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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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  #11  
Old 04-12-2008, 07:36 PM
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But you didn't answer the questions....
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Old 04-12-2008, 07:45 PM
Beaudoin Beaudoin is offline
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Ok... sorry..

If I have him overnight, and he is sick the next day, I stay home from work. I don't call her and tell her to stay home. I would call her merely to inform her of his condition and that he won't be attending school or daycare. It has yet to happen that we receive a call from school or daycare due to illness. They both have our numbers.
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Old 04-14-2008, 08:30 AM
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http://www.canlii.org/en/ab/abqb/doc...07abqb486.html

40% threshhold and child support calculations link above.

This case referances another case, and this is the link,
http://www.canlii.org/en/ca/scc/doc/...2005scc63.html

This is another link to a case where there is a dispute in how much time each parent has, and it references several other cases.
These should help you understand how the courts analyse and make their decisions




http://www.canlii.org/en/sk/skqb/doc...06skqb451.html
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Old 04-14-2008, 10:03 AM
Beaudoin Beaudoin is offline
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Thank you FL!

I've been reading Contino vs Leonelli-Contino and I have yet to find a reference to a case where there was a dispute about what constitutes as time sharing. In that particular case, there wasn't any dispute because the mother admitted that they had a Time Sharing arrangement, so it was not disputed. It only states that secion 9 applies when the parent with access rights spends has the child for 40% or more of the time throughout the year.

If I were to calculate how much I have my son in terms of time per year, it would only be 35.4%, and her it would be 40.6% of the time, because all other times, he's in daycare or school.

Does this mean that because there is a 5.2% difference in our time that I should pay the full table amount? This is my question. There are other factors here... I have two other children to support, she makes more money than I do, and she enjoys a much better standard of living.

I'm going to see a lawyer tomorrow. It's just frustrating that it usually has to come down to fighting about this. It angers me that she refuses mediation or any other form of dispute resolution methods, even though that is what is written in our agreement. Naturally, this puts stress on everyone.
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Old 04-14-2008, 11:11 AM
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There is always the option of undue hardship, and this is usually hard to prove.
The onus would be on you to prove that she had the higher standard of living and that a CS payment at the full table amount would cause financial hardship for you or your responsibility to your other children.

I mean, if she earns more and obviously has more luxuries, then a reduced CS amount would be easily requested, specifically if you could provide proof. I would trust that no court would order that you take away from the two children you are supporting to support one if he is enjoying a primary residence with a parent that earns more and can provide more.

I would think that the advice of a fellow member about who would be responsible for the child in the case of illness would prevail in determining the % split.

Good luck to you, Family Law is anything but an easy go, but it is do-able.
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Old 04-14-2008, 11:26 AM
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http://www.canlii.org/en/bc/bcsc/doc...anlii5092.html

This is a case were the parents could not decide on the amount of time.

I think the optimum words that you need to apply are "Where a spouse exercises a right of access to".

http://www.canlii.org/en/sk/skqb/doc...003skqb91.html

in the above, the judge had to pick appart the dad's schedule to determine both how much time he physically had and how much time he would have "a right of access".

http://www.canlii.org/en/ab/abqb/doc...98abqb981.html

In this case, the judge concluded that the parent who would be responsible for the child if sick would be deemed the right of access parent. And who the school or child care provider would call, is considered the parent with the right of access, so you may be able to claim that you meet the 40% threshold.

In all these cases the non-custodial parent had the higher income. You have this on your side as this is not the case for you, so you have two things on your side.
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Old 04-14-2008, 11:27 AM
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That's the thing... I make about $4000/mo, and if I were to pay her what she is asking, I would be paying almost $2000/mo in child support. My other two children live 90Km away from me, and the only way I can ever see them is if they come to stay with me on weekends. I can't live in Ottawa, and have a bedroom for my boys for under $1000/mo, plus I need a car for my access rights, I have to pay for my own diapers, wipes, extra food, laundry, etc.

This is a complete nightmare for me.
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Old 04-14-2008, 11:29 AM
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Oh.. btw, that 1000/mo that I'm paying in rent includes everything. I got a good deal on this place considering the heating costs.
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Old 04-14-2008, 01:05 PM
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These are the issues that can be represented in an undue hardship claim as well, I have read cases where an individual had a higher cost of living to facilitate the access, and the courts saw this as valid to ensure the quality of the assess. You can’t expect a parent to have a one room apt. when they have three kids coming to visit.
You have to have adequate accommodations and with that comes the increased costs, like hydro, heating etc.

A judge wouldn’t order you to pay beyond your means, nor will they order you to pay beyond her needs, specifically since “she” earns a greater income. In any case the judge will take into account your first family but you MUST clearly explain that situation and all costs associated to that including the distance and travel costs. Take this away from your income less what she wants, and it would certainly cause undue hardship.
Note: In family Law I have noticed that no one makes assumptions and no one will say, logically this makes sense. If you want them to see your perspective, you MUST clearly define all variables, they will not assume anything. For example, they will not rationally understand that increased housing means increased utilities, that’s an assumption. Nor will they interject the associated travel and accommodation costs with your access to your other children; you need to point this out. Explain every variable concisely and completely.
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Old 04-14-2008, 01:14 PM
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Wow... that is really good advice. Thank you. I would not have seen that the courts would not assume certain things...

...like, if I didn't have three children, I could get a smaller apartment; wouldn't need as much for fuel; less for food; diapers, etc.

Ok. That's great. Thank you. I'm going to work on this.
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