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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #31  
Old 05-10-2018, 05:36 PM
Istanbul Istanbul is offline
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Originally Posted by kate331 View Post
I am really confused right now, I take it that you live in another Country and your children are in Canada? How can Joint Custody work? Or even an access schedule? I reread that thread and you have the kids every second weekend and a few weeks a year, do you fly in? And keep a residence here?
Indeed my situation is unusual. In order to keep on subject here, I answered in the other thread.
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  #32  
Old 05-10-2018, 06:25 PM
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Most judges cede to the DBS supreme court decision. Even if you both agree to whatever you want, the judge will err on the side of the law. That law basically boils down to following updates when income changes and updating accordingly. Then they decide if there was blameworthy conduct by not updating. In your case you could argue you were following the agreement and were confused by the clauses about tax deductions.

The bottom line is child support is about the kids not you or your ex. She canít negotiate away cs and you canít hide behind what you two discussed. You need to figure out what your income is equivalent to cdn dollars and update accordingly. Stop worrying about what you both discussed and agreed to. You may want to look up some cases on Canlii on international income.
Sorry if this is a stupid question, but what is the DBS decision?

I would not say that she negotiated CS away. To overly simplify the situation, we could say that there were cross-subsidies between the three main financial items
A. Asset partition
B. Child & spouse support before I stop working
C. Child & spouse support after I stop working

First, a step back before I clarify. My line of work was in a highly specialized industry where work is available only in a handful of cities in the world. To illustrate with a hypothetical example, letís say my skills are only usable in a company which is mining a rare metal in the earth crust, which has only ever been found in one city in California, and I make a large income there. Letís say my ex relocates with the children in the middle of nowhere in Canada, perhaps Yellowknife (no offense to people that live there!). My theoretical income in Yellowknife would be massively different than my income in California.

So in the agreement, I overpaid in A, I got the benefit of no tax adjustment in B, and I agreed to a minimum imputed income in C which is generous because itís more than the money I could make in Yellowknife (but imputed income in C is less than my previous income in California).

That means indeed I did not pay enough CS in B if you follow the CS guidelines to the letter of the law (and even then, that is debatable because above $150k income there is more flexibility for a judge), however on the flip side I am going to pay more CS than the table amount for years to come in C. I donít mind paying based on actual income in B in accordance with all Canadian rules including tax, but then letís follow the rules for C as well instead of some artificial high amount that I would not earn in Yellowknife.

What I tried to explain in my response to @Janus earlier, is that I am struggling in how to present my arguments to a judge. I donít mind all that much if a judge wants to set the agreement aside and re-do A, B, and C. In theory it might very well be that weíd be trading a dollar for four quarters. In practice of course it depends how it would be done by a judge. There would be a risk that one party would end up not happy about how itís re-done. The agreement specifically says that either the entire deal stands, or the entire thing is invalid. So if I judge starts messing with A, B, or C, then the judge is basically throwing to the garbage bin an agreement signed in another jurisdiction. That might open the door to a potential appeal. Slippery slope?

The one thing I am reluctant to do, is to change B without changing A and/or C.

I do not think I can ignore what we negotiated, pay her more in B, and unilaterally start paying less in C because I feel I would violate the terms of the agreement. And it would be foolish to pay more in B against the agreement and simply wait for a judge to rule on whether C can be reduced. B and C go hand in hand because of the agreement. Either it stands, or it does not.

So I want to argue in front of a judge what the deal was, and I will try to show intent, and argue that the agreement is valid. And argue at the same time that if the judge disagrees and that the agreement needs to be re-done, that I do not oppose paying more in B as long as I get money back for A and C. It would show some flexibility, but I donít know if that can even be done. I want to be cautious about arguing from both sides of my mouth: am I saying the agreement is valid or not?
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  #33  
Old 05-10-2018, 07:31 PM
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You are trying to muddy the waters I think.

Keep it simple.

