CS, S7, SS - big increase in income

[seeker101]

This is my first post although I have been actively reading a lot and trying to make sense of it all. I must say there is some great info in here and the community is really helpful along with the occasional/much needed "tough love".

I'm presently in litigation for almost a year and there are still outstanding financial claims... haven't even moved to parenting/custody/access negotiations yet.

In this post, im looking to get advice on settling financial claims (CS, S7 and SS).

Here are the facts:
Husband/Me = 28 years old
Wife = 29 years old
-married abroad in late 2013
-wife arrived in canada as PR in spring 2015
-1st separation in late 2015 after 8 months of cohabitation
-Daughter (2 years old now) born while we were separated
-wife moved court seeking CS, SS and sole custody in Feb 2016
-we reconciled after 11 months of separation (wife completely withdrew all her claims of CS, SS, etc)
-after 5 months of cohabitation, we separated again in may 2017
-wife recommenced court application seeking CS, SS retroactive to may 2017 and sole custody

Clarification on facts
a) since there was an earlier legal separation and subsequent reconciliation, is the duration of my marriage considered to be 3.5 years or 5 months (from time of reconciliation until present separation) or 2.5 years (total marriage length minus duration of 1st separation)?

Financial situation
Prior to separation (may 2017)/throughout the marriage, my annual income was around 40,000.
1 month after separation, I found a job in the US, where my annual income increased more than 3 times.
2014-2016 – 40,000 annual
2017 – 96,000 (mix of Cdn and post sep. US income) + 42,000 (non-taxable employee expenses reimbursement/not included as income per US/Canada tax rules)
2018 (estimate) – 110,000 + 75,000 (non-taxable employee expenses reimbursement/not included as income per US/Canada tax rules)

Wife
- was a housewife, currently on Ontario Works (social assistance)
-claims she is new to Canada (even after 3 years), looking to go to college to upgrade her education (no proof provided)
-never sought employment while in Canada (at least not that I am aware of)

Child Support
-At our first case conference, I entered into a consent order based on an income of 141,600 (I estimated this amount and, at the time, didn’t know that I should not include the non-taxable portion as income).
-the order also stated that this order shall be reviewable at end of June 2018 (I insisted to add this clause knowing that my actual 2017 may be different than what I have estimated).

How should I proceed now?
-now that I have an accurate figure of $96,000 as 2017 income (not including 42,000 non-taxable portion), I want to ask for credit for the overpayments that I have been making, is it likely to hold up in court? Can the other party claim that I consented to an amount of 141,600, so too bad?

Section 7 – daycare expense
-At our first case conference, I agreed to pay full cost of $1,144 for 1 month of daycare, which I have already done so.
-Although not explicitly included in the order, I did this with the understanding that my wife will provide me with the receipt. Sure enough (I learned the hard way), nothing yet has been provided till date while she keeps making further demands for daycare payments.
-the judge ordered a motion for s7 daycare claim for jun 2018 but her lawyer keeps sending letters and threatening motion and asking me to pay.
-last month, she sent me receipt wherein she paid the full amount of last month daycare but has not provided proof that this is necessary expense (her full-time school has ended).
What should be my course of action? Motion for disclosure i.e. subsidy info, evidence this is necessary expense, etc? OR ignore it as the onus should be on her to prove this is a necessary expense?
-notwithstanding above, I have also proposed to her that my parents take care of our daughter when she needs someone else to take care of our daughter. She outright rejected it and I didn’t really push further since she has made serious allegations of abuse against me and all my family members and I fear she would continue to do so especially when presently I'm not even in Canada.

Spousal Support
-this is most tricky for me. I agree she is entitled to spousal support. I am also aware that I need to meet her financial needs for 3 years after she arrived in Canada (this sponsorship undertaking period ended in mar 2018).

- her claim is retroactive to may 2017
- I have not paid her any spousal support yet primarily because there is uncertainty in my US employment and I did not want to enter into an order on such a huge income.
-the uncertainty is that there is a pending criminal charge of assault (as she alleged on the date of separation) and I’m concerned that a conviction may impact my US employment.

