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  #1  
Old 11-16-2006, 01:25 PM
smadax smadax is offline
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Default Child Support Hearing Next Week

I have an odd situation.... We're not sure the exgf will be honest in her Fiancial statement and don't suspect we'll even be able to see it until the day of the hearing.

I know she's claim EI fraudulently up to March/April 2006. We know she's worked at least one day in the summer and she stated she's on their 'on call ' list....

But here's the clincher - She's fully capable of working with her common-law bf and we became aware that's she worked for him for at least 1.5 weeks. But has chosen to stay at home looking after her 10 year old stepson.

It gets even better though .... since Jan 2006 there has been an active custody order stating she is NOT allowed to be left unsupervised with her stepson AND since April 2006-October 2006 The Ministry of Children & Families also had a Supervision Order against her stating she is NOT to be the primary caregiver for ther stepson! But she did it anyhow!!

According to the Federal Child Support Guidelines
Section 19 (1) (a)
The spouse is intentionally under-employed or unemployed, other than were the under-employment or unemployment is required by the needs of the child of the marriage or any child under age of majority of by the reasonable educational of health needs of the spouse;"

#1 - Even is she can not find herself employment, there is no reason she can not be working with her bf, which she has done successfully.

#2 - She is supposidly being financially supported by her bf, but I understand we can not get support from him.... unless she claims hardship?

I'm not sure how this all works, or if we'll get granted anything. She was successfully employed before she moved, she moved because her bf was able to find employment but claims she now can not find work in this city.

We can not afford a Lawyer, but she's somehow maintained one.
  #2  
Old 11-16-2006, 01:54 PM
logicalvelocity logicalvelocity is offline
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smadax,

I don't mean to criticize or defame in anyway

A quick tip to remember if you are representing yourself and completing your own pleadings. That being, "first point writing." Get to the issue up front and write the facts to support subsequently how you got that conclusion. What will stick out is your first point! This is what the court will see.

I will assume you have custody of your child and the issue is child support for behalf of your child.

I believe your ex's stance is " I'm on EI" and I have another child to look after etc.

Regardless, First family rule of thumb! The obligation to support the first child should not be superseded by a subsequent obligation to care for a step child. Moreover, If they are common-law, is the child really a step child? If they are not married this term "step-child" is incorrect unless the child was adopted. In all, first family obligation rule of thumb prevails.

Don't get too wrapped up in whether they are truthful in their finances and circumstances. Regardless of same, you have to show the necessity of inputting an income to them for child support purposes. What steps have they taken to secure employment. Are they healthy etc

I am not clear on their education or work experience, but I do agree that there are plenty of employment opportunities available to individuals the are sincere in working and generating an income.

Quote:
2 - She is supposedly being financially supported by her bf, but I understand we can not get support from him.... unless she claims hardship?
The bf cannot be held liable for any support towards your child. Even if they were married, there is no legal recourse you can take. The claim would be seen as frivolous.

Quote:
I'm not sure how this all works, or if we'll get granted anything. She was successfully employed before she moved, she moved because her bf was able to find employment but claims she now can not find work in this city.
There is no law that prevents a person from moving. However, the courts may be lenient with them initially but not for very long. If they choose deliberately to remain to be unemployed, the courts will input an income to them. Support of a child is paramount.

Quote:
We can not afford a Lawyer, but she's somehow maintained one.
Perhaps they qualified for legal aid? No income, no assets etc. If you are successful in your claim of support for your child, you could request costs. Regardless if they are represented by legal aid or not, costs can still be awarded to the successful party.

lv
  #3  
Old 11-16-2006, 04:57 PM
smadax smadax is offline
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Default Family History

You are an epiphany of knowledge, thanks for your input!

They are not married, therefore I guess the boy will not be a "step-son"?

She does not qualify for Legal Aid or Income Assistance because her bf makes VERY good money, therefore he is the financial provider for the family while she remains unemployed.

