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Mess · #21 12-03-2013, 11:16 AM

I think some of this is a bit unrealistic.

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Originally Posted by Rioe

1) You do not have 50-50 custody of your children, even though that's what was agreed to when you left the matrimonial home. Your ex appears to have manipulated you into EoW.

The situation I read from the OP is that her working hours are 2pm - 10pm Monday to Friday, which does not enable her to care for school age children. What are they going to do, sit in a booth at Tim's until 10pm and then go home to bed? This is not an issue of manipulation by the ex, it is an issue of shift work. Unless and until she can change her shift to enable her to pick up her children after school and care for them in the evening, she will not be able to provide a 50/50 schedule that works.

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2) You have a minimum wage job with poor hours for parenting. You really need to ask for different hours, find a new job, anything to make you more available to your children.

Exactly.

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5) You have some sort of bad homemade separation agreement that isn't even being adhered to properly anymore. But it appears to be the reason you moved out of the matrimonial home. That set you up for all the trouble that has come to pass since. Any way you can move back in?

Sorry, I have to come out on the other side here. She moved out 1 1/2 years ago, and has had her own primary residence since then. She is no longer a resident at the other home. Her ex would have more than enough to get an order for exclusive possession if she tried to move back in. We regularly tell people in his position to just go ahead and change the locks.

If this had been 6 weeks and she'd been sleeping on a friend's couch, I would answer differently. It has been a year and a half; the marriage is over. The ex could have been dating someone for a year, gotten engaged, and be living with his new spouse by now. Perhaps even severing the divorce and remarrying. The amount of time passed is considerable and meaningful.

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My suggestions for one approach would be to look into undue hardship. In your case, having CS flow from the minimum wage household to the six-figure household is kind of ridiculous. Your ex has trapped you in a vicious circle where you had to find a job with hours that make it nearly impossible for you to parent, which led to your ex getting majority access which made the CS obligation yours. You need to break out of that.

How is this different from a father working shifts, being unable to share 50/50, and paying full support? Do minimum wage parents get excused from the child support tables? Do NCPs who earn less than CPs get excused from paying support? It's not that I don't have sympathy, but there is no legal argument here. There would be far too much case law for the other side to point to. One case I have saved is a father who is on ODSP, living in subsidized housing, being imputed $20k and required to pay CS. His ex, a nurse, earned $80k with full benefits at a hospital. And there is nothing wrong with that. (I saved it because the nurse was seeking to have his housing subsidy added to imputed wage, which made it an interesting precedent.)

If the OP wants to change the custody situation, she has to change her working hours. She isn't going to get that change through the courts. If she can't change her hours, then she is in the same situation as many NCPs. A better option than court would be to return to school, get a p/t job on campus, and have the evenings free to parent.

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Ask that the original 50-50 access with your children be enforced.

And the first thing the father will ask is, how can she care for the children when she is working until 10pm every evening?

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You would be so much better off with 50-50 time, so that offset CS brought enough money into your household that you could afford to be an equal parent.

True, but the argument for 50/50 SHOULD NOT BE FINANCIAL. The argument has to be the best interest of the child, not the parent. The best interest of the child requires a parent be available to parent.

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Then you could afford to change your work schedule to accommodate your parenting time.

This is backward. She has to be available to parent in order to ask for the change. This is especially true if you are suggesting the original agreement be "enforced." There are material reasons why it cannot be enforced.

If you are suggesting that she approach her ex and suggest that she quit her job, take the children 50/50, be imputed a wage and have setoff CS and SS be calculated based on that, this might be reasonable if there were genuine trust between them. But there isn't, and if the ex agreed to that, there would be no way to break that situation if she just stayed off work indefinately. So he wouldn't agree unless he could genuinely believe in her.

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Additionally, imputing an income of $30k to you is also ridiculous. I am guessing that was done on the anticipation that this is what your small business could make for you, which he then apparently ruined. Ask that your actual income be used for any calculations, as the business failed. This is a material change in circumstances from when your bad agreement was made.

I agree it appears ridiculous on the surface, but imputing a wage requires that reasons be given, and presumable there are supporting reasons for this.

