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  • Motion to Change - Suggestions how to refute allegations

    The background - there is a court order from 2001 setting out a schedule for the children to spend time with their father. In 2011, the father, who has a lawyer, served a Motion to Change for cessation of child support. One of the reasons he says he should not pay child support is because he says that the children have been with him more than the mother for years and he has sent money from time to time to the older child away at university as well as paying his child support. Two of the three children are in or intending to be full-time post-secondary students and he says he has given the one currently in post-secondary money over the years (never the same amount, not regularly), he is willing to help the kids out while in post-secondary but he will not give any money through the mother. The father made lots of nasty and untrue allegations about the mother and while he doesn't come out and say the mother is using the child support for herself only, he lists the vacations she has taken over the years although his information is exaggerated and incorrect - it is quite a nasty, unprofessional document although it was prepared by a family law lawyer.
    The mother cannot afford a a lawyer but she served a response indicating that the children followed the schedule set out in the court order and asking the father to contribute 1/3rd towards school expenses and pay child support for the months they live at home with her. She wants the money paid through the FRO to ensure it is paid on a regular basis.
    She also indicated in her response that she would ask for retroactive child support as the father has never increased his child support since 2001 although the wife had not requested him to do so due to the facts that emotionally she has trouble facing the husband and also she was told by the FRO that she would have to go to court and she couldn't afford a lawyer. The father now indicates he will move to have all child support paid back to him from 2001 although his Motion to Change asks for repayment of child support from the date of the Motion to Change so I guess he isn't seriously looking back to 2001. He says she isn't entitled to any chihld support as he has always had the children most of the time and indicated he intends to seek all costs from the mother.
    The mother indicated in her Response which is answered each allegation in a civilized manner but the main thrust of her response was that the children have kept to the schedule set out in the original court order for the past 10 years and she had received no notification from the father in complaint until receipt of his Motion to Change. The mother and father earn about the same money however the husband has a tenant in his house and a business for which he doesn't claim the income on his tax returns so the mother doesn't really know what his income is. Therefore, the Motion to Change executed by him and which attaches his income tax returns is not true.
    My questions are:
    1. In practical terms, I am looking for suggestions as as to how the wife can refute the husband's untrue claims that the children most of the time as she has been told that the children (although all are over 18) should not be involved in this motion by way of filing affidavits etc.?
    2. If the answer to #1 is strictly on who has more credibility in the 'he says-she says', how much of an issue will it be that the husband, who is the applicant, has unclaimed income? The husband's lawyer knows of this allegation and the father admitted this was so in the presence of the lawyer and the mother. The lawyer said nothing and although the wife has written to the husband and his lawyer setting out her allegation and asking for the tax returns to be corrected, she has had no response.
    3. She would like to settle the post-secondary expenses with him and while she is open to the concept of him contributing his 1/3rd to the children directly, she is worried about how this could be enforced without going back to court.
    4. Will the court not order him to pay child support for the children while they are home from school from April 30 to September 1?
    3. Any other suggestions welcome. Thanks.

  • #2
    1. In practical terms, I am looking for suggestions as as to how the wife can refute the husband's untrue claims that the children most of the time as she has been told that the children (although all are over 18) should not be involved in this motion by way of filing affidavits etc.?
    The onus is mainly on him to prove his claims. If he says he had the children over half the time, where is his proof? If the mother cannot produce documentation (and really? nothing? no texts to/from the kids? No emails? No documentation on doctor/dentist appoints? No communication with the ex regarding pick up/drop offs/etc??) then she simply responds something along the lines of:

    "Applicant father has produced no documentation in support of his position. I, mother deny his allegations and state that the order made 2001 has been followed and maintained since that time."

    2. If the answer to #1 is strictly on who has more credibility in the 'he says-she says', how much of an issue will it be that the husband, who is the applicant, has unclaimed income? The husband's lawyer knows of this allegation and the father admitted this was so in the presence of the lawyer and the mother. The lawyer said nothing and although the wife has written to the husband and his lawyer setting out her allegation and asking for the tax returns to be corrected, she has had no response.
    It's probably not worth fighting over. IF he has a business, you'd need a forensic accountant to provide valuation. Got 10-30K to do that? Is it worth the increase in CS you'd see?

