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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 08-31-2008, 07:29 PM
coffeeman690 coffeeman690 is offline
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Default Update on my CS issues

So my Lawyer is telling me that the Judge in SOME cases has made the step parent and the Bio father pay the full guideline value together NOT SPLIT BUT BOTH OF US PAY!!! based on are incomes WTF!!! for CS.

My Issue here is I already have a agreement to pay 350 a month, But Im wondering if this is worth my $$$ to try and get the Natural father brought into this ugly mess When I got the court papers see never even put his name on the order and I wonder how can this be fair?

Also my lawyer has stated that if the child drops out of school BUT still lives W her that I will still have to pay CS?? this child is 16 and really hasn't ever completed a regular school year so how does this make sense

Any answers or thoughts

I did tell my lawyer that I would be filling out Form 10 and let the courts know about the natural father so that he would be added but he has warned me that I may be paying more in legal fees and other crap so It may not be worth it Just pay the 350 I have been told..... I really dont see how this would work agaisnt me here in the courts

Thank you
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Old 08-31-2008, 09:21 PM
stoopid1 stoopid1 is offline
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Default hi

Firstly you're dealing with the family law Justice system so from my experience you can forget about anything being fair.

Secondly I don't pretend to be an expert on anything but I've been going through my own bs for over six years now and I wish I knew everything I know now when I first started this process.

I am fortunate to have a very good Lawyer right now and I also have a 16 year old who isn't attending school. According to my lawyer, If a child is 16 and not attending full time school you shouldn''t have to pay. I have a case conference next week and I'll let you know what the judge says about it.

My advice is get a really good Lawyer if you can. All Lawyers are not equal when it comes to what they know and what experience they have. If you don't like what you're hearing from one Lawyer I'd go see another and pay for 1 hour visit and get another opinion on the subject. If you don't pay it now you might be paying alot more later through a court order for child support. Don't trust anyone to take care of you other than yourself.

good luck and I'll let you know what happens at my conference

stoop,
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Old 09-02-2008, 08:22 PM
coffeeman690 coffeeman690 is offline
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do i have the right to stop making payments if the child is not in full time school but still lives W the mom that wont make her get out of bed....
  #4  
Old 09-03-2008, 07:58 AM
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FL_Needs_To_Change FL_Needs_To_Change is offline
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You are not supposed top unilaterally terminate CS, the process is to take the issue to court, and show that there has been a material change for the child, IE no longer in school and not trying to gain employment.

It is at that time that you can present that the child is no longer a child of the marriage.
If she is not in school and is not working but is more then capable of either or both, then the courts may terminate CS.
You would have to show,
a) she is not in school and how long it has been since the last time she was physically in class.
& b) that she has made no attempt to gain employment or take any correspondence courses in the absence of actual classes.
The tricky part is that she has not reached the age of majority and can technically be seen to NOT have withdrawn from the care of the primary parent.
The law states,

"child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a)is under the age of sixteen years, or

(b)is sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;


The key word is “under” the age of 16.
Also used to determine if the child remains a child of the marriage,

In Farden v. Farden 1993 CanLII 2570 (BC S.C.), (1993), 48 R.F.L. (3d) 60 (B.C.S.C.), Master Joyce set out the following factors to be considered in determining whether a child's educational goals justify their remaining a child of the marriage:
(1) whether the child is studying on a part-time or full-time basis;
(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
(3) whether the child’s career plans are reasonable and appropriate;
(4) the child’s ability to contribute to her own support through part-time employment;
(5) the child’s age;
(6) the child’s past academic performance and whether the child is demonstrating success in the chosen course of studies;
(7) the parents’ plans for the education of their children, particularly where those plans were made during cohabitation; and
(8) in the case of a mature child who has reached the age of majority, whether the child has unilaterally terminated the relationship with the parent from whom support is sought.


