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Equalization vs Child Support

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  • Equalization vs Child Support

    I'm in a bit of an upside down situation.

    My wife will owe me an equalization but is currently on social assistance and I'm earning $46k.(maybe more with business exp)

    Now the dust has settled it's clear my wife had engaged in an extremely hostile set of allegations. I've been cleared of absolutely everything through the OCL assessment.

    So now everyone wants to settle. We will get joint. I am about to handover disclosure. My wife did a disclosure but left out huge sections and in the detail provided it's clear she has hidden $28,000 in assets. And just simply lied on her 13.1 - credit card overstated by $1500 and bank understated by $1500 and then lied about a loan fir $3500 which she can't provide paper for.

    So even if we forget about hidden assets the equalization to me will be $4k. With it all factored in $18,000 will be owed to me.

    We both earned roughly the same at the time of separation. We both run small businesses. To support her case she flung herself into social assistance...full subsidy of a townhouse, welfare, fully paid education.

    I am just going to assume her income is imputed to something like $30k

    I should say I doubt this goes to trial given her behavior and the fact she'd likely get bad faith and hit with full costs ($16,800 to date) so it will be a negotiation.

    So here is the question...
    I assume inevitably they will try for back dated child support. I haven't paid any...since we both earned the same at time of separation and she launch a full frontal attack full of lies with an emergency motion.

    If her income is imputed I suspect a monthly of $200 roughly. So retro back to separation would be $7k. If not income imputed...it will be $14k

    Can that come out of the equalization owed?

    I suspect I will never be able to make her pay me the equalization right? I'd have to chase her to the ends of the earth to get paid.

  • #2
    Somebody posted a case just in the last week where retro child support was deducted from equalization owed. It didn't even out so Dad wasn't ordered to pay CS for something like 15 months. I just can't remember what thread it was on.

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    • #3
      Oh cool I was also hoping for forward too but thought that was asking too much.

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      • #4
        Do you recall the thread?

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        • #5
          So you have paid no child support for approximately 3 years?

          I believe child support is a separate entity from asset/liability equalization.

          To summarize your position, you want an unequal division of assets to offset the child support you owe.

          Would not calculations of retroactive child support be on actual income figures for the years arrears are claimed? Or do you believe your ex should be imputed income instead on what she ought to have earned by way of imputed income?

          It sounds as though you are dabbling with making a case that your ex has been intentionally underemployed.

          Correct?

          Here is a case where there is equal division of assets but money from sale of home is directed to payment of child support arrears. I'm not certain if this is the sort of thing you are looking for:

          https://www.canlii.org/en/bc/bcsc/do...&resultIndex=6

          Here is another one which might be of interest:

          https://www.canlii.org/en/bc/bcsc/do...resultIndex=12

          And finally, one from Ontario - pay particular attention to the cases cited where you will likely find information you require:
          https://www.canlii.org/en/on/onsc/do...&resultIndex=9
          Last edited by arabian; 02-15-2015, 01:53 PM. Reason: case law

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          • #6
            No the division of assets are following the basic rules. She has squirreled away money in another country and lied about what is on her accounts. To the point where she understated her assets by approx $38,000.

            I came into the marriage (5 year marriage) with many assets and we signed a pre-nup. I am worth less than I was before 2008 the year of marriage by a significant margin. So let's say I'm -50,000. That is essentially 0.

            So she owes me half of $38k. Approx $18 or $19k.

            And yes. She is intentionally under employed. She came to the country in 2004 before I met her. Had worked her entire time - started her own business - was very successful - right up until 2012 separation. Now all of a sudden is a welfare case. (It was because of all the verbal abuse you see. Which unfortunately for her didn't materialize in any of the three agency reports she force into the process).

            So she is clearly defrauding the government - she lied about her situation to get on welfare.

            My income will be above her income even if it's imputed (my income has increased since separation).

            So they will want retro child support how much or how little will be a negotiation because we were/are both self employed so it's very messy.

            But she owes me in equalization. Which I doubt I will ever get a chance to collect.

            So from my vantage point after an exhaustive 3 year process for a meritless legal process. She will claim she can't pay her $18k and I will have to pay back payment to her. Doesn't seem right.

            There are also legal costs incurred by me to the tune of $16k...can I recover those?

            Her allegations have been proven meritless and I think would constitute bad faith if pursued in court. Can I recover these if we settle? Would I include costs in a settlement?

            Comment


            • #7
              You would have to be able to provide evidence of her not providing full financial disclosure. I know only too well how pointless it is unless you can provide irrevocable evidence. If you can't then you are best to move on and not pursue this.

              A pre-nuptial agreement would be considered if you both had independent legal advice and can again provide evidence of the ILA which would have required both of you providing full financial disclosure at that time.

              Equalization of what? Sale of matrimonial home? If she ends up owing you money you will have a judgement and you can register it with your provincial maintenance enforcement agency. Any future income tax returns, gst refunds would then become fair game for the enforcement agency to capture.

              Each and every time you went into court you would have requested costs? If you were the successful party then you would be entitled to costs, however, that is at the discretion of the presiding judge.

              Making a legitimate Offer to Settle is important throughout your litigation in most instances regarding costs. The unreasonableness of one party over the other is considered.

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              • #8
                Originally posted by Headwaters1 View Post

                So here is the question...
                I assume inevitably they will try for back dated child support. I haven't paid any...since we both earned the same at time of separation and she launch a full frontal attack full of lies with an emergency motion.
                Just wanted to quote this part. You both earned the same at time of separation, and I believe until there is an order it's assumed you have 50/50. So you wouldn't owe her anything. And that's why you haven't paid anything? It's hard to calculate a payment when financials haven't been exchanged.

                Has she asked for CS over the past 3 years? Did you actually have 50/50? Or did her allegations prevent that?

                Those are all questions that will determine if retroactive even applies.

                Comment


                • #9
                  Absolutely yes I had 50/50 thanks to a sharp judge at the EM. He saw right through it. And she asked for CS for filings but her disclosure was requested jan 2014 and I only received it in Oct 2014. At which time I finally receive their request for disclosure. I have taken four months to complete it but it's essentially ready. Only her disclosure was full of holes...missing credit cards, RRSPS, claiming bank accounts are closed so no records that were shown in her original 13.1 and then her 13.1 showed her penniless but when she sent her records it showed her $5k richer. Then I discovered just prior to separation directly from banking records large sums were "Wire Transferred". Completely unaccounted for. So I'm pretty damn angry. Not only do I go through allegations of abusing my son and verbally abusing her but then I find this crap. So it's easy to say let it go but she's cheating...in plain sight.



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