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  • Changing a Final Order

    Back in March 2010 the ex and I agreed on a few things with respect to access and custody.
    My income was agreed to for this year and what I believe to be the standard clause about reviewing Income Tax statements before June 1st and adjusting support payments based on the line 150 etc etc etc.

    So we are going to Trial next week to sort out the balance of the issues.
    One of her main issues is imputing income to me based on 3 different reasons.
    1. I don't claim enough Taxable Auto Benefit for a company vehicle
    2. My company made a decision to roll back employee salarys due to the economic climate
    3. Previous income from my ex's business that I helped with and after separation did not want to help with anymore.
    My question revolves around the fact that we have a signed, court registered, judge signed "final agreement".
    What are the chances of that agreement or section of that agreement being changed.

    We are fighting about the correct amount of Spousal Support that should be paid and if she can get my income imputed higher, not only would it effect Child Support it could effect Spousal Support too.

    My circumstances financially have not changed since the signing of this document. She is now employed full time.

    Does "final agreement" actually mean "final"?

  • #2
    I assume you mean a separation agreement that was finalized and then registered with the court. Did you both haved independant legal representation? If so, and the CS was at close to the guideline amount then it's hard to see why an agreement that was accepted by the court only eight months will be set aside now.

    The three issues hardly seem significant on the face of it.

    And how could you be going to trial only eight months after a final agreement was reached? Are you sure you don't mean that she is launching an action as opposed to going to trial?

    Comment


    • #3
      Dad,
      We were at a Settlement Conference and had recently recieved the results of court ordered assessment.
      Part of the Assessment and a few other things were agreed to and put into a Final Order that was approved by the judge and registered with the court.
      This process has been ongoing since Jan 9, 2009.

      I have been pushing for a Trial and we have one scheduled for the sittings that start next week.

      The Child Support was exactly the guideline amount as per the agreed to income.
      This income was lower than the previous year due to the salary reduction imposed by my company.
      Up until the point of the confernece the Ex would not accept a reduction in support to correspond with my reduciton in salary.
      The judge was not impressed and "suggested" that the Child Support should be reduced due to the obvious income reduction.
      We both had independent councel and signed the agreement.

      The agreement also outlines the issues that have not been determined as "Spousal Support, child support in the form of section 7 expenses, division of proceeds of the sale of the matrimonial home and the equalization of parties' net family property."

      Doesn't say anything about imputing more income to me.

      Another clause says that "The issues of custody, access and child support are subject to variation based upon a material change in circumstances and upon application to the Court by either party"

      So there has been no "material change" in my income, therefore no variation to child support is required.
      Therefore if no change in income for Child Support there should be no arguement as to what my income would be for calculationg Spousal Support.

      Right?

      Comment


      • #4
        I see, so you have a final order on some but not all the issues. It seems that you have finalized CS, except section 7 expenses. I can't see how the trial will be able to address regular CS since that appears to be finalized.

        Your question is a bit thorny because you have settled some, but not all issues. It's difficult to understand your question. I think you need to be careful asking for advice here because we don't know nearly as well as you what the situation is.

        While you have clarified the situation somewhat, it's still not crystal clear. When asking for advice, realize that your situation is a little murky and incorporate as much clarity into your background facts as possible in order to get the best answer you can.

        Comment


        • #5
          Fair comments Dad.

          So you are correct in the facts that some issues have been resolved and we go to trial next week to resolve the rest.

          It is "murky" becuase the issues that were settled in March were able to be settled due to a determination of my income. Some of the issues for trial are going to be determined, in part, based on my income.

          My main concern for the trial is the fact that my ex wants to impute me at a higher rate of income for Spousal Support purposes, and has requested that the judge "set aside paragraph 10 of the order dated" etc etc.
          Paragraph 10 sets the support amounts based on my agreed to income.

          Since my income needed to be agreed to in order to determine a final order for Child Support, shouldn't that mean that there is a final order in place determining what my income is?
          It says right in the agreement that I will pay $XXX of child support, which is the guidline amount, based on my income will be $XXXX.

          If my income is $XXXX of child support, shouldn't my income for Spousal Support be the same?

          Comment


          • #6
            It doesn't matter if it should or not. If she is in court and she is presenting an argument you can't just sit and say nothing on the presumption that you are right and it will be obvious and the law will protect you. You have to answer all of her claims and refute all of her arguments.

            If I said it is more than likely a judge would reject her argument, it doesn't help you. You need to have a complete case.

            Comment


            • #7
              Mess,
              I do have legal arguments and my case prepared to rebutt her claims and assertions with respect to her request to impute further income to me.

              However, it has been my experience and from what I have researched here and other places, that judges like things nice, neat and simple.

              Following on that train of thought, wouldn't it be better to point out the fact that we have a final order in place that covers my income, now lets move on. Rather than spend a couple of hours on why my company rolled back salaries, and why I am paying the correct amount of taxable benefit, etc etc?

              I guess I am looking for an objective and outside opinion or indication that including the fact that we have a final agreement in place for these things is factually and legally the right thing to do, in addition to my individual arguements that I have already prepared.

              Comment


              • #8
                I would simply state it like that, and attach the agreement as well as any supporting documentation regarding the rollback of salary imposed by your company to whatever documents you are filing.

                You shouldn't need to get into details about WHY the company rolled salary's back if you have supporting documentation.

                Basically your response to that point would read similar to the following:

                As %THE EX% agreed that your salary was XXXX as shown by the agreed to and signed final order, and as supported by the evidence attached as exhibit____, you disagree that item 10 of the order be set aside, and ask that your income be recognized as XXXXX for the purpose of all calculations.

                I wouldn't spend a huge amount of time on it. Simply refute her request in a simple, factual manner, ensure you have documentation to back your argument up, and move along to the next point. Keep the actual affidavit short and sweet, attach your evidence and go from there.
                Last edited by NBDad; 11-11-2010, 01:32 PM.

                Comment


                • #9
                  Originally posted by NBDad View Post
                  Keep the actual affidavit short and sweet, attach your evidence and go from there.
                  That's the ticket.

                  I am currently filing a motion to change an order for CS; my ex is clearly and demonstrably in the wrong. While I definitely want the matter settled before the motion is heard, there's a part of me that will relish the challenge of writing a one page affidavit with as few paragraphs and words as possible in order to 1)get the judge to read it and 2)be successful.

                  I'm thinking half a page.

                  Comment

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