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Access and Off Set Child Support Debacle - SOS

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  • Access and Off Set Child Support Debacle - SOS

    Hello all,

    Looking for some advice on our situation. Sorry in advance for the novel.

    My partner and his ex wife separated in 2015 and entered a separation agreement in 2016.

    While married, they were both equal caregivers. My partner was even a stay at home dad with the oldest son for 6 months while his ex wife went back to work. My partner agreed to let her stay in the matrimonial home as their "primary residence" with one additional access day for his ex than him so she has 4 days (1 additional week night), he has 3 days and holidays are equally shared.

    At the time, he was agreeable to this as he wanted them to have consistency in their lives but him and his ex "verbally" agreed that if she moved, access and support would go to 50/50. He should have known better...verbal agreements mean nothing.

    He did send an email to her lawyer (we added proof of this email in our conference brief) before signing requesting their 50/50 agreement upon moving be added but her lawyer failed to add this and he signed it anyways unaware of how hard it would be to change this.

    He did not obtain a lawyer prior to signing the agreement and she continually threatened full table amount and that getting a lawyer wouldn't change his outcome. He wasn't aware that the access he had was considered shared access and that the off set amount should have been utilized. Something his lawyer would have told him had he gotten one.

    As for support, her lawyer drafted the agreement up that he should be paying $1000 (agreed upon them at the time based on their incomes) despite full table calling for $1210 at the time based on his income of $84,000 (she was making $64k). They made it look like they were doing him a service by shaving off $200 dollars and he had no idea that the off set amount should have been used in their situation which would have called for HUNDREDS of dollars less in support.

    He also agreed to shared all extra ordinary expenses of course.

    From there, they agreed (verbally again) that he would add an additional $200 to cover special expenses as opposed to her sending receipts every month.

    This $1200 was to be inclusive of support AND special expenses regardless of the way the agreement was worded for special expenses.

    She asked one time for more money towards "sports" (ironically before she went to New York for the weekend...) but he said no. That he wasn't open to giving her more.

    Again, he did not have a lawyer (which he's realized was a terrible mistake).

    She moved from the matrimonial home in 2017 and he brought up to her that he was hoping to move to the 50/50 access and support they agreed upon prior to the agreement which she completely thwarted despite what she told him. We even have a text of her saying she's open to allowing him 50/50 IF he keeps paying her what he has been which in my opinion, suggests that he's a completely capable father but she just wants the monthly pay checks. We recorded this text in a recent case conference brief.

    ***Side note, this is a woman who's admitted to several family members that she has a shopping problem, has always lived heavily in consumer debt, spent a home equity loan in implants amongst other things and had thousands of dollars on hidden credit cards during their marriage so it's obvious why she would want to continue receiving this money despite our access already being OVER the 40% threshold.

    She's also taken 7 vacations (all 5 days or longer) WITHOUT her children and we gladly cared for them each time.

    She's now making $85k and my partner $95K calling for an offset amount of approx. $104 in support a month (plus shared expenses of course). He's tried numerous times to sort this out personally and via counsel with numerous offers.

    He's offered her $300 a month in support over the $104, allowing that she keeps the $500 a month child tax benefit she's been receiving and that he will never claim it and that they split all expenses in proportion to their income. She will NOT budge.

    He also offered to continue paying her the $1200 for 6 more months so she can get financially organized and then it would move to the off set. Again, no budging from her.

    We've now motioned for a change in access to 50/50 (2 additional days a month for my partner) and for the offset support amount to be utilized as it always should have been.

    She's now served back denying his claims as well as motioning for retro on support and special expenses. Trying to dispute why he shouldn't have 50/50 access now that we served her. She's saying he doesn't attend doctor's apps or parent teacher meetings amongst other things which isn't true (we have numerous texts of the kids at appointments or of him saying he'll take them).

    She's also listed a few things suggesting he favours his own schedule over time with the boys because he golfs and plays hockey sometimes which never effects his time with the kids? She does things on her own time as well?

    She's saying that because she lives closer to the school and they can walk from her house next year, that they should stay with her more even though we only live 8 driving minutes from their school.

