Imputting income and section 7 expense question

[freckles1234]

Children: Girl: 8, Boy: 11 and Boy: 12

Mother: Been on welfare for 10 years with short stints of working at Burger King but quit twice because "it was too stressful".

Father: Works construction, seasonal, has between a $35,000 to $55,000 a year income depending on weather each year.

Mother's lawyer has said multiple times (in settlement meetings so I know it cannot be used) that mother is looking to work full time and I have her posting on Facebook looking for cash work as well as her admitting to working under the table at a club.

We have come to an agreement on most of the issues at hand however we are not agreeing on CS and section 7 expenses.

I have the children every weekend an month minus 1 weekend and every Thursday night. it is worded that I shall have access every weekend from Friday after school until a) Sunday at 7pm if I cannot get them to school or b) Monday at school, if I am able to bring them to school. (We live in different areas and my work schedule is the reason for this wording). I also have them Thursday from 5pm until 9pm or Friday at school, if I can get them there. My goal is to rearrange my work schedule so I will be able to get them there every time.

We share major holidays and I have the rest of the long weekends. I get 3 weeks in the summer and 1 10 day vacation time taken anytime during the year.

In the end, I end up with 49% of the time with overnights, if all overnights are counted. 42% of the time counting hours. My lawyer says it is shared custody. I know that doesn't automatically mean a reduction in child support, and I am ok with it and know my worst case scenario however I am not going to go in and give into my worse case scenario.

Best case scenario - I can input her income however how likely is it that this will happen if she continues to choose to be on welfare until the case is done (her and her lawyer have stated that is what she is doing) I am hoping to be able to input it to minimum wage as that is what she was making at the last job she had which wasn't under the table.

My bigger question is in regards to section 7 expenses especially if I am unable to reduce my CS and input her income. My daughter who is 8 is in competitive cheerleading however she only tried out in May and has started at the beginning of the month, years after we separated (we are dealing with a motion to change, not a new order). Her mother has made it clear she will not be paying for any of it and that I am responsible for it and transportation and competitions. In the end, it will cost me about $6000 for the year however for the fixed expenses, it is still $4500. I do not want to ask her to pay for any of it because clearly she cannot as she is on welfare however I want to know if I can be successful in this being a section 7 expense even though this isn't consistent with our spending pre separation and therefore reduce the burden a little bit. Would that even work with her choosing to stay on welfare?

Thanks for your help!

[Tayken]

I have the children every weekend a month minus 1 weekend and every Thursday night. it is worded that I shall have access every weekend from Friday after school until a) Sunday at 7pm if I cannot get them to school or b) Monday at school, if I am able to bring them to school. (We live in different areas and my work schedule is the reason for this wording).

This is possibly the worst idea above. (BOLD) Never ever let a court order or agreement be made based on your employment schedule. If you were living with the other parent you wouldn't document your lives this way. Suffice to say you cut your legs off the knees when when you allow your work schedule to take priority over the children.

You should find alternative caregivers who can help you rather than manipulating the access schedule into some twisted mess like this!

I also have them Thursday from 5pm until 9pm or Friday at school, if I can get them there. My goal is to rearrange my work schedule so I will be able to get them there every time.

You can always have SOMEONE ELSE like a family member care for the children in your absence. You do not have to be present for your access time. Nor does the other parent have any right to tell you what to do on your access time with the children and who can care for them.

We share major holidays and I have the rest of the long weekends. I get 3 weeks in the summer and 1 10 day vacation time taken anytime during the year.

In the end, I end up with 49% of the time with overnights, if all overnights are counted. 42% of the time counting hours. My lawyer says it is shared custody. I know that doesn't automatically mean a reduction in child support, and I am ok with it and know my worst case scenario however I am not going to go in and give into my worse case scenario.

