Father Being Custodial Parent

Status
Not open for further replies.
R

rmccallion

New member
I hope that this isn't posted elsewhere. If so, please forgive me as I am brand spanking new to this forum.

My $2 tour of my "case". I'm the father of two teens with full time access to the kids and so I'm the one that foots the bill. She has always had the right to see the kids, I've never fought that, but she doesn't care to see them for more than 2 hours every second week.

My income is $84,000, hers - $61,000. We were together for 14 years. For the past 4 years, she's been "paying" the child support but turning right around deducting $400/month in spousal support. This is how the case started as I requested that she stop deducting.

My main argument is that with an income of $61,000, she doesn't have need of spousal support. Further, I bring evidence to show that her effectively paying me $450/child support doesn't even come close to cutting the mustard when it comes to the children's needs.

I have searched through CanLii for precedence, but I think that custodial father - there aren't as many cases. If anyone knows of any cases where there is precedence of the non-custodial mother being denied spousal, I'd REALLY appreciate it.

I can't imagine how she needs spousal support when she's making $61,000. I've gone through the Family Law Act and Divorce Act and I'm convinced that I can argue against any of the reasons for entitlement. Her career hasn't been impacted, she makes great money, she had no problem getting a job, she's well estabilished, she's self sufficient, etc...

I think that the unfortunate reality is that I'm face with a legal system where there is (in my opinion) a bias that says because she's a woman and because her income is somewhat lower, she's entitled.

Any advice or thoughts would be appreciated!

Rick
 
How long have you been separated? Four years?

Surely you know that the table amount of CS (Ontario resident) for two kids at $61K is $916/mth.

From what you say, there is no SS entitlement and it's reprehensible that she has taken this liberty. You have also let this go on for too long so be prepared not to get all the arrears she owes.

Is this an informal arrangement between the two of you i.e. there is no properly witnessed/executed separation agreement or court order? If so, advise her that she is seriously in arrears for support and that you need to adjust the CS yesterday, no more SS deductions.

If she refuses, hi ho hi ho it's off to court you go!

rmccallion said:
I have searched through CanLii for precedence, but I think that custodial father - there aren't as many cases.
Click to expand...

Don't worry about finding cases where Dad is the custodial parent. You can cite cases where Mom is that person - the law is gender neutral.
 
Do you have a court order for spousal? If not, then she shouldn't be deducting squat.

She's well over 45% of your net disposable, so she wouldn't normally qualify for any kind of spousal support.
 
NBDad said:
Do you have a court order for spousal? If not, then she shouldn't be deducting squat.

She's well over 45% of your net disposable, so she wouldn't normally qualify for any kind of spousal support.
Click to expand...

No - there is no court order, this is the whole thing, I brought forward an order in April of 2010 requiring her to stop deducting.

Their spousal support request is based on their claim that their NDI is "only" NDI, but I think that there calculation is seriously flawed bordering on reprehensible. I have a message out to a lawyer who is advising me, but I'm pretty sure they haven't factored in the gross notional child support (to reduce my income) based on the scenario.

I agree she shouldn't be deducting. From day one that's been my argument - without a signed agreement or a court order, she has no right to deduct, but she still does and there's probably little I can do about it right now.

Basically, they've come back with a ridiculous offer that says basically I pay maximum spousal support for the next 6 years, which I'm not about to accept as I don't think that she is entitled to ANY spousal with her income level.

RE: the other poster - I did march off to court last April, so we're well into the process, but even with the settlement conference, the judge wouldn't issue an order requiring her to stop deducting.

I'm not too concerned about the arrears, I know that I should have brought this up a few years ago, but I had some major medical issues in 2009 which prevented me from doing much other than recuperate. Yes - I'm aware of the revised amount of CS due, she recently declared a higher income, so the CS obligation will rise.

Regardless, althought I'm not currently represented, even we go to trial and I represent myself, I feel confident that I have a strong case - foolish as I may be.

Anywho, I will be responding to their offer with mine and we'll go from there.
 
One thing about her request for 6 more years of SS (not even going to get into her request for SS, which I don't think she would be entitled to).

SS is generally calculated at .5 years of SS for each year of marriage (unless it is a marriage of significant length or other circumstances). So at worst you should be on the hook for 7 years of SS. Looks like you've already been "Paying" SS for 4 years. So at worst you should only have 3 years left, not 6.

Given how close your salaries are, your SS would be nominal. The CS she would owe you would either entirely offset any SS or she should owe you money once the numbers are crunched. I wouldn't agree to any SS in your situation and I would be stating that you are seeking to have CS established at the guideline amounts.
 
HammerDad said:
One thing about her request for 6 more years of SS (not even going to get into her request for SS, which I don't think she would be entitled to).

SS is generally calculated at .5 years of SS for each year of marriage (unless it is a marriage of significant length or other circumstances). So at worst you should be on the hook for 7 years of SS. Looks like you've already been "Paying" SS for 4 years. So at worst you should only have 3 years left, not 6.