    She's also trying to get retroactive payment on support (saying he should have shown his income yearly - which he did and we have an email of it) as well as retro special expenses even though they verbally agreed to $200 being enough AS well as trying to get her legal costs covered. It's SO sad thinking that she would try to basically bankrupt the boy's father when both boys are so close with him. The standard of living would change drastically here if she got everything she asked for.

    They have their first case conference this upcoming Tuesday which will most likely amount to nothing. She's denied or ignored each reasonable offer and is still going for everything she originally asked for.

    That said, my partner's lawyer is motioning for an interim order the day afterwards assuming she won't settle (and she won't) for the off set to be utilized until the case is fully heard.

    Based on the above, what are the chances of the separation agreement being put aside as he didn't have a lawyer and his chances of getting 50/50 fully (already having %43 or more access) as well as the court granting an interim OR final order for reduction in child support to the off set amount and access?

    Is there a chance she could win retro and costs?

    Thank you.

  • #2
    They don’t decide costs at conferences, it would be at trial and she would have to do better than what was offered.

    The judge will err on the side of the agreement. Did it list payment of s7? Did it say anything about him paying for specific things? For instance: dad will pay his proportionate share of the net cost of camp, swimming, hockey and daycare. If nothing was written then she would have to prove she sought written approval for the expense.

    Comment


    • #3
      My partner is filing for an interim motion for off-set as opposed to full table as he has a min of 43%. Is it likely a judge will grant this?

      The agreement does say "the parties agree to share any major expenses relating to the children in proportion to their respective incomes by s.7 provided both parties are made aware of any such expenses and agree".

      She often times spends the money and told him afterwards. That wasn't an issue until recently when she tried to say his contribution wasn't enough.

      He didn't have a lawyer when he signed this, do you think the agreement could hold up?

      Comment


      • #4
        Originally posted by EmilyJ View Post
        My partner is filing for an interim motion for off-set as opposed to full table as he has a min of 43%. Is it likely a judge will grant this?

        The agreement does say "the parties agree to share any major expenses relating to the children in proportion to their respective incomes by s.7 provided both parties are made aware of any such expenses and agree".

        She often times spends the money and told him afterwards. That wasn't an issue until recently when she tried to say his contribution wasn't enough.

        He didn't have a lawyer when he signed this, do you think the agreement could hold up?
        did he sign anything saying that he gave up his right to have a lawyer look it over?

        Comment


        • #5
          He didn’t fully read the agreement which was his mistake but now that we’ve reviewed it, it says something about him having been advised to get counsel regardless of if he did or not and that he’s signed it without persuasion ....

          I know that it was a mistake to not fully read it over but he wouldn’t have understood how hard it would be to amend had he gotten representation. His lawyer is arguing that she basically told him not to bother with a lawyer which is true and he signed to stop the conflict.

          Could they set it aside?

          Comment


          • #6
            He signed off on not needing legal representation so it is unlikely it will be set aside on the basis that he didn’t read what he was signing and didn’t get legal advice. He is an adult who made adult choices. Is the money you are going to spend on lawyers (and the time suck of court) worth it if the agreement is ultimately held up in court? Offset isn’t guaranteed at 40% (or even 43%). Now you have opened a hornet’s nest and she can ask for the additional Sec 7 which may end up costing him even more, because if he (or you) is going to ramp up conflict than she may as well retaliate. Meanwhile, sounds like his lawyer is seeing dollar signs in this conflict and is making bank by telling you what you want to hear.

            As an aside, new partners that get overly involved (or instigate) in affairs between prior partners rarely make a situation better, usually to the detriment of ALL relationships. Let your partner take the lead on this one and decide what he is comfortable with. Your digs at her spending habits are saying a lot more about you than they are about the woman who has been successfully co-parenting their children.

            Comment


            • #7
              I understand what you’re saying but I’ve also been an active caregiver in their life for 4 years so I’m not a new partner. I’m invested in their well-being as much as anyone. Both boys have asked to be here more and don’t understand why they’re not. She isn’t successfully co parenting. She’s been manipulating time to be in her favour when it comes to schedule when she used to be flexible so it looks like she has more time with them and has said terrible things about his inability to care for them. Meanwhile, agreed to allowing him the time if he continued paying her.