Jurisdiction is where the children live - they live in Canada now. Courts will want to look at everything on a go-forward basis unless your ex can clearly show that you did not come to the court with clean hands and violated the intent of the agreement. Then they may recalculate (I think that may not be likely unless the difference in what you paid and should have paid is significant and would have made a huge difference to the children's life). Research caselaw to see where you stand here.

Your ex's claims for recalculation/back pay of CS would likely be granted from the time she first raised the issue with you. However, that typically is limited to going back 3 years as far as I know.

If you're trying to argue you "may" be unemployed, don't waste your breath. Courts deal in real facts and figures. You exchange financials each year and adjust. Courts do not care if you agree to it or not. (thus the reason to settle out of court). An Order will be entered in the court and enforced by local maintenance enforcement agency. If there is a reciprocal agreement between Canada and the country you are residing in then that country will enforce the Order.

If and when you stop working you would deal with that at the time, unless of course your agreement anticipated your retirement at a specific point in time. Beware of intentional underemployment. You can quit work and go sail around the world but you very well might still be on the hook for CS & SS.

Of course, as you are likely well aware, there are many variables that are taken into consideration in any agreement.

Be leery of a lawyer who will blow smoke up your arse and tell you what you want to hear. Do your own independent research. You seem to be a high income earner and therefore a nice meal ticket for a lawyer.

Doesn't matter if you are in court or not for motions. Your lawyer represents you. If you want play-by-play info from motion hearing simply order a copy of the transcripts.
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  #34  
Old 05-10-2018, 08:06 PM
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It's not helpful to your case, but I'd like to add for the benefit of others perhaps looking back at this thread some day for answers that may apply to their own case, that it is a perfect example of why you should make separation agreements that spell everything out, and do NOT muddy up equalization, child support and spousal support.


Equalization should be done fairly once and be over forever.


Child support should depend solely on income earned by the payor(s) and be adjusted annually to stay current with that income.


Spousal support should depend solely on the factors that existed during the marriage and decisions made about the future.


Never give and take from one category into another.


The only thing you can do after the fact is figure out how you can demonstrate that you made concessions in one area to benefit in another, and try to untangle it for going forward.


And as was pointed out, I think, is that judges are unhappy about doing math. Spell it out in a spreadsheet down to every last detail.



One column about how things were done in your agreement. Another column for how your ex is asking for things to be retroactively corrected. Another column about what your ex is asking for going forward. A last column for what you're willing to change.


If a judge can't understand it, they'll never agree to it.
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  #35  
Old 05-10-2018, 08:23 PM
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Quote:
Originally Posted by arabian View Post
You are trying to muddy the waters I think. Keep it simple.
I am trying and I think you guys are being helpful to boil it down.


Quote:
Originally Posted by arabian View Post
If you're trying to argue you "may" be unemployed, don't waste your breath. Courts deal in real facts and figures. You exchange financials each year and adjust. Courts do not care if you agree to it or not. (thus the reason to settle out of court). An Order will be entered in the court and enforced by local maintenance enforcement agency. If there is a reciprocal agreement between Canada and the country you are residing in then that country will enforce the Order.

If and when you stop working you would deal with that at the time, unless of course your agreement anticipated your retirement at a specific point in time. Beware of intentional underemployment. You can quit work and go sail around the world but you very well might still be on the hook for CS & SS.
To clarify, here is what the timeline was:
- Working abroad with family living with me.
- Ex says she wants to divorce and move to Canada.
- We sign separation agreement while still abroad.
- Separation agreement states that I intend to stay there and work a bit longer to work, but that I will retire relatively soon. Plans unclear after that.
- Ex moves to Canada with children.
- Couple of years go by, everything fine and no disputes. I pay CS according to Canada's formula, but no tax adjustement. As intended.
- I stop work.
- I start paying CS based on the stated minimum CS in agreement.
- Ex complains for the first time about CS and files for divorce and argues I did not pay enough while I was working, that my imputed income going forward is too low, etc.

A bit off topic, but it sounds like she was just waiting for me to quit my job before filing for divorce and asking for more money because she was fine with the agreement while I was working and she did not want to rock the boat.

So I am unemployed now. I have some minimal investment income, but that is far lower than the minimum imputed income stated in the agreement (part C above).

