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

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Old 07-26-2011, 12:50 AM
Styled Styled is offline
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Default Back Dated Child Supoort and Other Divorce Questions

Hi there,

This is my first post and I just need some advice. First and foremost I just want to say that I have a meeting with a lawyer on Wednesday but I just wanted to get some opinions of the people here.

My ex-husband and I split up officially Feb 2010 and he moved out March 2010. We have 2 kids together (12 and 8) that live with me full time. I will give you the Cliff Notes version because a lot has happened over the past year and a half:

-- He has had 3 dui's since then which ended up causing his 100k a year job back in May 2010.

-- He paid child support until he lost his job in May 2010, since then he has paid a total of $540. There is no child support order as we were trying to do this between the two of us and then filing for divorce but I have given him more than enough time to get his crap together to no avail.

-- He has had the kids overnight twice since he moved out. Too busy partying to be bothered. Last time was about 5 months ago when the kids went over for a sleep over and ended up babysitting the neighbors kids because they all decided they wanted to go to the bar. I ended up getting a phone call at 2am from my kids wanting to come home because their dad was drunk.

-- I have done everything in my power to keep a relationship between the kids and their dad despite his alcohol problem (one of the causes for our split). He has no drivers license (went to court for the first one, lost his license. Still needs to fight the other two) so I have offered to take him to ball games when our son plays, pick him up so the kids can go for ice cream, to the park, whatever. The only time he comes around is when he is fighting with his now girlfriend.

-- Last time he came over to see the kids was about a month ago. He wanted to drive the kids to the park. I said no. He got upset but settled down once I explained to him that it wouldn't be a good idea to drive with the kids WITHOUT A LICENSE and by chance get pulled over and have the kids watch their father getting arrested. He finally agreed and the kids went ahead to the park on their bikes and he followed in the truck (yes, he is constantly driving). About 30 minutes later the kids came back with ice cream. Despite my wishes he chose to throw their bikes in the truck and take them for ice cream. Now the thought was there but the irresponsible actions continue.

-- He had agreed to pay the visa and overdraft off in return for some of our assets. I kept the house which has zero equity. He has not paid either of those off and it's a constant battle to even get him to make payments on them.

Okay, that is the shortened version and even it's long. Now my questions:

Because I didn't have a formal child support order in place will I be able to go for back dated child support for the past year or so that he has basically refused to pay? By the way I am seeing someone now and my ex's response to my asking for child support was basically that my new bf is around more than he is and he's basically their dad now so he can pay.

He has about 30k in pension/stocks, is it possible to go after that to get him to catch up the child support?

Given the situation and his lack of responsibility when it comes to the kids how difficult would sole custody be to get? I want him to have visitation but I cannot rely on him to be there for the kids.

If he agreed to pay the visa and overdraft but refuses to then what option do I have?

His parents who live in another province and barely see the kids more than once a year (it has always been like this so it's nothing new) are now wanting to see the kids. The kids do not want to go all the way to their house and I explained that to the grandparents. I also told them they are more than welcome to come visit them here. They are upset. Do they have any rights?

What about the assets he took and eventually sold? They total about 25k. I was trying to be amicable and not go after the things he loves (his skidoo) but he also took a camping trailer. In return for those he was to pay off the visa and overdraft totalling about 10k. He has not done that. We have nothing in paper about me agreeing to that. Can I go back on it now since he went back on his end of the deal?

According to the Alberta Child Support Table he should be paying $749 a month based on what he is currently "making". He also does side jobs which he does not claim. I have proof of this although I'm not sure how concrete it is (it's in several text messages from him along with a pic of his business card). He makes at least 20k more a year just from those from what he's actually told me. Do the courts have a way of proving this if he does not disclose it?

I think that's about it for now. lol I have so many questions and very few answers, even after hours and hours online searching. Any help would be great! Like I said, I do have an appointment with a lawyer on Wednesday but I would just like to know what I'm getting myself into.
I live in Alberta if that helps.

Thanks!!

Last edited by Styled; 07-26-2011 at 01:13 AM. Reason: Add additional info
  #2  
Old 07-26-2011, 09:55 AM
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I'm not totally familiar with Alberta laws so I will just make general comments. Most of this info is true across Canada...

He will have to pay CS owed dating back to your separation, less any amount that he's already paid. Many people get confused over this. There is case law that limits retroactive child support when someone is seeking a retroactive increase in support. However if you are getting a child support order for the first time, he absolutely owes child support dating back to separation. Child support is the right of the child, their entitilement began when you separated, the courts will fully support this.

Your asset split is what may be somewhat different province-to-province. Generally you look at assets owned at marriage minus debt, then look at assets owned at separation minus debt. Look at the difference between the two. This shows how much you gained during the marriage. This amount should be split 50/50.

You should immdediately document the items like the skidoo and trailer that he took and sold. Write down the details if you don't have any receipts (or perhaps you detailed them in the past for insurance? Do you have photos?) Make a full list with as much info as you can of what the family owned at the time of separation, and then a list of what he took with him. These lists are essential.

