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Alpinist 01-12-2021 05:09 PM

Amend separation agreement question
 
Hi all,
My ex and I have been divorced for a few years. We have a valid separation agreement in place. Our agreement seems to be fine, aside from a few items.

We have 2 school age children and I earn 40,000 per year and he makes around 140,000 per year plus 15,000 in bonuses, overtime as well as he owns an income property for about 1800 per month. On a side note he has hidden parts of his income from me such as a bonus over 10,000 as well as had his family member pay rent for his income property under the table so as not to have to include the amount paid toward his income.

He has been pressuring me into changing our separation agreement so that he is able to claim one of our kids as an Eligible Dependent. We didn't realize when we made our agreement that CRA would deny him because he pays me the offset amount.

A couple of years ago he was pressing me to change the support agreement as he keeps getting denied the eligible Dependant. We tried adding our own amendment to the agreement with taxes but that was not acceptable to CRA. We had agreed on amount that he would pay me for support based on the csg.

He is really pressuring me now to have our separation agreement updated Before this year's tax deadline. Aside from him changing the wording for him to be eligible to claim one child at taxes, he has stated other items he wants to add that I would have to review with a lawyer.

I think the agreement is fine as is. Is it legal to change the wording of our support to indicate that I pay him support and he also pays me support... In order for him to claim eligible Dependant? It seems a bit far fetched as he makes 3 x more money than I do, and I don't make a support payment to him. Will CRA recognize him as being eligible if he changes the wording? Should it be him paying the lawyer fees to review this all, or would I pay half?
Thanks
RT

Alpinist 01-12-2021 05:52 PM

To be clear he wants to amend it so it states I pay him x amount of support each month and he pays me x amount of support.. So that it looks like we pay each other support... So that he can claim an eligible Dependant at taxes. Really he just pays me an offset amount.

rockscan 01-12-2021 06:29 PM

Well you could simply say no and put him on ignore. If he is not providing proper disclosure you can file a motion for disclosure in the court.

If anything I would be telling him you want to see proof from an accountant that the eligible dependent credit is worth a change; that you want full disclosure on his income annually; and, you want him to pay the legal costs to make the change.

See how much pressure he puts on you then. Plus all the costs go to him.

Hopefully someone else can answer the question of if he is actually eligible for the credit.


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Alpinist 01-12-2021 09:38 PM

That is what I was generally thinking as well thank you.

I have another question. He is also really pushing me toward adding specific post secondary clauses into our agreement. He wants this done before tax time this year. The children are in grade 7 and 8. I have an idea about how to handle it however since it is so far off I really don't know how to word this in the agreement. Things could change a lot by then. Is it too early to be adding this into our agreement?

Thanks again

Alpinist 01-14-2021 09:38 AM

My exs proposed 'amendment' wording to our separation agreement :

Eligibility for Child Support

1.1 Child support payments for a child end when one or more of the following occurs:

(a) the child ceases to reside full time with both or either parent; "reside full time" includes the child living away from home to attend an educational institution, or take a vacation while otherwise maintaining a residence with both or either parent;

(b) the child becomes eighteen (18) years of age and ceases to be in full-time attendance at a recognized educational institution;

(c) the child completes one under-graduate degree from a university or graduates from a community college;

(d) the child marries;

(e) the child dies; or

(f) the child turns 23.


1.1 X and X do not have an obligation to pay for the children’s post-secondary education, or living expenses when the child is living away from home to attend post-secondary education.

1.2 During the months when a child is attending post-secondary education (typically September through April), (payor) may reduce their child support payments to (recipient) up to 50% by contributing an equal amount to support the child’s education or living expenses when living away from home.

iona6656 01-14-2021 10:55 AM

what's the custody arrangement?

(did I miss that)

Alpinist 01-14-2021 11:03 AM

We have shared custody 50/50

iona6656 01-14-2021 11:05 AM

Quote:

Originally Posted by Alpinist (Post 244863)
We have shared custody 50/50

isn't it customary in 50/50 cases that each parent gets to claim one child each?

or alternatively you alter the years you claim?

rockscan 01-14-2021 11:16 AM

Quote:

Originally Posted by Alpinist (Post 244860)
[B]


1.1 X and X do not have an obligation to pay for the children[emoji769]s post-secondary education, or living expenses when the child is living away from home to attend post-secondary education.

