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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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  #1  
Old 03-14-2018, 11:23 AM
Lemongirl Lemongirl is offline
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Default Parent wanting to dismiss court case re: CS an S7

First off this is lengthy but I find more background info is better upfront when asking for advice. I've tried to find case law more specific to this situation but it's been challenging.

Background:
-Married Oct 10, 2009
-Purchased matrimonial home (in both names) 4 days later on Oct 14
-I put down payment of $200k on house from previous personal home equity. Ex’s pre-marriage debt of $15k was added to mortgage. His contribution to home was $0.
-Separated 2.5 years later, Spring 2012. House value went up $20k over this period.
-Separation agreement signed in 2012 outlines the following info:
• The parties acknowledge that the wife contributed $200k towards the purchase of the matrimonial home, which the parties agree is the wife’s to keep.
• Approximately $15k of the mortgage is as a result of the husband’s debt incurred before marriage.
• I kept the house in exchange for paying an equalization payment of $15k to ex as well as me keeping his $15k debt in the mortgage and assuming it solely in my name. I would be responsible for all fees in transferring the home/mortgage, etc.
• Child support for B2 to be $50 less than guideline. In order ensure our divorce was granted the lawyer recommended we add a line in the agreement, This child support amount is acceptable based on the father foregoing his $100k equity in the home.
• Section 7 expenses to be shared proportionately, with the exception of daycare in which the wife (me) will be solely responsible for.
• Each year financial information would be exchanged upon request and if there is a material change, either the husband or the wife can ask for an adjustment in child support.
• In 2014, the ex provided financial disclosure and we both agreed to an increase in child support without any issues.

Current Situation:
I filed a motion to change to increase child support in Oct 2017, update section 7 expenses to include childcare, and retroactive child support for 3 years based on a material change of:
• Ex’s income has increased by $20k/year (now at $60k including OT). I no longer make more than him, we make the same amount.
• Ex has cost me $10k in additional childcare expenses over the last 5 years as he will not exercise the agreed upon parental time that includes weekday pick-ups from school 2x per week plus 2 weeks summer vacation. I’m only asking for his share of before/after school care beginning Jan 2018, no retro. Not that it’s relevant to child support, but the other parent pops in and out every few months when it suits his schedule.
• I have requested in writing every year for the last 3 years, financial disclosure/income verification in which he did not cooperate and provide.
• We had our third first appearance in Jan 2018 (yes third!) as he would not provide his financials the first two times. He hired a lawyer recently and I am self rep. In April we have a CC and were advised by the court that we are not to provide a CC brief.
• The ex’s response to MTC is that because he apparently gave me his $100k equity in the home he wants the entire case to be dismissed with costs, or that I can pay him a predetermined amount from the home equity and then child support can be increased.

I’d like to hear from any of you that have any knowledge or experience with a case similar to this and what your thoughts are in terms of how you think this might pan out. In particular, about him leveraging equity from the home that was mine prior to marriage and noted in our agreement. The equalization was settled almost 6 years years ago, and our agreement clearly states child support will be revisited each year based on exchange of information, and that neither one of us can go back and try to change the equalization of property. Our current case is in the Ontario Court of Justice, not Superior, so I’m not even sure anything regarding property can be addressed. Also wondering what you think will happen during the CC and if there is anything I can do to prepare myself in advance for it. Case law or any specific legal terms I could use would be appreciated.
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  #2  
Old 03-14-2018, 11:37 AM
rockscan rockscan is offline
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There are a number of things:

1. You cannot negotiate away child support. He is obligated to pay cs and update it regardless of what the agreement says. (I could be wrong on this but my partners lawyer has said it doesnt matter what your agreement says, the guidelines trump it.)
2. Daycare for employment is a section 7 expense and hes obligated to pay a portion.
3. It doesnt matter whether he is there everyday or never, hes still obligated to pay his share.

Im surprised the judge hasnt done anything about the lack of financial disclosure. He can try to have it dismissed but it wont be.

Have you put forward an offer to settle in line with the guidelines?
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Old 03-14-2018, 11:46 AM
Lemongirl Lemongirl is offline
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Thanks for your opinion Rockscan. To answer your question, for the 3 first appearances, it was a court clerk in the courtroom instead of a judge. I have not yet put in an offer to settle as duty counsel advised I wait until the CC first. In my motion to change and change information form i am asking for full guideline, daycare included as S7 and be shared proportionately, and retro support for 3 years based on income he provides. I now have all of his financial information so I made a spreadsheet outline how much is owed and what CS should be. I advised his lawyer via email that i would prefer to resolve out of court and that I am willing to discuss a resolution with him at anytime and he can reach out to me if he would like to do that.
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Old 03-14-2018, 01:34 PM
Lemongirl Lemongirl is offline
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one more question, what would be considered a reasonable offer to settle in this situation?
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Old 03-14-2018, 01:36 PM
rockscan rockscan is offline
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That would be similar to an offer to settle. Dont fully trust duty counsel. You can still provide an offer to settle outlining what you would accept. If its reasonable and in line with what a judge would order, its worth it. He will more than likely reject it if he thinks he should pay nothing. Then you can go forward with a judge.

