Section 7 and unilateral decisions

[Gilligan]

My ex is pretty high conflict and we are going to court next week on Child Support related items.<O

I have always paid child support, but we had a weird arrangement where we redirected support for the child into the child’s RESP. The ex wants support going forward which is fine, but the ex also wants to collapse the RESP and take the funds (which is NOT OK with me) and retro-active support despite the fact that we followed the order to a “T”.<O

In any case, their lawyer is doing everything they can to try to paint me like a dead beat dad... recently, they sent me a letter (same day as the affidavit, which was included in the affidavit). Saying that they wanted to register the child in a number of summer camps. But the reality is that I currently pay for full time day care and the camps she suggested are a REALLY poor fit for our child. In their letter, they said that they wanted answers (although I’ve already told my ex that I do not consent) and now that the ex has registered the child, ex wants me to pay.

I know this is just legal pestering, but would it look bad if I don’t consent to a class? We’ve never done a summer camps before. As well, can the ex register for the class and expect me to pay for it without getting consent before hand? Even though they wrote me a letter from their lawyer.
<O
I don’t like playing these games, which ultimately is about driving up my legal costs.


Thanks

[dad2bandm]

...
<o...Saying that they wanted to register the child in a number of summer camps. But the reality is that I currently pay for full time day care and the camps she suggested are a REALLY poor fit for our child. In their letter...

Can you clarify this?
Are you saying that your child is already in "daycare", that you pay for then (or presumably split the cost, with the ex)?

So they want to put child in summer camps as well? When are these camps? Are they during the time that your child would be in daycare?
</o

[HammerDad]

I have always paid child support, but we had a weird arrangement where we redirected support for the child into the child’s RESP. The ex wants support going forward which is fine, but the ex also wants to collapse the RESP and take the funds (which is NOT OK with me) and retro-active support despite the fact that we followed the order to a “T”.<O

Your agreement is likely going to get thrown out the window.

Essentially, what you had was a situation where the ex agreed to direct the sums that should be going directly to them to somewhere else, like another account. Now they want to close that account and you don't like it. But the reality is, the funds in that account are theirs to do with as they deem fit. For years they agreed it was best to be put in the account, now they don't agree.

Look at it like this. You have a bank account and your work deposits the money into that account. One day, you decide to change banks. Your work doesn't get to put up a fuss about the change, they just have to ensure the funds are put into the new account.

I have a feeling you will likely be left with 2 choices once the time comes:

1. you agree to release your ex's money to them; or

2. be hit with arrears as the funds that you would have otherwise paid to the ex.

C/S is the ex's to deal with as they see fit. If they want to blow it on hookers and coke, that is their choice. They agreed for some time to put it in an account, that was their choice. But they are also free to change their mind.

As for the s7 stuff, I'd reply with you don't agree with their unilateral decision to register in the camps. And should you be responsible for some of the costs, you assume that daycare costs will be reduced by an amount equal to the days the child misses for being in the camps.

If the costs are high, you suggest that due to such large costs, you would have expected your ex to obtain your prior consent to the camp as you are unable to fund such things without prior notification and it is unfair for them to expect you to. And if the child hadn't been registered in such camps years prior you would have no way to anticipate such large costs and budgeted for them.

[Gilligan]

I should clarify to answer some questions.

- We have joint custody with a 50/50 access schedule and I pay off-set guildlines.

- Child is 9 years old, and does not want to go to camps.

- I am currently paying for full time care for the summer, this camp would be paying for a 2nd care provider for the same time period

- I agree, my agreement will be changed but we had negotiated a lot of stuff to make the RESP happen. Like me giving ex all Tax benefits, changes in school terms, etc... I have over contributed to the RESP and gave up a lot in terms of benefits. I don't have a problem with changing support going forward, but this was a consentual court ordered agreement that ex is wanting to undo, however ex doesn't want to give back what she negotiated in her interest.