So first off, I am not unemployed simply because I want to avoid paying CS as some people do. My retirement was planned at the time of the agreement, it's mentioned in it, and it was even planned years before separation so it had nothing to do with separation. In addition, even if a judge does not believe it's true, I am paying CS now based on an imputed income greater than what I could make in Canada so I am not avoiding my responsibilities, nor has it ever been my intent.

Based on your response, sounds like my ex has a weaker claim retroactively because she accepted the payments for a long time. And prospectively I think she does not have much of a case either, but the prospective part is a different issue than tax anyway.
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  #36  
Old 05-10-2018, 08:43 PM
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Now you can move on to research your definition of "retirement" - this is quite interesting.

Some spousal support payers pay into their 80's. So don't think that "65" is the magic number.

Again, everything can and will go back to the intent of your agreement... how old you and your ex are... how long you were married (spousal support).

Child support is entirely another matter. The only similarities IMO are whether or not you are intentionally under or unemployed. Of course you will have proof of your efforts to gain employment similar to that which you did most recently. You (eligible Canadians who paid into it for 18+years?) can collect CPP at age 60 yet that doesn't mean you are retired though.

You are not the first, nor will be the last, to try to wiggle out of or substantially- reduce support payments. Judges have seen it all before (yes from those who work in other countries).

Being unemployed (intentional or otherwise) is not the same as being retired. If you have debt and not enough income to service the debt then you cannot afford to retire. Simple really.
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  #37  
Old 05-10-2018, 10:03 PM
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Originally Posted by arabian View Post
Being unemployed (intentional or otherwise) is not the same as being retired. If you have debt and not enough income to service the debt then you cannot afford to retire. Simple really.
Then I have been causing confusion because I was using the two terms interchangeably. I think according to this definition, I am retired rather than unemployed.

Before separation, we planned for my early retirement for years by saving money. Then we separated, I worked a little longer, then retired.

I have enough to support myself and continue CS payments for years to come, using the imputed income we agreed on. Which is greater than what my income would be if I was not retired, but rather working in Canada.

I will do some research on retirement, hopefully I find informative tidbits on Canlii.

Thank you!
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  #38  
Old 05-11-2018, 01:14 AM
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I am not the sharpest knife in the drawer so bear with me, because I am finding this confusing. You retired, knowing you have young children to support? You have minimum investment income to live off, but can pay child support at an agreed imputed income? So your children's standard of living will go down?

Even though your retired and not working, your staying put and not coming to Canada to help raise your children? Yet you have the money to fly back and forth and pay for hotel rooms?

My guess is you met a "Sugar Mama"

Time is short and precious, your kids are still young, I'd get my ass on the next plane and be a Dad to your kids. There are things in life that money cant buy, like time. When your kids are raised and educated, then go back.
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  #39  
Old 05-11-2018, 10:18 PM
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Originally Posted by kate331 View Post
I am not the sharpest knife in the drawer so bear with me, because I am finding this confusing. You retired, knowing you have young children to support? You have minimum investment income to live off, but can pay child support at an agreed imputed income? So your children's standard of living will go down?

Even though your retired and not working, your staying put and not coming to Canada to help raise your children? Yet you have the money to fly back and forth and pay for hotel rooms?

My guess is you met a "Sugar Mama"

Time is short and precious, your kids are still young, I'd get my ass on the next plane and be a Dad to your kids. There are things in life that money cant buy, like time. When your kids are raised and educated, then go back.
Yeah confusing because the situation is complex indeed.

Basically, if the amount I spend in a year, plus CS, plus SS, is equal to X, and if I have 50 years left to live, then all I need in the bank is 50X. Investment income is just icing on the top! No sugar mama needed although that would be icing on the top too

I have made an offer to settle to my ex where I relocate to Canada to help with children. Denied. My ex wants to keep absolute control of children, heck she is even blocking my phone calls to children when I am away

So yes I am willing to relocate to Canada, but there are different complications to the situation so I will open a different thread to explain and discuss since it's a topic unrelated to tax.
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