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Retroactive child support REDUCTION

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  • #16
    What I don't like about the whole divorced children thing is that parents are forced to contribute... no one forces married parents to contribute. I agree post secondary costs are higher and they continue to climb yearly, but what happens in situations of married or not, where parents just cannot afford post secondary? Parents are not made to remortgage their houses, are not forced to get second or third jobs just to put their children through school... but all of the sudden when there is a high income earner they are forced to put their children through school, where is the responsibility of the child? I personally have been working since 14, I started working part time at a vet clinic, in the summer I worked full time, I worked there for a few years and then moved on to my current employer... I saved all I could, my dream was to be a vet, but there was no way I could afford the schooling for that, so I fell back on my second career choice. I am much more appreciative of what I have because I worked for every last thing. Sure there were times if I needed money, Dad would help me out, but once OSAP came in or I received my paycheck, he always got that back.

    It is such a shame the double standard between intact and divorced families and more often than not, it is the low income earner complaining the higher income earner is not "pulling their weight"...

    I agree that any overpayment should come out of his section 7 expenses, such as was stated in the case law I posted, but I don't agree with her argument that he deserves no payment back because he didn't request a decrease when by her own admission she received a retro payment when he failed to increase his payment, it is such a double standard on her part.

    OP would be better off to take him to court to get the section 7 expenses paid and use the bargaining chip that instead of him paying a lump sum for what his section 7 expenses are, they will be reduced by what his overpayment would be. If I remember correctly the overpayment was about $5000 (1/3 of her salary), if his section 7 expenses are $10,000, they should be reduced to $5000. Why change money twice? Doing it this was would save the OP a lot of money, instead of attempting an appeal. If she has been successful in the past court appearances, why wouldn't she be successful in this one?

    Yes at 22, I never thought I would be in the situation I am, however besides dealing with the little craziness from time to time, life is good. I would not change it for the world, I love those kids beyond a doubt and being in a partnership, sometimes we have to pay for the others obligations. Besides, I would not allow those kids to go without just because sometimes their parents are more wrapped up in their ill feelings for each other, than what is best for those children.

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    • #17
      Parents are not made to remortgage their houses, are not forced to get second or third jobs just to put their children through school.
      I know several happily married friends who have secured lines of credit via 2nd mortgages for their children's PSS. Obviously, it was at their choice.

      If my ex and I were still married, we would have discussed our financial support of a portion of our child's PSS, and frankly I can't imagine we wouldn't have agreed to partially support her. Of course, we would also have been collectively saving money for her PSS.

      Once separated/divorced, why shouldn't the onus remain on us to continue to partially support her? I'm not sure I agree it should be in accordance with the proportions of income/S7, but I do think that some support from each parent is a necessity in this day and age. I will more than likely by her 3rd or 4th year, be looking to obtain a LOC as well to assist her. Note - I'm not saying I'm paying for everything, in fact I don't agree with 100% paid PSS. I think these children need to have their own time/effort/money on the hook, as well.

      I understand that each situation is unique, but I have to think that the majority of couples when together would have done what they could to help their kids.

      It rather freaks me out that you are young enough to be my daughter. Your stepchildren are lucky to have you in their lives.
      Start a discussion, not a fire. Post with kindness.

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      • #18
        Thank you, I do try to do all I can for them, which is why I, myself have set up a savings account for them. Unfortunately their dad nor I are able to take part in the government benefits for them as to do so Mom needs to sign a forum stating her income (because the grants are based on the primary parents income) and she refuses to do so, which means the children are missing out on a fair chunk yearly.

        I know when it comes to their post secondary Mom will be looking to get every last time out of Dad and while we are saving and she is not (by her own admission) Dad will end up paying for post secondary twice. Fair or not, such is the life of a divorced parent.

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        • #19
          Originally posted by mcdreamy View Post
          I know several happily married friends who have secured lines of credit via 2nd mortgages for their children's PSS. Obviously, it was at their choice.

          Once separated/divorced, why shouldn't the onus remain on us to continue to partially support her?
          Both sides of the argument bolded.

          My belief is it should be the parent's choice and not an obligation.