Her claim will be "unemployed" possibly also stating "zero income". She does not know that I've been informed about her fraudulent claim to EI and also spoke to the EI investigator because her bf gave her the means to get FULL EI Benefits through the business he runs. Therefore I also believe EI has since ended her claim. If the burden of proof is on me, I have none other than my word and the name of the EI Investigator.

August 2006 The Ministry of Children and Families made her move out of the residence due to the breech of the Supervision Order (being the unsupervised childcare provider for her bf son) and neglect. During this time that she was not able to care for the child, she was successfully employed for 1.5 weeks with her bf and then left to a Treatment Centre for 2 months.

After completion of the program, The Ministry has since made a motion to remove the clause on the Supervision Order .... but there still is a condition in the bf custody order that she is NOT to be the primary caregiver for the child. Regardless, she is still caring for the child full time because no one is attempting to enforce the order. They have started a motion to have that condition removed, but it has not officially occured yet.
  #4  
Old 11-16-2006, 07:48 PM
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smadax,

Quote:
They are not married, therefore I guess the boy will not be a "step-son"?
that is correct. Perhaps she should be receiving the going rate for daycare worker and housekeeper or maybe she is by receiving free accommodation and as such an income should be inputted to her!

Quote:
She does not qualify for Legal Aid or Income Assistance because her bf makes VERY good money, therefore he is the financial provider for the family while she remains unemployed.
Legal aid's criteria is on household income, and if the BF and her are living together, they would also consider his income for qualifying for same.

Quote:
Her claim will be "unemployed" possibly also stating "zero income". She does not know that I've been informed about her fraudulent claim to EI and also spoke to the EI investigator because her bf gave her the means to get FULL EI Benefits through the business he runs. Therefore I also believe EI has since ended her claim. If the burden of proof is on me, I have none other than my word and the name of the EI Investigator.
You could request disclosure of her EI records. Fraud won't go over well with the court. Says alot in regards to a person's character. Get your proof by way of disclosure with the court or use the court form "request to admit"

Quote:
August 2006 The Ministry of Children and Families made her move out of the residence due to the breech of the Supervision Order (being the unsupervised childcare provider for her bf son) and neglect. During this time that she was not able to care for the child, she was successfully employed for 1.5 weeks with her bf and then left to a Treatment Centre for 2 months.
This is somewhat irrelevant in regards to the child support issue. It may be relevant if custody and access were outstanding issues with your case. What kind of treatment centre? I will go out on a wire and guess - Alcohol and drug addiction is seen as a disease and may be seen as a disability. However if they are no longer in a treatment centre, they somewhat suggests that they are cured. It may be wise to request full medical disclosure of the individual.

Quote:
After completion of the program, The Ministry has since made a motion to remove the clause on the Supervision Order .... but there still is a condition in the bf custody order that she is NOT to be the primary caregiver for the child. Regardless, she is still caring for the child full time because no one is attempting to enforce the order. They have started a motion to have that condition removed, but it has not officially occurred yet.
They appear to be involved in a child protection matter and only would be relevant to your case if custody and access were outstanding issues with your child. In essence as you mentioned, they somewhat ignore the order.

I would focus on inputting an income to her, either by way of employment or she should be receiving a monetary amount of income for the duties she is completing in the home ie: such as housekeeping and child care. On the face of it their excuse to not seek employment is ie to care for this other child whom she currently has no legal obligation to do so. As such she should be receiving compensation.

lv
  #5  
Old 11-16-2006, 09:37 PM
smadax smadax is offline
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Default Great Idea!

Thanks for the great advice LV, I'll try it during our hearing and hope it works. I'm gonna have to put some serious thought into this "first point writing" ... hard not to be emotional about things when it's personal. To me, it's all relevent, hard to be non-bias and objective this close to the fire!
  #6  
Old 11-17-2006, 03:26 PM
smadax smadax is offline
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Default Further Research....

What is this "Standard of Living" calculation that is mentioned when discussing Child Support? Would this make a difference in my case at all, taking into account their household standard, compared to ours??

