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  • Getting out of paying CS?

    I realize there are 3 sides to every story. I’m trying to aid my brother in this case. I will try to just stick to facts and would like to know what his chances are if he takes this to court.
    ·

    • 2 kids (ages almost 18 & almost 17)

    • Original agreement was Sept 2011 & filed with courts in Feb 2012 .. Original agreement was that girl lived 50/50 and that boy lived exclusively with my brother and saw mom EOW and/or whatever worked best for mom/son.

    • Agreement stated that my brother paid offset CS based on his income of $88,000 & her income of $45,000. In original agreement the usual Section 7 applied (medical, school) and mom also insisted on including “Cheer” and “Hockey” “up to $5,000 per year” (as both kids’ were in these for years at competitive levels). Given the parents incomes, my brother was to pay 65% and mom to pay $35%

    • Shortly after the agreement was filed, both kids ended up residing full time at my brothers. Everyone thought it would be a “temporary” measure due to a huge blowup between mom and daughter but it hasn’t turned out that way and both children reside with my brother and don’t see mom at all (other than when she shows up at their extra-curricular’s)

    • My brother has asked 3 times via email and once via Registered Letter for ex’s NOA for 2012 stating he wants to adjust CS as the kids’ reside 100% of the time with him. She FINALLY provided these over the weekend. Based on her 2012 NOA she should be paying $670.28/month

    • My brother is supporting both kids with no CS from her. My niece just applied for Universities and her brother will be following next year.


    · He’s asked her to pay CS based on the guidelines and she just says NO. He’s now worried because of the heavy University expenses coming up. It clearly states in the Sep Agreement that Post Secondary is a Section 7 expense and the parties are to contribute their proportionate share but both my brother and I both know that when the tuition bill comes due, she won’t pay.



    I’ve advised him to file a Motion to Change …. Asking simply for CS to be paid according to mom’s income of $45,000 and that mom be ordered to pay her propionate share of Post Secondary as stated in the Separation Agreement.

    I feel it’s a no brainer if it goes in front of a judge. Is there any way (other than claiming undue hardship, which won’t fly) that a judge would NOT order guideline CS???

    TIA

  • #2
    Sounds like a motion to change makes sense.

    - Did he ask for back-child support in the motion, or just going forward?

    Comment


    • #3
      The kids reside full time with one parent, it would be unheard of that a judge would not have a fully employed parent not pay full child support.

      Your brother should absolutely detail the following, with supporting documentation:
      • The full average of current section 7, supported by receipts, net of tax, pro-rated monthly, resulting in a monthly amount that can be enforced by the FRO if necessary.
      • The full table child support amount according to the ex's income.
      • The exact date of the daughter moving back full time.
      • The dates that he requested the NOA from the mother, including supporting emails, to show when child support would have been requested if financial disclosure had been made.
      • The total amount of arrears back to the date of the daughter's move.

      This should all be done in the supporting affidavit with evidence attached. The motion form should just request change in support. This should be drawn up and filed immediately. Letting it go means that you are getting closer to the child going to post-sec.

      Why is this important? GET THE CS ORDER NOW. The when the child goes to school you are just getting the section 7 updated. If you wait, this could turn into a far more complicated matter, since the ex will contest paying CS if the child is away.

      It doesn't matter if this doesn't fly; the ex will contest it. You are dealing with an ex that doesn't want to pay. They will not suddenly start wanting to pay.

      So get the order for CS NOW while you are dealing with a realively simple change due to change in residence. Right now there is very little to argue.

      If the ex argues later, you still have an existing order that can be enforced.

      Comment


      • #4
        So your brother was already getting child support for the son, who lived with him fully?

        Comment


        • #5
          Originally posted by Mess View Post
          The kids reside full time with one parent, it would be unheard of that a judge would not have a fully employed parent not pay full child support...
          Yeah, I wasn't clear on the OP's description, of if child support was being paid or not, for the son?

          Originally posted by Mess View Post
          Why is this important? GET THE CS ORDER NOW. The when the child goes to school you are just getting the section 7 updated. If you wait, this could turn into a far more complicated matter, since the ex will contest paying CS if the child is away...
          Agreed.

          Comment


          • #6
            thanks Mess ...

            Should he be just filing a Motion for CS then (without asking for payment of any Sec 7)? Forms 15 and 15A seem VERY straight forward if your simply asking for table CS

            Once that is in place and once his daughter has her acceptance letter from a specific university (probable late Feb/early March) and he's able to drill down on what the actual costs are, THEN worry about getting the Post Secondary clause enforced?

            Comment


            • #7
              DunnMom,

              FYI, thank you for your original post. Bullets. Love it. :-) So easy to read.

              I think you are already covered by your agreement, as it is, since it already specifies section 7, and how it should be split? Isn't just a generic statement, saying section 7 will be split based on proportionate to income, or such? You wouldn't be changing that, so I don't think you need to address it in Motion to Change, except to say it would remain as before?

              Post Secondary is always a section 7, so when school comes...she will have to pay her share.

              Comment


              • #8
                Originally posted by dad2bandm View Post
                DunnMom,

                FYI, thank you for your original post. Bullets. Love it. :-) So easy to read.

