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Shared custody, Child Support and Section 9

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  • Shared custody, Child Support and Section 9

    So I told Pursuing that I would post what I learned about CS and Section 9b and c of the guidelines after my trial but my trial isn't happening (yeah!). I did however, get some very valuable insight from the settlement/pre-trial conference judge.

    First of all - the applicable case law is: Contino v. Leonelli-Contino. It outlines the requirements that need to be met for 9b and 9c.

    The judge at my conference told my ex NOT to go there. She told him to agree to the subtractive method because it is easy and because the evidence required in order to do an analysis of 9b and 9c is substantial and would take an enormous amount of effort (and therefore, cost a fortune). You can't just ask for 9b and c to be considered - you have to submit detailed budgets, including receipts, etc to prove your case. And this information has to come from BOTH sides or the judge can't and won't make a decision.

    Keep in mind that in our case things were complicated by the fact that my ex's income can fluctuate greatly so CS will fluctuate as well.

    I read several cases on Canlii where the judges considered 9b and 9c and in every single one, costs were not awarded to either side because they recognized that the calculation was extremely complicated and needed to be done at trial. Something you would want to keep in mind if you or the other side were to push for this.

  • #2
    Just to add something that wasn't really addressed in Contino.

    If both parents are not considered the "payors" of CS, then which parent should be, why, and what is the factual evidence that supports this?

    If the parents *(in Contino) are earning within a few thousand dollars of each each other, they have roughly similar access, then why should one parent be regarded differently than the other? Give a reason. Factual evidence to back up that reason.

    If both parents are considered exaclty equal, then the minor difference of income results in the setoff, or a significant difference in budget expenses justifies a divergance. Show it, show it, show it.

    If it isn't shown, then that is your support for basic setoff. If two parents have equal time, equal access, and equal budgets, then there is no justification whatsoever for the courts to set one parent ahead of the other. If there are differences, show them, and show how they are significant enough to justify a divergence from the setoff amount.

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    • #3
      Thank you for this CS Angel. Just what I've been told but good to see it again. The whole detailed budget thing seems ridiculous and arbitrary to me. It's easy to fix your budget to demonstrate a higher need. Doesn't mean the higher need actually exists--it can be contrived.

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      • #4
        Is a contrived budget any worse than an arbitrary setoff?

        Comment


        • #5
          Originally posted by Mess View Post
          Just to add something that wasn't really addressed in Contino.

          If both parents are not considered the "payors" of CS, then which parent should be, why, and what is the factual evidence that supports this?

          If the parents *(in Contino) are earning within a few thousand dollars of each each other, they have roughly similar access, then why should one parent be regarded differently than the other? Give a reason. Factual evidence to back up that reason.

          If both parents are considered exaclty equal, then the minor difference of income results in the setoff, or a significant difference in budget expenses justifies a divergance. Show it, show it, show it.

          If it isn't shown, then that is your support for basic setoff. If two parents have equal time, equal access, and equal budgets, then there is no justification whatsoever for the courts to set one parent ahead of the other. If there are differences, show them, and show how they are significant enough to justify a divergence from the setoff amount.
          'Quick' question: does an approximately $18k difference in income ($65k and 82k approx) merit an offset amount in your opinion?

          There is a vast divergence in budget expenses, in particular for my household where our children have much, much less. I'm moving to a two bedroom apartment with three kids (2xM, 1xF) and I will be on the couch. I now need to buy a vehicle for my daily 150km commute to work. I am making it work, obviously as that is the only way, but I wonder if I should actually ask for offset CS in our 50/50 arrangement.

          Thanks in advance for any feedback.

          Comment


          • #6
            Honestly reading stuff like this really makes me wish we had a support system like Australia so the complicated calculation argument was moot.

            In a nutshell:

            -Each parent gets a self-support reserve (indexed to poverty line)
            -Total income above reserve for both parents is added together
            -easily calculate the amount of support that is to come from each parent (Income share)
            -based on Care % (ie Access/Parenting time) each parent gets a % of the total support amount

            Basically Monthly Support (Income Share % - Child support Cost %) * Total Support amount/12

            Negative means you receive a monthly payment positive means you are paying.