Because their household brings in about $50,000/year with one child. While we're struggling with less that $20,000/year and four kids!
  #7  
Old 11-17-2006, 06:56 PM
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smadax,

the standard of living for claims of hardship can be found in the Ontario child support guidelines as an appendix II which can be found here.


http://www.e-laws.gov.on.ca/DBLaws/R...391_e.htm#BK33

COMPARISON OF HOUSEHOLD STANDARDS OF LIVING TEST (Subsection 10 (4))

Definitions

1. The definitions in this section apply in this Schedule.

“child” means,

(a) in cases where the Divorce Act (Canada) applies, a child of the marriage or a child who,

(i) is under the age of majority, or

(ii) is the age of majority or over but is unable, by reason of illness, disability or other cause to obtain the necessaries of life, or

(b) in cases where the Act applies, a child who is a dependant under the Act; (“enfant”)

“household” means a parent or spouse and any of the following persons residing with him or her,

(a) any person who has a legal duty to support the parent or spouse or whom the parent or spouse has a legal duty to support,

(b) any person who shares living expenses with the parent or spouse or from whom the parent or spouse otherwise receives an economic benefit as a result of living with that person, if the court considers it reasonable for that person to be considered part of the household, and

(c) any child whom the parent or spouse or the person described in clause (a) or (b) has a legal duty to support; (“ménage”)

“taxable income” means the annual taxable income determined using the calculations required to determine “Taxable Income” in the T1 General form issued by the Canada Revenue Agency. (“revenu imposable”)

Test

2. The comparison of household standards of living test is as follows:

STEP 1

Establish the annual income of each person in each household by applying the formula

A – B – C

where

A is the person’s income determined under sections 15 to 20 of these guidelines,

B is the federal and provincial taxes payable on the person’s taxable income, and

C is the person’s source deductions for premiums paid under the Employment Insurance Act and contributions made to the Canada Pension Plan and the Quebec Pension Plan.

Where the information on which to base the income determination is not provided, the court may impute income in the amount it considers appropriate.

STEP 2

Adjust the annual income of each person in each household by

(a) deducting the following amounts, calculated on an annual basis:

(i) any amount relied on by the court as a factor that resulted in a determination of undue hardship, except any amount attributable to the support of a member of the household that is not incurred due to a disability or serious illness of that member,

(ii) the amount that would otherwise be payable by the person in respect of a child to whom the order relates, if the pleading of undue hardship was not made,

(A) under the applicable table, or

(B) as considered by the court to be appropriate, where the court considers the table amount to be inappropriate,

(iii) any amount of support that is paid by the person under a judgment, order or written separation agreement, except,

(A) an amount already deducted under subclause (i), and

(B) an amount paid by the person in respect of a child to whom the order referred to in subclause (ii) relates; and

(b) adding the following amounts, calculated on an annual basis:

(i) any amount that would otherwise be receivable by the person in respect of a child to whom the order relates, if the pleading of undue hardship was not made,

(A) under the applicable table, or

(B) as considered by the court to be appropriate, where the court considers the table amount to be inappropriate, and

(ii) any amount of child support that the person has received for any child under a judgment, order or written separation agreement.

STEP 3

Add the amounts of adjusted annual income for all the persons in each household to determine the total household income for each household.

STEP 4

Determine the applicable low-income measures amount for each household based on the following:

Low-income Measures

Household Size
Low-income Measures Amount

One person

1 adult
$10,382

Two persons

2 adults
$14,535

1 adult and 1 child
14,535

Three persons

3 adults
$18,688

2 adults and 1 child
17,649

1 adult and 2 children
17,649

Four persons

4 adults
$22,840

3 adults and 1 child
21,802

2 adults and 2 children
20,764

1 adult and 3 children
20,764

Five persons

5 adults
$26,993

4 adults and 1 child
25,955

3 adults and 2 children
24,917

2 adults and 3 children
23,879

1 adult and 4 children
23,879

Six persons

6 adults
$31,145

5 adults and 1 child
30,108

4 adults and 2 children
29,070

3 adults and 3 children
28,031

2 adults and 4 children
26,993

1 adult and 5 children
26,993

Seven persons

7 adults
$34,261

6 adults and 1 child
33,222

5 adults and 2 children
32,184

4 adults and 3 children
31,146

3 adults and 4 children
30,108

2 adults and 5 children
29,070

1 adult and 6 children
29,070

Eight persons

8 adults
$38,413

7 adults and 1 child
37,375

6 adults and 2 children
36,337

5 adults and 3 children
35,299

4 adults and 4 children
34,261

3 adults and 5 children
33,222

2 adults and 6 children
32,184

1 adult and 7 children
32,184


STEP 5

Divide the household income amount (Step 3) by the low-income measures amount (Step 4) to get a household income ratio for each household.