Or go to the cc and see what the judge has to say to him. Make sure you have all the numbers of what he should have paid so you can understand when the judge tries to get you both to a settlement.
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Old 03-14-2018, 05:15 PM
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Rioe Rioe is offline
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At marriage
No home, and I’m pretending there are no other assets and debts
Your net worth at date of marriage: 200k
His net worth at date of marriage: -15k


At separation
Home worth 220k (value minus mortgage) and I’m still pretending there are no other assets and debts
Your net worth at date of separation: 110k
His net worth at date of separation: 110k

Your increase in net worth is -90k
His increase in net worth is 125k

The equalization process is meant to make sure both spouses leave the marriage with the same increase in net worth. In your case, that would mean each needed to walk away with 17.5k. (The average between your -90k and his +125k)

You kept the house, so you needed to come up with 17.5k to pay him in equalization.

He seems to think he gave up $100k somehow, and should get special treatment in reduced CS and s7, but that's not the case at all.

So that's equalization. The rest of it, CS and s7, is pretty much by the book and based on your incomes, and has nothing to do with equalization. It sounds like the kids are with you most of the time, so he owes you table amount of CS. You share s7 proportional to your incomes. Including daycare. Update annually to keep your incomes current.

So it sounds like you only paid him $15k in equalization so far. Offer him the remaining $2.5k if he accepts that CS and s7 will now be done as per standard system. Remind him that he’ll owe your costs if it stays in the court system and he loses (at least, if you've made a better offer already). I would think that a judge would be very likely to want to see CS and s7 done the normal, familiar way, and your ex's lawyer would advise him accordingly.

Offering to forgive his arrears might be another thing you could do to sweeten the deal if he still persists in going to court, but if you’ve got documented proof that you’ve been asking him to update all along and he has refused, it seems likely you could get arrears awarded as well by a judge. You would probably only get them going back to when you first asked for the change from your original agreement, not all the way back to the original agreement. You could start by offering that modification.
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Old 03-14-2018, 06:12 PM
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arabian arabian is offline
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I concur with Rioe - I haven't the foggiest idea where the 100k to him is from. In Alberta he would be entitled to 50% of the increase in home value, less of course, all of the debt. I'd go back and review the blunder that was done with the mention of $100k in separation agreement. It almost sounds as though you gifted him 100k of your equity.
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Old 03-14-2018, 07:19 PM
rockscan rockscan is offline
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See my partners lawyer said equalization has nothing to do with cs & s7. His ex is trying to argue she paid him equalization and he should pay more cs & expenses NOT s7 because he got equalization. Lawyer said it makes no difference.

You both agreed to the equalization of assets in 2012 with a clause that outlined $50 less.

The clause that matters is that you would exchange on request and if there is a change you will update. THIS IS WITHIN THE CS GUIDELINES. If his income went up then cs should change and s7 updates.

Its no different than if he won the lottery and you demanded it be considered as income or if he married an heiress and you demanded her income be included.

Rioe is correct in her sweeten the deal but I dont agree that he should get off saying he skipped more money so he doesnt update cs. My partner should argue he didnt take all the money he was entitled to and ss so he doesnt have to pay cs!!!
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Old 03-15-2018, 09:50 AM
Lemongirl Lemongirl is offline
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I definitely didn't gift it to him as the agreement clearly states "The parties acknowledge that the wife contributed $200k towards the purchase of the matrimonial home, which the parties agree is the wife’s to keep." And yes the clause about exchanging financial info and updating annually is also included.

Rioe, thanks so much for breaking down the math calculation. That's amazing for you to do this for me. It all makes sense and is solid, but I do have one question about it. If the calculation shows I would owe him $17.5k, should I not deduct the $15k that i absorbed into the mortgage and assumed on my own at separation? If so, that would mean I would only owe him $2500? i actually paid him $15k PLUS took on his $15k debt. If you deduct 17.5k from the $30k it means i overpaid by 12,500 (not that i would ever ask for it back, i could care less)Sorry, just want to make sure i have a solid understanding prior to court.

I'm still torn on whether to send an offer to settle before or after the CC. Not sure which is the best route.
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Old 03-15-2018, 11:20 AM
rockscan rockscan is offline
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Im thinking you should wait until the cc. Based on what other posters have experienced, at the cc the judge looks at cs and what the guidelines say. More than likely the judge will ignore the equalization talk and order cs to be updated, daycare to be provided and a recalculation of what is owed. You can negotiate from there. You SHOULD look at what you are willing to settle for prior to going into that cc. Your facts are simply that you were to exchange financials each year to update cs, he provided nothing and you would like a recalculation of cs and s7. Dont bring the equalization or anything related to that up. If he brings it up, your rebuttal (if you need one) is that you negotiated the agreement and he had independent legal advice regarding it knowing full well what he gave up. The judge will ask him why he has refused to share financials and if his income increased by 20 grand he will look bad.

Just remember that your motion was to update. His response involved what he thinks you should have accepted. Dont get into the nitty gritty or bs that he thinks.
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