    3. She would like to settle the post-secondary expenses with him and while she is open to the concept of him contributing his 1/3rd to the children directly, she is worried about how this could be enforced without going back to court.
    It can't be, that's the issue. Is he willing to perhaps put a lump sum in trust for this purpose and authorize monthly payments to the child? That might be one way to get around that point. Otherwise, if it goes to court, he'll be ordered to pay his proportional share.

    4. Will the court not order him to pay child support for the children while they are home from school from April 30 to September 1?
    More like Jan 1 to Dec 31. CS doesn't end when the kids are in post secondary, it typically continues. As long as the children as in post secondary, they are still considered "Children of the marriage" and CS continues until the completion of the degree. In fact, if one parent is VERY well educated (Doctor/lawyer/etc) there have been recent cases where CS has been ordered to continue until the completion of a degree equal to the highest educated parent.

    Comment


    • #3
      Do the children have driver's licenses and bank accounts? Their home address should be on file, and there's nothing wrong with using photocopies of the license and statements to support your affidavit.

      Comment


      • #4
        Motion to Change - Suggestions how to Refute Allegations, Creative Settlement Options

        Thank you NB Dad and Mess (once again) - your advice is very helpful and practical - she will be able to produce drivers licences, T-4 slips etc which show the mother's address and which would be documents where the children themselves have to provide their home address so that is a great suggestion and much appreciated (believe me!).

        NB Dad, your comment re the dad's unclaimed income that "It's probably not worth fighting over. IF he has a business, you'd need a forensic accountant to provide valuation. Got 10-30K to do that? Is it worth the increase in CS you'd see?" - she isn't looking for any more money than he claims on his tax returns so it wasn't for more money - she is more interested in demonstrating that if the husband isn't being truthful about his own earnings, then she wonders whether the court would agree that it also calls into question his (untrue) assertions made in his Motion to Change - so it is strictly for which parent would be more credible.

        Also, another question - contribution to a trust fund sounds reasonable but do you have any suggestions as to how it would work. If each parent was contributing 1/3rd, would that mean two trust accounts or would they contribute to the same one? Would each child receiving the funds have to advise their parent if the contribution wasn't made? If payments were not made by either parent, what steps would the child have to take to get the money? She is worried about enforcement as the father did not make his payments on time until she registered with FRO and even then, he paid on the 34th day late each and every month. Do you know of any wording that could be used for a court order?

        Thanks again.

        Comment


        • #5
          Response to Motion to Change - Refute Allegations - Settled

          As posted on another part of this site as part of the motion related to payment to children under 18, the mom had her mediation and filed docs were the children themselves advsied different government agencies, banks, employers, schools, etc. of their address and while the father's lawyer tried to downplay that saying 'everyone has to put down an address', when faced with all addresses being the mother's address who argued that the children did not live half-time with the father as alleged together with some additional documents relating to doctors appointments and that kind of thing, the father's lawyer whose main argument was that the father shouldn't have to pay any child support because the children lived half-time with each parent (he actually started his Motion out by saying they lived with him more than half-time but changed that by the time the mediation was held to half-time) but at the mediation, he didn't really argue this point so it became a non-issue and child support was ordered for the minor children and then the other issue was that he didn't feel he should have to pay child support or contribute to post-secondary expenses of the university student. While he said, he would be happy to contribute to the child directly but didn't want to have that put to an Order, thanks to some advice from this site, the mother suggested that the funds be payable to the child and the day ended up with an Order agreed upon by Minutes of Settlement that he would pay a specific monthly amount that is set out in the ordedr to each of the children directly while they were registered as post-secondary students which seemed to make everyone happy and he agreed to pay retroactive payments so he paid 1/3rd of the costs of the previous years after credit for payments he made directly to the child which for some reason, he refused to share before the mediation. All in all, the mediator was the key to settlement and the case is now settled but the entire motion brought by the father was unsuccessful and the mother ended up in a better position after so she is a lot less stressed and is very happy. Thank you again - this is such a valuable site with some great advice.

          Comment

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