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Do new orders/agreements replace older ones?

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  • #16
    Just ask FRO to point out/provide you with Order which they are enforcing on.

    Simple.

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    • #17
      Yea . I know which one they are enforcing. It's from a CC back in 2014. I just wonder if new orders trump old ones if the the wording for arrears are not included. I just faxed (and mailed) FRO today with he 2015 order and our final agreement which lacked any mention of arrears. Guess I'll go from there. I would call too but my rep isnt the funnest lady to chat with. lol

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      • #18
        If you had an order in 2014 which ordered repayment of arrears arrears (for example, in paragraph 4 it states "arrears of XXX ...." and in 2015 there is another Order and the new Order specifically changes something in paragraph 5, with no mention of deleting/replacing paragraph 4 then paragraph 4 would still be in effect and only paragraph 5 would be changed. It is very important to have correct wording in your Orders and explicitly state "paragraph 4 is replaced by "xxxxxxxx." Had you had a competent lawyer this wouldn't be an issue for you to deal with today. This is why a draft order is made by the moving party and sent to the opposing counsel for approval of content. I don't believe your lawyer ever prepared draft orders though did she? I suspect she skipped that part of law school.

        I have been through this many times with my ex unsuccessfully trying to say an order "implied" something. You should definitely keep an eye on FRO/MEP though as mistakes do indeed happen. Typically, however, a maintenance enforcement agency will reject an order which is vague.

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        • #19
          Originally posted by arabian View Post
          If you had an order in 2014 which ordered repayment of arrears arrears (for example, in paragraph 4 it states "arrears of XXX ...." and in 2015 there is another Order and the new Order specifically changes something in paragraph 5, with no mention of deleting/replacing paragraph 4 then paragraph 4 would still be in effect and only paragraph 5 would be changed. It is very important to have correct wording in your Orders and explicitly state "paragraph 4 is replaced by "xxxxxxxx." Had you had a competent lawyer this wouldn't be an issue for you to deal with today. This is why a draft order is made by the moving party and sent to the opposing counsel for approval of content. I don't believe your lawyer ever prepared draft orders though did she? I suspect she skipped that part of law school.

          I have been through this many times with my ex unsuccessfully trying to say an order "implied" something. You should definitely keep an eye on FRO/MEP though as mistakes do indeed happen. Typically, however, a maintenance enforcement agency will reject an order which is vague.
          He's right on here,

          For the purposes of this argument, each clause in an order is basically an order on it's own.

          unless the new order (assuming an interim interim order in your case) specifically deletes a clause from the previous order, that order or clause in the old order is still in effect until a final order is rendered.

          You want the arrears order to be a final order, but the current amount of child support you are paying to be an interim order, as you are going for 50/50. Once a FINAL order has been consented for arrears (final minutes of settlement) she can't re-open that door - that's the amount she agreed to have retroactively. If it is left to be decided by a trial judge, then it will appear as though you only agreed to pay her a certain amount. Pay her the full amount to the date she wants and focus your litigation on custody and access, issues without child support can be used against you as one of the factors in claim of custody.

          I should also mention that you do have a case worker at FRO, who is paid to work with you. Just talk to him/her and he/she should be able to tell you what is going on, if there is something going on, and you owe money, then get that resolved, if you OVERPAYED any CS, then get that resolved too, you would get a credit back towards your arrears - this would of course be dealt with a new order unless FRO screwed up- FRO generally can't do jack all without a court order. You could get a lawyer on limited scope to fix this up for you, she won't disagree to this, otherwise, then she's being unreasonable. This should take no more than 2-3 hours. But it will be worth it and save you tons of headache further down the rode.

          Comment


          • #20
            Originally posted by trinton View Post
            He's right on here
            Arabian's a she. A wonderful she. :-)

            each clause in an order is basically an order on it's own.
            Agreed. So when they mention all the money I have to pay in the new order (claus) I figured that would be the new amount.

            unless the new order (assuming an interim interim order in your case) specifically deletes a clause from the previous order, that order or clause in the old order is still in effect until a final order is rendered.
            No interim interim here. The order in July, 2015 was interim, and it stated that I pay table support (no arrears mentioned). It also said that all other changes should be left until final determination. Our final order/agreement in Jan/2016 stated that I only pay table CS (with no mention of arrears).

            So is the previous order still in effect from 2014 even though it's been "replaced" with a paragraph deleting any arrears talk? That's my question I guess.

            as you are going for 50/50.
            I have 50/50 my friend..since Jan, 2016.

            Once a FINAL order has been consented for arrears (final minutes of settlement) she can't re-open that door - that's the amount she agreed to have retroactively. If it is left to be decided by a trial judge, then it will appear as though you only agreed to pay her a certain amount. Pay her the full amount to the date she wants and focus your litigation on custody and access, issues without child support can be used against you as one of the factors in claim of custody.
            Custody and access all taken care of. Child thriving. 50/50 everything; shared custody for 8 months.

            That's what Im trying to say Trinton. There already is a final order and the OP either forgot or didnt want to add an arrears claus. The paragraph modified the one in 2014 which did discuss arrears.....is that not how it works? I thought wording was super important. Any lawyers in the house?
            Last edited by LovingFather32; 08-23-2016, 09:16 PM.