            -They also have built in allowances for second families and parents with multiple Child support requirements


            Working out child support using the basic formula

            Note the self support reserve for 2011 in Australia was $20,594

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            • #7
              Hey oink, I'll tell you why:

              I didn't want to rock the boat so to speak as my priority was to get equal parenting. The ex wanted to just pay fully for all sports and activities and not pay CS to me. The judge assisting us raised an eyebrow when my ex said she thought that we made about the same and no CS would have to change hands, there is about $20k difference in our incomes at the moment, but the judge didn't say anything.

              To absolve myself of any future claims from her, I agreed to cover part of her legal fees that she incurred to get CS from me and pay back any arrears. Really, I tried to pick my battles one situation at a time, with the long term strategy in mind.

              I see online calculators putting the offset at $300 from her.

              Comment


              • #8
                Be careful with this. There is case law that if you are going from a CP/NCP situation to a shared custody situation, a judge may not accept the setoff.

                If you intend to go for setoff in the future, first of all keep very detailed budgets and all receipts. I would recommend you have a separate account for everything you spend on the kids and use a debit card for that account to be able to detail what you spend. In addition, be prepared to detail the difference between, say, a 1 bedroom apartment and 2 bedroom, all of your travel expenses, etc.

                Waiting too long establishes that you don't really need the money. Don't get started on "fairness," just start protecting yourself.

                Having a situation where your ex pays for activities, etc. gives her the power and control. The administration will know her, call her, reference her, believe her as being custodial parent because she is the one they know. Despite joint/shared, you will have an uphill battle to be seen as an equal parent. Trust me, I have been through this.

                Comment


                • #9
                  Originally posted by Mess View Post
                  Be careful with this. There is case law that if you are going from a CP/NCP situation to a shared custody situation, a judge may not accept the setoff.
                  I'll have to look that case law up, definitely. I was thinking about the Contino case and how it might affect me.

                  Originally posted by Mess View Post
                  If you intend to go for setoff in the future, first of all keep very detailed budgets and all receipts. I would recommend you have a separate account for everything you spend on the kids and use a debit card for that account to be able to detail what you spend. In addition, be prepared to detail the difference between, say, a 1 bedroom apartment and 2 bedroom, all of your travel expenses, etc.
                  I do keep track of my expenses through budgeting software. I can be really, really detailed. The real problem is I really can't spend much on the kids as it is, because of financial tightness. Just like back to school stuff, I'm really having a hard time just buying shoes and jeans for all three kids.

                  Waiting too long establishes that you don't really need the money. Don't get started on "fairness," just start protecting yourself.[/QUOTE]

                  Yeah, the fairness approach doesn't really get voiced much in court as I have enough experience knowing that's not what it's about unfortunately. Our agreement/final order is dated mid-May, I was going to wait six months to bring things up first to her, then to the court if necessary but I now think about bumping up the issue.

                  I'm always looking at part time jobs, so hard to get with a full-time job like mine plus parenting fully a week on, a week off - no one really likes to give you sporadic work it seems. I just don't know whether in the big picture it's better for me to suck it up and work, or argue for some form of CS amount.

                  Originally posted by Mess View Post
                  Having a situation where your ex pays for activities, etc. gives her the power and control. The administration will know her, call her, reference her, believe her as being custodial parent because she is the one they know. Despite joint/shared, you will have an uphill battle to be seen as an equal parent. Trust me, I have been through this.
                  Totally aware of this, been through it and that is why I would not agree to her paying any past or future expenses like these, as a form of paying me off. It's all about the control.

                  Comment


                  • #10
                    I would go for offset, even if it is a small amount right now. You never know what may change in your incomes in the future, and having had the offset in place all along means that it is much harder to argue against keeping it up to date later.

                    Comment

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