Announcement

Collapse
No announcement yet.

Child support motion to change due to lower income & joint custody being enforced

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

  • Child support motion to change due to lower income & joint custody being enforced

    Hello,

    I am new to this and seeking some advice for someone else. I'll do this in point form so it's easier.

    CHILD SUPPORT ISSUES

    1) Separation papers were drafted with a lawyer privately and child support was established at $1,000 month for 2 children to start effective the sale of the matrimonial home - Oct 1, 2010.

    2) Separation Papers signed June 30, 2011, whereby the Husband was already unemployed - Termination letter received February 15, 2011.

    3) Separation Papers accounted for the 2008, 2009, 2010 income at $70,200 and didn't take into account the husband was unemployed.

    4) Husband works ad-hoc jobs here and there and lands a full-time job in August. Total 2010 income is $36,000 for 2010 and in 2011 total income will the full-time job at $43,000. Starts paying $1,000 CS to wife as of October 2011.

    5) Based on CS tables, total CS should be $661 for the $43,000 salary, seeks to have current $1,000 CS decreased.

    6) Confirmation of Assignment faxed and waiting on. Form 15A, Form15 completed, Form13 Fully completed with a 1 inch binder showing all assessments, reassessments, all supporting documentation to account for 2011 income at $36,000 and 2012 income from current employer (pay stub, offering letter), all assets, liabilities documented and supported, all record of job searches from Termination date to landing new position documented.

    QUESTION:
    Once Separation is submitted as a Court Document and then we submit Motion to change, will child support go down? And does he keep paying the $1,000 until it is approved by the court or if it goes to court? Or is he stuck to paying $1,000?

    JOINT CUSTODY

    1) Separation papers signed indicated 50/50 Joint Custody with alternating weekends. Nowhere does it say he is a danger to them or is the vistation supervised. [By the way, it was ONLY the wife's lawyer that drafted the separation agreement, and on the back page, it states the "separation agreement is acting in the best interest of (wife's name). Husband signed without legal counsel. Gave 100% of house to her and everything in it.]

    2) Also indicates they will take into account the children's intentions and wishes whether they want to spend more or less time with the father

    3) He hasn't spent weekends with the children since July 2011 as the wife keeps saying "It's up to the girls". He can't talk to them as when he calls the house, no one answers or the wife answers and says the girls don't want to talk to him.

    QUESTION:
    He has requested Police Enforced visitation with his children on his paperwork and completed an affidavit with supported documentation of every single phone call and text he sent to his ex-wife asking to see the kids. What else does he need to do to help his case?

    Any feedback appreciated.

    P.

  • #2
    Sorry I made an error. Child Support starts October 2011 (point 1)

    Comment


    • #3
      I must have been typing too fast, another error:

      Husband works ad-hoc jobs here and there and lands a full-time job in August. Total 2011 income is $36,000 and in 2012 total income will the full-time job at $43,000. Starts paying $1,000 CS to wife as of October 2011.

      Comment


      • #4
        Once Separation is submitted as a Court Document and then we submit Motion to change, will child support go down? And does he keep paying the $1,000 until it is approved by the court or if it goes to court? Or is he stuck to paying $1,000?
        Answer: Depends. He may be able to pay based on his new salary IF she agrees to that. Otherwise she can simply take the court order to FRO and they will enforce the $1000. (Did the SA contain any method of recalculating CS each year? If it does, it may simply be easier to absorb the costs and follow the order as written). If not, then get it done.

        QUESTION:
        He has requested Police Enforced visitation with his children on his paperwork and completed an affidavit with supported documentation of every single phone call and text he sent to his ex-wife asking to see the kids. What else does he need to do to help his case?
        He should be expressing to her "in writing" that he will be exercising his parenting time as per the court order and will be arriving to pick up the girls on X date. Then show up. If the children are not provided at that time, then he goes to the closest store, buys a pack of gum and gets a receipt. (to show date/time and location). While there, he sends her a text/email indicating he stopped by at the indicated time and the children were not there, and that he will be back in X mins, please have them ready.

        Then go back, wait 15 mins. Then leave. Send her an email indicating her violation of the order, and request she provide some alternative for makeup time. If she still doesn't respond, you then send an R3 letter for same.

        Rinse and repeat. When you go to court, you ask for custody to be changed, or barring that, that the access times be clarified in the order, given her refusal to encourage the children's relationship with their father.

        Is he keeping in touch with their school? Meeting the teachers? Attending their extra curricular activities?

        Comment


        • #5
          Thank you for response. As per your question: Did the SA contain any method of recalculating CS each year?

