Paying Full Table CS with 50/50 Shared Parenting

[arabian]

With regard to your g/f and her daughter I don't believe that it would be wise to go the undue hardship route because nothing has changed since your last court application. In fact, by the time this gets heard by a judge, your g/f will be working (as opposed to being in school as she is now). With this in mind I would be very, very careful in filling out your Form 13.

I'd instead make the application simply that you request the appropriate calculation method for CS. If you have the court documentation regarding instruction/direction for your ex to become employed, then that might be relevant. You probably should focus documentation on available jobs for which she is qualified for (not babysitting jobs).

Insofar as affording things such as ballet, etc. the judge may simply state that in reviewing your finances you cannot afford this.

I agree with SOTS that this application may take some time.

Remember that there are things which were anticipated at the time of the previous application, most notably, your daughter being enrolled in school full-time in September. The other thing anticipated is that your ex was to find employment (and daughter put in daycare) and as this has not happened you therefore request income be imputed. The third thing is simply an error of omission in last Order - c/s should have been changed to reflect 50/50 custody.

I'd keep the application simple.

Something else that was not contemplated at the time of your last Order is the Province of Ontario's change, effective in February 2017, that welfare recipients will no longer be clawed back for receiving CS.

 

[mafia007]

The other thing anticipated is that your ex was to find employment (and daughter put in daycare) and as this has not happened you therefore request income be imputed. The third thing is simply an error of omission in last Order - c/s should have been changed to reflect 50/50 custody.

I'd keep the application simple.

This one is very important; You need to address clearly that CS should have been offset from the table since the date you were ordered 50/50 shared custody. This should and would obviously force the Court to impute an income to her as this wasn't done in the past. Court won't impute an income if they don't need to and/or if you didn't asked.

On your next Motion, make sure to ask that an income is imputed in order to fix the CS calculation retro to the date of the previous order. My feelings is that they will only fix the CS offset starting from the date of a new order.

 

[arabian]

I added to my previous post that effective February 2017 welfare recipients will no longer be clawed back for child support. This is a change of circumstances since his last Order which was not previously contemplated.

 

[rockscan]

Im not an expert but based on what my partners lawyer said on purposefully underemployed, there is an onus of proof. In this case, after she was told to get a job and its been almost six months (more when the application would be heard), wouldnt there be a burden on the ex to prove she is underemployed? She would have to prove she has been looking for work. She has marketable skills. She lives in a large municipality. She will have a child in school full time with available child care in the 50:50 custody. SHE CAN WORK.

 

[LovingFather32]

I wouldn't use that as excuse for you financial issues. Your partner could be working and the child isn't yours.

My partner works all she can as a full time student and I do in fact act as a father figure for my other step child (D5's bestie). This won't be me whining about having to pay for other ppl, but in family law it actually does mean something.

Under Section 10(2)(d) CS could be varied if:

(d) the spouse has a legal duty to support a child, other than a child of the marriage

This will also be reflected while analyzing the budgets of the 2 households to paint a picture of the 2 standards of living.

I have a feeling you take it back to court a judge may not impute an income right away. He may set a deadline for her to find work.

That would be phenomenal. Better than what it is currently. You're totally right on this one SOTS, "reviewable orders" are delved out a lot now as I mentioned before. As long as I get the courts watching and setting deadlines set I'm fine with that.

 

[SadAndTired]

First family first.

And you said in a previous post your girlfriend works. Lied?

You are not "legally" required to support some other guy's child. She is NOT your step child. I assume her mom receives all the government child tax benefits and student loan assistance from the government too.

Supporting them is your CHOICE. And it seems like your new girlfriend has found someone to support her just like your ex did.

 

[LovingFather32]

With regard to your g/f and her daughter I don't believe that it would be wise to go the undue hardship route because nothing has changed since your last court application.

Another Material Change is that my ex refuses to share driving again during the school year. She was adamant that school be in her area but has ceased shared driving (something we did prior to the order). This has been very costly in gas. It is stipulated in the order that we share driving.
I also wasn't aware that FRO would be garnishing 50% of my EI to pay off arrears. This has left me with only $300/month in the summer, forcing me to find more work.