                I think you are already covered by your agreement, as it is, since it already specifies section 7, and how it should be split? Isn't just a generic statement, saying section 7 will be split based on proportionate to income, or such? You wouldn't be changing that, so I don't think you need to address it in Motion to Change, except to say it would remain as before?

                Post Secondary is always a section 7, so when school comes...she will have to pay her share.
                So your suggesting I should tell him to stick what Mess said & just file the Motion to Change for CS based on her 2012 NOA?

                Then come March/April when (if) my niece gets her acceptance letter from Univ. and the tuition (cost) breakdown if mom refuses to contribute her share than what would he file in order to "enforce" her paying her 35%?

                TIA (again)

                Comment


                • #9
                  Originally posted by DunnMom View Post
                  So your suggesting I should tell him to stick what Mess said & just file the Motion to Change for CS based on her 2012 NOA?
                  I don't know. I reread Mess' post and see the comment about the lump-monthly costs for section 7, so FRO can enforce. I missed that.

                  I was just commenting, that presumably your existing order or agreement already has a section 7 expense clause, that would cover post-secondary?

                  Comment


                  • #10
                    I saw Mess's blurb about that too but he also stated "The motion form should just request change in support" which is what confused me.

                    To date there is less than $1,000.00 in stuff would could be considered Section 7 that she's refused to pay (2 yrs house league/school hockey, 1 cheer payment, 1 school trip) and he's ok with just forfeiting that as it's not a huge amount, especially if it will make the motion for CS less muddy.

                    It's the post-secondary that's scaring him. He's told both kids' that they WILL be expected to contribute at least 1/3 and I believe both kids' will be residing at home with him and commuting to school. But when the time comes for him to actually pay and her to pay, I know she will just say "no" and even if Post Secondary is a valid Sec 7, how does he go about getting an order for it so that FRO will garnish it.

                    Comment


                    • #11
                      Yes, sorry, I conflated two issues.

                      Filing for a change in CS is the simplest motion, and you shouldn't even need the recipient's financial disclosure. It should just go through uncontested. If she then contests it, she has to give reasons. You address the reasons then, in your reply, but really this should be a slam dunk.

                      You may add the section 7 if it is a consitant amount year-to-year, you can prove this with receipts. Take the total, pro-rate it monthly, and then it can be enforced by FRO. If you are currently having trouble receiving these it is the only way to get enforcement without going back to court every year.

                      Given the ages of the children, maybe it's not worth bothering.

                      Comment


                      • #12
                        Thanks Mess .

                        Had a long talk with my brother last night and he's going to just pursue the motion for table CS right now. Once his daughter gets her Univ acceptance letter(s) & decides on which one and he has more idea of fee schedules, etc.. he'll inform his ex and if she refuses to contribute her share then he'll deal with that issue.

                        Comment


                        • #13
                          I don't expect my ex to contribute to the kids post secondary.

                          As they will be adults, I consider the my ex's contribution to post secondary to be a matter between my children and their mother. I don't feel it is my place to intervene.

                          I would feel differently if my ex was well off financially though as I would consider her equity/net worth part of when we split which would have gone to the kids education, but she has blown the equity she got from our marriage. How much she contributes at this point is up to her. However, if she does not contribute I certainly will not pay offset CS to her, I will give that to the kids.

                          I will contribute what I can, the rest they will have to borrow. Divorce has cost my family a huge amount of money and there is less available to contribute to the kids education that was expected.
                          Last edited by billm; 12-04-2013, 11:05 AM.

                          Comment


                          • #14
                            @mess ...

                            So my bro filed a Motion to Change & Change Info Forms and served on ex. ONLY asking for guideline CS ...

                            He's been bombarded with email after email of drivel and "why won't you negotiate" stuff. He's replied once that there is nothing to negotiate, I'm only asking that you pay CS according to the federal tables.

                            He simply wants her to pay CS based on her income.

                            There is absolutely no grounds for a undue hardship claim.

                            She has until Jan 15th to provide her response and court is end of Jan.

                            What can he expect to happen at court? This seems a no brainer to me as he has her 2012 NOA & in her response she must provide that plus a whole bunch other fin'l info. He has the 2 kids 100% of the time. I'm trying to prepare him for any argument(s) she may bring up but it seems like a slam dunk to me ... Then again I feel like I'm missing something

                            Comment


                            • #15
                              I agree with you, however he should be careful at the case conference.

                              The case conference is intended as an opportunity for the parties to stay out of court. The DRO or judge will therefore pressure a settlement.

                              The settlement will have to be a compromise, therefore it will have to be less than table.

                              I've been there. If you are lucky, the mediator/DRO/judge will agree it is a slam dunk. Or, they can put a lot of unreasonable pressure to shoot down a simple order that is supported in law, and pressure a settlement in the other party's favour. That happened to me, it was a ridiculous waste of time and legal fees to amount to nothing.

                              If you chose to agree to a compromise, understand that will be agreeing to an order that establishes "facts" that mean the other party will never have to pay full table. It means every year if you try to update support, you are pushed into another battle.

                              A case conference/mediation session is based on emotion, not fact. What the parties "need" instead of what is supported in law.

                              IMHO the benefit of the child support guidelines is that it eliminates these arguments, but then courts put in a conference where you spend hours paying lawyers to defend your case.

                              So watch out, be prepared for ridiculous attacks, and be prepared to set your boundaries.

                              Comment

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