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  • URGENT - Motion / Motion to Vary

    Do I need to file a MOC to vary support from our trial in 2013, before any motion can be brought (my situation is very fluid, due to sudden and dire circumstances the children and I face - I have an eviction hearing from our residence in 2 weeks (children live 50/50 on week about basis).. I haven't drafted a MOC yet, still waiting on OP to provide details and consent (using their Income Agreement entered at trial).

    I have been struggling with OP in order to vary child support using the OP own Income Agreement (submitted into evidence), which lays out imputed quantum and aniversary dates towards my EX.. the trial judge found the agreement to be reasonable and fair. I was in the process of trying to draft a motion to vary support using updated finanical info, along with OP Income Agreement, however my monthly shortfall and (minimimzed) expenses still exceed my income (after deductions from source).

    I have been served with an eviction hearing notice, which is to take place before any type of case conference - as the motion to vary is still in the works and being delayed by OP lack of response, disclosure etc...

    What can I do? I have shared custody, 50/50 access and being evicted with 3 children under the age of 10? Not because of poor financial planning / budgeting but as a direct result of the OP refusal to honor an agreement that was made before the court during trial.

    I honestly thought that once trial was completed in 2013, and a clear path laid out by the courts and all parties consent (at trial), that even though things would be tough, there would be an eventual balance, and light at the end of the tunnel. Instead, OP behaviour is escalating over from finances, to almost everything... now including not only when I can see the children, but also how I am spending my time with them - although this has never been an issue since separation in 2011.

    Help... Please

  • #2
    You have written proof of him refusing to honour your agreement? You can file a comtempt motion?

    is the money that you would get from the support variation enough to counteract the eviction?

    Can you not explain to the landlord (single mothers get all the pity)

    Because of the simplicity of the matter and urgency sounds like a case for an emergency motion

    Comment


    • #3
      Yes, the difference would help meet monthly shortfalls.My ex has been doing everything to provoke litigation. The only evidence I have of the failure to comply with the Income Agreement is the total lack of response to my requests to move forward using the quantum amounts and anniversary dates laid out by the trial judge "Reasons for Decision" in which he stated "He found the OP agreement balanced and fair" and would have made the same imputation agreement but did not list out the imputation table in the final order itself only in the Reasons as he laid out clearly the Section 9. CSG formula used to determine means and need.

      I haven't pushed anything since trial (self represented) in 2013, and have avoid litigation at all costs, as the trial judge highlighted the amount of high conflict and the need for both parties to move forward and avoid litigation. For the past two years I have done everything to bridge my monthly shortfalls, waiting for the incremental improvements on a yearly basis i.e. OP income is to increment 10K per year starting one year following trial..

      Question - A MOC requres to a material change in circumstance, my circumstances have not changed, I am looking for direction on how to implement an agreement put forward at trial on behalf of the OP?

      Can I file an emergency motion (Urgent Motion with Notice) (I have already communicated to my ex the eviction hearing notice, and that the children and I have been sustaining ourselves on less than 16.00 per week for food and clothing...) and I have made multiple requests to OP to consent to using their income agreement. Her only response was verbal - "that is her money, she knows about the agreement, if I want to try and take that money, she will take her chances on my ability to file the correct paperwork, and take her chances on what the courts will do"... I've stressed this is urgent and I can no longer wait for a response / consent from OP.

      Do I file a MOC, then an urgent motion with notice? Do I file a 14B requesting the original trial judge to order the income agreement into formal effect, then base MOC on the outcome of the 14B?

      Comment


      • #4
        Can you not access assistance from Legal Aid? If you are subsiding on "less than 16.00 per week for food and clothing" it seems to me that your situation is dire. Are you currently employed?

        If you have the proceedings from the trial as well as the judge's reasons for decision you should have no problem drafting an Order and proceeding directly to a motion hearing. Why was there not a FINAL Order from the trial?

        Go to the food bank and make an appointment with Legal Aid.

