DRO Results leaves me with more questions.....

[arabian]

I agree with you Winter.

I guess my thinking on this was that it would be nice for lawyer representing her ex be taken to task. Probably wishful thinking on my part.

Idiotic that someone files a MTC without providing disclosure.

[Winter]

You use a Form 14: Notice of Motion and request summary judgement dismissing his Motion to Change on the basis that he has not met the onus of showing a material change in circumstance.

Then you need to file an affidavit with your Form 14 addressing each point he raised in his Motion to Change and showing how it is not a MATERIAL change.

Choose a motion date a couple of weeks away as if you choose one too soon, the lawyer will just ask for an adjournment. You could call the lawyer's office and ask when he is available for a motion hearing if you want beforehand. The courthouse will hear motions on a specific day of the week, for example Wednesday. Ask what is the earliest Wednesday he is available.

Then drop your motion off at his lawyer's office (I am assuming that while he is in the US, that his lawyer is in your city) to serve your motion.

My advice would be to simply argue there is no material change. If you want to argue for an increase in support, then you would need to agree there is a material change. You have no factual information to prove an increased income (from what I understand from your posts). It is much simpler and quicker to simply keep your current order. Yes, he is probably underpaying. It is unfair. But nothing about this process is particularly fair.

If he is currently in arrears, you absolutely can ask for the court to set an arrears payment schedule. If you are registered with FRO, request a statement from them and attach it to your affidavit. Ask the court to order a monthly arrears payment amount. Pick a number that is reasonable. How much is he in arrears?

For Section 7, you quote what your current order says you each pay (I assume a percentage) and attach your receipts proving what the total amount owing is and what his share is. Make certain what you are asking for is indeed Section 7

[arabian]

I found this case which you guys might find interesting:

https://www.canlii.org/en/on/onsc/do...&resultIndex=6

[Winter]

Thanks Arabian

Another that may help Busch is also very recent --


Citation: Fewster v Fewster, 2015 ONSC 4816 (CanLII), <http://canlii.ca/t/gkjsb>

[39] The Minutes of Settlement and Divorce Order attribute income to Mr. Fewster. They do not explain the relationship between the attribution of the income and Mr. Fewster’s actual income at the time. The attribution may be based on other factors such as the fact that some of Mr. Fewster’s personal expenses are also expenses of the business, or the possibility that Mr. Fewster’s actual income is greater than his declared income, or that Mr. Fewster is capable of earning a much higher income than he earns and is intentionally underemployed. Regardless, I find that Mr. Fewster’s change in income is not material and cannot support a variation in spousal support.

[Busch]

OMG!! The two of you have made my Monday!! If I wasn't sitting at work I would be doing a happy dance right now!! Thank you both so VERY much for your help!! To answer some of your questions Winter....


You asked "If he is currently in arrears, you absolutely can ask for the court to set an arrears payment schedule. If you are registered with FRO, request a statement from them and attach it to your affidavit. Ask the court to order a monthly arrears payment amount. Pick a number that is reasonable. How much is he in arrears?"
We agreed to sign off on FRO as per the judges suggestion. (no employer to do garnishment with) However, when ex filed MTC he had to update address and get a certified copy of our Final Order. That in turn sent it to FRO without the documents that we had signed refusing FRO. I have been trying to contact FRO and will continue to do so to get a statement that no payments had been made. He is 3 months in arrears almost $2,000.00, plus S7, (child care) costs.

I know I don’t have proof of extra income greater than what was originally imputed, hence the reason I wanted to keep everything status quo. Under paying or not….just keep things the way it has been for 3 years and leave well enough alone. That’s my thought anyway. I will be looking into Form 14 for sure, and I’m pretty sure my affidavit that I included in my response to the Motion will suffice in showing no Material Change. I included everything from the fact that tax deductions are lower in the US and that he didn’t apply an exchange rate to the 23K he was claiming. I just need a judge to look at the request and say YA um NO.

Last thing I need to figure out is the laws and Rules that warrant my request to dismiss. I know Rule 16 and then 19. I also believe that I can request costs for this.

Thank you again Winter and Arabian!! I greatly appreciate you help and efforts on this!

[Winter]

I am very happy to be of help, Busch. This can all be very frustrating and disheartening and overwhelming -- especially when you are a single mother

Your situation is very similar to mine -- except I have been dealing with non-disclosure for more than eight years now and have more than $60,000 owed to me in arrears.

You need to do a very clear and simple affidavit in support of your motion for summary judgement. List the changes he is claiming one by one and after each, show/argue why that change is not material. Attach any supporting evidence you have as exhibits.

The rules/laws you use will depend on which Act the terms of your order cite -- are they pursuant to the Family Law Act or the Divorce Act?

The information you got from the judge re:FRO not being able to garnish your ex because he is self-employed is NOT correct. FRO can garnish any income source. Clients are income sources. They can and do garnish payments owed to self-employed payors by clients.

If you were only very recently registered with FRO, your ex may not be paying you directly anymore because he cannot. The info package you should have received from them states very clearly that he must pay them and stop paying you. It can take several months for them to register your payment info and forward payments to you.

And yes, you can ask for costs. Keep track of your copying costs, postage, etc.