          This is what is EXACTLY in the document: (Husband) and (wife) will conduct a yearly review of the childcare arrangement in order to determine if circumstances necessitate a change in the child support arrangement and, if requested, each party will provide the previous year's tax return for the yearly review.

          Comment


          • #6
            Is he keeping in touch with their school? Meeting the teachers? Attending their extra curricular activities?

            YES HE IS.

            Comment


            • #7
              Unless the kids are over the age of 16, they don't get a say in whether or not they go with the other parent for their parenting time. To suggest anything to the contrary is putting the children in the middle and possibly a form of parental alienation.

              A judge may LISTEN to a child's reasoning for not wanting to attend the NCP's parenting time, but may or may not agree with such reasoning (based on the maturity level and reason of the child). The older they get over 12, the more a judge will listen.

              But if you have an agreement that provides for parenting time, and lets say the kids are like 6 and 9, sorry, they get no say. It is in the best interests of the children to have a relationship with both parents. And part of each parents job is to facilitate the other parents relationship with the children. Suggesting to the kids that they don't have to go for your parenting time is not facilitating your relationship, and therefore, not in the children's best interests.

              As NBDad said, you start notifying her (edit - IN WRITING, via email) that you intend on exercising your parenting time and that, until the current agreement is amended to provide that the children have a choice, they are to be at the prescribed place at the prescribed time to attend your parenting time.

              Comment


              • #8
                SA says the following "Given the age of the children, their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration".

                1) The kids are 10 and 14.
                2) (dad's) residence - meaning his house not necessarily meaning the dad himself correct?

                Comment


                • #9
                  Originally posted by Pippi123 View Post
                  SA says the following "Given the age of the children, their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration".

                  1) The kids are 10 and 14.
                  2) (dad's) residence - meaning his house not necessarily meaning the dad himself correct?
                  I would take it to mean it like that.

                  Also, it states that the children's desire shall be "taken into consideration". It doesn't say that they are able to determine whether or not they attend. It is ultimately Dad's decision on whether or not he causes them to be with him during his parenting time.

                  Now, that being said and all, with the 14y/o, they are pretty much old enough now and have enough of a life to give their say a fair amount of weight. But to me, the 10y/o doesn't get to determine whether or not they come. They can say they don't want to, give their reason why, but ultimately it is Dad's decision.

                  Comment


                  • #10
                    Question: In the SA it states "Neither (wife) nor (husband) will attend at the other's home or work without the other party's approval.

                    Given this is stated, how can dad even try and see kids if the mom states they don't want to see him?

                    Can sending this email to the (wife) be ok?

                    As per our LEGAL AGREEMENT dated June 30, 2011, it clearly states that I have joint custody. VERBATIM it reads: Point 3.1 "The children will be in the joint custody of (mom) and (dad) and the parties will jointly parent the child and make decision together on all major issues affecting the children's health, education and general welfare". Point 3.3 reads "(dad) will have access on alternating weekends to be extended to include either Friday or Monday of a long weekend as the case may be and a minimum of one evening each week. Given the age of the children, their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration".

                    With that being reiterated, I WILL BE exercising MY parenting time as per the LEGAL AGREEMENT and will be arriving to pick up the girls on X and taking them out for dinner and a movie.

                    LEGAL AGREEMENT says "their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration". Firstly, it states that the children's wishes shall be "taken into consideration". It doesn't say that they are ABLE to determine whether or not they attend. I have taken their wishes into consideration but I still want to spend my agreed upon parenting time with them. Secondly, dinner and a movie is NOT at my residence.

                    It is in the best interests of the girls to have a relationship with BOTH parents. And part of each parent's job, YOURS AND MINE is to facilitate the other parent's relationship with the girls. Suggesting to the kids that they don't have to go with ME for parenting time is not facilitating MY relationship, and therefore, not in the children's best interests.

                    (Dad)

                    Comment


                    • #11
                      To aggressive and emotional. You appear to be trying to beat them over the head with the agreement in a hostile manner.

                      I would simply email,

                      Dear Satan's Swing Partner,

                      As you are aware, pursuant to clause X.A of our agreement, I am to have parenting time with with the children from X until Y. The agreement further provides that the children's wishes are to be taken into consideration by me when determining on whether or not to exercise such time.

                      It appears to me that the requirement for me to "consider" the children's wishes has been confused with the children are able to determine whether or not they are going to be with me during my prescribed parenting time. In light of this confusion, I wish to confirm with you that it is ultimately my decision on whether or not I exercise my parenting time and going forward I intend on exercising such time as prescribed.