Danger danger will Robinson. The reality is that most judges will not look at your schedule as "equal". You forfit your time with the children when it doesn't suit your employment needs. The meaninful time is spent with the other parent during school hours. For a shared access (equal access) configuration it is best to have a REGULAR and NORMAL schedule. 2-2-3, 2-2-5-5 or week-about. Judges quite often will not consider your schedule as "equal" as the heavy lifting of getting kids to and from school is done by the other parent.

As well, if you are doing this to reduce CS good luck. Judges are not automagically required to order offset child support. It is based on Contino case:

Child Support and Shared Custody - the Contino case - Ottawa Divorce Blog

In your situation with the other parent on social assistance. Even if you have "shared custody" you will be ordered to pay "full table support".

Best case scenario - I can input her income however how likely is it that this will happen if she continues to choose to be on welfare until the case is done (her and her lawyer have stated that is what she is doing) I am hoping to be able to input it to minimum wage as that is what she was making at the last job she had which wasn't under the table.

Again, the court won't impute her income if she has been on social assistance for 10 years. She has not demonstrated consistent employment. You more than likely will be paying full table support.

My bigger question is in regards to section 7 expenses especially if I am unable to reduce my CS and input her income. My daughter who is 8 is in competitive cheerleading however she only tried out in May and has started at the beginning of the month, years after we separated (we are dealing with a motion to change, not a new order). Her mother has made it clear she will not be paying for any of it and that I am responsible for it and transportation and competitions. In the end, it will cost me about $6000 for the year however for the fixed expenses, it is still $4500. I do not want to ask her to pay for any of it because clearly she cannot as she is on welfare however I want to know if I can be successful in this being a section 7 expense even though this isn't consistent with our spending pre separation and therefore reduce the burden a little bit. Would that even work with her choosing to stay on welfare?

Sorry to say, cheer leading is not "special" nor is it "extraordinary". If you want your daughter to participate then you pay. If you cannot afford it you then find additional employment to fill the gap or she doesn't get to go.

A court wouldn't order a parent who makes insane amounts of money to pay for an 8 year old's over-priced cheer leading.

Good Luck!
Tayken

[blinkandimgone]

I absolutely agree on not ever letting your work schedule dictate parenting schedule. I am currently watching a friend in this battle, going on 6 years of trying to undo the mess despite work schedule changing.

Don't do it.

[freckles1234]

Thank you both for your input. That is exactly what I said to my lawyer when making this agreement and he disagreed (although I have had some other issues with him so it doesn't surprise me). It is not about reducing C/S as I am more than willing to support my children however it was my lawyer who stated this which is why I wanted to see how true this was.

The OCL recommended the schedule of every weekend but 1 and every Thursday night sleep over. I didn't have an issue with that as that is basically what is happening now but my ex wanted it put into the agreement that if they were to go to someone else before/after school then she is to have them.

We had previously agreed on 2 nights with me, 2 nights with her and every other weekend however once the OCL sided with her, she of course changed her mind.

She purposely moved out of my area where the kids were going to school last year when I served her court paperwork. I have considered relocating to her area however she has stated to me, my lawyer and her lawyer that if I were to move into her area, she would move again. (This is something that I am trying to have put into the agreement that she cannot continue to up and move the kids)

As for cheerleading, my ex put my daughter into it, told her she can try out, we agreed verbally (my mistake) that we would split the cost and well she has now changed her mind.

[Tayken]

Thank you both for your input. That is exactly what I said to my lawyer when making this agreement and he disagreed (although I have had some other issues with him so it doesn't surprise me).

Your lawyer's primary practice in Family Law? I don't know any lawyers who practice primarily in Family Law that would recommend this to a client ever.

It is not about reducing C/S as I am more than willing to support my children however it was my lawyer who stated this which is why I wanted to see how true this was.

I would challenge the lawyer on this. Ultimately you will be paying full table support until such time the other parent gets a real job. Imputing income is usually only done to those who have educations and a previous work history. 10 years on social assistance is LONG.

The OCL recommended the schedule of every weekend but 1 and every Thursday night sleep over.

OCL isn't really great at what they do.