Given how close your salaries are, your SS would be nominal. The CS she would owe you would either entirely offset any SS or she should owe you money once the numbers are crunched. I wouldn't agree to any SS in your situation and I would be stating that you are seeking to have CS established at the guideline amounts.
Click to expand...

Yes - the SSAG breakdown they gave me indicates that with the 14 years we've been married, that she's "entitled" to .5-1 year for each year of marriage, so that would be 7-14 years. Their offer to settle proposed that I can "stop paying" spousal when she no longer has to pay ANY CS. Given that my daughter is 14, she has at least another 4 years and up to 6 years of being dependant on me for support depending on what she does post-secondary. I agree that if there is SS, that it would be nominal, they generously "offered" that I pay at the maximum of $400/month which is not something that I will agree to do.
 
rmccallion said:
Yes - the SSAG breakdown they gave me indicates that with the 14 years we've been married, that she's "entitled" to .5-1 year for each year of marriage, so that would be 7-14 years. Their offer to settle proposed that I can "stop paying" spousal when she no longer has to pay ANY CS. Given that my daughter is 14, she has at least another 4 years and up to 6 years of being dependant on me for support depending on what she does post-secondary. I agree that if there is SS, that it would be nominal, they generously "offered" that I pay at the maximum of $400/month which is not something that I will agree to do.
Click to expand...

She could be on the hook for longer then 6 years for the 14 y/o. C/S is payable as long as the child is in school. So if your daughter goes to university for a 4 year course, that brings her to the age of 22-23.

I would reply to their "generous offer" of $400, that the federal guideline for c/s provides that the CHILDREN are entitled to receive (insert guideline amount here) and that you believe that the children receive such amount as it is in their best interests. Notwithstanding that, the parents are not entitled to contract to a lesser amount of c/s as it isn't money for the parents, it is money for maintaining the children.

What they are trying to do is extort you into effectively waiving the childrens rights to be supported by their mother by threatening you with having to pay SS. BS if you ask me.
 
She has no SS entitlement AT ALL.

Her lawyer is trying to bully you into submission.

Listen to NBDad.

It's ridiculous that you are even entertaining their absurd position. If they are going to be so unreasonable, your options are limited to pushing towards trial, whereupon I GUARANTEE you she will cave.

Get the job done dude. She owes you large. Don't listen to their bullshit.
 
HammerDad said:
What they are trying to do is extort you into effectively waiving the childrens rights to be supported by their mother by threatening you with having to pay SS. BS if you ask me.
Click to expand...

Agreed - I think that this whole "ploy" for SS is for no other reason than for her to avoid to pay CS. I had already had that theory, but that was more or less confirmed when with their offer, they were so "generous" as to tie how long that I was supposed to pay spousal to exactly when her obligation to pay child support ends.

Just to vent, I almost wouldn't mind paying some spousal, if she would actually be a mother and spend time with her kids. I'd gladly give up some money if she'd share the load or raising them, but when she doesn't call them, not even on Christmas Day and only seems them for 4 hours a month, it's a big much to stomach the thought of having to pay SS on top of everything else. /end vent lol
 
dadtotheend said:
She has no SS entitlement AT ALL.

Her lawyer is trying to bully you into submission.

Listen to NBDad.

It's ridiculous that you are even entertaining their absurd position. If they are going to be so unreasonable, your options are limited to pushing towards trial, whereupon I GUARANTEE you she will cave.

Get the job done dude. She owes you large. Don't listen to their bullshit.
Click to expand...

Thanks for the support and encouragement, I really do appreciate it. It's hard enough to go through this let alone to be unrepresented, but I'm bound and determined that I'm not going to spend our kids' education funds on legal fees. Yeah - I get that sense from her lawyer that is what she is trying to do, but I think that I've made my point to her that she doesn't scare me one bit. I can't get so cocky as to think that I'm on equal footing with someone with her legal background, but on the other hand, I honestly feel that I am nothing if not well prepared. Where I have an advantage over "their side" is that I have nothing better to do with my time than to research the law, to read through their filings and to find the holes in their logic. Maybe at the end of this, I'll regret it, but probably not. Even in a worse case scenario where I lose, heck - I'd be no worse off than I am today and at least I'll have had the satisfaction of showing them that I can't be intimidated.
 
Your situation is discussed specifically in the Spousal Support Advisory Guidelines. Search for 'Custodial payor'. It states that in these cases, the recipient can extend their SS payments if they are disabled, or if they are taking on a full parental role (e.g. near 50-50 time split). Doesn't sound like either applies to you.

Spousal Support Advisory Guidelines

Perhaps try searching for 'Custodial payor' in canlii?
 
