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Partial Settlements - How to deal with them?

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  • Partial Settlements - How to deal with them?

    I hope I am not wearing out my welcome, I appreciate the advice I've been given so far and hope to bounce some ideas from you.

    I spoke in the past about a Motion to Vary from my ex. We are now set for the motion date, and I am trying to figure out the best approach to hopefully protect myself in terms of costs. I am not getting a warm fuzzy from my lawyer, which is part of the problem.

    I will preface this by stating that we negotiated child support for the last 5 years... which in my mind was a huge mistake...

    The quick history is that we agreed to redirect CS payments to a joint RESP for the sole benefit of the child. We also fixed this amount for 5 years, and Section 7 was limited to 33%.

    Fast forward, and ex is asking for a motion to change, where she gets paid directly, life insurance, section 7, RESP transferred, and retro CS.

    I've acted in good faith, followed the court order religiously and paid my CS obligation, and the child benefited directly. I know... it was good for the child, but the courts don't look fondly at doing things this way.

    I made an offer to settle. I would pay CS, S7 (as with existing order), but I have a big issue with our RESP account, since it was for the exclusive benefit of the child and essentially, she is arguing that it be transferred to her and she could do whatever she likes with it. It should be noted that the RESP came as a consensual motion to vary, where I gave up custodial rights on education as well as any & all tax benefits in order to redirect payments to the child (everybody won, except my payments stayed the same)

    Can I make a "Partial Offer to Settle", would lawyers be willing to batter? meaning that I agree to CS & S7, and they will drop the other claims and only deal with the RESP? Is there an issue with costs in doing so?




    Thanks

  • #2
    You can close the RESP account and would, to my understanding, just have to repay the government its contribution. I am betting that is what the ex intends, effectively getting paid CS twice, if you pay the retroactive amount.

    No way I would be negotiating any deal like this. Draw a firm line, you close the account, you get your contributions back, the money will be paid to her as retroactive child support.

    I know you don't want to do this, you want the money for the child's education, etc. etc. The only way you can protect yourself and the child at this point is to close the account and pay the retro support.

    If you don't, she will continue to seek control of the account, and she will seek retro support in court. At the very least you will spend an equal amount on legal fees.

    The child loses in all of this, but don't get so caught up in blaming your ex that you end up not dealing with this and get railroaded. If you give her control of the RESP, she still seeks retro support. Your child loses, it's not just about you, it's about the child's welfare when she is with you and your ability to provide for her. You aren't protecting the child's interests by giving all your money to the ex, especially in a 50/50 situation.

    The ex is showing you that she will not abide by any agreement between you. You cannot have an agreement with her that isn't by the books, approved by the court, and incorporated into a legal order. Even if she backs off, she has displayed her ethics and trustworthiness. You could negotiate a deal, but if it isn't legally binding, she will change her mind and demand something else in a year.

    Get a binding legal agreement. Don't play games with child support. Have an arrangement the courts will uphold.

    Comment


    • #3
      Mess,

      Thank you for the advice, I think we are of like minds.


      I am getting out of this situation, and if any modification to CS is to happen, it won't be on me.

      Right now, the ex is demanding the RESP account, and is willing to give up on the retro part (a difference of perhaps a $1K - $2K.), however I over-contributed to this RESP by about $3K, trying to be a nice guy...

      Essentially, the ex is arguing about the future value of the RESP, transfer it to her name as CS instead of the agreement that it was the child's money.

      Comment


      • #4
        Mess, with your thoughts above, it sounds to me that this would be better dealt with by way of motion rather than to settle it.

        I am trying to weigh the difference of a) just giving up control of the RESP or b) dealing with the cost of litigation for an agreement that was made.

        Comment


        • #5
          As well, given that we agreed to "Contract out" for CS obligation, wouldn't this have some merit, or is it just something a judge would reverse?

          Comment


          • #6
            It depends on too many factors. I have seen judges take unorthodox arrangements into account and turn down claims of arrears. I have seen the opposite.

            Did you both have indepenent legal advice at the time of signing? Are your financial situations both stable? Is the child's standard of living roughly equal in both homes? If she makes less, but for example pays less rent?

            You can still avoid a motion but absolutely have an agreement that you know will be supported by the courts, get independent legal advice, have the lawyers sign the agreement, register the agreement with the courts.

            Comment


            • #7
              Mess,

              Yes, everything so far is with independent legal advise. Thanks to the ex for insisting on this. It was also made into a final order. Our financials haven't changed much, we both have had increases, but ex's were more than mine in reality. aThe standard of living is probably better with ex, but for arguments purposes, let's call them the same. similar house, same neighbourhoods ad in the same school.

              I wish the old court ordered consensual order would stand, but I am having my doubts at this point.

              Comment


              • #8
                With all of those points, I would say you have a strong case for avoiding retroactive support payments, but I think you would be better off with a conventional child support arrangement going forward.

                Comment


                • #9
                  In high conflict relationships I don't think it is a good idea to pay direct... FRO/MEP is preferable.

                  Comment


                  • #10
                    I've heard terrible things about FRO, so I've tried to avoid it. My issue stems mostly from an EX who likes to litigate and re-litigage everything. I do agree however, it is not in my interest to do anything un-conventional with respect to child support, as it will just lead to further litigation down the road.

                    Comment

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