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  • #16
    Originally posted by Arabian
    you come across as someone who drew up the agreement with intention of trying to not pay what you are supposed to be paying.

    Originally posted by Istanbul View Post
    I understand why you would have this impression. However, believe it or not, it's the complete opposite.

    Originally posted by Istanbul
    The reality is that the gross-up was discussed, I refused it, and the agreement is silent.

    You refused to pay more, but you are not trying to get out of paying what you probably should pay. It is important to be internally consistent, judges really look for that.


    I signed it without legal representation because I wanted to buy peace and move on with my life.
    If your argument was that the agreement needed to be set aside, then that would be a good point. Since your argument is that the agreement needs to be followed to the technical letter, then the above actually hurts your argument.


    I believe the fact that the agreement was written by her means the interpretation of the agreement could be in my favor whenever there are doubts. Even more so because I did not have a lawyer.
    Not a terrible point. The problem is that you sound reasonably sophisticated, which will work against you. It is hard to act like an idiot.


    If I lose in court on this point, then so be it, I am been fooled by someone dishonest taking advantage of the situation.
    Not really. You SHOULD be paying the gross up. Currently you are taking advantage of your ex.


    And that's essentially the problem. Judges are conservative. The gross up is the norm. Why should you be any different? Judges don't like to be different, so you are going to have to have a strong case why your case is different than any other similar case.


    All you have right now is that the agreement is silent on an almost settled point of law.

    Comment


    • #17
      if there is nothing written in an agreement but there are guidelines would the judge just rule that the guideline should be followed?

      Comment


      • #18
        Originally posted by kate331 View Post
        It can take some of us years to reach an agreement that affects our children and our financial future and your reason for not getting legal advice was you where too busy at work???

        If your a professional person with some kind of education and earn a decent wage, I dont think a Judge will buy your excuse. But you never know in Family Court, its a crap shoot.
        Well there are all kinds of people. For some people, it takes years to reach an agreement, and for other people there is one spouse who gives up everything to avoid confrontation, therefore there is not even an agreement necessary and everything is resolved. I have a close friend who handled it that way.

        I was overloaded with work, but of course it's not all black & white. There were other contributing factors and I am not sure if any of this is relevant. It took me several months to tell * anybody * that my ex was asking for a divorce. So no I was not about to tell a lawyer either if I was not telling close relatives and friends. I am not a psychologist and I did not do a self psychological evaluation, but I know for sure I was not in the same mental state as I am today. This was a few years ago. In addition, I knew that when lawyers get involved, the process becomes far more adversarial. I wanted us to negotiate an agreement without lawyers for that reason, but my ex wanted a lawyer so that is her choice. But I did not get one on my side to keep relative peace, which did last for a few years by the way. Now I have a lawyer, and indeed it's far more adversarial than it was back then.

        I am not sure what you mean "I dont think a Judge will buy your excuse". I am not trying to make excuses. If it sounds like it, then I will be careful how I present it in court because I fully assume responsibility. And if you meant that a judge won't believe me when I say I did not have a lawyer, then I would say when the judge see the content of the agreement then it won't be far fetched to think I did not have a lawyer. Also my ex knows I did not have one, and she is not denying it in court. So I thought a judge would not think I am lying about something my ex is not even denying.

        Comment


        • #19
          Originally posted by Janus View Post
          You refused to pay more, but you are not trying to get out of paying what you probably should pay. It is important to be internally consistent, judges really look for that.

          If your argument was that the agreement needed to be set aside, then that would be a good point. Since your argument is that the agreement needs to be followed to the technical letter, then the above actually hurts your argument.

          You SHOULD be paying the gross up. Currently you are taking advantage of your ex.
          Thanks for your valuable feedback.

          A separation agreement is a collection of several components that you either accept as a whole, or you refuse to sign it. I made several concessions and she made several concessions as well. My argument back then is that there are several "dials" to play with: asset partition, child support, spouse support, how many years it's payable, tax treatment, minimum imputed income in the future, what gets included in income, and everything related to children. For a lot of this stuff, we did not follow the guidelines exactly, and in both directions. I refused the tax complication and I said even if she does not like this point specifically, everything else can be moved up or down until both are agreeable that the deal is acceptable in its entirety. And this is what we did.