Based on SSAG with child formula, my income 96,000 / wife income 0, the calculator suggests $1,753 (low end) to $2,258 (high end) with 5-16 years.

I’ve been thinking about offering the following settlement, please help me evaluate objectively if it is reasonable and/or offer additional suggestions:

-I’m willing to pay her $1,100 per month (high end based on income of $75,000 / wife $10,000) because:
-as per OSPE (a professional body in Ontario) 2017 compensation survey, $75,000 is the national average salary of a professional with same level of experience as me.
-this also happens to be the midpoint of my average income of $40,000 during marriage and POST separation income of around $110,000.
-the social assistance/tax benefits that she is receiving should be treated as income for spousal support purposes -> this is maybe around $10,000 – 15,000 (she didn’t provide her 2017 statement of benefits)

-I’m willing to pay support for 1 year retroactive to date of separation (may 2017) because:
-marriage/cohabitation for only 5 months? (Goes back to my original question on marriage length, see above)
-compensatory claim is weak because any sacrifices she made professionally (i.e. taking care of our daughter) prior to our reconciliation was explicitly let go when she completely withdrew her earlier claims.
-any considerations for future compensatory grounds should also be minimum as she has already demonstrated that she can attended full-time school while the child is in daycare (she attended English classes for 4 months). The child can also be in daycare while she is working i.e. taking care of child is not a hindrance to her professional advancement. Therefore, ongoing/future care for the child should not hinder her professionally and hence she should not be compensated financially for that.

-non-compensatory basis: I agree there is a “needs” component to her claim as she is on social assistance. This proposed amount of $1,100 per month plus CS of $870 (based on my full income) will easily meet her monthly expenses as evident from her Financial statement.
-I should not have to pay her any more than proposed amount since spousal support is intended to ease her financial burdens upon breakdown of marriage and not to help her build capital.

- if she does not agree with this offer, which I am pretty sure she wouldn’t, then I can also propose to pay her college tuition cost (around $10,000) -> this will also meet the objective of promoting her self-sufficiency rather than simply handing out cash to her.

-how should I make sure she does not come back and seek more support if say she never goes to college, takes longer to finish school, goes abroad to her family for an extended amount, etc? what should be the legal wording?

I thank you all in advance for taking the time to read this and providing insights.

[arabian]

So you bring/sponsor someone and have a child with the person and now you think your obligation should be minimal and that the taxpayers should support your ex.

The way I interpret things - you were together for 5 years. I'm sure you can come up with legitimate rental documents/leases to corroborate your periods of separation.

Your ex is fluent in English? Does she have formal education and work experience? Does your ex have family living anywhere in Ontario?

Compensatory claim will be a consideration. Perhaps go on to CanLII and do some research. Look into BC for caselaw. I have read much caselaw similar to your situation (I'm not going to do your homework for you).

I believe you will be held accountable and responsible for your ex and her child for a very long time. You married someone with no work experience in Canada (and perhaps limited education and English-language skills?).

Canadian taxpayers certainly should not be responsible for your ex and your child. You earn good money. Time to man-up and be responsible for your actions.

[seeker101]

Thanks for your prompt reply. Perhaps, I was not clear enough in my post. Let me clarify.

Originally Posted by arabian

So you bring/sponsor someone and have a child with the person and now you think your obligation should be minimal and that the taxpayers should support your ex.

I am fully aware of my undertaking that I signed with the Federal Govt as far as sponsorship is concerned and currently engaging Ontario Works to pay back the amount she has received. That is not the issue here.

Originally Posted by arabian

The way I interpret things - you were together for 5 years. I'm sure you can come up with legitimate rental documents/leases to corroborate your periods of separation.

In the last 4.5 years since marriage, we were separated for close to 2 years and cohabited for 13 months. There is documentary evidence regarding separation.