No. Do not agree to this.

Modify it to

Both parents will contribute their proportionate share of post secondary expenses. Post secondary expenses are defined as tuition, books, equipment, residence fees and meal plan. The child will contribute 1/3 the total expenses with the parents splitting the remaining net cost proportionate to income.

As for the last clause, change it to

Should the child live away from home for post secondary studies, support will be paid at full table for the months the child lives at home (May to August) and this amount is to be averaged out over 12 months accordingly.


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Alpinist 01-14-2021 11:20 AM

Hi, yes our agreement states we can each claim one dependant. The problem is CRA will decline him each year because he is the support payor (ie he pays me an offset amount of support). We have tried to submit an amendment to say I pay him an amount and he pays me an amount and they still deny him. I have even submitted documents to CRA regarding payment in order to try to help him. When it comes down to it our agreement states our support is based on CSG and he pays me an offset amount so he is never able to claim support. It is all confusing to me. Now I am being pressured by him into updating our separation agreement to change the wording so that he might be able to claim one dependant. I am not sure if this is possible.. As I don't actually pay him support... He pays to me an amount that is offset.

He's also wanting to have our post secondary school wording updated. Our kids arent in high school yet and I'm not sure what is typical wording to have. His wording is a bit confusing to me. I'm sure I'll have to get it reviewed by a lawyer.

Alpinist 01-14-2021 11:27 AM

Thank you rockscan, that all makes sense to me.

What about this wording here?? "Both or either" ? "Vacation" ??
Its confusing to me.

1.1 Child support payments for a child end when one or more of the following occurs:

(a) the child ceases to reside full time with both or either parent; "reside full time" includes the child living away from home to attend an educational institution, or take a vacation while otherwise maintaining a residence with both or either parent

rockscan 01-14-2021 12:39 PM

Its a ridiculous point and it doesnt matter. Unless your kid is planning to move out permanently to go to school (ie live away all year long for four years) or take a year long vacation, it doesnt come into play.

You will have to accept that if kids arent living at home you get no support.


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Alpinist 01-14-2021 12:42 PM

The wording about taking a vacation while otherwise residing with a parent was throwing me off. Thx for your help.

rockscan 01-14-2021 02:04 PM

The language they use for post secondary is such bullshit. Especially when it isnt clear on stuff. And that clause not paying for school if the kids goes away? Total crap. Most courts err on the side that kid pays 50% of the cost instead of 1/3 but parents still have a share!


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StillPaying 01-14-2021 02:06 PM

Quote:

Originally Posted by Alpinist (Post 244866)
Hi, yes our agreement states we can each claim one dependant.

Are you currently claiming 1 child or both?

Quote:

Now I am being pressured by him into updating our separation agreement to change the wording so that he might be able to claim one dependant. I am not sure if this is possible.. As I don't actually pay him support... He pays to me an amount that is offset.
He doesn't actually pay you csg support either. You're both paying your proper amounts owed. Once you understand that, you'll see his "pressure" is more annoyance in you stealing his monthly money.

Alpinist 01-14-2021 02:36 PM

I have only been claiming one child. We have tried amending and changing the wording to indicate we are paying each other x.... And the CRA doesn't like that. He wants to change the wording on our separation agreement. My question is... Will this help?? I have no idea. Does anyone happen to know?

The way he wants to work is is remove all mention of child support guidelines and any term about it being offset. He also created a table showing what we 'pay each other'. I don't really pay him anything.. He makes a payment to me. This is why I am confused.

rockscan 01-14-2021 03:38 PM

I believe the language is along the lines of parent a will pay to parent b xxx in child support. Parent b pays parent a yyy in child support.

That way cra doesnt see off set or anything else. Do a search of the forum on cra as there have been many threads and a few people who had this issue have posted what they did that works for cra.


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Alpinist 01-14-2021 03:43 PM

Great, thank you!

StillPaying 01-14-2021 04:03 PM

Quote:

Originally Posted by Alpinist (Post 244873)
I have only been claiming one child.