At some point you need to get a simple accounting done, don't worry about arguing with him, just make the lists. It may be a year or more before you sort this out, do not believe you can just vaguely do it from memory. Lists, lists, lists, this is your job now.

What is the status of the debts, line of credit, credit card etc? Are they joint, in your name, in his name? He is irresponsible, apparently living off savings and breaking his word. Very simply, do not trust him at all. Don't hand him a penny of asset based on any promises. If you have joint debt, have it frozen, go to the bank manager, you be firm and assertive (people have had problems before with banks saying they can't do anything - they CAN) and have any joint accounts frozen or closed.

Meanwhile if you have debt in your name, this will be covered by the equalization of asset calculation, it's deducted from your share of the assets (so in effect you keep more of the asset to cover your debt). The main thing is to remember that all of these calculations will be based on bank records from the date of separation. Don't concern with whether he is paying it off now or not.

You could have kept those items he sold (sorry to say this) had the equalization calculation done and paid any joint debt off yourself.

If debt is in his name, forget about it. This has nothing to do with you, it is his responsibility and will be dealt with by the equlization calculation.

The most important thing to do right now is make lists of your items and values and also to sever yourself from him financially.
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Old 07-26-2011, 10:50 AM
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I would get a child support order in place.

It sounds like you have worked out the split of assets - get that formalized and don't worry about things that are not worth the fight. It will reduce conflict once you have settled this formally.

Also, it is not your place to say no if he drives the kids around without his licence - that is his business so I would let that go (assuming he is sober!)

Seeing the grand parents can be done on his access time.

Going for sole custody is not doing everything you can to keep a relationship between him and his kids - it will alienate him and give him an excuse to not be in their lives - he may over time become more involved.

His argument about your boyfriend with respect to his financial obligations to raise his own children is a sick. I would have no respect for anyone who said that. I feel sorry for your kids, hopefully he will come around.
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Old 07-26-2011, 10:59 AM
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People say a lot of things when they are angry, and say a lot of ridiculous things throughout a divorce.

I don't want to minimize the seriousness of DUI, and he lost his license for very good reason. That being said, if he is sober, the children are not in danger (or any more danger) being in a car with him just because his license is suspended. He is the one in danger of getting in more trouble. He's likely 10x more vigilant while driving without a license because he doesn't dare get pulled over. This is a police matter, not a family court matter.
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Old 07-26-2011, 11:09 AM
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I am interested about the Grandparent portion. What are they like? how far are we talking. I mean one can live in Ottawa and have Grandparents in Hull or one can live in Newfoundland and have grandparents live in BC if you get what I am saying. How old are your children? While you do not have to let the Grandparents have access, they could prove a valuable asset. I mean wouldn't it be nice if the grandparents could take the children for a couple weeks, I am sure it would be like summer camp where children cry to leave there parents when going and then cry because camp is over at the end. I understand what your ex is like, and hope that his parents are not like that at all. I know that our daughter loves my ex's parents and they are very special to each other, and that our daughter also loves my mother and they all have very special bonds(my father passed away). This is from what my mom told me, what parent on earth would not want to have a weekend, or week or 2 weeks of being child free at times. She raised us alone with very very little from my dad as he did not want to see us from age 3-11 and after that it was only for some of summer and some march breaks as we lived 5 hours apart.
Hopefully your ex can get his head on straight though, I always appreaciate and respect the fact that even when my father was a prick(much worse actually) that my mother never badmouthed him, and tried to help us with our relationship with him.
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Old 07-26-2011, 02:22 PM
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Alberta is a bit different; current values are used; the value of assets is at time of trial or time of settlement (if there is no trial), not date of separation. Alberta also has Dower Rights, basically the matrimonial home is considered the property of the wife, look it up here http://www.ottawadivorce.com/forum/f...88/index3.html.

You should Google lawyers and law firms in your city, many have a wealth of information you can read up on. I found this lawyers, (Lonny Balbi), web site very informative. Go for consultations, or call, some lawyers will talk to you on the phone for ½ hour. Start with a few questions, 3 or 4, write them down before you call and write down the answers. Continue doing this until you are clear or at least begin to understand your rights. Do this before your meeting on Wednesday. If you have too many questions, you will be overwhelmed with answers. Lawyers do not solve your problems, you need to have some understanding of what’s going to happen or you will spend a great deal of money in the interim.

I also found books on Family law helpful, ( Alberta Family Law, or Alberta: marriage, seperation, and divorce: understand your rights), get them from the library or go sit at chapters for an afternoon and take notes. Treat this like a night class you just signed up for at your local college, the more effort/ research you put in the better the result.
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Old 07-26-2011, 09:36 PM
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Quote:
Originally Posted by Mess View Post

What is the status of the debts, line of credit, credit card etc? Are they joint, in your name, in his name? He is irresponsible, apparently living off savings and breaking his word. Very simply, do not trust him at all. Don't hand him a penny of asset based on any promises. If you have joint debt, have it frozen, go to the bank manager, you be firm and assertive (people have had problems before with banks saying they can't do anything - they CAN) and have any joint accounts frozen or closed.