          For my ex to now go back and try to get more on the elements that she made concessions (there are others besides tax treatment that I have not brought up yet), without wanting to change the parts that I am the one who made concessions, is actually a far cry from saying I am taking advantage of my ex or refusing to pay what I have to pay. That might be true if you look at the tax treatment in a vacuum. To be fair, I am creating a thread here only talking about the tax treatment so I can see that I am not helping myself get good advice from you guys if I do not give you all the facts up front. But I did not think it would be useful to give all details about the entire situation all in the same thread because there would be pages and pages with dozens of different issues mixed together . But perhaps that would have been the better approach anyway. So I can elaborate on what these other parts are, in separate threads.

          My position is that this is the deal that we had (regardless of how it's worded in print), and I have kept my end of the deal, and I can continue to live by it. However I would not mind at all if a judge re-did the whole thing. You want me to pay a tax gross-up? No problem. But then we'll re-do the other stuff where I am the one who made concessions for items others than tax gross-up, and who is paying more than I should if we follow the guidelines. You can't have your cake and eat it too. I either want to keep the deal as it was, or re-do the whole thing. But I do not accept my ex's "pick & choose" approach.

          I am struggling with how to present this in court however.

          Comment


          • #20
            It sounds like you have buyers remorse. And now you have to undo the damage that can be difficult because time has passed and a status quo has set in.

            I still think a Judge might question why you didn't retain a lawyer (if you have the financial means). Lawyers are like Dr's as to privilege, so they would have kept your ex asking for a divorce confidential. That said basically you were self representing and cut yourself a bad deal. Do some research here, they have been many successful people that have self repped.

            I agree that the system is adversarial and extremely costly, I am no expert and can offer only the little experience I have had in court, I apologize if I sounded harsh.

            I do hope you have a great relationship with your children and fight for them if you have too. If you have the time, read all of Tayken posts, it has been very helpful to me.

            Comment


            • #21
              Originally posted by Istanbul View Post
              A separation agreement is a collection of several components that you either accept as a whole, or you refuse to sign it.
              I agree completely. The problem you have is that "no gross up" was not one of the components. If your agreement had specifically said "no gross up", then that would explicitly be one of the components that you guys had agreed to on a holistic basis.

              I refused the tax complication and I said even if she does not like this point specifically, everything else can be moved up or down until both are agreeable that the deal is acceptable in its entirety. And this is what we did.
              Do you have evidence that you refused to pay the gross up? The argument can be:

              1) She brought up the gross up (as shown by evidence A)
              2) I said no (as shown by evidence B)
              3) We forgot to mention it explicitly in the agreement, but it was clearly an active issue that was resolved as part of the agreement.

              However I would not mind at all if a judge re-did the whole thing. You want me to pay a tax gross-up? No problem. But then we'll re-do the other stuff where I am the one who made concessions for items others than tax gross-up, and who is paying more than I should if we follow the guidelines.
              The judge can probably rule on many factors that are not explicitly in your agreement. Anything in your agreement though is much much much harder to change.

              Is there something not in the agreement that you want changed? Perhaps that could be an argument you could reasonably make.

              You can't have your cake and eat it too. I either want to keep the deal as it was, or re-do the whole thing. But I do not accept my ex's "pick & choose" approach.
              Your characterization is incorrect. There are two types of disputes:

              A) Things covered in your agreement
              B) Things not covered in your agreement

              She wants to change a type "B" thing, and you are trying to say that such a change gives you the right to change an "A" thing. That doesn't make sense. Her trying to change a "B" thing gives you the right to change "B" things.

              If she was trying to change an "A" thing, she would need a material change of circumstances, and then you could go nuts changing lots of other "A" things.

              I am struggling with how to present this in court however.
              Basically, you need evidence that the gross up was considered and specifically rejected.

              Comment


              • #22
                Originally posted by kate331 View Post
                It sounds like you have buyers remorse. And now you have to undo the damage that can be difficult because time has passed and a status quo has set in.

                I still think a Judge might question why you didn't retain a lawyer (if you have the financial means). Lawyers are like Dr's as to privilege, so they would have kept your ex asking for a divorce confidential. That said basically you were self representing and cut yourself a bad deal. Do some research here, they have been many successful people that have self repped.

                I agree that the system is adversarial and extremely costly, I am no expert and can offer only the little experience I have had in court, I apologize if I sounded harsh.

                I do hope you have a great relationship with your children and fight for them if you have too. If you have the time, read all of Tayken posts, it has been very helpful to me.
                Buyers’ remorse? Yes and no, I think. The yes part is that hindsight is 20/20: if I knew that she would bring me to court a few years after we signed an agreement, then I would probably not sign it. The no part is that I would not have remorse about the deal as it was, and as both parties lived by it for a few years in relative peace. I had moved on.

