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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 07-06-2012, 04:34 PM
sahibjee sahibjee is offline
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and what would happen if one had agreed on a "final order" i.e converted a temporary order to final, but did not have the clause of recalculation in case of job loss etc. ?
  #12  
Old 07-06-2012, 05:09 PM
Mess Mess is offline
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You don't need an order to recalculate child support. It is the law to have it recalculated when there is a change of income, it is the law that parties must exchange income tax information on request to verify income each year.

Having it written into an agreement or order just simplifies when it will happen, and that the information doesn't need to be asked for in advance.
  #13  
Old 07-10-2012, 12:20 PM
FamilyBlah FamilyBlah is offline
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Quote:
Originally Posted by Mess View Post
You don't need an order to recalculate child support. It is the law to have it recalculated when there is a change of income, it is the law that parties must exchange income tax information on request to verify income each year.

Having it written into an agreement or order just simplifies when it will happen, and that the information doesn't need to be asked for in advance.
Mess, is there case law or something to support this?

I certainly believe it to be true as Child Support is the right of the child(ren) and both parents have an obligation to support their child(ren) based on their income and ability to pay, but is this a Family Law truism or would such an argument need to supported with evidence?
  #14  
Old 07-10-2012, 01:57 PM
Mess Mess is offline
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Child Support Guidelines, O Reg 391/97
Quote:
Annual obligation to provide income information
24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order withthe following, unless the parties have agreed otherwise:
1. For the most recent taxation year, a copy of the person’s,
i. personal income tax return, including any materials that were filed with the return, and
ii. notice of assessment and, if any, notice of reassessment.
2. As applicable, any current information in writing about,
i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and
ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i. O. Reg. 25/10, s. 6.
  #15  
Old 07-10-2012, 02:36 PM
FamilyBlah FamilyBlah is offline
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Thanks so much!

How is it determined or shown that the income of both parties or financial information was used to determine the amount of an order for the support of a child?

Specific facts that may be relevant:

- Applicant reduced income to $0.00, not including CTCB
- Respondent provided an approximation of income
- as a result of Case Conference (CC), Respondent was ordered to pay Child Support to other party
- Respondent was also to provide a Financial Statement within 15 days
- the Endorsement Sheet from that CC makes reference to both salaries in the notes before the numbered Orders
- the Applicant's Application requested an Order that the Respondent pay Child Support "for the children of the marriage based on his income in accordance with the Federal Child Support Guidelines under the Divorce Act, including special and extraordinary expenses."

NOTE:
The Application has a [X] at #11 support for child(ren) - table amount. #11 is listed under "Claims under the Family Law Act or Children's Law Reform Act".

#2 - support for child(ren) - table amount that appears under "Claims under the Divorce Act" is unchecked.

The Court File Number at this time was "A - XXXXX - 09".

The Applicant has since, at an uncontested hearing, obtained permission of the Court to amend the Application to include a claim for divorce.

#11 remains checked and #2 remains unchecked on the Amended Application.

The Court File Number is now "D - XXXXX - 09".


I'm not sure if any of this is relevant, but i just wanted to provide the info in case it was.

Does the inclusion of "including special and extraordinary expenses" in the Applicant's original request for a Child Support Order indicate that both incomes were considered?


Thanks in advance!!!
  #16  
Old 07-10-2012, 05:55 PM
FamilyBlah FamilyBlah is offline
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I may have answered my own question...or I may have just created more confusion for anyone trying to provide information...anyway:

Step 5 of The Federal Child Support Guidelines: Step-by-Step deals with calculating annual income.

Under the heading: Who must provide income information? it states:

"If your income is needed to calculate child support amounts, you must provide income information for the last three tax years. Both of you must provide income information when:"

It then lists 6 situations including the following two:

* you have split or shared custody arrangement,
* there are special expenses (see step 7)


---------------------------------------
Specific facts of my case:

- The Child Support Order in my case was made at the first Case Conference in Oct 2009.
- The Applicant had served and filed an Application, including a Financial Statement, her 2008 Notice of Assessment (line 150 = $20,000+) and a doctor's note and affidavit indicating her income was now $0.00
- The Respondent had previously notified the Applicant and her lawyer that he had an income of approximately $40,000.
- The Respondent did not file a Financial Statement prior to this Case Conference and reiterated to the Court that his income was approximately $40,000. I was ignorant then!
- The Judge made an Order for the Respondent to pay Child Support in an amount based on his approximate income of $40,000. I do not know if it was the actual table amount for 3 children in Ontario. Is this relevant?
- The respondent was also Ordered to provide a Financial Statement with required income tax information.
- Their was no mention of Special Expenses in the Order and I do not recall if it was discussed at the case Conference.
- There was no draft of the Order prepared for the Judge's Endorsement from that Case Conference until April 2011. [Family Law Rule 25: ORDERS]
- The Applicant, upon typing the Order, added the following:

"4. Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed."

and

"5. For as long as child support is paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with s. 24.1 of the Child Support Guidelines."

