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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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  #11  
Old 01-23-2010, 11:09 AM
#1StepMom #1StepMom is offline
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Hmmm, I don't think some of you are fully understanding the issue.

Let me see if I can make it clearer.

We want for child support to be calculated using 1 way, every time. Up until now, the calculations have been done in whichever way yields the highest amount, whether it's last year's income or current income... whichever is the higher income, that's the one child support has been based on. The adjustments have been made up to 3 times in one year due to increases of income, but never made due to decreases in income. We want to follow the guidelines and simply use the previous year's income to determine child support 1 time each year. Is that clear?

That is what we're asking the court for.

The recipient doesn't want to agree to that because my husband's total income for 2009 will be approximately $10,000 less than his total income for 2008, due to employment fluctuation as a result of the economic downturn. In 2009, my husband worked 8 out of 12 months and collected EI benefits for 3 out of 4 months of unemployment. Therefore, his income, understandably, will be lower for 2009 than for the previous year when he was employed full-time for 12 months.

She doesn't want for child support to go down. She won't ever agree to adjust to a lesser amount, but will fight whenever there is a slight change in income that would yield her a higher amount.

We just want for CS to be representative of my husband's actual income. Just as his financial support would be in a family where the parents are together. Can you really expect a parent to pay more than he earns because he earned a higher income in the previous year? That doesn't make sense.

In 2010, when his income returns to that of 12-months work, and the total income increases, the child support will increase again.

So in 2009, when his income decreased, why wouldn't child support decrease?

The CS recipient was offered 2 options. The first was to adjust child support once per year based on the previous year's total income. The second was to adjust child support once per year based on the average income of the previous 3 years. Either way, the most important aspect of this for my husband and I is to have 1 adjustment per year using 1 same method each time.

Well, the recipient is refusing both options.

She claims she should be entitled to calculate child support using whichever method yields the highest amount of support at the time.

For example... she feels that if on "Adjustment Day" my husband's current salary is $40,000 while his previous year's total income was $35,000, then child support should be based on $40,000. But if on "Adjustment Day" my husband's current salary is $35,000 while his previous year's income was $40,000, then child support should be based on $40,000.

We want to stick with one method. Either you ALWAYS use current income, or you ALWAYS use previous year's income to calculate. No flip-flopping to use the higher amount of income.

Does that make sense?

Anyhow, because she knows that she cannot ask the court to order that support be calculated using whichever method yields the highest income at the time of re-calculation, she has decided to fight against my husband's lessened 2009 total income with a claim of intentional under/unemployment... claiming that there is no way that child support should be determined using his 2009 income during the 2010 "Adjustment Day" because he was "intentionally underemployed." And she is asking that my husband provide her with documents to assist her in building this claim.

Is that any clearer?

Since we don't have over half the documents the recipient is demanding toward her claim of intentional underemployment, my husband and I were thinking of offering her a sworn affidavit which includes any documentation we do have in our possession that we feel is pertinent to the case.

So you think such an affidavit will be enough in the eyes of the judge?
  #12  
Old 01-23-2010, 04:28 PM
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I think you need to go with your gut and assess what is reasonable to provide, especially if if presents the court with a view that you are being reasonably cooperative, and it furthers your argument.

Specifically, the education plan could be presented, perhaps with some supporting documentation. They are probably asking to see the ROE's to see that he was dismissed for cause as there is an area on the form describing the reason for termination. Give it to them if it helps your cause i.e. a layoff.

Let common sense prevail and don't get your shorts in a knot about what they are asking for from a privacy or nuisance point of view.

If you go to the settlement conference having furnished some materials to the other side ahead of time, then you won't be wasting the court's time. If you provide nothing, you run the risk of having the conference be a waste of time and being asked/ordered to provide disclosure in preparation for yet another costly conference.

Let them be the one that is told to do something while you present as moving the matter forward for settlement.
  #13  
Old 01-24-2010, 01:23 PM
#1StepMom #1StepMom is offline
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So, would you think it alright to simply provide a sworn affidavit of 2009 employment history with exhibits of relevant documents that we do have... and simply ignore her demands for all other documentation?
  #14  
Old 01-24-2010, 01:37 PM
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yes and no. The sworn affadavit is a good idea. It shows you are willing to provide documents and are attempting to move forward. But don't ignore her other requests JIC the court deems them reasonable by some odd chance. Try to collect whatever you can, have it with you at the CC so you can provide it if the judge deems it necessary. Just don't give it to her unless the court requires you to.
  #15  
Old 01-24-2010, 02:26 PM
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Quote:
Originally Posted by #1StepMom View Post
We want for child support to be calculated using 1 way, every time. Up until now, the calculations have been done in whichever way yields the highest amount
I think I can see where you are coming from.... but I still don't understand the point to your battle. It seems to me like you are wasting a great deal of time and effort fighting a moot point.