. You probably should focus documentation on available jobs for which she is qualified for (not babysitting jobs).

Yes, this is something I haven't started yet. I need to get on this. If you recall my ex has stated that her paralegal license may not be good in ON. I actually sent an e-mail to the paralegal society of ON and they indicated that all she would have to do is a "prior learning assessment" at one of the many colleges here and only a few credits would probably be adjusted.

Also, Gaitneau is 15 mins from her doorstep .. her certification is good there.

With this in mind I would be very, very careful in filling out your Form 13.

I'm very careful to split everything down the middle (every bill, expense, etc)

Remember that there are things which were anticipated at the time of the previous application, most notably, your daughter being enrolled in school full-time in September. The other thing anticipated is that your ex was to find employment (and daughter put in daycare) and as this has not happened you therefore request income be imputed. The third thing is simply an error of omission in last Order - c/s should have been changed to reflect 50/50 custody.

^^^^^ Precisely. We had a plan within our agreement. She didn't follow the plan.

Yes, there was a definite error of omission in the last order. I pass the 40% rule.

In all the caselaw I've read, the judges are trying to figure out if it's 40%...not what to do once it's 40%. When they determine its shared custody it becomes a no brainer for them.

99% of the shared custody cases, the person seeking a variation to lower CS has gotten it easily, simply because of the 40% rule and shared custody.

I also had a blurb in my rough affidavit regarding how "clawbacks" are being halted soon, but I took it out. Perhaps I should put it back in.

 

[LovingFather32]

Im not an expert but based on what my partners lawyer said on purposefully underemployed, there is an onus of proof. In this case, after she was told to get a job and its been almost six months (more when the application would be heard), wouldnt there be a burden on the ex to prove she is underemployed? She would have to prove she has been looking for work. She has marketable skills. She lives in a large municipality. She will have a child in school full time with available child care in the 50:50 custody. SHE CAN WORK.

This woman has worked every day of her life throughout our 8 year relationship. She's bilingual, educated and has the skill sets to enter the workforce. What she lacks it seems is the motivation.

Imagine bringing in probably more than $1,500/month. Doesn't seem like much until you dont have any bills to pay and only $110 rent/month. Then it's a whack of money. Groceries you say? She's an avid user of the foodbank...she's not shy to tell me even. I pray that she leaves some food for the poor people.

These benefits...they're insane. The only way I can help her unsaddle from our Welfare system is to go to court.

 

[rockscan]

Like I said, she is pulling in nothing but tax free money with a pile of benefits (free/reduced rent, utilities and personal benefits) without having to do anything. Going out and having to work 35-40 hours a week and paying tax and having to pay all the stuff the rest of us has to pay will be a big wake up call. We should all be ashamed this is happening. Regardless of whether any likes/dislikes lf32 or his going back to court and wasting money, hes pointing out a welfare cheat. Shes fully capable of working and if it was a man with less than 40% custody he would be railed at by the courts for being underemployed.

Hell my partner waited in line for three hours at a job fair a week after abdominal surgery (a stunt which landed him in urgent care) because he was terrified of being seen as a deadbeat AND made his court order cs payment while making $25000 less than the order. Some people assume their responsibility and others continue to take advantage. No one should encourage that behaviour. If LF32 wants to pay money to go to court, its his money. If he loses its his loss.

 

[LovingFather32]

Drygdala Test

Drygdala Test

Im not an expert but based on what my partners lawyer said on purposefully underemployed, there is an onus of proof. In this case, after she was told to get a job and its been almost six months (more when the application would be heard), wouldnt there be a burden on the ex to prove she is underemployed? She would have to prove she has been looking for work. She has marketable skills. She lives in a large municipality. She will have a child in school full time with available child care in the 50:50 custody. SHE CAN WORK.

You would think that the onus would be on my ex to prove why she hasn't followed the order.

ONDaddy's right...she could very well just come in and say "the dog ate my resumes".