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            • #21
              I think what OntDaddy means is exactly what I thought too.

              Either you still have arrears or they're paid in full. $2500 at $50 extra a month would take over four years to repay. Are you paid up or not??

              If you have arrears, you should continue to pay them. Your daughter deserves that child support.

              If your arrears are paid in full, fro should be notified to stop taking extra money.

              Whether or not your ex asked for the arrears in subsequent orders or it means that subsequent orders canceled the other ones are morally irrelevant.

              Going down that way of thinking when arrears are still due, cheats your daughter out of what is her right simply because you wish to exploit an error made by the court or her mom.

              Also, why is your EI so low if you were working full time as you stated?

              RECEs make a lower wage than EAs. My take home from EI in the summer was $1600 for the month. Even at 50% garnishment, you would still have more than welfare - $800 for the month.

              Perhaps you have made a mistake in your numbers. I still would recommend financial counselling to ensure you can meet your daughter's needs.

              Comment


              • #22
                IF you are ordered to pay child support from say June 2014 that is the date child support is to commence. If you do not pay child support until say October 2014 then you have arrears. FRO looks at the date of commencement of support. If you paid your ex directly, instead of through FRO, you still (according to FRO) are in arrears.

                If your order specifies that support is to be paid through FRO then that means that FRO keeps track of whether you are in arrears or current. It is very frustrating for payors and recipients as the process in calculating the arrears is often very slow.

                Often people have specific payments for arrears. In my situation my ex had substantial arrears and at our JDR (divorce) the judge ordered a very specific payment schedule for arrears, separate and in addition to spousal support, over a 3 year period.

                It is not unusual for parties to have money that has been paid in the past revisited and adjusted. This was quite shocking to me. 6 years after our divorce a judge Ordered a retroactive change in imputed income. Thousands upon thousands of dollars were recalculated. Many mistakes were made by MEP. So you have to be very, very careful and don't take for granted that FRO's calculation is correct. Remember that computers are only as good as the person inputting the data.

                In Alberta MEP is online. This is helpful to both payors and payees. I believe Ontario is supposed to be online are they not? IF FRO is online then you should be able to see all of the calculations and any changes from new Orders. If FRO is not online you can request a statement which should show all of the calculations.

                My ex would love it if, by not mentioning arrears, it meant that they don't exist or somehow miraculously were erased with each new Order. It doesn't work that way. Each and every change to support (child or spousal) collected through a maintenance enforcement agency has to be specifically Ordered.

                Comment


                • #23
                  Originally posted by SadAndTired View Post
                  I think what OntDaddy means is exactly what I thought too.

                  Either you still have arrears or they're paid in full. $2500 at $50 extra a month would take over four years to repay. Are you paid up or not??

                  If you have arrears, you should continue to pay them. Your daughter deserves that child support.

                  If your arrears are paid in full, fro should be notified to stop taking extra money.

                  Whether or not your ex asked for the arrears in subsequent orders or it means that subsequent orders canceled the other ones are morally irrelevant.

                  Going down that way of thinking when arrears are still due, cheats your daughter out of what is her right simply because you wish to exploit an error made by the court or her mom.

                  Also, why is your EI so low if you were working full time as you stated?

                  RECEs make a lower wage than EAs. My take home from EI in the summer was $1600 for the month. Even at 50% garnishment, you would still have more than welfare - $800 for the month.

                  Perhaps you have made a mistake in your numbers. I still would recommend financial counselling to ensure you can meet your daughter's needs.
                  Did you go into an agreement with FRO for repayment of arrears or is this something you have come up with yourself? If you are having financial hardship then you can most likely make arrangement to not pay the arrears while you are unemployed and instead set up a 10 month arrears schedule. Sometimes it is better to have a court-ordered repayment schedule for arrears. Sometimes it is better to do this through FRO. Your FRO representative should be outlining some options for you. It can also make a difference to a maintenance enforcement agency when you can prove that you are going to court to change your support obligations. I believe that if/when you file your motion to change your CS you will have to serve your ex as well as FRO (check this out with your courthouse). This is a good thing as FRO is kept in the loop and it may make a difference for you when negotiating arrears. In Alberta this is pretty much mandatory with MEP.

                  Comment


                  • #24
                    I just went onto FRO website and thought this might be of interest to you if you aren't already aware: If your support payments have been assigned (which they likely are as your ex is on Ontario Works) you have to keep Ontario Works informed of everything.

                    Here is the relevant information: Changing a support order | Ministry of Community and Social Services

                    I was thinking that we have often postulated on your posts in the past that the social workers may not know about your change of custody situation. One would think that by completing the form it may serve as a wake-up call to someone at Ontario Works that your ex in a shared custody situation and perhaps her benefit entitlements are worth re-examination? One can only hope.....

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                    • #25
                      Your ex took the kid Feb 2014. You didn't see her for months, and then got very limited access when you got court involved. I'm not sure when you started paying CS, but I guess there was some time between then and Feb 2014 that they are making you catch up on. That amount of arrears is fixed, and I imagine one of your court orders indicates the original amount, and from the sounds of it, a payment schedule.