I didn't have an issue with that as that is basically what is happening now but my ex wanted it put into the agreement that if they were to go to someone else before/after school then she is to have them.

Right of First Refusal. BAD IDEA. Read this:

Your Social Worker - Gary Direnfeld, MSW, RSW

We had previously agreed on 2 nights with me, 2 nights with her and every other weekend however once the OCL sided with her, she of course changed her mind.

That is a 2-2-3 schedule. Did you have a written agreement to the 2-2-3. If so you should have stuck to it and not motioned jack squat.

She purposely moved out of my area where the kids were going to school last year when I served her court paperwork. I have considered relocating to her area however she has stated to me, my lawyer and her lawyer that if I were to move into her area, she would move again. (This is something that I am trying to have put into the agreement that she cannot continue to up and move the kids)

You should have blocked the school move too. Emergency motion.

As for cheerleading, my ex put my daughter into it, told her she can try out, we agreed verbally (my mistake) that we would split the cost and well she has now changed her mind.

Simply take her out. No need to fight over the activity or go bankrupt over it. You daughter will be happier in the long run if you don't fight over it and don't go bankrupt over it.

Good Luck!
Tayken

[Janus]

She purposely moved out of my area where the kids were going to school last year when I served her court paperwork.

You didn't immediately motion to stop the move?

You are lying or your lawyer is so unbelievably bad it is painful.

Anyhow, by not fighting the move, you acquiesced to it. In family law, that is pretty much equivalent to saying "the other parent is better and I suck".

That is when you lost your case.

I have considered relocating to her area however she has stated to me, my lawyer and her lawyer that if I were to move into her area, she would move again. (This is something that I am trying to have put into the agreement that she cannot continue to up and move the kids)

Try to get that in writing.

[freckles1234]

A quick background

Kids lived with me from July 2014-July 2015 (mother lost her apartment and was couch surfing during this time), when I served court papers and she took the kids back because she had full custody from 2010. She did not have a place to live and brought the kids to her friends house to sleep on the living room floor until September 2015 (which is noted in CAS files as she has had them involved for 10 years too). (April 2015, a motion to change on consent was signed by both parties agreeing to week on/week off however when I went to file it, the court asked for a 35.1 affidavit and mother refused to provide one because she was living couch to couch and couldn't fill it out, so I served her to go to court June 23rd)

July 2015 - Emergency motion filed and denied - mother was within her rights to take them as she had custody
July 2015 - Regular motion filed and was told I need to wait until a case conference

My lawyer was hired

First appearance - August 2015- She retained a lawyer same day and it was put over as he wasn't familiar with the case. Granted. Filed another emergency motion for the school to not be changed, denied - mother was within her rights.

October 2015 - first CC, filed for return of the children and a temporary order for custody - denied

January 2016 - second CC, got a temporary order having the kids every weekend until a final order is made and OCL was ordered.

April 2016 - third cc, mother and I came to another agreement, 2-2-3 agreement as stated above - agreed infant of the judge, both lawyers and us. Judge ordered us to write up the agreement and come back July 18th. Also have emails re: new agreement where mother says yes this is what we agreed to.

May 2016 - OCL disclosure meeting. OCL recommends 3/4 weekend and 1 night per week with me and mother to have full custody. Mother now changes her mind on previous agreement and wants the OCL recommendations.

I have an email of her stating that she does not want to be near me so if I try to move to her area, she will move out.

My lawyer is primarily Family Law and came recommended which is why I went with him however he does not answer any of my questions and when I question him on anything, he pretty much tells me how stupid I am.

I have a settlement meeting on July 14th and court again on July 18th and if it is not resolved, I will be firing my lawyer and finding a new one.

I do realize that I have gone about this all wrong and wish I had looked further into a lot of the issues however I cannot change the past. So yes, lets put it out there, I AM A MORON! I have binders and binders of evidence, emails, CAS files, Dr's reports, etc. but I was hoping to avoid trial and settle it as we had agreed over a year ago.