Unfortunately that won't be good enough with the case I'm presenting. I will be able to show that she is literally slapping away opportunities to work.

The initial onus is on me , because I'm requesting the court to impute income and I need to establish the grounds for this request.

Intentional Unemployment is a complex one. But I've studied it quite thoroughly.

Justice's commonly use the Drygdala Test.
Within this test, it states that:

1. Section 1 of the Guidelines stipulates that one of the objectives of the Guidelines is to establish a fair standard of support for children so as to ensure that they benefit from the financial means of both parents after separation. In attempting to carry out this purpose, courts must recognize that parents have a joint and ongoing obligation to support their children after the breakdown of their relationship. In order to meet this obligation, parents must as a general rule earn what they are capable of earning. Imputing income is a means by which the court can give effect to the support obligations of each parent after separation. (Drygala v. Pauli, Supra.).

My ex is not making what she is capable of making.

Then..

In determining this issue, the court should consider the party’s capacity to earn income in light of their age, education, health, work history and the availability of work that is within the scope of the party’s capabilities. (Marquez v. Zapiola, 2013 CarswellBC 3038 (B.C. C.A.)).

She's very capable of working in light of her age, education, health and work history.

Drygdala Test also states that:

A parent is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The parent is intentionally unemployed when they choose not to work when capable of earning an income (Drygala v. Pauli, Supra.)

Finally, In deciding whether a party is deliberately under-employed or underemployed, the court should consider the following principles:

i.There is a duty on a payor parent to actively seek out reasonable income earning opportunities that will maximize their income potential so as to meet the needs of their children (Drygala v. Pauli, Supra.).

ii. A self-induced reduction of income with no realistic prospect of future financial advancement is not a basis upon which to avoid or reduce child support payments. Accordingly, the court may find the party to be deliberately under-employed and impute income where the party has persisted in un-remunerative employment or self-employment, or where they have pursued unrealistic or unproductive career aspirations (Hanson v. Hanson, 1999 CarswellBC 2545 (B.C.S.C.); L.(N). V. P. (B.), Supra.; Drygala v. Pauli, Supra.; Donovan v. Donovan (2000), 2000 MBCA 80 (CanLII), 190 D.L.R. (4th) 696 (Man. C.A.); Lawson v. Lawson, Supra.; Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.)).

iii. A party may also be imputed income on the basis of deliberate under-employment or unemployment if they quit their employment for selfish or bad faith reasons (Ronan v. Douglas Walsh (1994), 1994 CanLII 3826 (ON CJ), 5 R.F.L. (4th) 235 (Ont. Prov. Div.)), or if they engage in reckless behaviour which affects their income earning capacity (Rogers v. Rogers, 2013 ONSC 1997 (CanLII), 2013 CarswellOnt 4068 (S.C.J.)).

In this case, Crowe V. McIntyre
http://www.canlii.org/en/on/onsc/do...QAQRHJ5Z2FsYSB2LiBwYXVsaQAAAAAB&resultIndex=3

The judge buries the excuses that ONDaddy says will work in court.

Although the Respondent alleged that he made many attempts to find employment from early 2012 until the commencement of the Bizsmart program in June 2013, the only admissible documentary evidence which he adduced in support of this assertion was an Employer Contact Log which he was required to complete for Mohawk College and which related to efforts which he made in February and March 2013. I find that those efforts consisted of sending resumes to potential employers for 52 positions which he found through one job search website. In his oral evidence, the Respondent indicated that he also approached a company in Cambridge, Ontario about employment opportunities, but he did not provide specifics of any other job search efforts. He admitted that he has not sought out any employment opportunities since approximately June 2013, because his focus has been on developing and pursuing his business Imagine Metal Art.

[39] My conclusion that the Respondent has been deliberately under-employed since at least January 2013 is supported by the evidence regarding the general availability of employment opportunities for individuals with the Respondent’s qualifications and experience. The Respondent acknowledged in his testimony that he is very good at what he does and that he was employed throughout most of the parties’ ten year relationship. There is no evidence that he experienced any longstanding gaps in his employment prior to March 2012. The Respondent testified that although he does not currently have his welder certification with the Canadian Welding Bureau, he could obtain that certification if he practiced for the test.

