Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
Thread Tools
  #1  
Old 11-14-2015, 09:10 AM
papa905 papa905 is offline
Junior Member
 
Join Date: May 2015
Posts: 10
papa905 is on a distinguished road
Default Court overruled separation agreement

My ex and I separated in 2013. We decided on our own to negotiate and wrote our own separation agreement. What we negotiated was that I was to surrender my claim to the matrimonial home in exchange for a sum of money (that I've used as down payment for the condo where I live now) and in exchange my ex waived her right to any child support. In other words, she got the house, I get a bit of money just enough to use as down payment for a condo and pay no child support. One way to think about it is - instead of selling the house and going through a long and expensive legal process, we simply bargained. Instead of selling the house and getting my part from the proceeds but then giving it back to my ex as child support (obviously on a monthly basis, ongoing for years) we just settled it in a very unique way. No one was under duress, we both freely agreed to this.

This year we filed a joint divorce and in our application it states that we already have all matters settled including the child support, and requested the court to grant the divorce without making any changes (just rubberstamp it).

It didn't work. The court still ordered child support using the child support table. I feel taken advantage of because the money my ex gave me was far, far short of what I would have gotten had we gone the conventional way of selling the house with me getting half of the proceeds (then paying her child support). I realize it's unconventional but if both my ex and I agreed to it. I'm now stuck and feel I lost a huge chunk of money - my portion of the proceeds from the house sale I forfeited voluntarily in exchange for no child support. If the court order stands I will have to sell my condo as I cannot afford the child support payments.

I would like the court to reconsider the order. What do I need to do? Can I appeal?

I do not wish to get into a long legal battle. I do not wish my ex ill will. We want to uphold the separation agreement but how can we when the court disagreed? Also, the children's welfare are supposed to be top priority for the court but what they did could potentially cause a rift between my ex and I to the detriment of the children. Do they not consider this when making orders?
Reply With Quote
  #2  
Old 11-14-2015, 09:24 AM
standing on the sidelines standing on the sidelines is offline
Senior Member
 
Join Date: Dec 2006
Location: Kitchener Ontario
Posts: 5,666
standing on the sidelines is on a distinguished road
Default

well first off the court was right, your ex cannot waive child support as it is the right of the child.

If you and your ex get along then why not just keep it the way it is? You are suppose to pay CS but if your ex is willing to still not collect it then you will be in a way following the way you both want it to be at the start. That way its on paper that you are paying but the court cannot force her to collect it.

One big drawback is if you have a fight with her she could register the order with fro and say you are in arrears and you would be screwed.

Did you each have independent legal advice?
Reply With Quote
  #3  
Old 11-14-2015, 09:34 AM
papa905 papa905 is offline
Junior Member
 
Join Date: May 2015
Posts: 10
papa905 is on a distinguished road
Default

Exactly my point...she might not collect and everything could be fine. Then one day she could get mad for any reason, might not have anything to do with me, then report me to fro. Is there a legal way to state that despite the court ruling, we still both agree that she will not collect the child support, so I'm protected?

We both cooked up the agreement without a lawyer.
Reply With Quote
  #4  
Old 11-14-2015, 09:55 AM
Links17 Links17 is offline
Hand of Justice
 
Join Date: Jan 2013
Location: In the Shadows
Posts: 3,166
Links17 is on a distinguished road
Default

I think if you quantify the net benefit she got from the mat home and say it is in lieu of child support or an "advance" on x months of child support you should be on the clear.

You don't need to appeal, just reword the agreement and submit it for homologation
Reply With Quote
  #5  
Old 11-14-2015, 09:56 AM
standing on the sidelines standing on the sidelines is offline
Senior Member
 
Join Date: Dec 2006
Location: Kitchener Ontario
Posts: 5,666
standing on the sidelines is on a distinguished road
Default

Quote:
Originally Posted by papa905 View Post
Exactly my point...she might not collect and everything could be fine. Then one day she could get mad for any reason, might not have anything to do with me, then report me to fro. Is there a legal way to state that despite the court ruling, we still both agree that she will not collect the child support, so I'm protected?

We both cooked up the agreement without a lawyer.
I am not sure there is a legal way to do what you want to do.
Reply With Quote
  #6  
Old 11-14-2015, 10:56 AM
Beachnana Beachnana is offline
Senior Member
 
Join Date: Apr 2013
Posts: 1,358
Beachnana is on a distinguished road
Default

Start putting the CS monthly into a bank account. Then if you and your ex just agree she will not collect the CS keep saving the monthly amount for a rainy day! Mad ex now wants to collect, kids university fund.
Reply With Quote
  #7  
Old 11-14-2015, 11:30 AM
arabian's Avatar
arabian arabian is offline
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 10,697
arabian will become famous soon enough
Default

Court acted correctly. Had you taken the step of obtaining ILA (Independent Legal Advice) the lawyers would/should have sent the two of you back to change your agreement.

I believe the proper thing to do is to re-negotiate a settlement agreement. Yes you may have to sell the house.

