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Old 01-02-2011, 10:35 PM
fatherof2 fatherof2 is offline
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Question Motion to Change Application - No Response!!

Any advice would be great...
My ex and I have a final child support court order from 2007, which has over $12,000.00 retro child support. I was 17 when my daughter was born in 2005. In 2007 my ex filed with the courts for a child support order, at this time I was 19 and not very grown up so I did not attend court. My ex stated in the paper work my annual income was $33,000.00/year in 2005-2007. The judge granted the order based on the info she provided. I was young and stupid and very selfish at the time, I did not see my daughter for over 2 years. I moved to another province and started paying support plus some of my arrears, after a year of flawless payments I decided to file a Motion to Change the order because I was struggling making the large payments and had another child on the way with my now wife. Because it was a different province I had to file an ISO application. I obtained a laywer who helped me through it all. 6 months after I filed the ISO application my wife and I decided to move back to the same province as my other daughter so she could be close to her new step brother and me. I have my daughter 70% of the time now which I love. My ex was finally served with the Motion to Change papers, which I was not aware of because when I moved back to the province my laywer notified me that I would now need to file the papers in my residing province. She received the papers Dec.1st, and still has not replied. From my research online she has 30 days to respond. What happens next...will the judge grant the Motion to Change according to my completed paper work? Or will she still have a chance to state her case? Please help.
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Old 01-02-2011, 10:50 PM
fatherof2 fatherof2 is offline
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I should make this a little more clear. The reason I applied for the Motion to Change was because the CS payments are based on me making $33,000.00/year when in 2005 I made $9000.00(I was only 17), 2006 I made $16,000.00 and in 2007 & 2008 I made approx. $18,000.00. I moved to another province to make more money which in 2009 I made approx $25,000.00. I did not apply for a Motion to Change "just because I didnt want to make the big payments". I applied to have the original order corrected so the arrears is dropped. If this happens I have actually over paid her $4000.00 in the past 3 years.
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Old 01-02-2011, 11:10 PM
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dadtotheend dadtotheend is offline
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Kinda hard to swallow the "after a year of flawless payments" statement. You didn't meet your obligation for two years and then had to be taken to court to get your ass in gear and you didn't even show up. But you also say that you were young and stupid so at least you recognize your irresponsibile behaviour.

It's hard to say what will happen with respect to the arrears as it relates to your income at the time. You forfeited your chance to have a say a few years ago. It will depend a lot on whether your ex is agreeable to the reduction and how sympathetic a judge will be.

If you have your daughter 70% of the time, it's not inconceivable that a reduction in the arrears might occur to offset CS that she owes you from the time that you had primary residence. Again, it's really going to depend on your ex and the judge.

It's probable that your child with your current wife will not affect the fact that you had a responsiblity to your first child. You owe for her, you decided to have another child, it's not your first child's fault. You will find lots of fierce debate here on the right or wrong of that, but the court will not be sympathetic to a reduction because you have a second child. The only way to get that in play is to bring forth a claim of undue hardship, which is extremely difficult to obtain.

I recently filed a motion to change and my ex didn't respond either. Beyond that, we had a court date a few weeks back and she faxed the court the morning of claiming that weather conditions prevented her from showing up. The court bought her bullshit and we have an adjournment to this week. You will simply have to show up to your court date and see what happens. Her non-response doesn't necessarily mean that your motion will be successful. That said, and as you found out a few years back, not responding is a risky play.

If you are in Toronto, your first court appearance will be before a dispute resolution officer, not a judge. If you can't settle it at that time, then the DRO will book a case conference before a judge, and if you still can't settle, then the judge may book another case conference (the judge may order her to provide disclosure due to her non-response) or you will get a motion date. So unless your ex is agreeable at your first appearance, expect to be attending court a few or more times. And it will take months.

Last edited by dadtotheend; 01-02-2011 at 11:32 PM.
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Old 01-02-2011, 11:25 PM
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Thank you for your response. I should also add I was not in my daughters life for the first 2 years because my ex had a boyfriend at the time of her birth and he raised her as his own, it was not until 2 years later when they broke up was I contacted to pay support via court papers. I paid child support payments from the day the order was finalized flawless until today. I have not being paying towards the arrears for almost a year now, but am making my monthly court order payments.

I am not going after the over payment, I am simply asking the judge to lower my payments from $320.00 to $214.00 which is following the guidelines and to wipe my arrears based on my actual income.
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Old 01-02-2011, 11:30 PM
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Child support and access are not dependant on one another. Not seeing your kid for a couple of years does not affect your CS responsibility, just as not paying CS would not affect your access.

The reason is that CS and access are rights of the child not the parent. You can't trade off one against the other because it's the child that is losing out either way.
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Old 01-02-2011, 11:34 PM
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I understand that now, at the time I did not. Like I mentioned I was very young and selfish. I will spend the rest of my life trying to make it up to my daughter. She is with me 5 nights out of the week, and I couldnt be happier.

I have tried to setlle this numerous times with my ex, I even agreed to keep the monthly payments the same but to clear the arrears, but she would not agree.
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Old 01-03-2011, 10:57 AM
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Then pursue you motion to change. Do NOT let her get away with receiving CS when you have primary residence. Sometimes people play the non-compliance game and the other party just gives up out of despair/frustration.

Be vigilant!! See it through.
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