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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 09-09-2013, 05:31 AM
babygirl babygirl is offline
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Default Newly Married & Child Support

Ex and I have been divorced for 6 six years. I recently got married. We have shared custody 50/50. Ex is now saying that because I am married, my spouses income is combined with mine for child support purposes making our household income income the same as his. Therefore he does not have to pay child support. He keeps going on about new case law that supports him and is threatening to take me to court yet again.

Is this even true??

Thanks for your help.
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Old 09-09-2013, 06:16 AM
SadAndTired SadAndTired is offline
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Others will post soon but my understanding is no, your new husband's income means nothing in child support.

Household income could affect spousal support but does nothing for child support.

He is the child's father and must provide support until the child is grown. It doesn't matter if you are a millionaire, he still has to support his child.

I wouldn't even talk to him about it. Just stay calm and live your life.
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Old 09-09-2013, 08:45 AM
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billm billm is offline
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If she was a millionaire - she would have to pay him offset CS.

No, your marriage has no effect on child support. Tell him to quote the case law - as there is none, it should be interesting...
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Old 09-09-2013, 08:58 AM
HappyMomma HappyMomma is offline
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Sorry guys, but that isn't exactly true. In 50/50 shared custody arrangements, household income CAN affect child support - it's the damn section 9c.

If he were to take it to trial the judge would be forced to consider 9c and hubby's income could be considered. I think it really depends on what their existing agreement says as to whether or not the ex could re-open the whole thing.
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Old 09-09-2013, 09:18 AM
Canadaguy Canadaguy is offline
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A judge would consider 9c, but then recommend offset child support based on the parents income, not the household.

Shared custody

9. Where a spouse exercises a right of
access to, or has physical custody of, a
child for not less than 40 per cent of the
time over the course of a year, the amount
of the child support order must be determined
by taking into account;

(
c) the conditions, means, needs and
other circumstances of each spouse and

of any child for whom support is sought.
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Old 09-09-2013, 09:21 AM
HammerDad HammerDad is offline
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S9 may be relevant, but he would have to argue it is to have it changed. One doesn't just agree to having a new spouses income included into the C/S arrangements as there are many factors involved (and what happens if the new relationship fails?).

Depending on the circumstances, I could see allocating a portion of the new husbands income, lets say if the OP is going on mat-leave or something like that. But, as a general rule, new spouses income stays out of the equation.
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Old 09-09-2013, 09:51 AM
OrleansLawyer OrleansLawyer is offline
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Quote:
Sorry guys, but that isn't exactly true. In 50/50 shared custody arrangements, household income CAN affect child support - it's the damn section 9c.
As per CanLII - 2005 SCC 63 (CanLII)

However, I would strongly consider the results of CanLII - 2010 ONSC 1550 (CanLII) , whence the equal household income did not permit the payor to make child support payments below the offset Guideline amount.
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Old 09-09-2013, 11:13 AM
stripes stripes is offline
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Your ex is being a jerk. Tell him to go bite himself.

I'm on the opposite side of the situation from you. I have 50/50 custody, my income is slightly higher than my ex's so I pay offset. He recently got married, combined with his new wife their household income is much higher than mine (I haven't remarried/got a live-in partner). I still pay offset.

As I understand it, Section 9c means that the total household income of the parents changes the child support if the court determines that it should affect the amount of child support. In other words, your ex can't just say "I'm not paying anymore because I now consider that your husband's income should be added into yours" - he has to seek a change to the existing child support arrangements (whatever they are - what does your divorce order say?).

He's free to do so, and to cite 9c, but he would need to pile up tons of documentation detailing his financial situation and your financial situation and make a strong argument that the change in your financial circumstances because of remarriage is so great and you are now so much wealthier than him that the offset method should be set aside. Unless you married Bill Gates, probably not worth his while.

Until he has a court order saying otherwise, he continues to owe you child support as stated in your order.

I have to say from my perspective that this often feels like it sucks - I drive a 10-year-old Subaru, live in a small condo, take care of most of D8's expenses, just cancelled cable because it was too expensive *and* pay CS; while he and his new wife have a house with all the latest electronic toys, and in the last four months have bought a new RV, a Mercedes, a BMW and a second motorcycle (yes, there is a midlife crisis going on here), at least some of it financed by me. If there were a way to equalize things a bit more, I would be happy. But I recognize that the law says what it says, and unless I want to drag out a long legal procedure with success being unlikely, I'm paying offset indefinitely.




Quote:
Originally Posted by babygirl View Post
Ex and I have been divorced for 6 six years. I recently got married. We have shared custody 50/50. Ex is now saying that because I am married, my spouses income is combined with mine for child support purposes making our household income income the same as his. Therefore he does not have to pay child support. He keeps going on about new case law that supports him and is threatening to take me to court yet again.

Is this even true??

Thanks for your help.
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  #9  
Old 09-09-2013, 11:26 AM
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NBDad NBDad is offline
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Stop taking legal advice from your ex.

If he believes this, the onus in on HIM to put forward a motion, provide the evidence to back his assertion/etc.

If he does NOT do this, then the order stands as written.

If your new spouse were supporting you, while you worked part time/not at all...he would have an argument.

If he was carrying significant debts from the marriage/had overly high access costs....he would have an argument.

As long as you are working full time, and not just sitting on your tuckus eating bon bons while the new hubby slaves away....it's a long shot for him to get the new spouses income included.
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Old 09-09-2013, 11:36 AM
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Quote:
Originally Posted by OrleansLawyer View Post
I would strongly consider the results of CanLII - 2010 ONSC 1550 (CanLII) , whence the equal household income did not permit the payor to make child support payments below the offset Guideline amount.
In this case (Evans v Watson, 2010 ONSC 1550) the father tried to include household incomes to determine child support and he lost. See highlights below.

[7] Mr. Watson expressed the view that he no longer wished to pay child support. His position was that, since both parents had re-partnered and their household incomes were similar, no child support should be paid...

[25] Mr. Watson combined household income in 2008 was $138,226; Ms. Evans was $128,993. In 2009, his household income was $159,583 and hers was $152,469. The household incomes are similar because of the fact that Ms. Evans spouse earns much more than Mr. Watsons spouse. As between the parents themselves, Mr. Watson earns considerably more than Ms. Evans.

[26] There is nothing in these facts to suggest that a child support award in the set off amount would lead to a significant discrepancy in the environment in which Bailey will live in each parents home.

[27] Accordingly, having reviewed the factors set out in s. 9 of the Guidelines, upon the evidence before me, I find that in this case, the set off amount is the appropriate amount for child support. The order will be for $428 per month from July 1, 2008 to and including December 1, 2008, and for $362 per month from January 1, 2009.
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