Judges are catching on to these ppl who enter the courtroom saying they cant find work. The party in the case described here actually brought substantial evidence that he was seeking employment..from many websites, job centers, etc. It didn't fool the judge.

I like this para:

Printouts from the same date from two other job search sites, namely WowJobs and Indeed, reveal numerous other job opportunities for welders that were being advertised at that time. The Respondent replied to this evidence by suggesting that many of these jobs require a “red seal ticket,” but on cross examination he acknowledged that there was no indication of this requirement in the advertisements. He also argued that many of these jobs were not in the Hamilton area, which he stated posed a problem for him since he lost his drivers’ licence in 2006. However, I find that he regained his licence in July 2013, and that he could have reinstated it as early as July 2012 if he had taken the course required to do so at that time. Furthermore, given his obligation to support his children, the Respondent does not have the luxury of restricting his job search efforts to the Hamilton area.

With the caselaw, the contents of the final order, some very significant changes in circumstances, coupled with the CSG guidelines, I shouldn't do badly in court. In the very least I'll have the spotlight on her finding employment.

 

[arabian]

I recall reading an article on how lawyers were going to be scrambling to adjust child support for their existing client files with the new "claw-back" rule coming into play. If anyone can find the article it might be a good exhibit for your submission.

 

[stripes]

Another Material Change is that my ex refuses to share driving again during the school year. She was adamant that school be in her area but has ceased shared driving (something we did prior to the order). This has been very costly in gas. It is stipulated in the order that we share driving.
I also wasn't aware that FRO would be garnishing 50% of my EI to pay off arrears. This has left me with only $300/month in the summer, forcing me to find more work.

Yes, this is something I haven't started yet. I need to get on this. If you recall my ex has stated that her paralegal license may not be good in ON. I actually sent an e-mail to the paralegal society of ON and they indicated that all she would have to do is a "prior learning assessment" at one of the many colleges here and only a few credits would probably be adjusted.

Also, Gaitneau is 15 mins from her doorstep .. her certification is good there.

I'm very careful to split everything down the middle (every bill, expense, etc)


^^^^^ Precisely. We had a plan within our agreement. She didn't follow the plan.

But if I recall right from earlier threads, there wasn't a plan, at least not one that you and Mom both agreed to. The core problem was that the agreement you signed a few months ago said that you agreed to pay full CS until Mom was employed full-time, with no time frame or deadline set. As far as I can see, all the calculations about Mom's under the table income, welfare, etc are irrelevant as long as that as long as that's part of your agreement, Mom has no obligation to work full time or any time at all. Intentional unemployment is also irrelevant because with your agreement, you agreed that you would pay full CS indefinitely until Mom decides to work full time.

You may look at the agreement and say, "well, it's obvious that Mom should be working", but unless those words are actually in the agreement, if I were Mom's lawyer, I would just respond with "well, my client will let you know if and when she is in full-time employment, until then, we stick with the agreement which specifies that you pay full CS". And as of now, that is completely legit.

So I would focus on changing the wording of the agreement to include a sunset clause - the current CS arrangement will switch to offset as of January 1 2017 [or whatever]. Once you have that in place, arguments about imputed income, intentional unemployment, welfare, under the table earnings, extracurricular expenses and so on will make some sense. Right now they don't and just add extra verbiage and irrelevant tangents.

I would also be careful with the "material change in circumstance" argument. If all you have is that Mom isn't doing her share of the driving, that's not a material change (unless the price of gas were $20/litre).

Arguments about your girlfriend and her daughter also don't fly. Providing financial support for these people is a choice, not a responsibility or an obligation. The daughter's mother and father are responsible for supporting her, not you.

 

[LovingFather32]

But if I recall right from earlier threads, there wasn't a plan, at least not one that you and Mom both agreed to.

The plan was that I pay -->child goes F/T school --> Mom finds job. Mom decided not to work, contradicting our signed agreement.