Meanwhile if you have debt in your name, this will be covered by the equalization of asset calculation, it's deducted from your share of the assets (so in effect you keep more of the asset to cover your debt). The main thing is to remember that all of these calculations will be based on bank records from the date of separation. Don't concern with whether he is paying it off now or not.

You could have kept those items he sold (sorry to say this) had the equalization calculation done and paid any joint debt off yourself.

.
Thank you Mess for the answers. I realize that even though we were working together at the start, he made a lot of false promises and never came through on any of them. If I had to do it all over again I never would have let him take any of the assets but now I need to live with my mistakes and go from there.

The debt we have in joint names is the house, line of credit (attached to the house), overdraft (I paid my share, he did not.), and a visa. I have been making all mortgage payments and line of credit payments. He was to be responsible for his half of the overdraft and the Visa. Long story short, it has been like pulling teeth to get him to make even the minimum payment.

I did let him take assets from the house (furniture, a stereo, etc) so that has all been divided and SHOULD be a non-issue.

I have been making lists for the past few weeks but thank you for reassuring me that I'm not wasting my time doing so. I will continue to keep them until this is solved.
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Old 07-26-2011, 09:43 PM
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Quote:
Originally Posted by billm View Post
I would get a child support order in place.

.

Also, it is not your place to say no if he drives the kids around without his licence - that is his business so I would let that go (assuming he is sober!)

Seeing the grand parents can be done on his access time.

Going for sole custody is not doing everything you can to keep a relationship between him and his kids - it will alienate him and give him an excuse to not be in their lives - he may over time become more involved.

His argument about your boyfriend with respect to his financial obligations to raise his own children is a sick. I would have no respect for anyone who said that. I feel sorry for your kids, hopefully he will come around.
Thank you for your response billm. My main concern about him driving around with the kids is that we live in a small town. He was picked up for his 2nd DUI while being suspended for his first. He has no issue drinking and driving and taking the kids with him. I do not want the kids subjected to seeing their dad arrested in front of them. They have already been through enough.

Sole custody was mentioned to me by a co-worker. She has a good relationship with her ex-husband but like mine, he is a drinker and in and out of rehab and/or jail. She did it to make things easier should anything happen (medical issue was her main reason) and he was unavailable. They treat it like a joint custody order when it comes to visitation and such.
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Old 07-26-2011, 09:52 PM
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Quote:
Originally Posted by fireweb13 View Post
I am interested about the Grandparent portion. What are they like? how far are we talking. I mean one can live in Ottawa and have Grandparents in Hull or one can live in Newfoundland and have grandparents live in BC if you get what I am saying. How old are your children? While you do not have to let the Grandparents have access, they could prove a valuable asset. I mean wouldn't it be nice if the grandparents could take the children for a couple weeks, I am sure it would be like summer camp where children cry to leave there parents when going and then cry because camp is over at the end. I understand what your ex is like, and hope that his parents are not like that at all. I know that our daughter loves my ex's parents and they are very special to each other, and that our daughter also loves my mother and they all have very special bonds(my father passed away). This is from what my mom told me, what parent on earth would not want to have a weekend, or week or 2 weeks of being child free at times. She raised us alone with very very little from my dad as he did not want to see us from age 3-11 and after that it was only for some of summer and some march breaks as we lived 5 hours apart.
Hopefully your ex can get his head on straight though, I always appreaciate and respect the fact that even when my father was a prick(much worse actually) that my mother never badmouthed him, and tried to help us with our relationship with him.
The grandparent issue is a touchy subject. He left home at a very young age because he does not get along with them -- for good reasons. We have tried to maintain a relationship but it was always very difficult. Last year when we split his parents requested to take the kids for a week. While the kids did not want to go, I made them. They live about 13 hours away in Manitoba. They have never really been in our kids lives other than once a year -- if that. No phone calls, gifts or cards on birthdays. No phone calls any other time. The last time they talked to the kids other than when they wanted them to come out was Boxing Day. The kids (especially the youngest who is 8) do not really know them. It's sad but true.

I made it very clear that they are more than welcome to come out here and visit but the kids did not want to go there. I brought up the fact that they never call so the kids feel they do not know them. Their excuse was when my ex and I split up they called 3 times and I did not answer the phone so they gave up. 3 times the day after he moved out. I told them I don't remember seeing their number on the call display and if they were calling to speak to the kids then I appologize but 3 times in one night when I probably wasn't even home?!?!? That's their effort?!?!?! It sickens me! Funny thing is though.......they called months later (this was in 2010) to see if the kids could come out (the year I made them) and I answered the phone each and everytime. It's a joke.
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Old 07-26-2011, 09:53 PM
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Sole custody is pretty extreme, I would think, and certain to get his hackles up. Joint custody is all about the major decision-making though, and most of that (medical, religion, education) is something that's discussed over time, giving you enough time to track him down for his opinion. Emergency medical attention is usually a clause that makes it an exception. If he's not reachable through a cell phone because he's in jail, then as long as you made a reasonable effort to reach him, you won't be in trouble for not being able to get his input into a decision.
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