If you try to serve the lawyer that is ON FILE as her legal representative, and he refuses service, simply document that fact and include that in your forms.

      Do you know the new partner's name? Where he works? Anything of that nature? Do you know your ex's SIN? Might be worth the cost of hiring a private investigator to track her down to serve her. If nothing comes of it, you can have the PI fill out an affidavit indicating he was unable to locate her.

      Your best bet is to have a lawyer help you if you truly cannot locate her, they would be able to assist you in the process. (her hiding complicates matters) however IF you can acquire a judgment against her and file with FRO, eventually it will catch up with her. She'll lose her license, etc and if they ever catch her, she runs the risk of going to jail until the fines are paid.

      At the very least, any income tax return or GST credits she receives will eventually make it's way to you.

      Child support is the right of the child. Spousal support is not automatic and she has to prove entitlement. If she is being supported by someone else now, not working and not supporting her existing children, her ability to claim entitlement is significantly reduced. Even if you get hit with something, it'll get offset by the CS she'll have to pay you. Ask for spousal to be done through FRO...that way if she wants a cheque, she has to keep them updated for her address. Then they would have her address on file to proceed with the CS claim you should be receiving.
      Last edited by NBDad; 11-16-2010, 07:23 PM.

      Comment


      • #4
        We were married for 8 years until I found out she was having an affair.

        During our negotiations she claimed she could not work the last year due to me - 2009. She did work the first year we were separated. She told her doctor that there was physical/mental abuse and that I denied her access to the kids - then her doctor wrote a note saying she could not work because of the trauma I caused her. All of this is BS since there was no abuse and she did not request access but hid when I tried to bring her to court for our divorce/separation.

        Her current Partner worked for his father's business which his Dad sold - he is a lazy bum. No idea where he works now. They use to live in an apartment above the business which they moved from. I found this out when I tried to exchange our financial information this year and got a “return mail to sender”. I then asked her lawyer if he knew how I could send the info to her and he informed me she does not want me to know where she lives to send everything through him.

        We do have a long separation agreement filed with the courts and an official divorce that goes into a lot of detail for her waiving Spousal support. Our divorce papers were official last Dec 2009.

        Comment


        • #5
          Forgot to mention - her tax returns are going back to Revenue Canada right now. She was recieving all the Child Tax credits (keeping it) until I filed for them. Revenue Canada agreed with my side and paid me the back amounts and sent her a bill.

          Comment

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