That's good. Once CRA finally fixes this, your ex will receive the full amount owed and any overpayment to you would be paid back.

Quote:

I believe the language is along the lines of parent a will pay to parent b xxx in child support. Parent b pays parent a yyy in child support.
This is how my order is written. Including a 3rd line saying "The result shall be a set-off amount of x per month payable by y". CRA had no issue with it and we both claim a child.

Alpinist 01-15-2021 07:07 AM

Why would there be an overpayment to me if we are both eligible to claim one child each year?

LovingDad1234 01-15-2021 09:32 AM

Quote:

Originally Posted by Alpinist (Post 244882)
Why would there be an overpayment to me if we are both eligible to claim one child each year?

Because in 2020, if you received $2,000 for CCB when the reality is that you should have received $1,250 and you ex receive $750, the CRA will ask that you give back $750 so that they can rightfully give it to your ex.

Alpinist 01-15-2021 09:39 AM

As far as I know my ex and I both collect CCB and it's only the "amount for eligible Dependant"amount that is in question.

Alpinist 01-15-2021 06:57 PM

Quote:

Originally Posted by rockscan (Post 244865)
No. Do not agree to this.

As for the last clause, change it to

Should the child live away from home for post secondary studies, support will be paid at full table for the months the child lives at home (May to August) and this amount is to be averaged out over 12 months accordingly.


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This is great advice, thank you so much! Our agreement states that we are to discuss post secondary expenses when each kid is in grade 12. They are only in grade 7 and 8. Its hard to determine what kind of support I'll require so far in advance.

rollingesto 01-16-2021 12:46 AM

I haven’t checked recently for updates as it no longer affects me or any clients, but generally shared custody = shared CCB. Each parent is considered based on household income and receives 1/2 of their respective amount. Very straightforward & no bickering.
Last I checked, eligible dependant credit depends on who is paying support. Historically it was that if a parent is “paying support” for a dependant, then that parent is not entitled to claim the credit for that dependant so only one claim max. was available per former family unit. There were some issues re: offset support where this effectively disqualified both parents but I think that was remedied...

feel free to correct me if I’m wrong!

Alpinist 01-16-2021 11:21 AM

Thanks rollkmgsto. I believe you are right

Alpinist 01-16-2021 11:28 AM

Another thing has come up as my child is applying for high schools. My ex has sent me a text stating he is having them apply to high schools. We live 20 km apart from each other in the same city There is a high school near his house but they are not eligible for bussing. We could likely swing having them go there. There is a high school near my house that they could be bussed from.. Only 5 km's from my house.

He has notified me that he is having them apply to 3 high schools..

The 3rd high school is 40 km from my house and 18 km from his house. It is not in the city that we both live in. It is in a direction away from the city and also away from my work as I work in a central location in the city. The reason he is applying there is because girlfriend lives in a town near that school.

I know my child does not want to go to that school.. However him applying me is frustrating.. Should I do anything about this or just ignore it as I don't think there is any chance they would go there.

rockscan 01-16-2021 04:44 PM

Call the school board and find out about rules on addresses. Kid may not be eligible to go to a school where they dont live.


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Alpinist 01-17-2021 10:00 AM

They are eligible to go to that school based off his address as he is closer to the school. He lives on the edge of the city limits of the city we have always lived in. The school is in another town outside of the city. This school is 40 km distance from my house in a different town.

I worry if they decided to go to that school that my ex would move out that way to move in with his girlfriend who lives nearby. If he did move out there... It would become a custody battle for full custody as we would not be able to maintain a 50/50 custody schedule with the kids living 30 to 40 km's away from my house.

I realize this is speculation however I have seen some pretty crazy things happen with other families that I know.

Alpinist 01-22-2021 11:18 AM

I (foolishly) agreed for him to pay me an agreed upon amount of child support a year ago since I was getting so tired of dealing with him. He's been a pain when it comes to figuring out the child table support amount. It should be easy right?!? Just exchange incomes at tax time. He was constantly trying to negotiate to pay me less for example not include overtime and bonuses. If I were to guess I would say he doesn't want me to see his tax return.. As he's received a big promotion at work and also is working overtime and has an income property now.