STEP 6

Compare the household income ratios. The household that has the higher ratio has the higher standard of living.

O. Reg. 391/97, Sched. II; O. Reg. 446/01, ss. 8, 9; O. Reg. 102/06, s. 5.

Your could complete a calculation theres and your own and give it to the Judge during the hearing or attach to your affidavit as a calculation to support your stance.

lv
  #8  
Old 11-17-2006, 07:53 PM
smadax smadax is offline
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Default Calculations Calculated

Thank you for that information LV.

Are Child Tax Benefits calculated in that equation as part of our income?

I've been searching all the case files and have not found anywhere, that a Judge has applied an income to a defendant. Have you had the fortune of seeing this type of order in CanLII??
  #9  
Old 11-17-2006, 09:36 PM
smadax smadax is offline
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Default Never Mind! :)

Moreover, Note 6 to Schedule I of the Guidelines states:

6. The formula referred to in note 5 sets support amounts to reflect average expenditures on children by a spouse with a particular number of children and level of income. The calculation is based on the support payer’s income. The formula uses the basic personal amount for non-refundable tax credits to recognize personal expenses, and takes other federal and provincial income taxes and credits into account. Federal Child Tax benefits and Goods and Services Tax credits for children are excluded from the calculation. At lower income levels, the formula sets the amounts to take into account the combined impact of taxes and child support payments on the support payer’s limited disposable income.


After an exhaustive rearch I was successful in finding an interesting case...

Van Gool v. Van Gool 1998 CanLII 5650 (BC C.A.), (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)
  #10  
Old 11-18-2006, 12:53 AM
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smadax,

Quote:
After an exhaustive rearch I was successful in finding an interesting case...

Van Gool v. Van Gool 1998 CanLII 5650 (BC C.A.), (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)
an excellent authority that you came across on the issue

http://www.canlii.org/bc/cas/bcca/1998/1998bcca540.html

paragraph 31 in particular,

"[31] It is apparent from this case, and others to similar effect, that the intention of the legislators both before and after the enactment of the Guidelines was to ensure that parties liable for child maintenance were not permitted to avoid their responsibilities simply by virtue of being unemployed or under-employed."

moreover,

In 1999, the same parties went before the British Columbia Court of Appeal on the issueof costs for the earlier appeal

Citation: Van Gool v. Van Gool, 1999 BCCA 188 (CanLII)
Parallel citations: (1999), 44 R.F.L. (4th) 331

http://www.canlii.org/bc/cas/bcca/1999/1999bcca188.html

paragraph 3 of same

[3] We have reviewed the submissions of the parties with respect to costs. In our view, this is a case in which costs should follow the event. Mr. Van Gool was successful on the two key issues on appeal and is entitled to his costs. Thus, assuming the court has the jurisdiction to set aside the order with respect to costs in these circumstances, we would decline to do so.

and check this out

Citation: Messier v. Baines, 1997 CanLII 11210 (SK Q.B.)
Parallel citations: (1997), 161 Sask. R. 132

http://www.canlii.org/sk/cas/skqb/19...skqb10400.html

The relevant provisions of s. 10 of the Guidelines
are as follows:

10. (1) On either spouse's application, a court may award an
amount of child support that is different from the amount
determined under any of sections 3 to 5, 8 or 9 if the court
finds that the spouse making the request, or a child in
respect of whom the request is made, would otherwise suffer
undue hardship.


(2) Circumstances that may cause a spouse or child to suffer
undue hardship include the following:

...

