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  • Imputation failed? /vent

    Wow, so new updates on the latest round of BS. If anyone wants a case reference from NB that allows the non custodial parent to sit at home, allow the new spouse to support them, and be required to pay nothing in support until they decide to become employed, PM me.

    We filed to have my ex imputed income equivalent to full time hours min wage. She's refused to work since the final order was signed, remarried and sits at home and lets her new hubby support her. She refuses to disclose her true income from prior to the final order.

    We can't use her Notice of Assessments, since she doesn't report her income to CRA, since it gives the impression she's not employable that way. (she moved so much during that period of time that they'll never actually catch up with her unless she's audited).

    She's been reassessed like 4 times in the last couple of years, including a recent one that shows she was working during the period after the final order was signed...the same period she was under order to report her income immediately and to begin paying support.

    She won't voluntarily disclose her earnings from those prior periods, and the judge outright ignored the (multiple) requests in my various affidavits requesting that he order disclosure. I have numerous emails, as well as an affidavit SHE filed during the time in question that shows she was working.

    AND my lawyer was able to get one of the places on HER affidavit to verbally confirm that she DID work for them during that period of time.

    None of that mattered to the judge apparently...Luckily, or so I thought, I had a bunch of docs from her that her former landlord provided us from when she was evicted, that contained a paystub. 'Lo and Behold it wound up the damn thing was doctored. Naturally she jumped ALL over that one.

    The big problem is the judge referenced it in his ruling, so I got nailed with solicitor-client costs and the judge ordered she didn't have to pay support until she became employed. Yep, that's right, the judge gave her carte blanche to sit on her ass, do nothing, and declare 0 income, as the EOW parent.

    Now that goes against my understanding of the way the law works entirely. Anyone ever hear of something like this?

    It's kind of a mixed blessing, since I absolutely hate the judge we have. He's FAR too lenient, ignores areas of law that to my understanding are pretty cut and dry, and has an obvious bias towards the mother. (Same guy I had originally, when it was ME being assigned support, it was at the first appearance, no ifs/ands/buts. When it's HER...we're about 6 months in to the CS motion and we had ONLY gotten an interim order in the last 30-40 days).

    My lawyer got him to go on record that he found against my credibility. Which gives us grounds to have him removed from the case. (If he rules against my credibility, he can't continue to take evidence go forward from me.)

    The ONLY other judge in the district right now is the hard ass...which I don't have an issue with, we had the hard ass for the final leg of things the last time, and he laid a whooping on the games my ex was playing pretty quickly. (Where the current guy entertains and encourages them).

    Anyway, I expect to file a motion to have the judge removed early this week.

  • #2
    OK. You know I am with you. This sucks.

    There are errors in law here. Because of those errors in law, you may appeal. In the appeal, you address the exact errors in law that were made.

    She is capable of working and therefore is capable of working at least minimum wage, full time. This has to be addressed by the judge, citing Drygala vs. Pauli. She cannot have an income of $0. This is not supported in law, so it is grounds for an appeal.

    An appeal court has to hear your argument, at least at the first stage, and they are cognisant that their ruling has far reaching implication. You have 30 days (in Ontario, I presume NB is the same) to file an appeal.

    She cannot have an income of $0. She is responsible for her children and must work to support them. Included in your arguments should be an accusation of gender bias against the judge. If a male were claiming $0 income, this would not be acceptable to the courts.

    There are plenty of other arguments. Are you willing to appeal?

    Comment


    • #3
      Yeppers. NB courts follow Ontario, Nova Scotia, PEI and BC precedents fairly closely.

      What else you got re: ideas?

      Comment


      • #4
        Hmmm I may not be able to "appeal" this decision at this junction. It's not a final decision, we are still in the middle of the process.

        New Brunswick Court of Appeal

        I shall bounce it off my lawyer this week to see if he has any thoughts re: direction as well. Just in case, if you have any other ideas Mess, let me know.

        Comment


        • #5
          Sorry things didn't work out for you.

          Imputing income can be a dicey thing. My experience is that you have to have fairly strong documentation for this. Maybe it's worth looking at from another angle - your ex's standard of living, minus her partner's income? I wonder if you could get any substantiating documentation on him?

          I will check the CanLII Alberta cases and see if I can come up with something relevant for you. I know there is Undue Hardship where total household income is examined.

          Do you think there is possibly any relevance that your ex is not the custodial parent?

          Does your ex have any medical issues which would prevent her from working?

          I know it's frustrating as once someone has gotten away with not working for a while they are sometimes considered "unemployable" by the courts. I think it's sheer laziness because lawyers/judges just like neat little NOA's to reference.

          Total BS - I empathize with you.

          Comment


          • #6
            In Ontario the case to look at is Drygala vs Pauli.

            It explains the law and is cited by hundreds of other cases. I'm not sure if it is a precedent for NB, but certainly it is a starting place.

            Comment


            • #7
              Thats gotta be super frustrating. I often think courts are biased towards men...and it seems to me that the good responsible fathers really get screwed. There is no excuse for laziness as long as you have a child to look after. My ex husband who lives overseas has been claiming hes jobless for 3 years now and as he's far rrmoved from Canada he can totally lie through the teeth. I hope your appeal works out for you.

              Comment


              • #8
                Nothing preventing her from working. I got her to admit to that in an affidavit response.

                Her ONLY argument is that she has two young children at home. However that didn't stop her from working in 2011...we just found that out when she filed her notice of reassessment.

                Which means she was employed while the oldest of the two new children she has was under a year old....and while she was under order to report income and pay cs.

                I'm fairly confident we could show a pattern of income increase leading up to our final order, and a complete drop immediately following. IF we can get her income from places she admits (in HER affidavits from the time immediately prior to the final order) to working.

                She won't voluntarily disclose, and the judge flat out ignored the request for an order for disclosure.

                Comment


                • #9
                  There should be legislation in NB that requires financial disclosure. The judge ignored that law, so you have grounds for appeal. Here, you need to file within 30 days, it is probably the same there.

                  The main thing is to decide if you are going to appeal.

                  Comment


                  • #10
                    I did face the same issue as my ex(male) was claiming zero income and got away with it and not paying any CS and claimed spousal.

                    He always was employed during marriage and was making over 100k.

                    Ironically, he had no problem buying a house, a new CRV and afford vacations and a lawyer.

                    It is more about who got the mean and stamina to go through all these legal proceeding. He did not care throwing money down the drain so trying to reason of fighting him was too costly.

                    He got a job the day, I signed the agreement.

                    Comment


                    • #11
                      You signed an agreement? So it wasn't a judge's decision?

                      Comment

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