Pursuinghappiness · #22 12-03-2013, 12:02 PM

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Additionally, imputing an income of $30k to you is also ridiculous. I am guessing that was done on the anticipation that this is what your small business could make for you, which he then apparently ruined.

The 30k is slightly high but not that far off from full-time minimum wage which is somewhere in the 24-25k range. Maybe he's assuming full-time minimum wage plus some business income. When I saw the OP's post, it struck me as a reasonable starting point for negotiation.

The SS amount is not reasonable however and this OP is a classic case of "you need a lawyer." She says she can't afford one but I say she can't afford NOT to have one at least on a consult basis for the DivorceMate calc.

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If the OP wants to change the custody situation, she has to change her working hours. She isn't going to get that change through the courts. If she can't change her hours, then she is in the same situation as many NCPs. A better option than court would be to return to school, get a p/t job on campus, and have the evenings free to parent.

I would agree. There's no doubt that one should do everything in their power to be self-sufficient and that some people have to work shift-work. But we're talking about a Tim Horton's job that has taken away this OP's ability to be a parent to her children. If it was a shift job that paid well, offered a secure retirement and was a long-term career, I would get it but there are other minimum wage jobs out there with hours that would enable this OP to exercise her joint custody rights and benefit from offset CS. This job ensures her demise not only with her parenting time but also screws her financially because by losing the parenting time, she puts herself into a full-table CS obligation. That makes zero sense to me.

I just see this whole story as a "how can I screw myself as much as possible?" scenario. Its hard to imagine how the OP could have put herself in to a worse position. Again, having a lawyer is a must for this poster before her position becomes unretractable.

Mess · #23 12-03-2013, 12:53 PM

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Originally Posted by Pursuinghappiness

The 30k is slightly high but not that far off from full-time minimum wage which is somewhere in the 24-25k range. Maybe he's assuming full-time minimum wage plus some business income. When I saw the OP's post, it struck me as a reasonable starting point for negotiation.

Minimum wage in Ontario is $10.25. Most employers at this level, Tim Horton's being a prime example, don't pay for the lunch and breaks that are required by the labour code, so an 8 hour shifts yields 7 hours of pay. It is very common in this economic class for full-time work to be 35 hours a week, again, Tim Horton's being a prime example.

10.25*35*52=18,655. This is the very common yearly salary for those earning minimum wage in Ontario.

I have read many decisions where a judge orders an imputation at $20k, which would be about a 40 hour work week at minimum wage.

You may think that this is "not far off" from $30k, or even $25k, but for people working at Tim's or other businesses that pay minimum wage, it is a lot of money.

I have several neighbours in this position, they are recent immigrants and parents, and I chat with them while our kids play in the park. One mother travels for 2 hours on the TTC to work in a factory stuffing envelopes. Of course she is looking for something better, but until something better comes, she is struggling. To me, tossing off numbers like that and saying they are not far off is dismissive and offensive. When someone is living like that, a few thousand means a huge difference.

As far as the OP goes, as I said earlier, an imputed wage requires reasons, so there may be more information we do not have. It is not clear if she is actually running her business; she claims she was denied access to her "equipment."

Pursuinghappiness · #24 12-03-2013, 02:18 PM

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You may think that this is "not far off" from $30k, or even $25k, but for people working at Tim's or other businesses that pay minimum wage, it is a lot of money.

I'm not arguing that for someone that makes minimum wage, 5k is a lot of money. What I'm suggesting is that if he's also assuming business income added to a minimum wage salary, its not an unreasonable starting point for negotiation. Its far more reasonable than the amount he's suggesting in SS which is far, far off from the median table amount based on their income spread.

I think the issue with the OP is that she doesn't have a lawyer, so he's making extreme offers understanding that she's in a weakened negotiating position.

In addition, that she seems to be willing to roll over on the access/custody arrangement leads me to believe that he's dead-on in assuming she's not going to fight back much.

Frankly, I'm surprised he didn't try to impute a higher wage with the argument that she can work double-time or two jobs if she doesn't have the kids. This is an excellent textbook example of what happens when you don't have a lawyer or the ability to reason and negotiate in your best interest. The other party smells blood and goes for in for the kill.

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