(d) the spouse has a legal duty to support a child, other
than a child of the marriage
, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by
reason of illness, disability or other cause, to obtain
the necessaries of life; and

...

(3) Despite a determination of undue hardship under
subsection (1), an application under that subsection must be
denied by the court if it is of the opinion that the
household of the spouse who claims undue hardship would,
after determining the amount of child support under
any of sections 3 to 5, 8 or 9, have a higher standard of
living than the household of the other spouse.


(4) In comparing standards of living for the purpose of
subsection (3), the court may use the comparison of
household standards of living test set out in Schedule II.



The capacity of the respondent, or any other
non-custodial parent, to pay the amount of child support
prescribed by the applicable table is presumed. Subsection
10(2)(d) recognizes that in certain situations the obligation
to support a child of a second family may result in undue
hardship to the applicant or that child should the Guidelines
be applied without deviation. Accordingly, the court is
provided the discretion to award an amount of child
support that differs from the prescribed amount where it finds
that such undue hardship would otherwise exist. This permits
the court to ensure, to the extent possible, that the children
of both families are treated equitably.

Section 10 contemplates a two-step analysis.
First, the court must be satisfied that circumstances exist
which would cause the applicant or a child to suffer undue
hardship. Subsection 10(2) sets out a non-exhaustive list of
circumstances which may cause such undue hardship. Second,
even should a determination of undue hardship be made, the
court must still deny the application unless it is satisfied
that the applicant's household standard of living is
lower than that of the other spouse. The onus of establishing
circumstances of undue hardship and of a lower household
standard of living is on the person applying.


In determining whether or not circumstances of
undue hardship exist, the objectives of the Federal Child
Support Guidelines must be kept in the forefront. Section 1
sets out the objectives:


1. The objectives of these Guidelines are

(a) to establish a fair standard of support for children
that ensures that they continue to benefit from the
financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by
making the calculation of child support orders more
objective;

(c) to improve the efficiency of the legal process by
giving courts and spouses guidance in setting the levels
of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children
who are in similar circumstances.



These objectives will be defeated if courts too
readily deviate from the presumptive rule set out in section
3 of the Guidelines absent compelling reasons for doing so.


Second families, and the associated legal duty to support a
child of that family, are not uncommon. The assumption of
such new obligations may by necessity create a certain degree
of economic hardship. That hardship is not however
necessarily "undue". Similarly, the mere fact that an
applicant's household standard of living is lower than
that of the other spouse, due in part to the applicant's legal
duty to another child, does not automatically create
circumstances of undue hardship.


I am not persuaded that applying the presumptive
rule set out in section 3 of the Guidelines will create
circumstances of undue hardship for either the respondent or
his daughter. There is no evidence of the additional expenses
incurred by the respondent and his wife as a result of their
daughter's asthmatic condition.

I am also influenced by the fact that the
respondent's wife, as well as the respondent, has a legal duty
to support their child. Her income is relevant not only for
the purpose of comparing household standards of living, but
also for the purposes of determining whether or not her
daughter will suffer undue hardship should the respondent be
required to pay child support for the children of his first
marriage in an amount prescribed by the Guidelines.


While the respondent deposes to his wife having
minimal income and limited ability to contribute to the
financial operation of their household, her T1 General Return
discloses gross business income from babysitting of $30,811.00
in 1995 and $21,357.00 in 1996.
In each of those years her
net income from this business was less than $1,000.00. This
was due in large part to her ability to deduct from income
certain "business-use-of-home" expenses which in 1995 amounted
to approximately $15,000.00 and in 1996 approximately
$7,000.00. These deductions have included a significant
portion of the families' heat, electricity, maintenance,
mortgage interest and property tax expenses. These are
legitimate deductions for income tax purposes. The result of
these deductions however is that her Total Income shown in her
T1 General Returns does not reflect her actual ability to
contribute to the family finances. I am satisfied that her
actual economic contribution to household finances and her
ability to contribute to daughter's expenses is greater than
that deposed to by the respondent.


lv
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