Originally Posted by arabian

Your ex is fluent in English? Does she have formal education and work experience? Does your ex have family living anywhere in Ontario?

Ex has a bachelor's degree accredited by the Canadian body and can certainly converse in english. Doesn't have work experience in canada. Has some relatives/friends in Ontario.

Originally Posted by arabian

Compensatory claim will be a consideration. Perhaps go on to CanLII and do some research. Look into BC for caselaw. I have read much caselaw similar to your situation (I'm not going to do your homework for you).

I agree there should be compensatory claim. I just cannot decide to what extent I should accept her claim on compensatory grounds (see my unique case facts I have listed above).

Originally Posted by arabian

I believe you will be held accountable and responsible for your ex and her child for a very long time. You married someone with no work experience in Canada (and perhaps limited education and English-language skills?).

But ex is young, healthy, no mental/physical disabilities, decently educated. Again, I'm just trying to gauge the duration of support. Based on my reasoning above, I think 1-2 years + paying her tuition (given that my US job is still in tact)?

Originally Posted by arabian

Canadian taxpayers certainly should not be responsible for your ex and your child. You earn good money. Time to man-up and be responsible for your actions.

Agreed!

[kate331]

I feel for your wife. You have moved to the US to work, so all the child rearing is on her? And now its dragging through the court system. I hope for her and your child this gets settled quickly.

I agree with Arabian, you married her, brought her to Canada, had a child with her and now while you figure out how little to pay her on an above average salary, the tax payers are taking care of her, how does this happen on your salary? This makes no sense.

[seeker101]

This is making me feel like I'm the monster here...

Since this is posted in the financial section, I just kept the background info relevant to such.

Perhaps, i should have also mentioned that I am the one that got kicked out of my house due to the false allegations of assault that were made against me when I announced my intentions to seek a divorce during our last counselling session together in front of our therapist. Again, the reasons for wanting divorce are not the scope of this post. This infuriated the mother and when we got home, she called the police and had me charged.

It's really heartbreaking when you choose to reconcile for the sake of your daughter and it doesn't work out as you intended. You then have to make that painful decision again because I could not think of putting our daughter through the environment where the parents are in a toxic relationship.

I consider myself mighty lucky that financially, the situation turned out better for me.

However, so far, I have lost on all other fronts. Due to the false assault charges, I have not seen my daughter or family for almost 1 year. It's because I have been advised by multiple immigration lawyers to not do international travel as the pending charges might cause issues with re-admissibility back into the US. The US authorities ask me once about this and it forever stays in their database. Lots of scary info out there.

The other choice was to screw this job and go back to Canada. But I had to make a choice between ensuring financial dependence for myself, my daughter and for a time being, my wife. Or have regular access with her but be unemployed. Would that have been in the best interests of the child? Does it absolve me of my financial obligations towards my daughter? NO!

I don't blame anyone here as you all have no idea what me and my family have been through. I purposely left out all non-financial details out and purely sought guidance on financial matters. I didn't think this will turn into something else entirely.

There's so much background info and complexity so please don't judge.

And of course, when there is a divorce, there are no winners.

[arabian]

Originally Posted by seeker101

Thanks for your prompt reply. Perhaps, I was not clear enough in my post. Let me clarify.



I am fully aware of my undertaking that I signed with the Federal Govt as far as sponsorship is concerned and currently engaging Ontario Works to pay back the amount she has received. That is not the issue here.



In the last 4.5 years since marriage, we were separated for close to 2 years and cohabited for 13 months. There is documentary evidence regarding separation.



Ex has a bachelor's degree accredited by the Canadian body and can certainly converse in english. Doesn't have work experience in canada. Has some relatives/friends in Ontario.



I agree there should be compensatory claim. I just cannot decide to what extent I should accept her claim on compensatory grounds (see my unique case facts I have listed above).



But ex is young, healthy, no mental/physical disabilities, decently educated. Again, I'm just trying to gauge the duration of support. Based on my reasoning above, I think 1-2 years + paying her tuition (given that my US job is still in tact)?