              I know the issue is mostly access but it’s sad when a person will dangle time in front of a father with a price to it. Otherwise, won’t allow him to have it. She’s admitting he’s a great father but she wants the money and isn’t open to changing the schedule regardless of the boys wishes. I wouldn’t call that successfully co parenting. I would call it parent alienation and self motive.


              I wasn’t taking a jab at her personal spending habits as a low blow but trying to give background on the type of person she is. She’s always put money before her children and if that’s not clear in the above, not sure what is.

              Comment


              • #8
                She can say whatever she wants in her response. It doesn’t mean shes going to get it.

                The best thing he can do is start putting together what he is willing to settle for. Then the judge will set out what the law says, what their agreement says and what they are more than likely to get. He should be thinking child focused. Why its a good plan to have more time with dad. Do not bring money into it. He spends extra time, he has good experiences, he is hands on and goes to events and appointments, he is able to help with home work etc. She could demand money twice a day every day—as long as she demonstrates its better for the kids to be with her, none of that matters.

                Comment


                • #9
                  Did the agreement provide for a waiver for Independent Legal Advice? If it did, it will be harder to set aside the agreement. If it did not, than it is more likely the agreement would be set aside.


                  There are many cases where parties have signed the waiver of ILA that are set aside for any number of reasons.


                  Just focus on reasonable offers to settle and go from there.

                  Comment


                  • #10
                    Yes, there was a waiver that we're seeing now unfortunately. I don't think he realized how binding this would be years down the line or what the waiver really suggested.

                    Essentially at the end of the agreement it says he understood his rights in full and signed under no duress regardless of not having counsel.

                    I have read that many judges disregard waivers and assume an average person couldn't possibly understand their rights without interpretation from a lawyer. Is that true?

                    He signed assuming that if he ever wanted this changed, it wouldn't be a problem but had he gotten a lawyer, he'd know how difficult it was going to be and wouldn't have signed.

                    It was his mistake to sign it in the first place. They had a verbal agreement that if she moved, she would let him have the kids 50/50 as opposed to 40/60 and that support would move to the off set amount. He even emailed (which we attached to our motion as evidence) her lawyer at the time of the agreement being drafted to request this but her lawyer failed to do so and he signed (not the best idea) anyways to end the conflict.

                    She constantly told him that getting a lawyer wouldn't change anything and that there was no point.

                    Really hoping a judge sees this as operating in poor faith on her end and her lawyers.

                    I hope the proof that they actually did have those conversations to change it when she moved helps support his claim but she really has screwed him.

                    He's made about 3 offers at this point. All above the off set amount, letting her continue to claim the benefit and so on. She's ignored all and has not put in one reasonable offer herself. Just that she wants more and more and more money.

                    Does this reflect badly on her?

                    Comment


                    • #11
                      The problem with the money argument is that it doesnt matter. She could only tell him he owes money and alienate the kids, the judge will only look to the law and the agreement. What does the agreement say about the money. Did he pay what it said. Thats the answer to the questions.

                      Most parents in legal cases are money grubbing jerks who use the kids as bait. This isnt new. Focusing on it will only frustrate you. Get through the conference and go from there.

                      Comment


                      • #12
                        “New partner” doesn’t mean recent, it means the partner since the original relationship.

                        When you go to court it is important to go with clean hands. Judges look at parenting time (if it has been denied) and support (has the correct amount been paid). She hasn’t denied parenting time (you said she has given him extra time too). Your partner negotiated to pay less than table by a significant amount AND hasn’t been paying full Section 7 (including refusing to pay when he was asked for a legitimate expense). But the biggest problem is that he has not increased his child support despite making an extra $10,000 vs three years ago. So he is underpaying by $400 a month plus whatever the section 7 over the $200 he has been paying. She looks good, he doesn’t; and here he is asking to pay even less money.

                        Judges see non-custodial parents attempting to manipulate parenting time get to off-set (especially when the kids hit school-age and are “easier” and less of a time-suck) all the time. Since the agreement is very recent (only two years!), was signed with a legal waiver, and there have been no parenting time issues you should be prepared to have no change in parenting time but have the support re-adjusted to the current income as well as section 7. If he is lucky he won’t have to pay the retro arrears right away. The obligation to update support to match current income is on the payor, just telling her isn’t enough - he has to increase the actual money his children are recieving. The fact it was an on-consent agreement makes it even less likely to Judge would alter the parenting time (surely he is aware of how hard it is to argue a material change in circumstances). It is more likely she will get what she is asking for vs what he is asking for, and if this went to trial she would get costs.

