Announcement

Collapse
No announcement yet.

Has he shot himself in the foot?

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Has he shot himself in the foot?

    I think I might have opened a can of worms for my brother (

    Background:

    Brother & ex married 17 yrs. 2 kids. Boy (15) & Girl (16). Brother left the marriage in May 2011. By October 2011 they managed to hammer out a Separation Agreement that was reviewed & witnessed by lawyers and filed with the courts.

    He makes $80,000, She makes $40,000

    Upon signing, she got $125,000 bank draft for equalization re: the house, debts, etc ... and my brother refinanced the mortgage so he could stay in the house.

    Original agreement states Joint Custody with boy living with my brother (primary) & seeing mom EOW and girl lives 50/50 with mom & my bro (no primary listed). Section 7 expenses capped at $5,000/yr per child & my brother pays 65%

    Brother pays $120/mo in offset CS and $250/mo for 7 yrs in SS

    Fast forward to November (the ink wasn't even dry yet) ... daughter decides to move in with dad and does so ... my brother now has both kids full-time ... & kids' are pretty much estranged from mom (whole other sad, long story).

    In February 2012, brother asks daughter what her intentions are and if she plans on eventually going back to mom's ... she states she wants to remain with dad so my brother emailed ex and asked about 1) stopping paying the $120/mo CS and 2) getting CS for the 2 kids who now reside full-time with him.

    Answer was "we have a court order so no you cannot stop paying and I can't afford to pay you child support"

    He asked me what to do so I told him he'd need to file a Motion or Application. That was done and served on her in March. It's asking that his CS responsibility be terminated and that she be ordered to pay guideline CS as well as addressing that daughter is now living F/T with him.

    She has come back with ... "if you continue with this I am going to ask the courts to increase my SS payments so you might as well drop this whole thing."

    My brother & I realize that according to My Support Calculator he is paying low SS but that is because his lawyer advised him that in all fact she might not even be "entitled" to SS, however they could end up wasting tens of thousands of dollars fighting it in court so if they could come to an agreement themselves, they would be far better off and that is what they managed to do.

    She's pulling this strictly because she doesn't want to pay CS. So if he drops the court proceedings she'll leave SS alone, if he continues and she is ordered to pay CS then she plans on going after more SS.

    Will the judge see through the game?

    What advice can you give him?

    TIA (& I apologize for the length but wanted to give as much detail as I could)

  • #2
    According to the SS calculator, you say this is the "low" end. So is it still within the acceptable range?

    If he pays more SS, how much more? How much more in comparison to the amount of CS she would have to pay? In otherwords is this a net loss for him?

    How long is he expected to pay SS? The children may receive support until they are 22 or so if they both go to university.

    If he lets her walk all over him, how will this affect his self-esteem, and how will it affect their ongoing relationship? She will still have some contact. These are not trivial issues. She's already a jackass. There is potential, by giving in, of convicing her that she can get what she wants with threats. It reinforces bad behaviour and will just make it more continuous. I'm not saying she will become a better person by taking her to court, but she will see that your brother (no offense) has a spine will draw a line and back it up.

    So add all these factors together and decide if it's worth it.

    Comment


    • #3
      I wouldn't count on her to stick to any quid pro quo agreement. There's no guarantee she won't decide to re-visit SS at any time she chooses, regardless of what he does about CS.

      Comment


      • #4
        I find it offensive that someone would even argue decrease of cs = increase in ss. What a selfish cow. And as plky points out, doesn't seem to be one you can rely on anyway to stick to any deal.

        Your brother is entitled to cs, and if I were him, I would go for it.

        Would a judge increase her ss because her cs was decreased/removed? I would hope not! They are two separate issues, their original deal is signed and filed, with ss (within the scale) for the next 7 years. Will the difference in cs and any increase in ss result in a loss or gain for your brother?

        Course, I don't know what I'm talking about, I'm just angry on behalf of your brother. I would take the gamble, perhaps your brother should run it by his lawyer quickly? At the end of the day, it's a risk that only your brother will be taking.
        Start a discussion, not a fire. Post with kindness.

        Comment


        • #5
          Just how likely/often does spousal support get changed? Mine is for 5 yrs (haven't rec'd a dime yet) at which time (end of 5 years) it can be re-opened or continued depending on a number of things acceptable to the Courts. I don't imagine there's a lot of continuances/increases approved. Anyway, as for above thread it is my understanding that SS and CS are two separate issues to be dealt with.