Not sure what to do now. Since he is wanting to amend the agreement now before tax time.. Would it be fair for me to ask for the table support amount of child support? Thats what we should have done all along.

Thing is.. I just want to be done dealing with him.

rockscan 01-22-2021 11:37 AM

You wanting to be done with him doesnt mean he gets to skirt his responsibilities to his kids.

I would counter that you want to see his full tax return as well as proof of his 2020 income before agreeing to anything.

Truly if he wants something he needs to play ball.


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Alpinist 01-22-2021 11:46 AM

Thank you rockscan. Appreciate it.

StillPaying 01-22-2021 12:26 PM

Quote:

Originally Posted by Alpinist (Post 244985)
Would it be fair for me to ask for the table support amount of child support? Thats what we should have done all along.

Not if you have an agreement. Does it mention updating support or exchanging taxes? Regret is not a material change.

Fix the wording so you can both get the child benefits, as agreed upon. Delaying this is foolish. No need to amend for highschool, university or anything else your ex wants.

Alpinist 01-22-2021 12:50 PM

Yes we are supposed to exchange tax returns. We just didn't last year.

I agree... We don't need to update post secondary wording.. They are only in grade 7/8.

rockscan 01-22-2021 02:27 PM

So basically his major demand is to update the agreement so he can claim one child. The rest are moot updates and unnecessary.

Like I said before, tell him you will consider updating the agreement but until he provides full disclosure on his 2020 income you will not consider it.

Then when he sends that to you, you figure out what the new amount is and propose you update to that with the wording CRA will accept. Tell him the remainder of his requests are irrelevant at this time and you can discuss school expenses with the kids when they are prepared to apply for school.


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StillPaying 01-22-2021 03:03 PM

Quote:

Originally Posted by rockscan (Post 244990)
So basically his major demand is to update the agreement so he can claim one child....
Like I said before, tell him you will consider updating the agreement but until he provides full disclosure on his 2020 income you will not consider it.

He has been trying unsuccessfully for years to get the wording fixed in accordance with their agreement. This delay will not look good on the OP. Holding it hostage will be even worse.

Ex is doing everything right, following the order and paying the correct amount. Yet he's been missing out on thousands due to OP's delays.

Alpinist 01-22-2021 03:09 PM

Thank you very much, that is very helpful. Should he be paying my legal fees to update the agreement since it is a benefit to him for his taxes? Thanks

Alpinist 01-22-2021 03:16 PM

Still paying you have this wrong. For the past few years my ex has been asking me to submit all of these amendment forms for him during taxes thinking this would help and I did everything I could to try to help him including signing and attaching forms to my tax submission.. In order to help him. I have done everything he has asked. It was only a few weeks ago my ex reached out to me asking to update the agreement to fix this, hence why I am on this forum now.. Trying to determine my next steps. I have trying to fix this with him for years, all the while he is paying me below the table support amount of payment. If anything he owes me money.

rockscan 01-22-2021 06:29 PM

Quote:

Originally Posted by StillPaying (Post 244991)
He has been trying unsuccessfully for years to get the wording fixed in accordance with their agreement. This delay will not look good on the OP. Holding it hostage will be even worse.

Ex is doing everything right, following the order and paying the correct amount. Yet he's been missing out on thousands due to OP's delays.


No he hasnt, her original posts were asking how to change the wording as they have tried other measures and it doesnt work. He has now also asked for additional wording to be changed that is unnecessary AND he hasnt been providing proper disclosure.


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StillPaying 01-22-2021 07:52 PM

Quote:

Originally Posted by Alpinist (Post 244993)
If anything he owes me money.

This is sad. You have an agreement. You know he is paying the amount you agreed on and you also know he is missing out on thousands of dollars over the years which you agreed to as well.

The only way to fix the issue is with an updated agreement/court order. You're not changing a thing except being more specific on how the support amount is paid. This doesn't affect you at all. Instead of sending your letter to CRA, you just need to consent to him sending it to court.

You don't need to amend for post secondary or anything else if you don't want to. What does your agreement say about updating child support?

Alpinist 01-22-2021 08:32 PM

Our agreement states that he is to be paying me the table amount of child support.

Thanks Rockscan for your advice, I will take you up on it.
RT


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