Are these standard Orders that get included with Child Support Orders?


---------------------------------------


Step 7 of The Federal Child Support Guidelines: Step-by-Step states:

"You can consider special expenses when you set child support amounts in sole custody or split custody arrangements."

So in addition to any questions I've previously asked, my list of questions includes the following:

1. Was both the income of the Applicant AND the income of the Respondent used in determining the amount of the Child Support Order?

It appears to me that the answer is yes.

2. Does the apparent non-consideration of special expenses, or the Applicant's inclusion of a request for a Custody Order in their Application, or the financial information provided by the Applicant, or even the sum of all these...does it speak in any way whatsoever to an implied acknowledgement by the Applicant and/or the Court that there was a Shared Custody Arrangement in place at the time the Child Support Order was made?

It appears to me that it may.

There is nothing in the Endorsement Sheet or the Order referring to the children's residence, custody or access schedule. There is a request addressing all three in the Application.

It has always been my contention that the temporary Child Support Order was made based on:
- the children's right to Child Support
- the obligation of both parents to financially support their children based on their income and ability to pay
- the best interests of the children, at that specific time and given the circumstances

The Applicant, since that Child Support Order, seems to be operating under the belief that the Respondent was Ordered to pay Child Support to the Applicant, in part, because she was deemed to have Custody of the children.*

Do the details refute her belief?

* Note: the Applicant had removed the children from their home without the Respondent's consent and made false allegations of child abuse and spousal abuse in what I believe was a plan to manipulate a future Custody Order in her favour.
  #17  
Old 07-10-2012, 07:50 PM
Mess Mess is offline
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Sorry, I'm not quite sure what your question is. I'll take a stab here..

Child support is the right of the child, it doesn't have to be proven. The support should go to where the child is. That doesn't mean that final custody has been settled. Is this what the applicant is trying to imply?

If custody is still unsettled, the order to pay support means nothing in terms of custody, it just means that the respondent is still responsible for supporting the child.

Both parent's incomes are used to determine section 7 expenses. There are almost always section 7 - sports, camps, braces, etc. A court will look at both incomes to set a proportion for the first order. Down the road, there may be years with no section 7, so it can become less important.

If there is not a shared parenting situation, then only one income, the NCP, would need to be looked at for child support, but both incomes need to be looked at for section 7.

Is that answering your questions?
  #18  
Old 07-10-2012, 08:31 PM
FamilyBlah FamilyBlah is offline
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Quote:
Originally Posted by Mess View Post
Sorry, I'm not quite sure what your question is. I'll take a stab here..

Child support is the right of the child, it doesn't have to be proven. The support should go to where the child is. That doesn't mean that final custody has been settled. Is this what the applicant is trying to imply?

If custody is still unsettled, the order to pay support means nothing in terms of custody, it just means that the respondent is still responsible for supporting the child.

Both parent's incomes are used to determine section 7 expenses. There are almost always section 7 - sports, camps, braces, etc. A court will look at both incomes to set a proportion for the first order. Down the road, there may be years with no section 7, so it can become less important.

If there is not a shared parenting situation, then only one income, the NCP, would need to be looked at for child support, but both incomes need to be looked at for section 7.

Is that answering your questions?
Thanks Mess!

The Applicant is trying to imply that Child Support was paid to her because she had custody.

I have informed her that Custody and Child Support are two separate and distinct entities.

--------

The problem with my specific case is:

1. Both parents were custodial parents when the Applicant removed the children from their home.
2. The Applicant believes her actions changed this situation and made her the custodial parent.
3. There has been no Order regarding Custody.
4. The only mentions of custody since then (not including motions made for a custody order) have been:
i. Child and Family Services needed my consent before my children received counseling
ii. The children's school records lists Custody as "both parents" and lists their residence as "dual residence - split parents".
5. The Child Support Order didn't address section 7 expenses.

It seems to me that the issue of CP vs NCP can be argued either way. It also seems that whether or not both incomes were considered can also be argued either way. I'm very unclear.

Last edited by FamilyBlah; 07-10-2012 at 08:34 PM.
  #19  
Old 07-10-2012, 09:37 PM
nick2009 nick2009 is offline
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Many thanks to your guys, amazing people working in this forum. I got so much from here. I appreciate it all.

Last week, I went to FLIC at the 393 university ave. at the 9th floor, toronto, which is newly set up just for family law issue. And i told the gentleman about my situation, then i was given a whole set of doc. for me, including a guide of 'motion to change' specialized on support payment issue with so details. It is wonderful.

Thank you guys again.

Nick
  #20  
Old 07-11-2012, 08:24 AM
winterwolf7 winterwolf7 is offline
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That's great Nick, sounds like you'll be able to make progress
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