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Change court order on CS after losing my job

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  • #16
    I may have answered my own question...or I may have just created more confusion for anyone trying to provide information...anyway:

    Step 5 of The Federal Child Support Guidelines: Step-by-Step deals with calculating annual income.

    Under the heading: Who must provide income information? it states:

    "If your income is needed to calculate child support amounts, you must provide income information for the last three tax years. Both of you must provide income information when:"

    It then lists 6 situations including the following two:

    * you have split or shared custody arrangement,
    * there are special expenses (see step 7)


    ---------------------------------------
    Specific facts of my case:

    - The Child Support Order in my case was made at the first Case Conference in Oct 2009.
    - The Applicant had served and filed an Application, including a Financial Statement, her 2008 Notice of Assessment (line 150 = $20,000+) and a doctor's note and affidavit indicating her income was now $0.00
    - The Respondent had previously notified the Applicant and her lawyer that he had an income of approximately $40,000.
    - The Respondent did not file a Financial Statement prior to this Case Conference and reiterated to the Court that his income was approximately $40,000. I was ignorant then!
    - The Judge made an Order for the Respondent to pay Child Support in an amount based on his approximate income of $40,000. I do not know if it was the actual table amount for 3 children in Ontario. Is this relevant?
    - The respondent was also Ordered to provide a Financial Statement with required income tax information.
    - Their was no mention of Special Expenses in the Order and I do not recall if it was discussed at the case Conference.
    - There was no draft of the Order prepared for the Judge's Endorsement from that Case Conference until April 2011. [Family Law Rule 25: ORDERS]
    - The Applicant, upon typing the Order, added the following:

    "4. Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed."

    and

    "5. For as long as child support is paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with s. 24.1 of the Child Support Guidelines."

    Are these standard Orders that get included with Child Support Orders?


    ---------------------------------------


    Step 7 of The Federal Child Support Guidelines: Step-by-Step states:

    "You can consider special expenses when you set child support amounts in sole custody or split custody arrangements."

    So in addition to any questions I've previously asked, my list of questions includes the following:

    1. Was both the income of the Applicant AND the income of the Respondent used in determining the amount of the Child Support Order?

    It appears to me that the answer is yes.

    2. Does the apparent non-consideration of special expenses, or the Applicant's inclusion of a request for a Custody Order in their Application, or the financial information provided by the Applicant, or even the sum of all these...does it speak in any way whatsoever to an implied acknowledgement by the Applicant and/or the Court that there was a Shared Custody Arrangement in place at the time the Child Support Order was made?

    It appears to me that it may.

    There is nothing in the Endorsement Sheet or the Order referring to the children's residence, custody or access schedule. There is a request addressing all three in the Application.

    It has always been my contention that the temporary Child Support Order was made based on:
    - the children's right to Child Support
    - the obligation of both parents to financially support their children based on their income and ability to pay
    - the best interests of the children, at that specific time and given the circumstances

    The Applicant, since that Child Support Order, seems to be operating under the belief that the Respondent was Ordered to pay Child Support to the Applicant, in part, because she was deemed to have Custody of the children.*

    Do the details refute her belief?

    * Note: the Applicant had removed the children from their home without the Respondent's consent and made false allegations of child abuse and spousal abuse in what I believe was a plan to manipulate a future Custody Order in her favour.

    Comment


    • #17
      Sorry, I'm not quite sure what your question is. I'll take a stab here..

      Child support is the right of the child, it doesn't have to be proven. The support should go to where the child is. That doesn't mean that final custody has been settled. Is this what the applicant is trying to imply?

      If custody is still unsettled, the order to pay support means nothing in terms of custody, it just means that the respondent is still responsible for supporting the child.

      Both parent's incomes are used to determine section 7 expenses. There are almost always section 7 - sports, camps, braces, etc. A court will look at both incomes to set a proportion for the first order. Down the road, there may be years with no section 7, so it can become less important.

      If there is not a shared parenting situation, then only one income, the NCP, would need to be looked at for child support, but both incomes need to be looked at for section 7.

      Is that answering your questions?

      Comment


      • #18
        Originally posted by Mess View Post
        Sorry, I'm not quite sure what your question is. I'll take a stab here..

        Child support is the right of the child, it doesn't have to be proven. The support should go to where the child is. That doesn't mean that final custody has been settled. Is this what the applicant is trying to imply?

        If custody is still unsettled, the order to pay support means nothing in terms of custody, it just means that the respondent is still responsible for supporting the child.

        Both parent's incomes are used to determine section 7 expenses. There are almost always section 7 - sports, camps, braces, etc. A court will look at both incomes to set a proportion for the first order. Down the road, there may be years with no section 7, so it can become less important.

        If there is not a shared parenting situation, then only one income, the NCP, would need to be looked at for child support, but both incomes need to be looked at for section 7.

        Is that answering your questions?
        Thanks Mess!

        The Applicant is trying to imply that Child Support was paid to her because she had custody.

        I have informed her that Custody and Child Support are two separate and distinct entities.

        --------

        The problem with my specific case is:

        1. Both parents were custodial parents when the Applicant removed the children from their home.
        2. The Applicant believes her actions changed this situation and made her the custodial parent.
        3. There has been no Order regarding Custody.
        4. The only mentions of custody since then (not including motions made for a custody order) have been:
        i. Child and Family Services needed my consent before my children received counseling
        ii. The children's school records lists Custody as "both parents" and lists their residence as "dual residence - split parents".
        5. The Child Support Order didn't address section 7 expenses.

        It seems to me that the issue of CP vs NCP can be argued either way. It also seems that whether or not both incomes were considered can also be argued either way. I'm very unclear.
        Last edited by FamilyBlah; 07-10-2012, 08:34 PM.

