CS and EI - when to apply for reduction?

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blinkandimgone

blinkandimgone

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Scenario:

- 2 kids
- out of court seperation agreement
- 60/40 split on paper, in reality 40/60 split with Parent B picking up tonnes of slack from Parent A
- Parent B pays CS to parent A, (not yet sure if they are using offset method as they should be)
- Parent B has been battling cancer for the last 9 months, currently on EI and has just started back to work, limited to working no more than 3 days/week, still pays agreed upon CS amount.

Question: Since Parent B is now on EI due to having cancer, do they ask for a reduction in CS right away or do they have to wait until the annual exchange of information and have it based on last year's income?

Thanks for the input :)
 
Both options are acceptable.

If everyone agrees to lower CS immediately (without court), well to me that is 'good faith', and the payor should bump CS back up the moment his/her income increases again.

Or you could just wait until end of year income calculation, and most likely have CS lowered (based on lower income) for the entire following year.
 
The idea of adjusting yearly based on previous year income is definitely a fair way to do it, and not knowing any other facts, this is the way it should be done (ie wait until yearly adjustment).

That is the whole purpose of adjusting every year - to accommodate change in income, and it works.

To suddenly adjust CS because one persons income has gone down defeats the purpose of adjusting yearly. If you adjust immediately when one person's income goes down, then you have to start adjusting every time either person's income changes. Adjusting yearly handles any and all changes in income.

For example, my ex's income has recently gone down, and she is now demanding that we adjust offset CS now, and not wait for our normal July 1 adjustment, which we have been doing yearly for over 5 years.

But in 2011 I made less than her, yet paid her substantial CS because we were using 2010 incomes. I didn't want or expect an immediate change to CS because it all works out if we adjust yearly. So right now, based on 2011, she should be paying me a small amount of CS, which she does not.

She wants to adjust CS now using our 2012 incomes (even though I have not even done my bookkeeping yet) because she knows I made more than her in 2012. The only fair thing to do is to wait until July 1, but unfortunately her and her lawyer can't seem to see this and are threatening a motion.

Adjusting yearly is a simple and fair concept - it upsets me that her lawyer is convincing her it is unfair when her income goes down. This is wasting money my ex does not have.
 
I concur with Billm. My ex has tried to change SS for a myriad of reasons just to be difficult. He has tried to make changes by stating "change of circumstances" but his motions have always been denied. Incomes will go up and down but the annual recalculation correctly measures the income for the whole year. One year someone will pay more but the next year it will be reduced to reflect the change of income the previous year. It is difficult as the person who's income is reduced due to sickness usually needs the break immediately.
 
arabian said:
It is difficult as the person who's income is reduced due to sickness usually needs the break immediately.
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This^^.

Parent B is really struggling financially and providing more than the 40% of care for the kids as originally agreed on, while paying CS based on 40% is really taking a toll.

Parent B is in a shared living situation with a room mate and their children as well to offset the costs. Parent A is now saying that Parent B cannot properly accomodate the children as they don't have their own rooms while there. Parent B can no longer afford a larger place due to being on EI and paying the amount of CS for only 40% of the time while caring for the kids more than 60% of the time.

Would this be considered a material change that Parent B could bring forward an application to change the amount of CS being paid?
 
I'm no expert on CS, however having been taken to court 6 times by ex who tried to have SS overturned based on various "changes of circumstances" I can merely offer my observations. (Of course there is also plenty of case law and detailed legislation available on material change of circumstances in family court matters).

As this is a medical issue which makes parent B unable to work full-time she/he might be asked why she/he doesn't receive disability? If you collect EI you are supposed to be willing and able to work. In other words, she will have to make a statement that her current illness is of a temporary nature or a likely long-term, permanent nature.

The court would likely require documentation to show that since (date) there has been a noticeable decline in income, accompanied by medical certification of diagnosis and prognosis. Without the documentation the court usually will only look back at patterns of income over a span of years. An example of this is when they impute income they look back at typical income over a period of time in able to project the likely income in the future.

Medical documentation would be essential to prove the material change of circumstances along with pay slips to corroborate loss of income. Check the disability vs EI carefully.
 
Question: Since Parent B is now on EI due to having cancer, do they ask for a reduction in CS right away or do they have to wait until the annual exchange of information and have it based on last year's income?
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As per the Guidelines:
Most current information
(3) Where, for the purposes of the child support guidelines, any amount is determined on the basis of specified information, the most current information must be used. O. Reg. 391/97, s. 2 (3); O. Reg. 25/10, s. 2 (3).
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If there is an immediate and reasonable drop in income, the parties could reasonably reduce child support immediately.

Precise numbers for child support to date would involve CS payed based upon each year's income (so adjust total 2012 CS based upon 2012 ITR when available, with payment one way or the other depending whether 2011 ITR was higher or lower), pro rate payment based on income to date of EI, then ongoing CS based upon EI income.

How easy this is to effect, and its timeliness, is dependent on how reasonable the parties decide to be.
 
OrleansLawyer said:
How easy this is to effect, and its timeliness, is dependent on how reasonable the parties decide to be.
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The above is critical.

You could motion to vary CS, but how long does that take to wind its way through court?

Will the yearly exchange of financials occur before that time?
 
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