The core problem was that the agreement you signed a few months ago said that you agreed to pay full CS until Mom was employed full-time, with no time frame or deadline set.

Not a few months....7 months. Thank you for pointing out another great reason for the court appearance ... to get a time frame/deadline set. If that's all that happens that day I walk out smiling.

Mom has no obligation to work full time or any time at all.

I'm surprised Stripes. Go back a few posts and re-read. My ex has an obligation to earn what she's capable of earning. (Drygdala Test). Also chek out the Welfare laws at the bottom of the post. No obligations? huh?

There's an order bearing signatures whereby she agrees to obtain full time employment. Why would you say she has no obligation to do that? Do you feel a judge will say she has no obligation? I truly hope you're not serious.

Intentional unemployment is also irrelevant because with your agreement, you agreed that you would pay full CS indefinitely until Mom decides to work full time.

We both agreed that she return to full time employment...and signed it. I anticipated that she would follow the agreement. This is a material change. As the content of the Drygdala Test...her intentional unemployment is VERY relevant.

if I were Mom's lawyer, I would just respond with "well, my client will let you know if and when she is in full-time employment, until then, we stick with the agreement which specifies that you pay full CS". And as of now, that is completely legit.

Great..then I'll go over all the changes in circumstances...(increased costs of shared custody, etc).

We will not stick to the agreement because she was supposed to have found a job by now and has decided not to. Do you really think the judge will feel it's in the child's best interest to have my license taken away and thrown in jail because I cant afford it..and my ex is being lazy? Thank the lord some posters here arn't judges

So I would focus on changing the wording of the agreement to include a sunset clause - the current CS arrangement will switch to offset as of January 1 2017 [or whatever]. Once you have that in place, arguments about imputed income, intentional unemployment, welfare, under the table earnings, extracurricular expenses and so on will make some sense. Right now they don't and just add extra verbiage and irrelevant tangents.

Definitely a good idea. Another good reason for the date in court. To clear some things up and reword the order. I agree.

I would also be careful with the "material change in circumstance" argument. If all you have is that Mom isn't doing her share of the driving, that's not a material change (unless the price of gas were $20/litre).

You're only talking about gas. I have a boat load of proof that there have been significant increases in costs since shared custody.

According to Section 9(b) of the CSG guidelines, that alone will be enough to warrant a variation in CS.

Arguments about your girlfriend and her daughter also don't fly. Providing financial support for these people is a choice, not a responsibility or an obligation. The daughter's mother and father are responsible for supporting her, not you.

Luckily I look at the current laws...and not the perceived laws of odf users.

CSG does indeed look at whether or not there are other family members in the home, and it is in fact taken in to consideration. It is not a choice now. I have a legal duty to be a father figure for step children as well.

Under Section 10(2)(d) CS could be varied if:
Quote:
(d) the spouse has a legal duty to support a child, other than a child of the marriage

aka (stepchildren)

Stripes the laws, statues, caselaw and guidelines clearly disagree with most of your points. I'll take them as constructive nonetheless.

To close off this post, one shouldn't forget that Welfare itself imposes laws to it's recipients.
We musn't forget that Welfare is short term.

Ontario Works Act, 1997
(a) purpose of Act
[35] The essential purpose of the Ontario Works Act, 1997, S.O. 1997, Chapter 25, Schedule A (“Act”) is to provide “temporary financial assistance to those most in need while they satisfy obligations to become and stay employed:” see Act, s. 1

She does have obligations. Trust me.

 

[blinkandimgone]

Not sure i agree about you having a legal obligation to support your gf's child. What is your legal obligation to her...?

IMO, a legal obligation to support a child that is not a child of the marriage wiuld be if you and the girlfriend weny on to have a new baby together that you did in act have a legal obligation to support.

I see no legal obligation for you with yor girlfriend's child.

 

[stripes]

I think a lot will depend on the exact wording of your agreement. What precisely does it say?

Does it say that you agree to pay full table child support until Mom finds full-time employment, at which time Mom will notify you and the child support arrangements will convert to offset in recognition of shared parenting (which could be next week, next year, never)?