        Comment


        • #19
          Many thanks to your guys, amazing people working in this forum. I got so much from here. I appreciate it all.

          Last week, I went to FLIC at the 393 university ave. at the 9th floor, toronto, which is newly set up just for family law issue. And i told the gentleman about my situation, then i was given a whole set of doc. for me, including a guide of 'motion to change' specialized on support payment issue with so details. It is wonderful.

          Thank you guys again.

          Nick

          Comment


          • #20
            That's great Nick, sounds like you'll be able to make progress

            Comment


            • #21
              Originally posted by FamilyBlah View Post
              Thanks Mess!

              The Applicant is trying to imply that Child Support was paid to her because she had custody.

              I have informed her that Custody and Child Support are two separate and distinct entities.
              FamilyBlah is the other party "self represented" / "unrepresented" in the matter? I would avoid an education lesson unless you are presenting it in a very calm and collected manner based on facts. (I.e. sighting rules etc.)

              Originally posted by FamilyBlah View Post
              The problem with my specific case is:

              1. Both parents were custodial parents when the Applicant removed the children from their home.
              Joint Legal Custody is the standard norm for any parental arrangement unless otherwise ordered by the court.

              Originally posted by FamilyBlah View Post
              2. The Applicant believes her actions changed this situation and made her the custodial parent.
              There is more than enough case law (I post it all the time) that de-funks this often illy planned "truism" in Family Law. (Note the word "truism" and how it has been used in case law recently. Leverage the case law for which this new terminology is presented in and you will do fine before the courts.)

              Originally posted by FamilyBlah View Post
              3. There has been no Order regarding Custody.
              You are then defacto joint custodial parents to the child/ren in question. That is the fact and until the court orders otherwise or you agree to something else nothing has changed in terms of "custody" regarding the child/ren.

              Originally posted by FamilyBlah View Post
              4. The only mentions of custody since then (not including motions made for a custody order) have been:

              i. Child and Family Services needed my consent before my children received counseling
              Basically the order is instructing both parents not to do stupid things and governing their actions with regards to the emotional (mental) health and well being of the child/ren.

              Originally posted by FamilyBlah View Post
              ii. The children's school records lists Custody as "both parents" and lists their residence as "dual residence - split parents".
              The better terminology to define this that you should use in all your correspondence is "joint residency".

              Originally posted by FamilyBlah View Post
              5. The Child Support Order didn't address section 7 expenses.
              CS and s.7 are not the same. It isn't uncommon for s.7 not to be called out in detail on a motion which can only deal with temporary relief.

              Originally posted by FamilyBlah View Post
              It seems to me that the issue of CP vs NCP can be argued either way. It also seems that whether or not both incomes were considered can also be argued either way. I'm very unclear.
              CS is based on the residential arrangement of the child/ren. 60-40 is the minimum requirement for an "offset" calculation. Both parent's income is considered in this formula

              Parent A - Income of 50,000
              Parent B - Income of 35,000

              Parent A full table amount (CS): 450
              Parent B full table amount (CS): 303

              "Offset" calculation is done as the highest paying parent less the lowest paying parent:

              450-303=147.

              Parent A is to pay Parent B $147 per month in child support on the "offset" method.

              In the same way s.7 is calculated on the % of income:

              Total household income is 50,000 + 35,000 (85,000).
              Parent A makes 58.82% of the total house hold income.
              Parent B makes 41.17% of the total house hold income.

              Parent A is to pay 58.82% of any "special and extraordinary" expense for the child/ren.
              Parent B is to pay 41.17% of any "special and extraordinary" expense for the childr/ren.

              For example: $500 for sports registration.

              Parent A is responsible for 58.82% of the $500 which is $294.10.
              Parent B is responsible for 41.17% of the $500 which is $205.85.

              Hope this helps!
              Tayken

              Comment


              • #22
                FamilyBlah:

                One thing I have noticed in your postings is that the other party to the litigation appears to be presenting a one-sided opinion of the court order you have. Without having read the order in detail or resulting decision from motion/trial it is hard to say who is to blame.

                But, there is one thing you have to understand about the highly conflicted in legal disputes...

                The read court orders as an *instruction* to the other party on how to conduct themselves and they see every thing, even if the order sets forth requirements for both parties as if they don't have to follow it.

                They set themselves up in the "all good" and "all bad" parent/litigant model of high-conflict. They try to argue that assessments (custody and access) are all about *you* and what *you* have to do. Even for clearly written statements that are not one-sided. They view court orders with the same "rose coloured glasses".

                If the court orders that the parents are to provide the contact information for a child care provider that either parent retains... They will not provide it and argue that it is only the opposing "bad parent" who has to provide this disclosure. They will even try to contempt *you* when they conduct themselves.

                If the court order works against them and their "avoidant" (controlling pattern of behaviour - Eddy 101) they will simply state they didn't "understand" the order... Even if they have a solicitor of record. (I don't advise anyone to try this before the court unless you want to have a judge raise their voice and tell you to retain new counsel.)

                They try to argue, unsuccessfully often, that "its all your fault".

                You have to sight rules, sight evidence, sight fact and strip emotion out of the arguments they try to present. The emotional reasoning is VERY thick with highly conflicted individuals.

                Good Luck!
                Tayken

                Comment


                • #23
                  Thanks so much Tayken!!!

                  I'll digest all that info and then respond fully.

                  I want to point out how the other party does have a lawyer...one who is feeding the negative behaviour and not making any attempt at all to negotiate...not that I expect you to be surprised with that info

                  Comment

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