                      As parents we are each obligated to encourage and facilitate the children's relationship with the other parent, as the courts have commonly found that to be in the children's best interests. As such, I respectfully request that you continue to encourage my relationship with the children and ensure the children are prepared for my parenting time as I will continue to do the same for you.

                      I understand there will be certain times where the children may not be able to, or wish to come. And as such, I will be as accomodating as I can be to ensure that both the children's wishes and my prescribed time are honoured. However, reasonable notice (3 days) should be provided to me so that I may amend an plans which I may have already made. Any requests made in less than 3 days will not be agreeable unless there are extra-ordinary circumstances relating to such request. Further, in order for me to agree to any alteration of the parenting schedule, I will have to be provided with an equal amount of makeup time with the children at the eariest possible date.

                      I trust that you will continue to abide by the current agreement as we formed it with the belief that it is in the children's best interests, and that you understand my position.

                      Respectfully,

                      Uber-Dad"
                      Last edited by HammerDad; 11-04-2011, 02:00 PM.

                      Comment


                      • #12
                        Originally posted by Pippi123 View Post
                        Question: In the SA it states "Neither (wife) nor (husband) will attend at the other's home or work without the other party's approval.
                        He should be able to attend to pick up his kids. A court would deem it reasonable for him to be there for the parenting exchange, notwithstanding her approval. Should she ever say "No the kids aren't coming" he should advise her via email of his intention to exercise his time and hopefully get her denial reply in email...as that would be gold in court.

                        Comment


                        • #13
                          Thank you HammerDad and NBDad for the posts.

                          If wife says no the email and that the kids don't want to see him, can he still show up? What if she calls the police? Last time he went there to pick up his boat, she agreed but when he showed up with a friend, she hounded him and was shouting at the tops of her lungs. Of course, kids at home. If that happens kids won't come outside, they hide in their rooms and then he doesn't see them again.

                          Comment


                          • #14
                            If she replies that he can't have the kids, he should advise her that she is not able to make decisions about his parenting time unilaterally. And that, should the children not be exchanged in contravention of the agreement, that he will deem it to be a denial of parenting time on her part and will seek the appropriate remedy moving forward.

                            The remedy will be:

                            1. if the agreement has not been filed with the courts, get it filed. It is a simply form to fill out. You can see Duty Counsel of the Family Law Information Centre to assist you if needed.

                            2. let her deny access a few times (hopefully getting each denial in writing);

                            3. file for contempt requesting:

                            a. immediate make up time; and
                            b. costs for the action.

                            Rinse and repeat as necessary, each time adding on to the contempt requesting:

                            2nd contempt - a and b above, an enforcement clause and such penalties as the court deems appropriate

                            3rd contempt - change of custody to Dad being the residential parent OR that the agreement be amended to provide that exchanges in parenting time shall happen at school (so dad picks them up from school on Friday and drops them off Monday morning, so as not to have to deal with the ex) and all the stuff from the 2nd contempt.

                            He should never be in her presense without a digital voice recorder.....EVER....PERIOD. He should ALWAYS act proper, business like and civil with her....like talking to the judge themselves or his boss..... PERIOD. He should NEVER raise his voice or act in an aggresive manner....should she state that she is going to call the police, he should remove himself from the property and email her regarding the denial of parenting time etc etc.

                            He should never, EVER, get involved in heated discussions period and ESPECIALLY never allow himself to be dragged into one in the vicinity of the children.

                            Comment


                            • #15
                              He is in the process of filingthe SA but they said he had to fax "Confirmation of Assignment". He did that and hasn't received it back yet. He went the FICL office and they said that has to be done first, RECEIVED BACK and submitted when he files the SA.

                              I tried calling the office but there the woman who answered said that unless I put a fax number on the Confirmation of Assignment, it will be mailed to him, There is no number to call that office. It's been 4 days now. All paperwork good to go. Typed, organized, even coloured coded.

                              ON A SIDE NOTE CS: If he files and he gave her all the proceeds of the house (EVERYTHING), she went out and bought a house and the $1,000 CS she is using to help pay the mortgage (she is living beyond her means). Her job is currently a stocking clerk at a grocery store (PART TIME). Would the courts make him continue to pay $1,000 to help with her mortgage? She says the store she works for doesn't offer full time. She has yet to apply anywhere else. Yet when Dad lost his job (his mom fired him from Family business in February because she opposed of the separation), he has documented over 370 applications before getting a full-time position in August.

                              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