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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 04-27-2019, 11:28 AM
EmilyJ EmilyJ is offline
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Default Access and Off Set Child Support Debacle - SOS

Hello all,

Looking for some advice on our situation. Sorry in advance for the novel.

My partner and his ex wife separated in 2015 and entered a separation agreement in 2016.

While married, they were both equal caregivers. My partner was even a stay at home dad with the oldest son for 6 months while his ex wife went back to work. My partner agreed to let her stay in the matrimonial home as their "primary residence" with one additional access day for his ex than him so she has 4 days (1 additional week night), he has 3 days and holidays are equally shared.

At the time, he was agreeable to this as he wanted them to have consistency in their lives but him and his ex "verbally" agreed that if she moved, access and support would go to 50/50. He should have known better...verbal agreements mean nothing.

He did send an email to her lawyer (we added proof of this email in our conference brief) before signing requesting their 50/50 agreement upon moving be added but her lawyer failed to add this and he signed it anyways unaware of how hard it would be to change this.

He did not obtain a lawyer prior to signing the agreement and she continually threatened full table amount and that getting a lawyer wouldn't change his outcome. He wasn't aware that the access he had was considered shared access and that the off set amount should have been utilized. Something his lawyer would have told him had he gotten one.

As for support, her lawyer drafted the agreement up that he should be paying $1000 (agreed upon them at the time based on their incomes) despite full table calling for $1210 at the time based on his income of $84,000 (she was making $64k). They made it look like they were doing him a service by shaving off $200 dollars and he had no idea that the off set amount should have been used in their situation which would have called for HUNDREDS of dollars less in support.

He also agreed to shared all extra ordinary expenses of course.

From there, they agreed (verbally again) that he would add an additional $200 to cover special expenses as opposed to her sending receipts every month.

This $1200 was to be inclusive of support AND special expenses regardless of the way the agreement was worded for special expenses.

She asked one time for more money towards "sports" (ironically before she went to New York for the weekend...) but he said no. That he wasn't open to giving her more.

Again, he did not have a lawyer (which he's realized was a terrible mistake).

She moved from the matrimonial home in 2017 and he brought up to her that he was hoping to move to the 50/50 access and support they agreed upon prior to the agreement which she completely thwarted despite what she told him. We even have a text of her saying she's open to allowing him 50/50 IF he keeps paying her what he has been which in my opinion, suggests that he's a completely capable father but she just wants the monthly pay checks. We recorded this text in a recent case conference brief.

***Side note, this is a woman who's admitted to several family members that she has a shopping problem, has always lived heavily in consumer debt, spent a home equity loan in implants amongst other things and had thousands of dollars on hidden credit cards during their marriage so it's obvious why she would want to continue receiving this money despite our access already being OVER the 40% threshold.

She's also taken 7 vacations (all 5 days or longer) WITHOUT her children and we gladly cared for them each time.

She's now making $85k and my partner $95K calling for an offset amount of approx. $104 in support a month (plus shared expenses of course). He's tried numerous times to sort this out personally and via counsel with numerous offers.

He's offered her $300 a month in support over the $104, allowing that she keeps the $500 a month child tax benefit she's been receiving and that he will never claim it and that they split all expenses in proportion to their income. She will NOT budge.

He also offered to continue paying her the $1200 for 6 more months so she can get financially organized and then it would move to the off set. Again, no budging from her.

We've now motioned for a change in access to 50/50 (2 additional days a month for my partner) and for the offset support amount to be utilized as it always should have been.

She's now served back denying his claims as well as motioning for retro on support and special expenses. Trying to dispute why he shouldn't have 50/50 access now that we served her. She's saying he doesn't attend doctor's apps or parent teacher meetings amongst other things which isn't true (we have numerous texts of the kids at appointments or of him saying he'll take them).

She's also listed a few things suggesting he favours his own schedule over time with the boys because he golfs and plays hockey sometimes which never effects his time with the kids? She does things on her own time as well?

She's saying that because she lives closer to the school and they can walk from her house next year, that they should stay with her more even though we only live 8 driving minutes from their school.

She's also trying to get retroactive payment on support (saying he should have shown his income yearly - which he did and we have an email of it) as well as retro special expenses even though they verbally agreed to $200 being enough AS well as trying to get her legal costs covered. It's SO sad thinking that she would try to basically bankrupt the boy's father when both boys are so close with him. The standard of living would change drastically here if she got everything she asked for.

They have their first case conference this upcoming Tuesday which will most likely amount to nothing. She's denied or ignored each reasonable offer and is still going for everything she originally asked for.

That said, my partner's lawyer is motioning for an interim order the day afterwards assuming she won't settle (and she won't) for the off set to be utilized until the case is fully heard.

Based on the above, what are the chances of the separation agreement being put aside as he didn't have a lawyer and his chances of getting 50/50 fully (already having %43 or more access) as well as the court granting an interim OR final order for reduction in child support to the off set amount and access?

Is there a chance she could win retro and costs?

Thank you.
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  #2  
Old 04-27-2019, 02:26 PM
rockscan rockscan is offline
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They donít decide costs at conferences, it would be at trial and she would have to do better than what was offered.

The judge will err on the side of the agreement. Did it list payment of s7? Did it say anything about him paying for specific things? For instance: dad will pay his proportionate share of the net cost of camp, swimming, hockey and daycare. If nothing was written then she would have to prove she sought written approval for the expense.
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Old 04-27-2019, 02:40 PM
EmilyJ EmilyJ is offline
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My partner is filing for an interim motion for off-set as opposed to full table as he has a min of 43%. Is it likely a judge will grant this?

The agreement does say "the parties agree to share any major expenses relating to the children in proportion to their respective incomes by s.7 provided both parties are made aware of any such expenses and agree".

