CS, S7, SS - big increase in income

[seeker101]

Note: this post is unrelated to the original thread topic. For discussion on such, please move on to my next post…

Oh boy, not the kind of treatment I was expecting on a divorce support forum. I came here with an open mind and a willingness to learn and not to be judged based on a single post with very limited background information.
I intentionally did not return to the forum since the last few days because some words here admittedly affected me a bit more than they should have, and I needed some time off to process the negativity and let it out of my system.

With that said, I’d just like to elaborate on the issue of false allegations (I may decide later to share further relevant details if/when I ask for suggestions on custody/access arrangements). I, for one, take them very seriously. In my opinion and personal experience, while some people/lawyers/judges/law enforcement may downplay them (it’s really common, fight the charge, innocent until proven guilty, etc), they potentially can have the same devastating impact as actual abuse on relationships and family breakdown. The crown attorney certainly doesn’t think it’s just another common charge.

Consider for a second, if there were no pending criminal charges due to the wife’s false allegations, there’s absolutely no way that I would not be seeing my daughter. Consider again, that these false allegations of assault could’ve very easily been of sexual assault; could I have done anything about it, absolutely nothing!

I recently came across a loosely similar high conflict case V.K. v T.S. 2011 ONSC, where the father, at/around separation was earning around $100k and wife was also a sponsor and on social assistance. The mother alleged sexual assault which resulted in the father being charged on five counts. Not sure if there was ever a conviction, but at the time of family court’s ruling, the criminal charges were stayed but rendered the father unemployed and deep in debt.

The mother successfully proved SS entitlement, but by then, the father had no means to pay so no support was ordered. The family court judge also noted “very serious concerns about the mother’s general credibility” but that was it. There was parallel parenting ordered.

Now, I’m not a law expert by any means but there is something really wrong with our system. On one hand, all it takes is one phone call to the police, and on the other, you are left at the mercy of the ruthless and slow criminal justice system and the severe restrictions and stigma that comes with it.

Not to mention how deeply insulting this is to the true victims of abuse and violence.

Personally, I have already made one emotionally driven decision when I reconciled with my wife to give our relationship another chance and to be with my daughter as a full-time parent. While being with my daughter was absolutely phenomenal but marital relationship ended with me being carried away in handcuffs, from my own house, in front of my own family, neighbors and daughter (thankfully she was not old enough?).

Therefore, given my present situation, limitations and factors that are outside my control, I have decided to exercise patience until at least criminal implications are resolved. I want to proceed cautiously, rationally and by taking pre-emptive measures. It’s sad and painful but I have come to realize that this may be my own reality.

I say all this not to gain sympathies, not to cry self-pity, not to bash my ex but just to show people that we shouldn’t judge others or pass hurtful remarks especially when someone is going through a difficult and painful process such as a divorce, whether rich or poor, man or woman.

With that said, I hope and pray that each of you are able to overcome your own unique challenges and difficulties in life.

 

[seeker101]

Right then, with a bit more research and knowledge and feedback, let’s move on to the financial issues at hand:

Child support:
-the only question is: should non-taxable expense reimbursement portion be included as income for CS purposes?
There is case law on the topic such as Webster v Webster 2014BCSC730, Calver v Calver 2014ABCA63, etc. While as per CRA guidelines, this non-taxable portion is not treated as income but courts under s. 19(1) of CS guidelines have imputed such amount as income as considered appropriate.

So the judge, in theory, may set my CS obligations at an income anywhere between $96k-$138k.
A reasonable amount, fair to both parties, could be $96k + ½ of living allowance i.e. $96k+$21k=$117k (Ref: Webster v Webster 2014BCSC730).

P.S. Back in mid 2017, I had estimated my 2017 income at $141k (including living allowance) and agreed to pay CS on that income thinking that it’s better to overpay so I don’t come across as hiding income or intentionally underpaying. Any adjustments could be made later. I’m now finding that it may not have been the best idea.

Section 7 – daycare expenses:
The ex is most likely trying to double dip. Being on subsidized daycare while repeatedly asking me to pay costs based on a tentative payment schedule. The only receipt I ever got from her was of last month when the subsidy probably ended because her school ended (daughter has been in daycare since oct 2017). Also, the total cost that I paid for nov 2017 will need to be adjusted based on the actual net cost, which may in fact be much less as it most likely would have been subsidized.

Thanks Janus, your suggestion was spot on in dealing with this issue; a brief, firm and polite letter to ex requesting relevant disclosure … exactly what I needed.

Spousal Support:
Appreciate the members who provided constructive feedback, I see the shortcomings in my understanding of compensatory support.

So there is a strong compensatory aspect and my means to provide have definitely increased as well.

But a question arises; has the ex actually contributed to the extent that her sacrifices during marriage led me to increase my income 3 times, especially when the marriage only lasted 3.5 years including almost 1 year of separation in between? Or is this fact irrelevant given that my means to provide have substantially increased?