                      You've been to court since, and had your CS updated to reflect your more recent income. I don't see why that would change your arrears amount unless specifically mentioned.

                      So FRO knows your arrears amount, and they know your repayment schedule, from the first court order. And they know how much CS you should be paying now, from the second court order. They sound like they are doing everything right to me.

                      Just go back through your records, find the original arrears amount, and figure out how much you've paid it down, from regular payments and garnisheeing of any federal monies. If you've got some left to go, you can expect FRO to keep taking it. If the original amount is all paid up, and FRO is still taking extra money beyond your normal CS, show them your calculations and complain mightily.

                      And when bitterness about having to pay your ex for the privilege of her having taken your child from you becomes too overwhelming, just cross your fingers that when the arrears are caught up and her CS feels like it drops, maybe she'll find a job.

                      Comment


                      • #26
                        I guess most agree that new orders do not replace old orders in my situation.

                        Very interesting that the "arrears wording" does not have to be revisited down the road when the judges are writing up new orders. In every final order I've ever read on canlii if there are arrears owed .. the judge puts it in the clause, along with a monthly payment. I thoght the onus would have been on the OP to get that wording in.

                        Hey, you learn something new everyday ..I hope this thread helps others.

                        I think the arrears thing may be easily dealt with during the motion to change.

                        Comment


                        • #27
                          IF you were to read the proceedings of those cases you read in CanLii you would likely read discussion regarding repayment of arrears. In my situation the arrears were substantial at the time of my divorce so naturally my lawyer requested a specific payment term for arrears. Had we left it to the MEP I risked having the payments spread out over 20 years instead of 3. Many things are considered at the time of repayment of arrears, such as payor's ability to pay. My ex made substantial income at the time of our divorce so a 3 year repayment was realistic and fair. Had I opted not to request a payment of arrears I would never have recovered it. However, years later arrears accumulated again (over 70,000.00) and my ex was successful in having the arrears eliminated. All it took was for one judge to take pity on my ex hiding his income for a year (working under the table) even though MEP did prove his income. Judge discretion.

                          Some people have arrears reduced or eliminated when there has been a high or disproportionate transportation cost for parenting time.
                          Last edited by arabian; 08-24-2016, 07:53 AM.

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                          • #28
                            Wow .. you've been through the ringer Arabian. Bless your heart.

                            In my case it's the wording of the 2015 order stating that I would pay table support and "any other financial adjustments would be dealt with at final determination". I guess that wording is playing with my head a bit because we had our final determination (final agreement)...and no other adjustments were made or added, just the table support.

                            In the end I broke my back over two years paying my ex to do what she does and I think Rioe might be correct about being a bit bitter. Talk about 2 slaps in the face at once.

                            "I'm abducting your child, making false allegations, hiding her and you're paying for me to do that since the day I left. Oh and by the way I'm not going to be working despite the justice system telling me to".

                            I don't wish that on my worst enemy (if I had any).

                            I thought it would be an interesting thread to have and I hope others can get something from it.

                            My thought was that if:

                            In 2014
                            P. 3 para 24:
                            "Mr __ has agreed to pay arrears retroactive to the date of separation in the amount of $100/month in addition to child support in the amount of $520/month.
                            The in 2015 July
                            P.2 para 26:
                            Mr. ___ will pay CS in the amount of ____ (no arrears)
                            Then in 2016 FINAL ORDER

                            Mr. Dion will pay CS in the amount of ____(no arrears)
                            For some reason I thought that if the specific paragraphs and amounts changed that the order changed. I feel like what I agreed to was the table support and not the arrears as they weren't mentioned in our final determination.

                            If the final order said anything about arrears or an increase in payments to take care of them this thread wouldn't exist.

                            In sum...in 2014 it mentioned arrears. In 2015 and final order in 2016...it gave a different number and dropped arrears wording...actually wasn't discussed in the courtroom at all. I thought that it was very significant to get the wording correct of what you want in an order. I was super surprised OP didnt get that in there.

                            What about this analogy?

                            ...if in 2014 a parent was granted EOW PLUS one Wednesday..but in a 2015 hearing the wording went back to EOW with no mention of Wednesdays..and in 2016 the final order's wording was just EOW..what does that mean? The order didn't specifically say "no more Wednesdays"..but it was left out.

                            Can the parent say "Hey...the 2014 order said Wednesdays..I want my Wednesdays"...or would they have to follow the wording of the final order and go back to court to get the wording changed to include Wednesdays again?
                            Last edited by LovingFather32; 08-24-2016, 09:42 AM.

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                            • #29
                              I think you should just focus on your mtc and add an item that wipes out any arrears if there are any left.

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                              • #30
                                Originally posted by rockscan View Post
                                I think you should just focus on your mtc and add an item that wipes out any arrears if there are any left.
                                Totally agree Rock. Would be so nice if FRO got back to e saying "holy crap..he's been overpaying arrears since July 2015 n we need to credit him back".
                                Then I wake up.

                                Comment

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