Thanks,

[dad2bandm]

- I am currently paying for full time care for the summer, this camp would be paying for a 2nd care provider for the same time period

Hence, the reason for my request for clarification, earlier in the thread. :-)

Typically, with full time daycare (if you are using a daycare facility, and not some "at home", stay at home Mom who calls herself daycare), the child is required to be in that day care a certain number of days, to still qualify for it. (ex. Only allowed to miss X number of days).

Sounds like, that could jeopardize that?

I'm not sure why "summer camps" are required then, if the child is already in full-time day care?

You weren't consented prior, and it sounds like it's not needed, so don't agree to it then. Don't agree to splitting the cost on it.

[HammerDad]

- I agree, my agreement will be changed but we had negotiated a lot of stuff to make the RESP happen. Like me giving ex all Tax benefits, changes in school terms, etc... I have over contributed to the RESP and gave up a lot in terms of benefits. I don't have a problem with changing support going forward, but this was a consentual court ordered agreement that ex is wanting to undo, however ex doesn't want to give back what she negotiated in her interest.

That is why you need to negotiate it further with her. Just because the ex wants it all, doesn't mean you have to give it up. They don't get to dictate that they are going against the agreement without repercussions like:

1. Claiming the kids at tax time is covered under the Income Tax Act. You can sign one thing, but then claim it at tax time. What you agreed to was contrary to law in that regards. So the ex can complain all they want, but if they move forward as they are, you will update your tax returns for as many years in question to reflect the shared custody arrangement. The CRA will then go after your ex for reimbursement of any overpayments they made.

2. For the overpayments you made to the account, you should be able to figure those out by determining what your c/s obligation was for the years in question and doing some math. Add up all the amounts you "paid" vs what the actual cs obligation was, subtract one from the other and the difference should be your overpayments, which the ex wouldn't be entitled to.

It is unfortunate that the ex is doing this, but it is one of the things we have to accept with ex's.....they can change their minds and screw up an otherwise good arrangement.

As for the child care....are the camps for the ex's parenting time? Or are they on your parenting time? If they are on your parenting time, I'd simply advise the ex that they are not entitled to make arrangements during your parenting time without your prior consent. And that as you didn't consent, you are under no obligation to a) pay or b) attend the camp. If it is her parenting time and you are paying for your own childcare for your time, than that is her choice to register them. If you each pay for your own childcare, than the costs should be absorbed them anyway.

[Gilligan]

I hear what you are saying. I think it is reasonable to move forward with the account in tact and pay support directly, as it is in the best interest of the child. I have done this through offer #1. In offer #2, I've offered for ex to keep the portion of RESP in the value of the CS that was payable, but still no go. At this point, I either give more than was payable per the court order or I find myself before a judge. Which is where I am heading in the very near future.

With the summer camp, it is during a normal work week and the child rotates between the parents daily. So there is no need to do it just posturing before a court case.

[stripes]

It's not clear why you think you would be hit with retroactive CS. If you were paying the full amount according to the offset, with the money being directed into an RESP rather than into the ex's bank account per your agreement, I can't see why she would claim that you were underpaying. My impression is that it's very difficult to make a claim for retro CS, in the absence of fraud, major material change in circumstances, or extreme hardship.

I too had a somewhat complicated financial arrangement in my initial separation agreement (offset CS directed to child care provider rather than simply paid to other parent) which made sense at the time, but switched to the straight transfer between bank accounts for CS with the divorce order. It really made things much simpler, and provided much less material for the ex to get worked up about.

[Gilligan]

We deviated from standard set off amounts because my ex didn't want to equalized a big debt. There should have been a transfer to me for about $20,000 but to address that, we agreed to not vary child support for 5 years. The ex got remarried had another child and has decided not to work.

The ex now wants to be paid the difference in that money, but forgiven for the outstanding debts.