You tried to get a Judge to order a lesser amount, based on temporary unemployment, and you were denied because he had started working again. That, in and of itself should prove to you how difficult it is to gain a reduction in child support.

The Judge then ordered the new CS amount to be based on his current (higher) rate of pay, which should also prove to you, how the Judge will determine the CS obligation. Basically if the Payor is making more, he will pay more.

Quote:
Originally Posted by #1StepMom View Post
In 2010, when his income returns to that of 12-months work, and the total income increases, the child support will increase again.
With that statement, one would assume that he is now working full time, earning a steady income, which is projected to be higher than the amount he made in 2009.....

If you were to base his CS solely on his 2009 Income Tax Return....the NCP would receive significantly less money for the 2010 calander year, then she would if you based CS on his current rate of pay.

You want the Judge to grant you a break for the 2010 year, by allowing the Payor to pay, based on his lesser 2009 earnings, even though his current earnings are much higher....

You think that would be fair.....

Sounds reasonable enough.

Except for the fact that it isn't going to fly.... I really can't see a Judge allowing this.

What you are offering is not in the "best interests of the child"..... more money is always better then less money... that's just how it is.

The Judge isn't going to look at this and say...

"yeah sure, lets make you pay XX for the next 12 months, instead of XXX, because you made less money LAST year???

Quote:
Originally Posted by #1StepMom View Post
So in 2009, when his income decreased, why wouldn't child support decrease?
You tried that, and didn't provide a compelling enough argument.

Quote:
Originally Posted by #1StepMom View Post
The CS recipient was offered 2 options. The first was to adjust child support once per year based on the previous year's total income. The second was to adjust child support once per year based on the average income of the previous 3 years.
Would you agree to a lesser payment for your child, for an entire year, knowing full well that the NCP is making much more money?? I seriously doubt it.

Quote:
Originally Posted by #1StepMom View Post
Either way, the most important aspect of this for my husband and I is to have 1 adjustment per year using 1 same method each time.
Once your husbands employment status becomes more stable, this will become a moot point.

Adjustments will be made on a annual basis, based on previous years income tax return. So there will be nothing to argue about. You will gain your "most important aspect" of 1 adjustment per year, using the same method each time.

Quote:
Originally Posted by #1StepMom View Post
She claims she should be entitled to calculate child support using whichever method yields the highest amount of support at the time.
Not necessarily her fault, if he was earning a stable income, she would have nothing to whine about. And based on your previous comments, he is finally earning said income.

I can understand it if he was sick, and couldn't work and was fighting to get a reduction in CS, but that is not your case, he is working, making a comparable income now...

So why can't you just pay the table amount, if he is making the money?

Quote:
Originally Posted by #1StepMom View Post
Anyhow, because she knows that she cannot ask the court to order that support be calculated using whichever method yields the highest income at the time of re-calculation, she has decided to fight against my husband's lessened 2009 total income with a claim of intentional under/unemployment...

"And she is asking that my husband provide her with documents to assist her in building this claim.
The Payor is the one who asked for the initial adjustment, and the Payor is the one who wants to pay a lesser amount, even though he is now making more money....

By handing over the documents, you are not building her case, you are securing yours. Your argument for the reduced amount has to be based on something, anything, other than "fairness" to the CS Payor, or you WILL loose.

If he was honestly trying to maintain employment, and seek new employment.... then he has nothing to worry about.... unless you are trying to hide something, I don't see the harm in providing full, frank and honest financial disclosure.

