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  • Motion to change CS

    Ex trying to change anchild support order because of lower incom .... Recived registered mail with his income tax return 2015 of $1295 wanting me to agree instade of doing motion to change court order (and inform FRO) and if I don't reply within 2 weeks he will ask me to pay for that motion ..... any idea in what should I do, he is a self employed ( truck driver ) and for sure he know how to play this game
    Thanks

  • #2
    If his income increased, would you expect him to pay more CS?

    Comment


    • #3
      I would want to see his notice of assessment to prove that he actually filed the taxes.

      When do you usually adjust child support? If you do not have a firm date then if everything is okay with his paperwork you should change it to reflect his new income. Like Janus said, if it went up wouldn't you want it changed right away?

      Comment


      • #4
        it's less than last year which means less CS.... and what he sent was the assessment from RC.

        Comment


        • #5
          If he is self employed you need to see a full financial disclosure. If he claiming only an income of $1295 for $2015 did he work full time, what has the gross income and what were his deductions. If he has not work full time the. Why? Illness, or just not working?. Are his deductions reasonable. On $1295 income he would be living in a box. What was his income last year. What was the average of the last 3 years?

          So respond that you want a full financial disclosure.

          Of course if it's genuine then you need to work together, but if he is playing the system and charging all his living expenses against the business then you need to,challenge him.

          Comment


          • #6
            What was his income before this year? Was there some sort of an issue? Is he eligible for EI? Is he claiming hardship?

            $1295 is not enough to live on and if hes self employed then his other expenses can be taken out of his income calculation. Plus if hes eligible for EI then he has to pay CS on his EI income. Or if he has a new spouse and hes claiming hardship then his household income will be scrutinized.

            You need to respond that you want full financial disclosure with the notice of assessment from revenue canada (not his tax filing), proof of EI refusal and full expenses/gross income information. If he refuses then you tell him that you will wait for his motion to change to have a judge order it.

            By sending you it via registered mail hes trying to threaten you into doing what he wants. Until he proves completely that his income is that low, the onus is on him to change it.

            Janus, I see what youre getting at but $1300 for an annual income is not right. Even working part time my partner made $16000 a year. And we live in a high unemployment area and his EI benefits ran out.

            Comment


            • #7
              His income for the past 2 yrs was $19900 so this year he is claiming $12980 and I think he claim all his expenses on his bussenis tax ... I really appreciate ur response I'll send him a registered mail asking for financial disclosure and detailed

              Comment


              • #8
                Ok his income level wasnt a steep drop. I would still ask for disclosure anyway and double check that hes not claiming massive business losses. He could have had a major depreciation or extra expenses to upgrade his truck etc. it doesnt sound like a major unreasonable issue and its probably only a little bit of a change to FRO.

                My new concern would be that he wants to reduce with FRO and if his income increases this year youre stuck trying to get the increased cs from him.

                I dont know if your ex is easy to work with but you could talk to him about the decrease, see if its expected to continue and possibly agree to keep the cs as is for this year and use the extra money against his portion of s7 for the year and if his income stays the same for next year you will agree to modify cs then.

                Just my two cents, not a lawyer...

                Comment


                • #9
                  Originally posted by rockscan View Post
                  Janus, I see what youre getting at but $1300 for an annual income is not right.
                  To be honest I assumed it was a typo. I actually assumed it was $130,000. CS at a salary of under $20,000 isn't worth the cost of a motion.

                  I dont know if your ex is easy to work with but you could talk to him about the decrease, see if its expected to continue and possibly agree to keep the cs as is for this year and use the extra money against his portion of s7 for the year and if his income stays the same for next year you will agree to modify cs then.
                  I always like to imagine the reverse scenario:

                  "Well, my income went up this year, but let's just keep the CS where it is at and see if this is a permanent thing before we adjust anything"

                  A support recipient with a moral compass would not cause a problem when income decreased. Sadly, the compasses are all gathering dust in the local pawn shop.

                  Yes, I know that is not necessarily the case here, this is a self-employed line-150-means-nothing payor problem. The OP framed it as an income-decreasing problem at first though, which is not really a problem.

                  Comment


                  • #10
                    I see what you're saying but just as there are recipients with no moral compass there are also payers with none either.

                    In normal cases its easy to figure out but my spidey senses get tweaked when its self employed and a very small number. Its bad enough he's paying cs based on $19000, I would hazard a bet that his gross income is probably in the $60000-80000 range. I get that he has vehicle, lodging and increased gas costs but come on, $19000 a year and he wants to threaten court action and costs? Im tempted to say go for it and let a judge review his income.

                    Comment


                    • #11
                      it is a bit of diff in CS for 2 kids
                      and he is a difficult person to talk too ...my first step is to provide me with his financial disclosure and income details
                      Thanks rockscan / janus for helping me out

                      Comment


                      • #12
                        Have you spoken to a lawyer at all about his income? I looked at a few cases on canlii regarding truck drivers and a few of them impute income or prevent the payer from deducting certain expenses from gross income. In all of them they show that the onus is on the paying parent to argue for expenses to come off income. Theres also stuff in the federal child support guidelines outlining that self employed individuals may need to use proof other than income taxes to determine proper income for cs calculations.

                        Formally request full financial disclosure including the expenses hes claiming. If hes going to be a jerk let him bluster. He will have to file the motion to change and prove to a judge that his income is that low. The problem is, he may have mislead you for several years which means he would need to pay even more money!

                        Comment


                        • #13
                          yes you r right rocksan his income from the business was in the $ 90.000 but of course with expenses/ depreciation/other things the write off at the end it shows his business is not making any $

                          Comment


                          • #14
                            Yes you might want to speak to a lawyer about what expenses he is allowed to deduct. One of the cases I read was a self employed truck driver who used his corporate account as a personal bank account and in the end his income went from his claim of $15,000 to $20,000 up to $77000 because the judge refused to allow him to claim bogus expenses in his income for cs calculations.

                            If your ex is going to be a dick, it might be worth speaking to a lawyer, requesting full disclosure and then claiming poor behaviour.

                            Go to canlii.org and look up Nawrocki v Nawrocki

                            Comment


                            • #15
                              depreciation of equipment has absolutely no relevance to support

                              Operating business expenses - fuel, maintenance/repairs with proof of same, insurance, Workers Compensation premiums, trade unions - those are the expenses normally allowable in determining income for support.

                              Your ex is trying to pull a fast one. What he gets away with claiming on his income tax is irrelevant - how he decides to file his taxes (including dubious claims) are not relevant. Payments for equipment are often not relevant because the payment is to an asset even though it is depreciable.

                              If you want to verify income - request copy of GST/HST quarterly filings for a start. Nice documents to back this up is any financial application he might have completed when purchasing/leasing his last truck.

                              Comment

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