That’s like buying a lottery ticket after separation and end up winning and having to share it with your ex? Is your ex entitled to that? Am I comparing apples to oranges?

There is a case law Lamb v Watt 2017ONSC5838, where the husband was seeking SS, albeit on non-compensatory basis. Wife’s income had increased from $71k to $106k (post separation). The judge ordered support based on a “balanced” income of $80k, at low end due to non-compensatory basis.

Having said that, I guess in my case, a fair settlement would be balancing compensatory (mid to high end) support with promoting self-sufficiency in a “practical” and “within a reasonable period of time”.

She did indicate (although no documentary evidence) the desire to pursue a 4-semester college program so duration of support could be 2-2.5 years (16-24 months to finish college + around 6 months to find a job -> granted this is if she is actually serious towards being self-sufficient).

So at my income $96k/wife $0 (apparently, as per SSAG, social benefits are not taken into account), the calculator suggests $1,770 (low) -> $2,015 (mid) -> $2,280 (high) for 5-16 years.

Low end of duration is when youngest child starts full-time school (age 7 per the SSAG). My daughter is currently 2 so calculator says 5 years. In Ontario though, children can start full-time kindergarten as early as 4.

High end is when youngest child turns 18, which in my case, is just nonsensical.

I agree with some of your suggestions of a stepped down approach. Hence, I think a fair offer could be 2-2.5 years with $2,280/month (high end) for 1st year and $1,780-2,000/month (mid to low) for 2nd year.

This will keep things simple; not bringing pre-separation income into mix, not having to worry about proving if she is intentionally unemployed or whether she is serious about school, etc.

 

[arabian]

You can make any offer you wish. However, it makes sense to me (for SS) to do the stepped-down approach over the course of the 4-year degree program. You can put in caveats that she must be in school full-time and provide proof of completion after each semester. She can also continue to take ESL program while attending school. Most universities have this in place for foreign students.

Others will have input with regards to child support. I believe you have to exchange financials every year (this never goes away) for purpose of determining child support.

 

[kate331]

I was one of your bashers, because it irrated me that the taxpayers are paying for your wife and child, regardless any false allegation. IMO one doesnt have to do with the other.

To answer some of your questions, she shouldn't have daycare expenses if she is currently not in school or employed. If she does go back to school or gets a job at the low end of the salary scale she can apply for subsidizes at that time. So I wouldn't worry about the daycare expenses for the time being. Are her English language skills both written and oral high enough to work?

Children in Ontario can start JR Kindergarten (full day) at age 3 if their Birthdays fall before Dec. 31, if not its age 4, so you have 1-2 years before the child is in school full-time, depending on her birth date.

I would deal with your criminal charges ASAP, this shouldn't take 1 year if you have a good lawyer. Unless you abused the child, a lawyer or the courts would have gotten you visitation, even if it was supervised for the time being. This doesn't seem like a priority to you?

You separated in May 2017, has there not been any court order for child support? Pay child support, even at you lowest salary to start and do it NOW, your not going to look good in Court if you haven't paid for a full year and owe a ton in arrears. Spousal Support worry about that later. I am guessing your ex is using legal aid, so with that comes endless legal fees to take this to court. You may want consider settling this before that out of court.

 

[kate331]

Opps, just reread the thread and you are paying child support. Sorry.

 

[ifonlyihadknown]

Hi Seeker101,

The feedback you're experiencing here is an indication of how Canadian society sees divorced men, basically an ATM and a source of enforced, private welfare.

Yes, you have an obligation to your child. And some obligation to your ex "...young, healthy, no mental/physical disabilities, decently educated", that should be limited given the short term of the marriage.

However, you've probably found that you will get little sympathy and there will be virtually no one suggesting that perhaps your ex get off her ass and take care of herself and her child as an adult.

You're in litigation. Are you represented by a lawyer or self-represented? Based on your questions, I would guess self-represented. Any competent family law lawyer should be able to give you what a range of possible outcomes are to your questions. If you are self-represented, you should be able to hire a lawyer to give you advice without representing you. It shouldn't take more than a few hours of their time. My experience with family law is that information is hard to get and if you don't know what is a reasonable outcome, you really can't figure out if you or your ex are being reasonable with their demands.

Lawyer represented or self represented, you should be familiar with Canlii. Search for similar cases and see what was written. This gives you a good idea of what to expect in a decision.

Keep in mind the mental, emotional, and financial costs of litigation and weigh them against the possible gains you might get. Sometimes it is better to give up a bit to get a settlement.

 

[Rioe]

The feedback you're experiencing here is an indication of how Canadian society sees divorced men, basically an ATM and a source of enforced, private welfare.