                Indeed, money was not a reason for not retaining a lawyer back then; it was all the other issues. Don’t worry about sounding too harsh – I fully realize that people on the forum are here to try to help me and give independent advice and a different perspective, not be a nuisance. I would prefer people here to be harsh rather than be surprised by harshness in court!

                Children is another element of the dispute with far more important ramifications than the tax issue…

                Comment


                • #23
                  Istanbul, have you considered Arbitration instead of going the Court route? It may be a faster process for you and resolve all of your issues at once.

                  Comment


                  • #24
                    Originally posted by Janus View Post
                    There are two types of disputes:

                    A) Things covered in your agreement
                    B) Things not covered in your agreement

                    She wants to change a type "B" thing, and you are trying to say that such a change gives you the right to change an "A" thing. That doesn't make sense. Her trying to change a "B" thing gives you the right to change "B" things.

                    If she was trying to change an "A" thing, she would need a material change of circumstances, and then you could go nuts changing lots of other "A" things.
                    I think you have put your finger on an issue where I am confusing two different concepts:
                    1. There were only two people in the room when the deal was negotiated. I know in my mind and in my heart what was discussed, and what we agreed on. My ex knows it too. Nothing can ever change that, regardless of what is in print, and regardless of what a judge thinks.
                    2. What the agreement says in writing.

                    I care mostly about #1 but a judge will care mostly about #2, therefore I need to care about #2 as well. As @arabian pointed out, my task will be to do my best to show intent, because this is the only way that a judge would give any weight to the alleged deal in #1.

                    I think hiding or lying about what was discussed is important for my ex because then the judge will only have #2 to rely on. This is where I get hung up. If my ex told the truth in court about what the negotiations and discussions were, how that led to what she wrote in the agreement, and then we let the judge decide based on the facts, then that’s fine. I can accept if the judge says I need to pay XYZ if the judge has all the elements in hand. But lying under oath to hide the true intent of the parties and try to mislead the judge to attempt to maximize financial gain, that is an entirely different game. Anyway, it is what it is, so it’s something I have to work with for now and I cannot change it.

                    So my confusion is that I am treating tax as an “A” thing because it was discussed and covered. However a judge will treat tax as a “B” thing because it’s not written down, unless I can show intent.

                    Back to how I can show what the intent was, I see two possible angles to exploit.

                    - The deal says that I will have a minimum imputed income, and that it corresponds to XXX of child support. The two numbers are joined at the hip and they are based on the Canadian CS formula. For illustration purposes, the agreement says my minimum imputed income will be $200k which corresponds to a minimum child support of $41k (the link between these two numbers being from the Canadian CS formula). At the time the separation agreement was signed, I had not lived in Canada for years (and I still do not live in Canada) and as I mentioned earlier in the thread, I have moved around quite a bit. There was no reason to believe I would live in Canada in the future or no knowledge of where I would end up. Then the agreement describes the adjustments to actual income, and tax is not listed. So clearly the agreement uses Canada’s implied tax rates to make the link between income and CS. I do not know if this is an argument that could have any merit, or whether I am simply re-hashing the same weak arguments as earlier in the thread, and that the conclusion remains that it is silent about tax rates, so therefore the link between $200k and $41k must be broken if my residence is any country other than Canada. If the agreement was only stating one number (the minimum imputed income OR the minimum child support), then it would leave the door open to use whatever tax rate to make the link between income and child support. However, I feel my argument is a bit stronger because both numbers are listed in the agreement, which shows what tax rate was intended to be implied: the Canadian one, regardless where I live. Or am I grasping at straws? I need help seeing this more clearly.
                    - My ex accepted my payments for a couple of years without protesting, and she only filed for divorce and claimed that I underpaid, after I stopped working. So my main question is how long can someone wait before claiming CS retroactively? After about one year, my ex sent me an email reminding me that I needed to adjust for inflation because one year had elapsed, and she asked me when I intended to make this adjustment. So when I want to show intent, the point I would bring up is this: does her behavior not show that there was meeting of the minds about there being no tax adjustment if she worried about something as small as 2% change due to inflation, rather than claiming that I was incorrectly not using a tax adjustment? And why did she wait for more than two years to claim retroactive CS? Both of us followed the agreement without any hiccups for a long time after signing. I am assuming that accepting the payments for XXX length of time shows intent, but I have no idea what XXX is. One year? Two years? Ten years?

                    Thanks to all for your help and feedback, it is greatly appreciated.