But IMHO, when all is said and done, common sense tells me the Judge will base ongoing CS on his current rate of pay anyways.
  #16  
Old 01-24-2010, 03:25 PM
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Quote:
Originally Posted by #1StepMom View Post
So, would you think it alright to simply provide a sworn affidavit of 2009 employment history with exhibits of relevant documents that we do have... and simply ignore her demands for all other documentation?
That's not what I said. Re-read my post. I said that you should provide materials that will satisfy her and enhance your argument. I sense that you are (maybe rightfully so) annoyed because she is asking you to provide frivolous and/or private information. She probably wants you to be annoyed and for you to dig in your heels, then tell the court you refuse to co-operate.

I also don't agree that you should withhold information but to bring to court and only provide it if ordered. That makes you look resistant to settlement.

If you can provide materials that will further your argument and satisfy her requests for more information it's a win win for you.

Resisting the provision of information simply because you think she's fishing or invading your privacy, especially when the provision of that information would enhance your case, is foolish and will only prolong the litigation.

When we were in court, I was asked to provide information about why I drained my RRSP's. The other side was fishing around a reckless depletion of assets argument. My lawyer didn't agree that I should provide the information, but that would have only dragged the matter out while we argued about in conference after conference.

It happened that I did that to pay down some debts and put myself in position to purchase a commercial property to run my business. I provided the paper trail that demonstrated exactly that. It shut them up, the issue went away, it furthered my argument and enhanced my credibilty. Yes it was a hassle pulling the trail together, yes the other side was being invasive, but it was worth it.
  #17  
Old 01-24-2010, 03:44 PM
#1StepMom #1StepMom is offline
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Representing, I fully understand what you are saying.

Basically, what we want is for calculations to be made using the ACTUAL income earned. If in 2009, my husband's income was $25,000, then his 2010 payments should be based on that, even though he has started a new position which pays a higher salary. The total income he earns in 2010 thanks to that position will determine the CS amount for 2011. Correct?

That is all we are asking for. It really don't seem fair for child support to increase because my husband's current annual salary is more than what he made in the previous calendar year... and then use that same salary for the following year's child support. Does that make sense?

Dad to the end, we plan on providing an affidavit with whatever information we do have and can reasonably put together. We aren't trying to hide anything, but we also don't want her to use any truthful information against us.

I think what makes knowing which route to take most difficult is that the lawyers we have spoken to agree that we shouldn't provide her with private documents without a court order, and that we should ask for child support to be calculated as per the guidelines - using the previous year's total income to calculate and adjust once per year.

It never occured to us that such a request would be "unreasonable" in the eyes of the court.

My husband has no problem paying the table amount. However, he wants it based on the money he actually earns, and not whichever income calculation can yield the highest amount of support at any given time.

That's all. Plain and simple. Or so we thought.
  #18  
Old 01-25-2010, 12:23 PM
#1StepMom #1StepMom is offline
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Well, we sent the other party an email saying that we will gladly provide the documents we do have, and feel are relevent, along with a sworn affidavit. My husband made it clear that he does not have time to spent countless hours seeking out her requested documentation or formulating spreadsheets of every job he has applied for over the past 15 months. Hopefully this will be sufficient to appease her. *Fingers Crossed*
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Old 01-25-2010, 02:38 PM
billiechic billiechic is offline
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DId he email any resumes? You should be able to quickly go through his sent box and pull out the names of the companies and the dates he applied.
  #20  
Old 01-25-2010, 02:53 PM
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Quote:
Originally Posted by billiechic View Post
DId he email any resumes? You should be able to quickly go through his sent box and pull out the names of the companies and the dates he applied.
He's putting that together. That's not a problem. He already has a list of about 200 companies-positions-locations applied to.

The problem is the medical documentation of his back injury and the medical documentation of the treatment. We already requested that from our family doctor, but she told us she is legally unable to provide such a doctor's note unless he is filing for disability insurance. Supposedly there's a lot of fraud with doctor's notes saying employees were injured and unable to work. So she would only provide such a note if it were for a disability claim.

The other problem is obtaining statements of employment of all positions held since Oct 2008. For some of those positions, believe it or not, we don't have a single piece of documentation. My husband never received it, or wasn't there long enough to receive it.

Another issue is the ROE's. Out of the 4 positions held, he only has 2 ROE's. The others were just never sent to him.

I know this could - and should - be rectified with a few phone calls... but what if it cannot?

And how do you provide documentation that a commissions-only job in Barrie was costing more in expenses than what was being made in income?

She says she will accept the affidavit, but that she will still request the court to order full disclosure of all other documents. What if we cannot obtain some of those documents?
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