Or does it say that Mom will find full time employment as of date xxx, and as of date xxx the child support arrangements will convert to offset in recognition of shared parenting?

I suspect that like many contracts, the devil is in the details. You may believe that Mom ought to be working (and I think she ought to be too), but how exactly is your document worded? I'm asking because if you go into court telling a judge about what in your opinion Mom should be doing or ought to be doing, Mom will come in with her own opinion about what Mom should be doing or ought to be doing. That is not the same as having a document which spells out that Mom has committed herself to paying offset child support. You'll end up in an expensive and time-consuming he said/she said. Get your order amended first, then pursue the issue of Mom not working.

With respect to section 9c, unless you have adopted your girlfriend's daughter, you do not have a legal duty to provide for her. If you wanted to make the case that you "stand in the place of a parent" for her, you'd need lots of evidence that you have fulfilled the obligations of a parent over a long period of time, and if you and your girlfriend were to split up, you would pay child support for her daughter. So be careful with that one.

 

[SadAndTired]

Geez, LF and his dead horses.

http://http://www.ottawadivorce.com/forum/f6/need-boost-20067/index7.html#post209033

The Respondent must obtain and is currently seeking employment. Once the Respondent is employed full time for over 30 days, she shall provide the Applicant of her income, and the child support will be modified using the offs

Can you try again? The grammar on this is awful. The first sentence is so bad that I doubt two lawyers even looked at it.

An order or agreement would not state "is currently seeking employment". They never write orders or agreement in the present tense.

What you have is a friendly suggestion that the other party should do something. Not that they must do it and by a specific date. You have no real option to bring this matter back. The only one you have is "undue hardship" which you don't really have.

You accepted the terms of an agreement where the other parent's income was not imputed for the purposes of calculating child support. You are out of luck. You accepted the terms of an agreement where the other parent is allowed to make 0.0.

Did you review with a lawyer? If so you should punch that lawyer in the eye.

Good Luck!
Tayken

Why are we still talking about this??

 

[stripes]

Okay, I missed that. Yes, this is not a commitment by Mom to obtain full-time employment, it's a commitment by Mom to notify Dad if and when she finds full-time employment, which is very different. Get this fixed, and everything else (imputing income, etc) will be much easier.

 

[SadAndTired]

http://http://www.ottawadivorce.com/forum/f6/need-boost-20067/

Here it is again. Very comprehensive advice that LF ignored. 20 pages worth actually.

No worries about missing it Stripes. I know everyone is just trying to help. I just hate to see people waste their time responding when he doesn't listen.

 

[LovingFather32]

I get what you're all saying.

Motions to change child support are there for a reason though. I'm confident that I have enough material changes. I'm also confident that we all expected ex to work.......she agreed to that so that we could go offset.

Like I said. ..in the very least the judge will probably set a time frame (deadline) for ex to have found employment until imputation occurs. I will walk out of court happy if that is the case. I don't see why that wouldn't happen.

Also, a lot of talk about what I agreed to. I agreed to her working then going offset. She agreed to that also. She needs to be held accountable for the terms that she agreed to also right?

 

[Rioe]

My partner works all she can as a full time student and I do in fact act as a father figure for my other step child (D5's bestie). This won't be me whining about having to pay for other ppl, but in family law it actually does mean something.

Under Section 10(2)(d) CS could be varied if:

(d) the spouse has a legal duty to support a child, other than a child of the marriage

This means other biological children, such as if you had a child from before the marriage that you were also supporting, or if you had a new biological child afterwards. You have no legal duty to support your girlfriend's daughter. Even if you were married to your girlfriend, there's no in loco parentis court order legally requiring you to support her child.

This will also be reflected while analyzing the budgets of the 2 households to paint a picture of the 2 standards of living.

This is only relevant stuff if you are claiming undue hardship, which I don't think you are doing, are you? You really have to be drowning in debt for that, I think.

When you're grasping at straws, make sure they are relevant ones. Stick with the concepts of her being deliberately underemployed based on her not seeking employment as was anticipated, and ask for imputation of income to be followed by regular financial disclosure and updates.