                    Comment


                    • #25
                      I agree with your synopsis, particularly if the two figures were specifically spelled out in your agreement.

                      You mentioned your ex had legal advice and you did not. This is a rather big "oops" by her legal team. Nevertheless, it is what the two of you initially agreed to and I believe it would carry weight in court.

                      Your ex would have to come up with a plausible reason why she took so long to change CS. If she can prove that she initiated discussion with you then it MAY be considered from date she first raised the issue. Court could consider, however, the impact on child's life had your ex received more money.

                      Go on to CanLii and research 'intent or spirit of agreement' or something along those lines and you will find case law to support your position.

                      Did the two of you agree to and exchange financials on a regular annual basis? If not, then that is another big "oops" for her legal team.

                      Comment


                      • #26
                        Originally posted by kate331 View Post
                        Istanbul, have you considered Arbitration instead of going the Court route? It may be a faster process for you and resolve all of your issues at once.
                        Indeed I am considering it. Regarding financial issues, I think it does not matter hugely whether there is quick or slow resolution. Regarding children, it does matter. However I see opposite forces which means I am still unsure of what is the best route, as of today. On one hand, children are not doing well with my ex at the moment and there have been several disturbing incidents. They are anxious at the time we can have joint custody, or at the very least being able to spend more time with me. On the other hand, I think if we go to court which is the longer route with a final outcome perhaps in 18 months from now, they will all be older and their opinion is going to carry incrementally more weight than if we have quick resolution very soon. Hence my question in the other thread "How much say does 12 year old have?"
                        https://www.ottawadivorce.com/forum/...ad.php?t=21823

                        Comment


                        • #27
                          I am really confused right now, I take it that you live in another Country and your children are in Canada? How can Joint Custody work? Or even an access schedule? I reread that thread and you have the kids every second weekend and a few weeks a year, do you fly in? And keep a residence here?

                          Comment


                          • #28
                            Most judges cede to the DBS supreme court decision. Even if you both agree to whatever you want, the judge will err on the side of the law. That law basically boils down to following updates when income changes and updating accordingly. Then they decide if there was blameworthy conduct by not updating. In your case you could argue you were following the agreement and were confused by the clauses about tax deductions.

                            The bottom line is child support is about the kids not you or your ex. She can’t negotiate away cs and you can’t hide behind what you two discussed. You need to figure out what your income is equivalent to cdn dollars and update accordingly. Stop worrying about what you both discussed and agreed to. You may want to look up some cases on Canlii on international income.

                            Comment


                            • #29
                              Very good points Rockscan. I would also encourage the poster to not limit his CanLii search to just Ontario but to expand to include other provinces, particularly BC where this situation is not uncommon.

                              Comment


                              • #30
                                This is a rather big "oops" by her legal team. Nevertheless, it is what the two of you initially agreed to and I believe it would carry weight in court.
                                It would be a “oops” if she intentionally wrote the agreement in an unclear way with the goal of claiming more a few years down the road. But if there was no such intent, then showing both numbers in the agreement was simply her reflecting what the real “meeting of the minds” was: no tax adjustment.

                                Your ex would have to come up with a plausible reason why she took so long to change CS.
                                She wrote in her affidavit that it took her some time to “finally get her nerves up” to hire a lawyer to claim more in court. In my humble opinion, this is BS given that she already admitted that she had lawyers working for her during the negotiation of the agreement so why wait so long to go to court for this?

                                Court could consider, however, the impact on child's life had your ex received more money.
                                Ex’s assets as shown in her divorce filing are roughly the same as she had at the time of separation, post asset partition, as declared in the agreement. And her expenses have increased since then so it does not seem like she is in a deficit position. If she has a potential claim that she needs more money, it might be prospectively now that I do not work anymore and that CS has dropped to the minimum CS / imputed income spelled out in the agreement. But that is separate issue than what she is claiming retrospectively. And I think her prospective claim is shakier than the retrospective claim; a sign of this is the fact that in mediation she was first willing to let go of her prospective claim but not the retroactive claim.

                                Did the two of you agree to and exchange financials on a regular annual basis? If not, then that is another big "oops" for her legal team.
                                No we did not agree to any exchange, and she did not ask me anything after separation until she started the divorce proceedings. She had (temporarily) moved on with her life like I had done, and had accepted everything I sent and we lived peacefully for a while.

                                So thank you for the feedback, I will exploit these routes if possible. It won’t necessarily be easy for her to build a fully consistent story about how this went down, since she has to lie in order to do so. Hopefully I can find another crack in her story when we go to questioning.

                                Comment

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