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Caselaw that supports continued CS during university.

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  • Caselaw that supports continued CS during university.

    Hello all… Heading to court for the fourth time. Does it ever end? I’m looking for caselaw that would support continue child support either full or partial during the school year while the kids are away at University (extenuating circumstances) . If anyone could offer such it would be appreciated. In addition any caselaw surrounding status quo for one child as setting a precedent for the second? Thanks!

  • #2
    There isn’t much case law available. As my husband (or more correctly, his ex) learned during his case, CS is paid as full table if the child lives at home and for four months of the summer if the child lives away from home during the school year. Depending on the income of the payor it could be ordered as a smaller amount through the year but there is no case law on that one.

    You have to be reasonable on this. Judges normally err on the side of support for the summer if kids are away and full if they are at home. They also expect the children to contribute. The school choice also plays a part. As the judge in my husband’s case said to his ex, if kid wants to go away because they like the weather there, as opposed to a school closer to home, the onus will be on the child to contribute more.

    This topic has been discussed a number of times on the forum and I have drafted a pin on how it plays out in court. Do a search to see the previous comments.

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    • #3
      Thx Rockscan….can you share where the pin is? I can’t seem to locate.

      Comment


      • #4
        Its here: Post-secondary, 1/3, 1/3, 1/3 calculations
        https://r.tapatalk.com/shareLink/top...ink_source=app

        I also went back and looked at your old posts. Is this a new claim or from his wanting to change in 2019?

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        • #5
          Hi Rockscan….Thanks for the assistance. This is an ongoing claim from 2019. Ex sent a motion the dropped it…now he has opened up again. I need to form a position on youngest daughter who is going into third year university. Materials for court due next week.
          Question: Do I follow status quo and ask for same agreement as oldest daughter? (Summer support and 50-50 during the year) or do I agree to summer only but ask court to make ex pay in proportion to his income? (right now I pay 50-50 when our incomes dictate 25 to me 75 to him). Thoughts?? Thx!

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          • #6
            I would go with summer only and his share of school costs. He obviously was ok with the original agreement so he will need to show why it didn’t apply for kid 2.

            If she wasn’t away at school because of the pandemic, he pays full table for that time.

            Comment


            • #7
              Sorry…just to clarify. Original agreement for oldest daughter dictates summer and 50% CS for remaining 8 months. Ex wants summer only for second daughter. Should I push for same agreement for child 2 as oldest daughter? Or give up 50% of CS during school year and agree to summer only formula. Both kids still away during pandemic. Just trying to figure out what court would rule…don’t want to be on the hook for costs.
              PS great thread you pinned!…thx!

              Comment


              • #8
                You know your case better than people on a forum and also the fine details that are a part of it. I also caution that I am not a lawyer.

                With all that said, the biggest question I would be asking of your ex is what has changed? Is he still making the same money? Did you reach your previous agreement on consent or was it ordered? If he agreed to it then he was ok with it and if nothing changed then he will have to explain why. If it was ordered and nothing has changed then he will also have to explain why.

                I want to remind you though that your child is entering her last (or second the last) year of school. Child support is going to end. Whether this becomes the weaning off period or you have to go cold turkey, you need to prepare yourself. His obligation is to support the kids not you and if they no longer legally require support then that is not his problem. So you will have to get real about your circumstances. His income is no longer yours to demand.

                As for costs…this one is a crapshoot as it is entirely up to the judge and the determination in your case. He could win and still not get costs. It all depends on how reasonable you were and what the result is. The bigger problem will be if he wins a retroactive decision. Are you prepared to pay him back?

                If I were you, I would offer full table in the summer, 25% the remaining 8 months (if he has a high 6 figure salary) and that the costs for school are calculated proportionate to income. Also request that this start this September and to continue the length of her remaining terms (whether she is done this year or has a fourth year) and see what he says. Making an offer is always allowed and shows you are reasonable.

                As for your next date…is it a conference or an actual trial appearance? If its a conference, I suggest you listen to what the judge has to say. That will give you a big indicator on what you might receive decision wise.

                Comment


                • #9
                  Rockscan…thanks so much for your opinion. I truly do appreciate you taking the time. We have not had a case conference yet. DRO end of month. Trouble is that the courts are SO backed up (might take a year for CC).

                  I completely agree with stopping CS for my oldest (now completed university) but without us agreeing on CS to be paid for my youngest it is difficult to change FRO. What do I change it to??

                  Ex may bite on Offer that reduces support but makes him pay section 7 on his income (which sits at 300,00). I will try. I find it unfair that I am paying 50% of all university costs and he wants to move to summer support only. If he wants to do that then university costs should be in proportion to income (75-25).

                  Previous agreement was informal but on consent. I did have it signed and witnessed but there is nothing official with the courts. Nothing really changed for that consent agreement with respect to my oldest daughter. The only thing I can think of is her younger sister starting university. I was clear in the agreement that the only allowable factor for change was my daughter living full-time with her dad in the summer. This has not happened.

                  Thanks again! Will sweeten the OTS and keep my fingers crossed. Appreciate bouncing ideas off of you.

                  Comment


                  • #10
                    You could contact FRO and ask that they reduce cs by half since one kid is no longer eligible. My husband’s case worker was able to do that for him when his first finished school but his agreement filed clearly said once kid 1 reached 21.

                    Make the offer to settle before the DRC. He will have to pay summer cs and his share of expenses. By making that offer he will hear from the DRO that his obligation is proportionate to income. Plus if you reduce cs he may be more willing.

                    Comment

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