In hind sight, the change in child support was a huge mistake and just let's the ex argue this over and over again. But it made sense at the time, and was a great thing for the child. I guess she saw the opportunity to cash in the child's education to get a large sum of money.

The worst of it is that the difference in child support is negligible, I am just dealing with somebody who is very bitter and insists on taking everything through the courts, trying to either bankrupt me or for me to give her more than is reasonable simply to avoid litigation.

[HammerDad]

We deviated from standard set off amounts because my ex didn't want to equalized a big debt. There should have been a transfer to me for about $20,000 but to address that, we agreed to not vary child support for 5 years. The ex got remarried had another child and has decided not to work.

If that is the case, than you bring your evidence relating to that to court and put it to the judge to let them see that the lower c/s was not just a matter of convenience, but a negotiated amount which took into consideration monies owed to you by the ex. You have good argument as to why the amount was what it was.

The ex now wants to be paid the difference in that money, but forgiven for the outstanding debts.

She can want lots of things. Wanting it and proving she is entitled to the extra amounts are two different things.

In hind sight, the change in child support was a huge mistake and just let's the ex argue this over and over again. But it made sense at the time, and was a great thing for the child. I guess she saw the opportunity to cash in the child's education to get a large sum of money.

We all make mistakes. You just need to get a new agreement/order in place that limits this crap moving forward.

The worst of it is that the difference in child support is negligible, I am just dealing with somebody who is very bitter and insists on taking everything through the courts, trying to either bankrupt me or for me to give her more than is reasonable simply to avoid litigation.

It happens, just make reasonable offers to her and go from there.

As for the RESP, why can't you just take out your over payments and then transfer account to her and let her deal with it? Then set up your own moving forward? The c/s entitlement amounts are hers. She is entitled to them. If you do this, she won't have any argument for arrears, even though her argument is weak anyway. You suggested the RESP account, she agreed and directed you to put the c/s funds to that account. At any point she could've said, "pay me directly" and she could've put the money where ever she wants.

I highly recommend you start paying her directly going forward though. She's put you on notice that that is what she wants. So you have to oblige her request (if you haven't already).

[Janus]

It's not clear why you think you would be hit with retroactive CS. If you were paying the full amount according to the offset, with the money being directed into an RESP rather than into the ex's bank account per your agreement, I can't see why she would claim that you were underpaying. My impression is that it's very difficult to make a claim for retro CS, in the absence of fraud, major material change in circumstances, or extreme hardship.

Assuming ex gets to steal the money from the kid's RESP, then yes, arrears would not make sense. However, if the ex can't steal from the children, then the ex has not been paid support over the years, and is owed bundles in arrears.

Remember, according to family law, the ex's decision to blow the kid's university money on diamond-encrusted ornamental pink flamingos is in the best interests of the children, and cannot be questioned.

[Gilligan]

Don't get me wrong, I understand the view of the courts. I have offered for her to keep the money, minus the over contributions, however the ex has refused this and insists on going to court over the matter. I am not going to give her more than that, so I am just going to have to let a judge decide on it.

The RESP in question is a joint RESP account for the child, we agreed that this was going to be the best thing for my child, and we have a court order (based on her insistence) stating this.

I don't think it is that cut and dry that a judge would award somebody retroactive child support in a lump sum payment for the last five years, when we were operating by a court order and both had independent legal advice.

I do plan on paying the ex directly to avoid this going forward, but I am still following the court order until it is changed. Essentially, the ex is rufusing outright to negotiate anything and wants to litigate no matter what. At this piont, I am just racking up my legal bills to deal with this stuff, which I guess is her point.

[dad2bandm]

Make sure, you have made your reasonable "offers to settle" to her, in writing. Sounds like they will come into play, if she forces this to court. If you go to court, make sure you ask for costs.

[Gilligan]

Done and done... I am really waiting on costs on this, but I don't think there is a motivation to settle, as her "Parents" are flipping the legal bill.

So it is "litigate with no worries".