This is not easily done, and there are few case laws where a 16 year old was found to NOT be a child of the marriage for the purpose of CS.
I suggest that you continue the CS and seek leagl advice as you do not want this to bite you on the butt.
Best of luck
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Old 09-03-2008, 05:36 PM
stoopid1 stoopid1 is offline
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Default hi again

Hi coffeeman,

Whatever you do, you must continue to pay child support until you get a court order that says otherwise. If you were to stop paying you'll look bad in court ( at the least } or be in trouble with the court {at the worst}. Remember that you want the Judge to focus on the mom and not on you. She'll be the one who looks bad for not making her child attend school and not you and that's what you want in court.

As I said before I'm going through the same situation amongst other things right now. If she's over 16 and not attending full time school you shouldn't have to pay. It doesn't matter if they are taking part time courses or not. The child must go to school full time not part time or whenever they feel like it.

If you can get her attendance record from her school then submit that in your affidavit. If the school won't give it to you then in your affidavit, ask for it to be produced by the mother and she'll have no choice but to produce it in court.

Send the mom a registered letter asking for information about the childs education and proof that the child is attending school on a full time basis. State that if the child is not attending full time school your child support obligation to that child must be terminated. State that if she doesn't provide you with proof of the childs enrolment and attendance you will take her to court to terminate your support obligation and seek court costs if she refuses to cooperate with you.
If she doesn't respond to your letter that is great because she'll look bad again by being uncooperative. If she agrees with you, then go to a lawyer and get it written as a final order signed by a judge and your all done. Do not stop paying child support until you have a signed final order even if your ex says you don't have to pay anymore. If your involved with FRO you have to both send them a letter saying child support is terminated by mutual agreement.

If you can show that you tried to resolve things without going to court she may have to pay for you court costs. And if the Judge determines that the child isn't attending school, you'll most likely get your money back for the child support you paid while she was not attending full time school.

In your affidavit you want
1. proof you tried to resolve this without going to court.
2. ask that child's attendance records be produced by mother
3. ask to recover any child support payments made by you after the child stopped attending full time school.
4. ask to recover court costs.

Follow this and you'll be golden as long as she doesn't start attending full time school again. even if she does resume school, if she hasn't been going at the time you start the motion, the mom will most likely still owe you court cost and you may get child support credit for the time she wasn't in school and you can bet they won't play this game with you again. My ex has started making the kids go to school again after finding out I was taking her to court.

hope this helps, Stoop
  #6  
Old 09-04-2008, 09:00 AM
Fair4All Fair4All is offline
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Another thing you could do is write to FRO directly indicating that the child is no longer a child of the marriage as per your agreement (provide a copy of your agreement) as she is no longer enrolled in school. The FRO will contact your ex and ask if this is the case (see News Release on Ministry of Community and Social Services website dated July 6, 2006: Ministry of Community and Social Services - News Releases)

I think your ex would be more likely to act on a letter from FRO.
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Old 09-04-2008, 04:37 PM
stoopid1 stoopid1 is offline
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Default me again

I sent a registered letter to FRO at the same time as I sent the registered letter to the ex. there is a form you can get from the FRO website called an application to terminate ongoing support. As the post above states you should do that also but the ex has to agree to it and respond back to FRO. It may work but don't count on it. It's no secret that FRO is under staffed and not very efficient in many ways. I never got a response from FRO regarding the letter I sent and that was in January 2008. Still wouldn't hurt to send one though as it will be more proof that you tried everything you could before begining court proceedings. If you have an ex that won't cooperate with you they most likely wont agree to having FRO terminate your support obligation. Everything you can try before court is worth a try, court should be the last option you use and not to mention the most costly.

State on each letter that you're giving them 30 days to respond and after 30 days if you've heard nothing get a good lawyer and get the ball rolling. Keep proof of everything you send and do.
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Old 09-04-2008, 07:04 PM
coffeeman690 coffeeman690 is offline
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Thank you so much !!!!!! for all the info

right now I have sent my last letter to her lawyer with my options and I have been told by my lawyer that if she doesnt accept these terms we will be going to court for a conference GREAT cant wait for that I will keep u ALL Informed


Thks a MILLON

Cheers Dave
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