Motion to Change or Vary? (Material change in circumstance)

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Coop

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Back again. I thought I'd be done this after the trial/final order.

History:
- Daughter age 22 and son age 19 reside with Ex.
- Daughter attends university away from home
- Son attends college and live with mother
- Trial in 2011 established appropriate S7 guidelines and GL table amount for CS (Final order Feb 2012)
- FRO is garnishing directly from payroll

Ex has not filed any expenses since Sept 2011 (She has a history trying to file them all at once to try to hurt me...wish I kept the text message)

Ex sent me tuition and book receipts for classes taken in summer of 2012 and now for the 2012/13 starting last September. She has yet to submit receipts to the Family Responsibility Office. I did not pay FRO immediately.
In November 2012, I found out that both my kids have received OSAP loans. As per final order, Ex is supposed to notify me of this. When I demanded the OSAP information as per the final order, Ex emailed them to me and emphasizes that it doesn't change anything since the children would have to pay it back. After reviewing the attachments, it was evident why the Ex didn't want me to know about it. They had both received a significant amount of grants along with loans. Without this knowledge, I could have paid my portion and the grants could completely paid the remainder of tuition and maybe even the books.

I contacted FRO and case worker and was told that if was not specifically stated in the final order, then they would not necessarily be able to enforce the application of the grants toward post-secondary expenses. We all know bursaries and grants get applied first, but...

Anyhow, I paid FRO directly for my portion of all expenses with grants applied first.

Also, Ex believes cars for both kids to go to school is a justified expense even though they both NOW live less than a 5 minute walk to take a direct bus to their institutions where the ride is under 30 minutes (Ex moved close to son's college and daughter moved out of town near university). NOTE: Trial noted that it was valid when my daughter lived at home and public transportation was not available. Son was not attending post-sec at the time.

And my Ex won't supply me with tuition tax receipts (kids pay 30%, I pay 46.2% and Ex pays 23.8%).

Ex is always late providing me with disclosure as per final order.

Ex will not consent to ANY changes proposed.

====

Given all this, is there enough small change(s) in circumstance for a Motion to Change Final Order or Vary? (which one)

I need the final order to be clear otherwise FRO collects first and no courts will give it back.

Thanks
=D
 
You don't need a significant change in circumstance to update a support amount yearly, although you will need to show reasons why.

You will (or should) update the support amount according to your current income, and attach proof of income (last paystub, last 3 years tax return.) You should update the sec. 7 expenses according to what those expenses actually are. If you are not deviating at all from the child support guidlines you don't have to do a financial disclosure.

Since you have copies of the OSAP already and know what the amount is, you attach copies of these to your affidavit. On the form 15 and 15a (you must fill out both, even though they seem similar) you indicate what school expenses should be paid by you and and your ex. You do this onf form 15 in Section 5, "Order(s) dealing with child support as follows" where you check the box "Other, give details."

There you will explain what you explained here in a simple form. This is not a place where you argue against your ex, you just write here what the amount each of you will pay, according to the percentage. Like this:

1.The children's special and extraordinary expenses will be paid as follows:
a) The Respondant shall pay xxxxx.xx toward D22 tuition costs, and xxxx.xx toward S19 tuition costs
b) the Applicant shall pay xxxx.xx toward D22 tuition costs, and xxxx.xx toward S19 tuition costs
2. The Respondant remains responsible for xx% of tuition costs, and the Applicant remains responsible for xx% of tuition costs, as per
paragraph x.xx of the order of Justice ...... dated xxx xx, 2xxx.
Click to expand...
You include a sheet showing the calculation of the amount, including the OSAP. You should calculate as follows: apply any grant, scholarship, and bursary amounts to tuition. Be sure to include the Ontario tuition reimbursment amount if your children qualify. Then you split what is left over according to the percentages in your last order.

I agree with your ex, the loan portion of the OSAP is your child's contribution, it is an amount they are responsible for repaying.
 
Not sure I agree with Mess.. I've spent the last 6 months on Canlii reviewing post-secondary, osap, child contributions, etc.

There are many, many cases where an OSAP loan (requirement to repay), did not qualify as a child contribution. And I've read many cases where, following a summer of student employment, the judge only requires a percentage of that employment income to be dedicated towards the child's portion. Many of the decisions appear to be based on the parent ability to pay.

They are all over the map on this one. How was the child's 30% calculated in your existing order?

Grants, scholarships, etc. seem, on average, to be treated as as a net transfer of resources, and deducted from the entirety of the percentage- But the child percentage might change, if you take this back into the court (and, of course, based on the question above re: how your child proportionate share was determined to be 30%?).

Forget about the cars --- seriously??? That's something my ex is trying to throw out there, in an attempt to save himself from the fact that our daughter will have to attend residence - because I'm not going to be stuck with the monthly cost of insurance, gas, repairs, oil changes, etc.
 
Thanks Mess and Mcdreamy.

Mess, "transportation" is noted as a post secondary expense on the final order BUT it was explained in the judges trial analysis that my D had no other reasonable options while living at home (cost me $100 per month). From what I read on CanLII and other places, when my D chose to transfer to a school away from home (change in circumstance), she takes additional responsibility. Possibly having to pay a higher portion of post-secondary and she is to mitigate expenses, like moving to residence or a place close to school. But again, I just want anything on the order to place rules around it because EX was notorious for giving invalid receipts to FRO which they blindly collect.

Mcdreamy, OSAP loans can be viewed either way. It really depends on the financial dynamics of the families. I think you are correct on most circumstances and I'm tempted to bring it up, but my daughter has one year left and son goes to college (not that expensive).

Mess, so from 15's? Motion to Change Final Order? Not 14 to Motion to Vary?

Thanks
=D
 
14 is a notice of motion. 15 is a motion to change. There is no "motion to vary" (are you in Ontario?) "Vary" and "Change" are the same thing.
 
Ah!!! There we go. That's clear now.

Oh by the way I didn't answer one of your questions. Final order states that kids pay 30% and parent split proportional to income the remaining 70% with no mention of how to apply bursaries, grants or loans.
 
Scholarships, grants, etc. are no cost to the child, so they should be taken off of the top. The loan is a cost to the child, and so should be considered available for their share of the contribution. The child's share is a fixed percent, so extra loan money from OSAP is neither here nor there; the only possible contentious issue is grant money. This really should be taken off of the top, but it is not worth the legal cost of fighting it (although it is really between you and your ex and you should be able to come to an agreement.)
 
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