She often times spends the money and told him afterwards. That wasn't an issue until recently when she tried to say his contribution wasn't enough.

He didn't have a lawyer when he signed this, do you think the agreement could hold up?
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Old 04-27-2019, 04:06 PM
standing on the sidelines standing on the sidelines is offline
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Quote:
Originally Posted by EmilyJ View Post
My partner is filing for an interim motion for off-set as opposed to full table as he has a min of 43%. Is it likely a judge will grant this?

The agreement does say "the parties agree to share any major expenses relating to the children in proportion to their respective incomes by s.7 provided both parties are made aware of any such expenses and agree".

She often times spends the money and told him afterwards. That wasn't an issue until recently when she tried to say his contribution wasn't enough.

He didn't have a lawyer when he signed this, do you think the agreement could hold up?
did he sign anything saying that he gave up his right to have a lawyer look it over?
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Old 04-27-2019, 04:37 PM
EmilyJ EmilyJ is offline
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He didnít fully read the agreement which was his mistake but now that weíve reviewed it, it says something about him having been advised to get counsel regardless of if he did or not and that heís signed it without persuasion ....

I know that it was a mistake to not fully read it over but he wouldnít have understood how hard it would be to amend had he gotten representation. His lawyer is arguing that she basically told him not to bother with a lawyer which is true and he signed to stop the conflict.

Could they set it aside?
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Old 04-28-2019, 05:34 AM
tilt tilt is offline
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He signed off on not needing legal representation so it is unlikely it will be set aside on the basis that he didnít read what he was signing and didnít get legal advice. He is an adult who made adult choices. Is the money you are going to spend on lawyers (and the time suck of court) worth it if the agreement is ultimately held up in court? Offset isnít guaranteed at 40% (or even 43%). Now you have opened a hornetís nest and she can ask for the additional Sec 7 which may end up costing him even more, because if he (or you) is going to ramp up conflict than she may as well retaliate. Meanwhile, sounds like his lawyer is seeing dollar signs in this conflict and is making bank by telling you what you want to hear.

As an aside, new partners that get overly involved (or instigate) in affairs between prior partners rarely make a situation better, usually to the detriment of ALL relationships. Let your partner take the lead on this one and decide what he is comfortable with. Your digs at her spending habits are saying a lot more about you than they are about the woman who has been successfully co-parenting their children.
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Old 04-28-2019, 08:16 AM
EmilyJ EmilyJ is offline
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I understand what youíre saying but Iíve also been an active caregiver in their life for 4 years so Iím not a new partner. Iím invested in their well-being as much as anyone. Both boys have asked to be here more and donít understand why theyíre not. She isnít successfully co parenting. Sheís been manipulating time to be in her favour when it comes to schedule when she used to be flexible so it looks like she has more time with them and has said terrible things about his inability to care for them. Meanwhile, agreed to allowing him the time if he continued paying her.

I know the issue is mostly access but itís sad when a person will dangle time in front of a father with a price to it. Otherwise, wonít allow him to have it. Sheís admitting heís a great father but she wants the money and isnít open to changing the schedule regardless of the boys wishes. I wouldnít call that successfully co parenting. I would call it parent alienation and self motive.


I wasnít taking a jab at her personal spending habits as a low blow but trying to give background on the type of person she is. Sheís always put money before her children and if thatís not clear in the above, not sure what is.
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Old 04-28-2019, 11:00 AM
rockscan rockscan is offline
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She can say whatever she wants in her response. It doesnít mean shes going to get it.

The best thing he can do is start putting together what he is willing to settle for. Then the judge will set out what the law says, what their agreement says and what they are more than likely to get. He should be thinking child focused. Why its a good plan to have more time with dad. Do not bring money into it. He spends extra time, he has good experiences, he is hands on and goes to events and appointments, he is able to help with home work etc. She could demand money twice a day every dayóas long as she demonstrates its better for the kids to be with her, none of that matters.
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Old 04-29-2019, 10:53 AM
HammerDad HammerDad is offline
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Did the agreement provide for a waiver for Independent Legal Advice? If it did, it will be harder to set aside the agreement. If it did not, than it is more likely the agreement would be set aside.


There are many cases where parties have signed the waiver of ILA that are set aside for any number of reasons.


Just focus on reasonable offers to settle and go from there.
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Old 04-29-2019, 11:04 AM
EmilyJ EmilyJ is offline
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Yes, there was a waiver that we're seeing now unfortunately. I don't think he realized how binding this would be years down the line or what the waiver really suggested.

Essentially at the end of the agreement it says he understood his rights in full and signed under no duress regardless of not having counsel.

I have read that many judges disregard waivers and assume an average person couldn't possibly understand their rights without interpretation from a lawyer. Is that true?

He signed assuming that if he ever wanted this changed, it wouldn't be a problem but had he gotten a lawyer, he'd know how difficult it was going to be and wouldn't have signed.

It was his mistake to sign it in the first place. They had a verbal agreement that if she moved, she would let him have the kids 50/50 as opposed to 40/60 and that support would move to the off set amount. He even emailed (which we attached to our motion as evidence) her lawyer at the time of the agreement being drafted to request this but her lawyer failed to do so and he signed (not the best idea) anyways to end the conflict.

She constantly told him that getting a lawyer wouldn't change anything and that there was no point.

Really hoping a judge sees this as operating in poor faith on her end and her lawyers.

I hope the proof that they actually did have those conversations to change it when she moved helps support his claim but she really has screwed him.

He's made about 3 offers at this point. All above the off set amount, letting her continue to claim the benefit and so on. She's ignored all and has not put in one reasonable offer herself. Just that she wants more and more and more money.

Does this reflect badly on her?
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child support, interim order, off-set method, separation agreement, shared custody


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