Yes, you have an obligation to your child. And some obligation to your ex "...young, healthy, no mental/physical disabilities, decently educated", that should be limited given the short term of the marriage.

However, you've probably found that you will get little sympathy and there will be virtually no one suggesting that perhaps your ex get off her ass and take care of herself and her child as an adult.

I'd be giving the exact same advice to a woman who moved away from a man, or to someone leaving a same-sex couple.


He has no access to the child. Therefore he owes full CS to the parent who does, based on his actual, estimated, or imputed income. He chose this obligation himself, by having the child and by moving away from the child; it has nothing to do with Canadian society's views on divorced men.



He 'imported' his spouse, who had insufficient English skills, and agreed with immigration authorities that he would sponsor her in Canada. This includes supporting her financially (even if the relationship fails) because she cannot work (either due to her immigration rules, or due to her inability with the language). He chose to incur this obligation himself; it has nothing to do with Canadian society's views on divorced men.



Now, yes, some views of divorced men are very unfair. I just don't think they are at play here, except perhaps in his lack of access to the child. But he appears to have decided to move away instead of fight the false allegations and obtain access.


I'd recommend moving back, even if it means a drop in CS, and fighting to obtain access to the child, even if it means starting with supervised access.


I'd recommend offering spousal support of his ex to cover his immigration obligation, but limiting it to only a duration sufficient to permit her to improve her English skills and to upgrade her previous qualifications so that she can work at her career in Canada. Because, yes, being self-sufficient is what she ought to do, as an adult in Canada. He's as much to blame for her current inability to do that as she is, therefore he's got a spousal support obligation.

 

[Janus]

Child support:
-the only question is: should non-taxable expense reimbursement portion be included as income for CS purposes?
There is case law on the topic such as Webster v Webster 2014BCSC730, Calver v Calver 2014ABCA63, etc. While as per CRA guidelines, this non-taxable portion is not treated as income but courts under s. 19(1) of CS guidelines have imputed such amount as income as considered appropriate.

CRA rules have little to do with family law rules. It will be an argument, but probably one worth having at trial. Perhaps make an offer to settle (severable) of some percentage of your expense reimbursement income counting as CS income? Then go nuts in court and argue that none of it should be counted, but at least you have a good offer to settle on the books.

Spousal Support:

But a question arises; has the ex actually contributed to the extent that her sacrifices during marriage led me to increase my income 3 times, especially when the marriage only lasted 3.5 years including almost 1 year of separation in between? Or is this fact irrelevant given that my means to provide have substantially increased?

Who knows? She stayed home and watched your child (and continues to do so) while you went out into the working world. You expanded your networks, gained experience, had opportunities. She limited her network, gained no useful experience, and had to forgo opportunities.


Would your income have increased threefold had you stayed home with a child for those 3.5 years? Probably not.

That’s like buying a lottery ticket after separation and end up winning and having to share it with your ex? Is your ex entitled to that? Am I comparing apples to oranges?

Your analogy is flawed. I will fix it.

It is like buying 100,000 tickets during your marriage, forgoing vacations and other nice things to make that "investment", checking them after the marriage has ended, and finding out that one is a winning ticket. The payoff was post-marriage, but the investment and sacrifices were made during the marriage.

There is a case law Lamb v Watt 2017ONSC5838, where the husband was seeking SS, albeit on non-compensatory basis. Wife’s income had increased from $71k to $106k (post separation). The judge ordered support based on a “balanced” income of $80k, at low end due to non-compensatory basis.

Humans with penises tend to get a lot less SS. That's a sad fact of family law. Good case though, I would use it.


That said, the compensatory vs. non-compensatory is not a trivial difference. It is a BIG difference. In compensatory, your current income is due to the sacrifices of the recipient, therefore you owe a portion of your current income. Non-compensatory is a weird beast that probably shouldn't even exist.

So at my income $96k/wife $0 (apparently, as per SSAG, social benefits are not taken into account), the calculator suggests $1,770 (low) -> $2,015 (mid) -> $2,280 (high) for 5-16 years.

I agree with some of your suggestions of a stepped down approach. Hence, I think a fair offer could be 2-2.5 years with $2,280/month (high end) for 1st year and $1,780-2,000/month (mid to low) for 2nd year.

Waaaay too much of a step. Think high for 2 years, mid for 2 years, low for 2 years. You imported this woman into the country. I think even the 2-2-2 stepdown schedule is probably aggressive. You have a much bigger duty to this woman than most people in your situation. She has the kid pretty much 100% of the time, you don't even live in the country. She is new to the country, at your behest.


Maybe X-2-2, where X is the number of years she is a full time student, and maybe X-2-2-2, where the last 2 is half of the low-end SS.


Remember, you are such an absent father, that your financial welfare is of zero consideration for the courts. You don't care for the kid, so the courts don't care about you. They will wreck you given the chance.