          Comment


          • #6
            There is a change in circumstances because the daughter has moved in with the father.

            Child support MUST be paid for the BOTH children until they complete university or college or they are no longer obtaining an education. As long as she has an income and they are living with the dad she has to pay CS.

            Since SS is already in place she can revisit the SS issue at the same time the CS issue is brought to the court. Spousal support is based on both incomes however CS is based on her income.

            If you never had a court file number for your separation/divorce you will have to file an Application with the courts. I never had a separation agreement, we couldn't agree, so an Application was filed and we went through the court process.

            There is also a link on the internet which calculates both SS and CS based on your incomes.

            MySupportCalculator.ca

            Hope that helps.

            Comment


            • #7
              Originally posted by hadenough View Post
              Just how likely/often does spousal support get changed? Mine is for 5 yrs (haven't rec'd a dime yet) at which time (end of 5 years) it can be re-opened or continued depending on a number of things acceptable to the Courts. I don't imagine there's a lot of continuances/increases approved. Anyway, as for above thread it is my understanding that SS and CS are two separate issues to be dealt with.
              You have NEVER received your SS??? If you have a court number, my gawd file a Motion with the courts and ask that the income be garnished by the Family Responsibility Office.

              These people that don't follow court orders are ridiculous!!!

              Comment


              • #8
                Three words. Lump sum payment.

                Get a release from the ex, pay it, get the money any way you can, personal loan or whatever, then it can't be revisited.

                If she is in financial difficulty lsp could appeal to her.

                Comment


                • #9
                  According to mysupportcalculator.ca SS = CS basically. Crazy but true that a person making 80K AND raising 2 kids, gets no CS for an ex making 40K because of SS.

                  However this does not include section 7 expenses. So he should offer her that they follow mysupportcalculator.ca, updating yearly based on previous years tax returns.

                  Anyway, do the math. Court costs 20K at least because lawyers will introduce other bs to fight over, but there always is the idea of getting awarded costs etc, or self representing.

                  Are you saying she will agree to no SS and no CS?

                  If it were me, I would offer no SS, no CS, and share section 7 - don't forget post secondary will cost a lot.

                  Comment


                  • #10
                    So their original agreement didn't go to court, but it's all signed and legal and everything? They had independent legal advice?

                    Child Support and Spousal Support are not particularly linked. CS is the automatic right of the child, and determined by the parents' incomes and custody situation. Spousal support is not automatic; the ex has to prove entitlement, and while there are guidelines, the amount is flexible.

                    She's just feeling the potential loss of income, and grasping at straws, hoping her threat is enough to make him back off. But really, she's being unreasonable. She's required to support her children, and she's already agreed that the previous amount of SS is suitable to her. Just because the one changes, it doesn't follow that the other one should too.

                    He should go ahead with the request for the CS change. Let her take him to court if she wants the SS to change. She'll have an uphill battle to prove to a judge that the previous agreement for SS should change, even if it's a below guideline amount. Hopefully once her threat doesn't work, she'll step up to her CS responsibility. If not, I guess it's court. I like to think that a judge would see through her greed and slap her (figuratively) for not wanting to pay CS, but the lawyer probably has better advice on that. He should keep track of costs (which would only be tens of thousands of dollars if he keeps the lawyer throughout). Honestly, she's probably bluffing as I doubt she wants to pay huge legal fees to fight over a couple hundred dollars a month either.

                    Comment


                    • #11
                      Thanks everyone ... it seems they have hammered things out ... and are in AGREEMENT

                      So my next question is this:

                      I know my brother will have to file a Form 12 (Notice of Withdrawal) for his Application ... what form(s) does he file to make this "legal"

                      Remember that there was never a "court order" in place. There was a Separation Agreement that was filed with the courts and given a Case #

                      Does he simply fill out a Form 15C (Consent Motion to Change) and both him & ex sign it and file it? That seems very simplistic to me and I know nothing in Family Law is simplistic.

                      The changes will be residence of the daughter only (as agreement already acknowledges son lives with dad), his CS obligations are terminated AND that his ex will have to pay CS

                      Comment


                      • #12
                        Even if SS and CS get adjusted and the brother ends up paying the same $ amount out....SS is taxable and deductible and CS isn't. So in the end the brother gets a tax break he doesn't enjoy now. If I understand it correctly. Though that doesn't cover the costs of lawyers.

                        Comment

                        Our Divorce Forums
                        Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                        Working...
                        X