Cutting corners to avoid legal fees works as long as the agreement reached is within the parameters of the Divorce Act and FLA.

Child support is the right of the child. You would have to restructure your SA to show that the rights of the child have not been compromised. There is good reason for this. All it takes is a new player in the equation (either one of you decides to re-partner). For example, should your ex re-partner, the new partner might be resentful, that in their perception, you are not supporting your child.

Something else to consider (and another reason your plan didn't work) is that SA is calculated based on your income. How did your arrangement reflect a possible increase/decrease in either of your respective incomes?
Reply With Quote
  #8  
Old 11-14-2015, 02:34 PM
Rioe's Avatar
Rioe Rioe is offline
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,351
Rioe will become famous soon enough
Default

I can tell you probably didn't have independent legal advice when you wrote up your agreement, because sensible lawyers would have told you it wouldn't go over well with a judge.

According to family law, a parent cannot waive the children's right to CS. Your ex could NOT legally make the agreement she did, to take the house in lieu of CS. It's also ill-advised to make a CS lump sum payment.

What the judge sees is that the children are not getting money from you on a regular basis to keep them fed and clothed, etc. The fact that they have a nice place to live in instead might seem like a good substitute to you, however the judge sees that if, in the future, there is not be enough money to feed the children, said house would have to be sold, making the situation even worse because then there goes their stable living arrangement.

So that gives a bit of insight into why family law was set up that way, and why the judge ignored what you had done and ordered CS.

However, all that said, there may be ways you can work around it. You're basically in the opposite of arrears.

I would suggest going back to your calculations and figuring out EXACTLY what sum of money you were out by giving your ex the home. Call that a CS Advance Payment. Calculate what you ought to have been paying in CS up to now, and call that CS arrears. Find out what the difference is. The amount remaining is now the current Advance CS Payment. From now on, calculate your monthly CS properly based on your income, but instead of cutting her a cheque each month, send a little note that subtracts it from the Advance CS Payment. When the Advance CS Payment reaches zero, you must start paying CS monthly.

As you have noticed, there is nothing stopping your ex from registering with FRO and them taking money from you, effectively making you pay CS on top of what you gave your ex 'in advance.'

Formalizing the above suggestion, WITH a lawyer, would hopefully allow you to come up with properly worded paperwork that could be provided to a judge and to FRO, to demonstrate that CS has been covered.

But yeah, it's always best not to blend the equalization process with the CS process.
Reply With Quote
  #9  
Old 11-15-2015, 01:28 AM
stripes stripes is offline
Senior Member
 
Join Date: Feb 2013
Posts: 2,838
stripes is on a distinguished road
Default

I think you will probably have to write up a whole new separation agreement which provides for standard payment of child support going forward.

For dealing with the question of who owes who how much, based on your past arrangements, try this:

1. Take the equity in your house on the date of separation (the market value minus the outstanding amount on the mortgage at that date). Divide it in half. This half is your share of the equity. From your half, subtract the lump sum your ex gave you in exchange for the house. The remainder is the amount that you "gifted" to your ex in the house transaction. Call this amount Amount A.

2. Go to the Federal Child Support Guidelines and use the online calculator. Figure out how much you would have paid your ex if you had been going by the guidelines the date of separation until the present (you'll need to plug in the number of kids, your province of residence, and your income from line 150 of your tax return for each year in order to get a per-month figure). Call this amount Amount B.

3. Compare A and B. Is A greater than B? If so, you have fulfilled your child support obligations up to the present, and possibly for a few months into the future. Keep a tally of Amount B over the next few months, and when it reaches the same as Amount A, you start paying the monthly guideline amounts.

Is B greater than A? If so, you have underpaid your child support obligations. Put the difference between A and B into a savings account, so you have access to it if your ex asks for it or if you are ordered to pay the arrears. Going forward, pay your ex the monthly guideline amount.

Of course, you and your ex can agree between yourselves that you will pay less than the guideline, but you can't put that into an official court document (and such an agreement probably wouldn't be enforceable if your ex changed her mind and decided she did want to go after you for child support). For that reason, make sure that even if you're not giving your ex the money, you're stashing it away somewhere that you could access it easily if you had to (that is, don't spend the money).
Reply With Quote
  #10  
Old 11-15-2015, 01:30 AM
stripes stripes is offline
Senior Member
 
Join Date: Feb 2013
Posts: 2,838
stripes is on a distinguished road
Default

(I think I just said what Rioe said, but with more words).
Reply With Quote
Reply

Tags
child support, separation agreement


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Separation Agreement Questions .... uwbrother Divorce & Family Law 17 05-01-2011 08:53 AM
Filing our signed separation agreement with the court staysingle Divorce & Family Law 7 03-26-2011 11:25 AM
Separation Agreement Mouse_117 Divorce & Family Law 6 09-18-2010 03:37 PM
Validity of a Separation Agreement NewGirlfriend Divorce & Family Law 9 12-11-2008 07:30 AM
separation agreement and long separation myfriendx Financial Issues 2 11-04-2008 11:40 AM


All times are GMT -4. The time now is 04:02 AM.