From this standpoint the trial judge proceeds on the premise that child support payments calculated on the reasonable cost of upbringing children should be apportioned out of the parents’ combined gross incomes with the resultant shares adjusted both to factor in tax consequences and to make allowance for any special circumstances of a parent. In adopting this formula, the judge indicates she was particularly influenced by remarks appearing on p. 317 of Levesque asserting that the social responsibility of parents for child support was a prime one and that “(t)he standard of living of a child of a marriage should not, as a general rule, suffer because the parents separate”, but rather, “the standard of living of the parents should diminish before that of the child”...the citation is a long one, but this is the case that started it all...

1994 CanLII 4486 (AB C.A.), (1994), 155 A.R. 26; 73 W.A.C. 26; 116 D.L.R.(4th) 314 (C.A.).
 
InterprovincialParents said:
From this standpoint the trial judge proceeds on the premise that child support payments calculated on the reasonable cost of upbringing children should be apportioned out of the parents’ combined gross incomes with the resultant shares adjusted both to factor in tax consequences and to make allowance for any special circumstances of a parent. In adopting this formula, the judge indicates she was particularly influenced by remarks appearing on p. 317 of Levesque asserting that the social responsibility of parents for child support was a prime one and that “(t)he standard of living of a child of a marriage should not, as a general rule, suffer because the parents separate”, but rather, “the standard of living of the parents should diminish before that of the child”...the citation is a long one, but this is the case that started it all...

1994 CanLII 4486 (AB C.A.), (1994), 155 A.R. 26; 73 W.A.C. 26; 116 D.L.R.(4th) 314 (C.A.).
Click to expand...
Thank you SO much, you have no idea how much I appreciate it. I will read though when I get home.
 
It is an easy search on canlii...just do a citeup of Levesque (search all cases that reference Levesque) and you will have a tonne of caselaw. Another decision came out recently, although it was a bit more complicated...let me try and remember it and get back to ya:)
 
Also, you may wish to look into whether you are able to claim the "deductions" she has made as spousal support on your income taxes. Even if you can't get the retroactive payments back, you MAY be able to get a bit of a tax credit out of it.

She has NO case, you push this to court, she's going to get rocked. She would have been better off pursuing equalization of assets, if that hasn't been done already.

She makes far too much to need spousal.
 
NBDad said:
Also, you may wish to look into whether you are able to claim the "deductions" she has made as spousal support on your income taxes. Even if you can't get the retroactive payments back, you MAY be able to get a bit of a tax credit out of it.

She has NO case, you push this to court, she's going to get rocked. She would have been better off pursuing equalization of assets, if that hasn't been done already.

She makes far too much to need spousal.
Click to expand...

Yes - I've already gone that route. I've been able to send a letter to CRA to claim the spousal support that she has already deducted. There is no way I would get that money back anyways, she doesn't have any assets or money (although I don't know how she's affording Perry Mason lol) so the next best thing is to file my 2007 2008 and 2009 returns to claim the spousal support that she has deducted. If that claim gets accepted (and it should as I have a letter from her lawyer confirming the spousal support), this will be a nice chunk of change for me.
 
NBDad said:
Do you have a court order for spousal? If not, then she shouldn't be deducting squat.

She's well over 45% of your net disposable, so she wouldn't normally qualify for any kind of spousal support.
Click to expand...

Unfortunately, the guidelines set spousal to bring her to within 40-50% of your COMBINED net income (after tax, after CS).

At $400/mo SS, she is at about 39% of your combined net income (Using CS of $916/mo, and using Ontario tax rates) With no SS at all, she would be at 36%.

So according to the guidelines, the $400 seems more than reasonable to me (although, I agree that with $61K income she SHOULD be considered self sufficient).

(I wonder... is she paying tax on that SS? :cool:)
 
Last edited:
dinkyface said:
So according to the guidelines, the $400 seems more than reasonable to me (although, I agree that with $61K income she SHOULD be considered self sufficient):cool:)
Click to expand...

You're forgetting the grossed up CS deductions again.

Even leaving that aside, mid-range SS would be ~$350, so how is $400 "more than reasonable" ???

Gary
 
Sorry wrong formula!!

Custodial Payor formula: SS = 1.5 to 2% of gross income difference (after deducting grossed up table CS amounts from each's income), multiplied by #years married. (see http://www.divorcemate.com/library/SSAG_Paper_0906.pdf)

Her (paid, table) CS of 916*12 = 10992, grosses up to 15703 (using 30% tax rate??)
His (notional, table) CS of 1208*12 = 14496, grosses up to 24160 (using 40% tax rate??)

Her adjusted gross: 61000 - 15703 = 45297
His adjusted gross: 84000 - 24160 = 59840
Difference = 14543

Low range: 1.5% * 14 years = 21% -> $3054/12 (or $254/mo)
Hi Range: 2% * 14 years = 28% -> $4072/12 (or $339/mo)
 
Last edited:
Status
Not open for further replies.
Back
Top