        Comment


        • #5
          I just took a peak at a few of your posts from 2012. You were in a desperate situation back then as well. 4 years have gone by and you still seem to struggle to feed your children and face eviction.

          Did you ever go for financial counselling (as I had recommended)?
          Did you get rid of the expensive vehicle?
          Did you ever find employment outside of the home?
          What was the outcome at trial regarding spousal support?

          Comment


          • #6
            Originally posted by arabian View Post
            I just took a peak at a few of your posts from 2012. You were in a desperate situation back then as well. 4 years have gone by and you still seem to struggle to feed your children and face eviction.

            Did you ever go for financial counselling (as I had recommended)?
            Did you get rid of the expensive vehicle?
            Did you ever find employment outside of the home?
            What was the outcome at trial regarding spousal support?
            Yes, that's me... You are absolutely right, it has been over 4 years of living in a world of constant pressure, stress, anxiety. It has / is taking it's toll.

            I filed for bankruptcy in 2013 leading up to trial, my vehicle was repocessed. I work full time and have made 80K gross... as part of bankruptcy I did have mandatory financial counselling - it was apart of the bankruptcy I brought forward at trial my financial breakdown that clearly showed a monthly shortfall, and recommended steps to meet shortfall. The trial judge ignored all recommendations, although considered.

            Section 9. Shared Custody CSG applied and in his breakdown of the formula he listed that I should have $3500.00 disposable income after all deductions from source (including rent, CS, Section 7 expenses etc...), I simply didn't understand how he reached that conclusion as my financial disclosure, bankruptcy audit, pay stubs didn't reflect this? After I pay CS, rent, I have 300 by-weekly to cover expenses (not including the court ordered section 7 - monthly Daycare expense (which is approx. 600 per month)

            The trial judge ordered no spousal support (although OP entitled) based on Section 9. forumla and reserved SS in the event my circumstances improve in the future.

            I have been walking on egg shells for the past two years since trial trying to make sure I didn't upset / frustrate OP, and jeopardize the expected gradual financial improvement over the same period.

            I have done everything in my power to-date to minimize impact to the children, and support my family... I simply cannot sustain those efforts as the debt / loans incurred meeting that monthly shortfall are no longer available after 2 years. I feel I've done the best that I can do, I've even taken on a 2nd job to meet basic expense needs (that is not sustainable).

            I do not qualify for Legal Aid - based on gross... not net or disposable income after everyone (gov, courts etc..) takes their piece of the pay check before it gets to the children and I.

            Comment


            • #7
              There was a final order from trial - I was to pay CS for 1100.00 per month based on the initial imputed income amout of 30k towards my ex. It is in the Reasons and Decision breakdown that highlights the OP Income Agreement entered at trial (quantum amounts, anniversay dates).

              Comment


              • #8
                The mandatory "counselling" at the time of bankruptcy is not the sort of financial counselling I was referring to. With bankruptcy requirements you merely meet a few times (1 1.5 hrs on 2 separate occasions) with someone who hardly delves into long-range financial planning. So with bankruptcy you wiped out your debts. That is a good start for you. Have you received your bankruptcy discharge? I hope you are not racking up debt again.

                You most definitely need financial guidance if you can't make ends meet on 80k with no debt. If your ex doesn't work and you work out of your home why do you need daycare? Something doesn't add up here. What is your net pay after payproll tax, EI, CPP?

                Comment


                • #9
                  Originally posted by arabian View Post
                  The mandatory "counselling" at the time of bankruptcy is not the sort of financial counselling I was referring to. With bankruptcy requirements you merely meet a few times (1 1.5 hrs on 2 separate occasions) with someone who hardly delves into long-range financial planning. So with bankruptcy you wiped out your debts. That is a good start for you. Have you received your bankruptcy discharge? I hope you are not racking up debt again.