Agreed!

Well you seem to gloss over your ex's current situation/barriers to employment.

A bachelor's degree is worthless unless it is from an accredited university. Even that guarantees nothing. BAs are usually a stepping stone to graduate-level studies. Has your ex ever worked in the field?

Language skills are important. Taking a 4-month ESL course usually won't cut it. I don't think one can learn to read and write English competently in that period of time (someone please tell me otherwise but I've never heard of it). My friend is a professor at a university and has been director of an ESL program and she has personally taught professionals who are coming from other countries and it takes a lot longer than 4 months of conversational ESL for someone to communicate effectively, particularly in a professional environment.

Your "obligation" is to support your ex for 3 years as a sponsored immigrant. Your "moral obligation", which Family Court generally upholds, might be considerably longer. As your ex was never self-sufficient since living in Canada, and you now earn a decent wage and are able to support her and your child, I believe you could be looking at supporting her until such time as she can earn a living wage. I think you would be looking at 3-4 years of support starting from date of separation. You could offer a stepped down approach where income is imputed to her on an increasing amount each year.

You can retain a lawyer or spend the money on helping your ex become self-sufficient. Perhaps she would prefer to return to her country of origin?

Oh and I would add that you would probably be looking at the high end of support to start due to the extenuating circumstances your ex now finds herself in.

[arabian]

I would advise you to come to some sort of resolution, albeit temporary, as soon as possible. If you delay you may find yourself at the mercy of FRO (Family Responsibility Office). Collection includes, but is not limited to, suspension of drivers' license and revoking of passport.

[kate331]

Originally Posted by seeker101

This is making me feel like I'm the monster here...

Your looking like a person trying to avoid his responsibility imo.

Originally Posted by seeker101

Perhaps, i should have also mentioned that I am the one that got kicked out of my house due to the false allegations of assault that were made against me when I announced my intentions to seek a divorce during our last counselling session together in front of our therapist. Again, the reasons for wanting divorce are not the scope of this post. This infuriated the mother and when we got home, she called the police and had me charged.

As my lawyer would say "They all say that". Fight the charge, this is very common in Family Law Matters.

Originally Posted by seeker101

It's really heartbreaking when you choose to reconcile for the sake of your daughter and it doesn't work out as you intended. You then have to make that painful decision again because I could not think of putting our daughter through the environment where the parents are in a toxic relationship. I consider myself mighty lucky that financially, the situation turned out better for me.

Yet you left this child to better yourself financially in another Country, leaving her with this Mother who falsely accused you of abuse.

Originally Posted by seeker101

The other choice was to screw this job and go back to Canada. But I had to make a choice between ensuring financial dependence for myself, my daughter and for a time being, my wife. Or have regular access with her but be unemployed. Would that have been in the best interests of the child? Does it absolve me of my financial obligations towards my daughter? NO!

Yes, screw the job and come back to be a Father to your Child! If you have to have a Judge tell you at a Case Conference to pay child support & Daycare, your not meeting the childs financial needs on your own accord anyway. So the least you can do is be there physically & emotionally for the child. You cant get back that time with children that young, they change and grow so fast. Your missing out on crucial time.

[arabian]

What I'm puzzled about is this poster makes more money than I do yet he has no qualms about me (taxpayer) supporting his ex/wife.

I think there is more to this. Married a few years prior to bringing wife to Canada yet conveniently separates months after arriving. Stays with wife long enough to convince someone? he is reconciling? Strange.

[kate331]

Yup Arabian, no need for him to pay for her education, OSAP will do that and if he is really smart there are a ton of Government & Private grants/scholarships that dont even need to be paid back, to get Mom's on their feet. Along with subsidized Daycare that comes along with it, he will be off the hook for that too, he just didnt play his cards right at the CC with the Daycare, so your off the hook for now on that one until he wises up to this loop hole .

Keep working Arabian, there are so many "in need".