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          • #20
            The courts do accept that it is a decision and whatever decision a couple makes is what the court supports. When divorcing, a couple can agree to pay for 0%, 50%, 83.2% or 100% or whatever they want to agree to. That agreement can then be made into an enforceable order. There is no double standards. Divorced parents also decide what they want to contribute. It's just that they are asked to decide early on and put it in their divorce order so that down the road when the kids do go to school and are living with one parent, the other parent can't weasel out of their agreement.
            There is no double standard. There is the same choice for divorced parents.
            We, as did many parents DECIDED together when we divorced in 1998 that we would pay for 100% of their schooling. We signed that agreeement and it was made into an enforceable order. We both are well educated and wanted to offer that benefit of a start in life to our kids. The court is a mechanism by which such a previous agreement can be protected.
            When it isn't an agreement and a court is asked to decide iif and how much the parents should pay toward the PS expenses, it weighs a great many considerations including the incomes of the parents, the education of the parents, the aspirations of the children, the number of children, the other financial responsibilities of the parents, the earning potential of the child, the academic ability of the child, the current job market, etc. There is no where a rule that says divorced parents will be made to pay 100%. It seldom happens, in fact........it often happens that parents are asked to pay 100% minus any scholarships, loans, bursaries, income the student receives. But it also often orders much lower contributions by the parents when it is clear that the parents can't afford it or there are other avenues of payment by the student.

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            • #21
              That may be true to some extent but say the parents agreed to not pay for any of the education then years down the road one parent decides they should be paying and it goes to court, the court will order that both parents contribute, doesn't matter what they agreed too, because as children of divorce the parents are forced to pay. It should be a choice, not an obligation like was stated my a previous poster.

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              • #22
                is not true and case law bears out that a court will honour any agreement made between parties as long as there was no coercion and no material change in circumstances.

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                • #23
                  Can you please provide caselaw to support this arguement where a parent is let off the hook because they agreed not to contribute?

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                  • #24
                    i could but i'm not going to bother. B, I've been learning and dealing with family law since you were learning your alphabet. I have 14 years of university education. I have represented myself and others in court 15 times. I can quote you chapter and verse in the Divorce Act, Provicincial family law in 3 provinces and the Federal Support Guidelines. What you expect to be true or wish to be true does not out weigh what I know to be true.

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                    • #25
                      Clearly you missed the part in the Family Law Act that states,

                      Obligation of parent to support child
                      31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.
                      Which means that when they are enrolled in a full time program of education (post secondary) they must support the child, thus parents who are divorced are forced to pay for their children's education. There is no "choice", parents can agree on anything, but if one gets their panties in a knot it goes by what the law states, which in this case is they must pay for post secondary education if they are capable of doing so.

                      It is the same with CS... you can agree to whatever you want, but if it is NOT table amount, the receiving parent can take the payer to court and get retro payments for under paying.

                      Oh and you forgot about this...

                      Special or extraordinary expenses
                      7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
                      (a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
                      (b) that portion of the medical and dental insurance premiums attributable to the child;
                      (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
                      (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
                      (e) expenses for post-secondary education; and
                      (f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2.
                      Again... a divorced parent... by law, is forced to pay for post secondary.
                      Last edited by Berner_Faith; 01-12-2013, 04:04 PM.

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                      • #26
                        Originally posted by cphunter View Post
                        Does anyone know a case law, law, or precident that discusses conditions under which a retroactive reduction is allowable.
                        More than likely than not, there is some case law out there. There's more than a few posters here who continually post links to some of the more obscure decisions.

                        Problem is, (by posting the statement below), I get the feeling that if you won't take the time to search for case law that others' request, why would anyone want to do likewise for your benefit?

                        Originally posted by Berner_Faith View Post
                        Can you please provide caselaw to support this arguement
                        Originally posted by cphunter View Post
                        i could but i'm not going to bother.

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                        • #27
                          Originally posted by cphunter View Post
                          is not true and case law bears out that a court will honour any agreement made between parties as long as there was no coercion and no material change in circumstances.
                          Unless said agreement was in writing and witnessed, than a court may uphold the agreement. But it is hearsay (ie. we agreed over the phone) or even just emails, a court won't even consider it.

                          And I do say a court MAY uphold the agreement, however, should one parent decide to renege on it and request the other parent pay, well the court will likely read the agreement and the law. And if the parent who is requesting the assistance for PSS costs can provide evidence there is a reasonable need for the monies, the judge will even moreso toss the agreement as not being in the best interests of the child.

                          Comment

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