Child Support, 50/50 Parenting, Lay Off
 

Hi Everyone,

Have a question for a family member.

Common-Law separation, a SA agreement is in place, 50/50 parenting on a 2-2-3 basis. Separation happened in September, have been in separate residences since Nov 1st, which is when CS started.

Dad makes over $100k per year, Mom makes about $45k, Dad paid Mom off set CS for Nov & Dec. At the end of Dec Dad got laid off (he works for a union that usually does lay offs over the Christmas Holidays and he gets laid off almost every year). Dad didn't pay CS for Jan yet as he is laid off. Mom asked if he could make a partial payment or something until he is back to work, Dad refused. He also has refused to pay for day care. Mom asked him if he would watch the children, since he is off, however he refused saying he was helping his Dad out. So Mom had no choice but to put them in daycare so she can work and pay for the whole thing.

Dad has said he will try and double up support in February if he gets back to work. Dad is usually called back by now, however about a month before the lay off, Dad was called into HR, as an email he sent Mom from his work email was very abusive towards Mom and HR flagged this email coming through the server (and no Mom did not go to HR about the email). Mom is starting to think that it is possible Dad may not get called back to work, at this point, due to the HR disciplinary action on his file.

In the event Dad doesn't return to work, Mom is prepared to reduce CS, however she is wondering,

When the material change would take effect? Right away or after a few months and would arrears be owed?

What recourse she has to collect on CS with only a SA written and signed between the two of them? Can the SA be filed with the court even though neither of them used lawyers?

Dad has emailed Mom many times over the past couple weeks saying how all she is doing is trying to reap him of his money, when he gets back to work she can continue reaping him of his hard earned money, etc. It is clear Dad isn't happy about his CS obligations and Mom is worried that even if he is back at work, she may not pay the past month (or however long it takes him to get back to work)

Thanks!

If he was laid off did he qualify for unemployment?

CS is usually based on annual earnings, so the fact that Dad was laid off in December shouldn't affect his obligations to pay CS based on the income stated in his most recent tax return (or Notice of Assessment). The reasons why his income dropped in December aren't really relevant. (And I don't think Mom can choose to reduce CS, even though I understand she's doing it to be helpful to Dad - it's the right of the child, so Mom can't set the amount).

As to whether their agreement is enforceable or not - Mom should contact whichever agency handles child support enforcement in her province (in Ontario I believe it's FRO, in Alberta it's MEP) to find out.

Ahem, the FCSG dictate that its based on most current income and go on to say that if line 150 is not a true picture of your income then you use other methods.

If dad had a steady run of being laid off for December and it was established as being the standard for years then yes income tax would work.

In this case, dad pulled a stupid and may be getting himself fired. If thats the case, he has to deal with the fall out and find new work and prove why his cs should go down.

If hes simply being disciplined then he more than likely is on EI and his cs should be based on that until he goes back to work when it would then go up.

Mom is not responsible for his bonehead moves that land him on the unemployment line. She should be filing with a maintenance agency and letting dad deal with the fall out. Its not like hes paying table level support. And his EI would be about 60% of his income which is still higher than mom.

If she wanted to be reasonable, she could ask (in writing) what is happening with his work and when he expects to be earning a pay cheque again. Also ask for proof of his unemployment income (he just logs into his account and does a screen cap) and proof that his lay off continues.

He would need to demonstrate his efforts to find new work. Its very much like a hardship/purposefully underemployed situation.

You meant that mom is prepared to pay CS since she will have a higher income.

I mean, that is what you meant, right?

If the agreement has actual numbers, then it can be enforced. If it has vague descriptions of money to be paid, then it cannot be enforced. The lack of lawyers is totally irrelevant.


If Dad has been laid off, then he is having serious financial pressures now that will be having an impact upon her children. I appreciate that many mothers can't worry about anything besides themselves, but perhaps you can advise the mother in this case to actually spare a thought for her children and not collect support from a household that is struggling financially.

IF someone is utilizing a child maintenance enforcement agency (MEP/FRO) they can certainly negotiate a lower payment (with a schedule of make-up payments down the road when they are again employed).

Berner, a Form 26B, Affidavit for Filing Domestic Agreement has to be filed with the Court with the Agreement. They send it to FRO who sends a package to the client to complete, including a statement of arrears.

I would assume when the adjustment period comes (July) if mom is making more than dad then yes she would be paying CS. However can Dad really go from making over $100k and now just claim to be making nothing? The question was how soon does the change take place? Dads been laid off since before the holidays, not sure when he will be called back or if he even will. So does the change take effect right away? Meaning for Jan Dad doesn't owe CS because he is laid off?

Mom is willing to work with Dad but he also shouldn't be allowed to not pay anything. Even day care when he refused to take the children. Please tell me you agree with that?

What if now without the CS moms household is struggling even more than dads? Seeing how she now loses the CS and has to pay all day care fees because Dad won't watch the children while he is off work? Is it fair mom has to now scramble to make ends meet because of dads screw up?


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Yes and no... Dad is and has been laid off every year since mom and him were together (7 years)... however it is always before the holidays and he is hired back after the holidays. This is the longest he has been laid off and he has no recall date. Could this be because of the HR issue? Most likely because mom works in the same area as dad and knows others have been hired back instead of Dad.

Mom is working towards being able to make ends meet without dads CS but because this is only the second month and mom was left with other bills from dad ($700 cell phone bill, $400 cable bill, $1500 furniture loan) she isn't getting as far ahead as she would like, but she will get there


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The biggest problem with losing your job is that you make less income.

So yes, if Dad tends get laid off regularly, and this time around he didn't get his job back, then he very well might have a precipitous drop in income.

Theory vs reality. In theory, CS reflect current income. In reality, we usually calculate CS based on last years income. Not only is that a good predictor of current income but over time it works itself out almost perfectly on the average.

Technically, if his income is zero and a judge would accept that, then his CS for the month would indeed be zero.

I think he should have taken the children. I think that tactically speaking he made a horrible mistake and he will get killed in court as a result.

I think we can be fairly confident that the household that has lost an entire income is doing worse than a household that has lost some payments.

Well, there are two standards here:

A) What is best for mom?
B) What is best for kids?

If you care about A, then Mom should extract child support from Dad and aggressively pursue enforcement measures.

If you care about B, then Mom should recognize that taking money from a house that has lost a shocking amount of income would be terrible for her children and she should in fact probably agree to voluntarily start paying child support immediately.

Offhand, I like to think about what is best for kids, but by the sound of it you are looking out for mom. Nothing wrong with that, just a different priority.

I'm not sure what you mean by "fair". Generally, support issues have nothing to do with "fair" by any definition.