                        If any of this is news to him, then his lawyer is not fully informing him of all potential outcomes. Watch out for a lawyer that only tells you what you want to hear.

                        You asked if her asking for money reflects badly on her and the answer is NO. She is asking, on behalf of their children, for the money their children are legally entitled to. Her NOT asking would reflect poorly on her - she is doing exactly what the Judge expects her to do. This will probably lead to a favourable outcome for her - especially if she has not been denying parenting during all the years of underpayment. It is all about the children’s best interest.

                        Comment


                        • #13
                          To be honest, I've not been voicing too much opinion on the matters to my partner as it's his situation and relationship with his so I'm in no way meddling in this as the "new partner". That's why I felt somewhat put off by your comment suggesting that my involvement was detrimental. I have an internal opinion based on the personal history (which is not as black and white as I've outlined) but nonetheless, I've kept that to myself for the most part.

                          That is why I came to this forum for advice rather than air it out to the personal parties involved. I've remained diplomatic this entire time and have continued to make efforts with their mother so the boys see us all getting along. So has my partner.

                          I understand that an agreement is an agreement but there were multiples texts and conversations between both of them and requests to her lawyer prior to him signing where she promised that if she moved, she would lessen the support and allow him 50/50. Yes, it was his mistake not ensuring that be put in the agreement but that's where the frustration comes in.

                          There's also a text of her saying she would agree to all of these changes if he paid for the amended paperwork. When she realized what the off set amount actually was is when she started fighting back to which my partner tried to increase several times to settle.

                          He's made 4 settlement offers at this point. All way above the off set amount. All allowing her to keep the $500 a month benefit without claiming anything. All saying he'll pay his proportionate share of all expenses. There's been numerous efforts on his side to settle this outside of trial and courts and she's ignored each. She's ignored every single offer without being willing to discuss. She won't attend mediation. Nothing.

                          She's been manipulating the schedule to her benefit now and hasn't been giving him the same access at all and isn't telling him when she's having other people watch the kids on her time like she used to so it doesn't look like additional access time.

                          She changed her mind entirely and said she'll only give him the kids the full 50/50 if he pays even more. Where is the logic in paying more to have the kids more? Is she really using her kids as bait?

                          With all due respect, I know what you're saying about the agreement and the consequences of signing it but he's not some delinquent father that just wants more money in his pocket.

                          If it means more time with the boys at the end of this, he's fully prepared to leave it as is but I don't think it suggests he "looks bad" by asking for what he trusted she would give him when he moved (access and offset) and for what's fair?

                          Comment


                          • #14
                            Case conference went well today.

                            While the judge stated that the agreement likely wouldn't be fully set aside as my partner could have and should have retained counsel, she said that the wording of the child support section was too vague in regards to the access laid out in the agreement and their respective incomes.

                            She said that both incomes would and should be taken into account based on the threshold met so I'm hoping this brings them closer to at least compromising. Even it's not full table and not the full off set. A middle ground that works for everyone.

                            Next is the settlement conference in June which is a different judge so who knows what will be said there but my partner is going to put some though into some more ways this could be settled to hopefully avoid going to trial.

                            Sounds like his ex and him both said they didn't want to be there today and it was a very civil respectful exchange so there's hopefully some light at the end of the tunnel for them to salvage their relationship for the boys.

                            Comment


                            • #15
                              Sounds positive.


                              The issue the ex will have with the agreement is that her lawyer prepared it and it is sounds very one sided. Judges don't like agreements when the terms of the agreement are unconscionable, especially when it is the benefit of the one that drafted it. There will be certain things that judges won't change, simply because the your partner agreed. But clauses that could be found to be unconscionable, they may be altered. Paying full c/s while having 55/45 parenting time and incomes that are 60/40, is not a clause that will likely stand.


                              Your partner did himself no favours falling on his sword when the agreement was prepared. Now he is reaping the benefits. Hopefully the two of them are able to come to a middle ground.

                              Comment

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