                  You most definitely need financial guidance if you can't make ends meet on 80k with no debt. If your ex doesn't work and you work out of your home why do you need daycare? Something doesn't add up here. What is your net pay after payproll tax, EI, CPP?
                  You are absoletly right I should be able to provide for 3 children on an income of 80K, this is why I can't understand why I am only left with a Net Pay of 1800.00 per month after deductions from source (FRO etc...) - My debts were wiped, however the misapprehension by the trial resulted in a monthly shortfall - The 3 children and I have moved to a smaller accomodation 600 square feet apartment, I do not have a phone, cable... etc.. in order to make ends meet to reduce costs. I have incurred debit all over again trying to bridge the shortfall - what is most frustrating is that somehow the courts can't recongize the shortfall,

                  Quick FYI - However any lending institution quickly recongizes the shortfall with even the most basic formula - look at pay stub, compare basic expenses - I've even been declined a "high interest" loan at 42% to cover shortfall based on a quick 5 min assesment of my monthly income paystubs and basic living expenses. I don't know what I'm missing... I earn this much, I spend that much - I've reduced all possible expenses and still short, based on my net income you are right, I would qualify for Legal Aide, subsidies (rent, child care etc..). I proposed no day care - court ordered that I pay so that my ex can focus on building her new paralegal business, started after separation. It seems almost counter initutive and counterproductive but I would actually have more disposable income to provide for the children if I didn't have a career earning 80K because at least I would qualify for various support programs for people living on less than 900 by-weekly.

                  I need to stay focused - I need to understand how / what steps do I take in order to simply have the updated imputation agreement honoured by the OP? I accepted that I incurred debt to bridge the period in which the OP was to build / grow her legal practise... I accept my decision as the enviroment of conflict continued to escalate for our children, by OP during legal proceeding. I sucked it up, and tried everything to make it work, and get to this point without throwing our family back into the mercy of the court to decide.

                  Comment


                  • #10
                    You make 80$k / year
                    she makes 30$l/ year (imputed)
                    50/50 Shared Custody
                    You pay 1100$/mo (does that make sense?)
                    ------> in Quebec at 68000 for me, 0$ for her, with 50/50 - I am paying 400$


                    ----> Are you getting government handouts? CCTB, UUCB etc...?

                    80,000
                    -30,000 Taxes (estimate)
                    -11,0000 Child Support
                    -7200$ Day care
                    + 7200 Baby Bonuses (Estimate)
                    =39000 annually
                    =3250$/month

                    Not sure why you are so broke. 3250$/mo isn't Donald Trump Living but maybe you're smoking crack too much?

                    Comment


                    • #11
                      Without going into too much more detail - public forum... Perhaps this is not the best approach?


                      I don't want to layout how/what I plan to present before the courts (in advance)... I am simply looking for "positive" recommendations as to how best approach (less litigative, adversail etc...). I know I will need to provide deligence and clear evidence of my efforts to support my position, and current circumstance - that onus is on me...

                      Without going into "detail" the imputation amounts will not affect the children, their standard of living, day-to-day activities while with the OP... That would be counter-intitive to what I have tried to do, over the past 2 years (expense, stress etc..).

                      I can say with assurance that the court found that an incremental imputation of income to OP to be "fair and balanced" and would have made an order to that effect, if the OP had not submitted the Income Agreement at trial.

                      I want to vary an existing final support order - The anniversary date has expired, my efforts to seek joint consent to vary support has failed, I took a calculated risk in giving OP every opportunity to avoid court... That decision to go as far as I could financially (without going back to court) is on me. I know I tried to follow the spirit of the trial judge Reason for Decision. Stop litigation, acknowledge difference in parenting styles, think from the children perspective.

                      Comment


                      • #12
                        If you have contemplated a high interest loan after bankruptcy then you most definitely need financial planning assistance. Why not look at a community college to see what sorts of programs are available? Do you know any accountants who would give you some tax advice and help you set up a budget. Are you self employed? If not, does your employer have an employee assistance package? Often there are goodies in there that one isn't made aware of.

                        Comment


                        • #13
                          That is great advice, thank you.

                          Comment

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