Paying Full Table CS with 50/50 Shared Parenting

[LovingFather32]

Hey Rioe. I miss chatting. Hope your summer's going well!

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.

Actually, the children don't have to be biological. You can refer to the gov't site here. SECTION 10: UNDUE HARDSHIP - Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines - Volume 2

Kind of did my homework.

It states:

PARAGRAPH 10(2)(D): LEGAL DUTY TO SUPPORT ANOTHER CHILD

The legal duty to support other children (in a second family, for example) can cause undue hardship if the parent also has to pay the table amount. These other children may be the parent's biological children, adoptive children, or stepchildren.[226] These commitments may reduce the financial resources available for the children involved. This provision provides financial relief and promotes equitable treatment of all children whether they are natural children, adoptive children, or stepchildren.

But I don't want to get hung up on the step child thing. It's just another piece to the puzzle when comparing the 2 households. Ex's is richer than mine.

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.

Yes I am. I just don't like to talk about it much here as a) it's embarrassing as hell ; b) Peeps tend to stomp me down saying its too hard to prove.

I decided to sit in on a case while awaiting FLIC the other day. Dad's situation was a lot like mine. He was claiming undue hardship and had just got 50/50 about a year ago paying full table CS.

Mom said what everyone says here .. Hey, he has a cell phone with internet.

The judge's face looked upset, he looked at her and said.. you have a cell phone with internet and a car but you still got social assistance. (like my ex)

Rioe, my bills and debts are out of control. FRO has garnished half my wages for EI this summer also, making me miss a CS payment. (Who can live on $390.00/Month?)

There's so much more to my finances and debts that I just don't want to get into. Just trust me that I'm having a tough time....and ex is not.

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.

All straws are relevant Rioe. All the above advice is great though Thanks.

a) There have been significant MCC's.(i.e Increased costs of shared custody)
b) I'm suffering undue hardship (Unreal debts, etc)--> and yes Im drowning
c) Intentional unemployment by ex
d) Standards of living Test (Her household is richer and its provable)

I could go on.

Again, in the end if the judge simply sets a deadline for her to find employment than it was a good day .. and I see no reason why the judge wouldn't.

 

[SadAndTired]

Your girlfriend's school/tuition/books etc is obviously not feasible right now if she cannot support HER own child.

She should quit school right away and find a full time job until you guys are on your feet. That will be faster and offer immediate solution (instead of court).

 

[LovingFather32]

Sorry S&T .. I can not read your post. I even tried to take you of the ignore list to see and it seems ODF has made you permanently on ignore. Our battles weren't that bad were they?

 

[stripes]

... but if you look at examples of what constitutes "undue hardship", it's things like being evicted, having a vehicle repossessed, being unable to afford the basics of life with no prospect of the situation improving, etc. There's a difference between being in debt and being destitute. If Kid is still going to ballet class and other extracurriculars, you're probably not suffering unduly. You're just in a financial tight spot, like many other people. The key word is "undue": extreme, excessive, extraordinary. Unless the contrast between your household and Mom's household is extreme (you're dumpster-diving for food and she's taking three-month vacations in the Caribbean), the simple fact that there are more goodies at Mom's house than at yours doesn't mean anything. My ex has a higher household income than I do because he is remarried to a high earner, but that has zero relevance to child support.

And unless you've been cohabiting with your girlfriend and her child for at least two years, AND you have demonstrated the intention to treat her child as yours, you don't have a stepchild. You have a live-in girlfriend who has a child.

A material change in circumstances is something which, if it were known at the time the agreement was signed (or the order was issued), would have led to a different outcome. The fact that things cost money is not a material change, nor is the fact that Mom is unco-operative (you knew that at the time you signed the agreement). If something like a disabling accident had occurred, or a sudden windfall, or (on the positive side) a recovery from a debilitating addiction or condition, then you might have a material change. But if all you've got is the fact that money is tight and you're dealing with a parent who is being a jerk - your circumstances might be changing, but the changes aren't material, that is, they don't "matter" enough that they would have led to a different outcome had you known them at the time you signed the agreement.

But all of this stuff is distraction. You signed a bad agreement which committed you to paying table child support indefinitely to Mom. Until you get that changed, all of this other stuff - hardship claims, changes in circumstance - is just chasing your tail and spending lots of time focusing on Mom.

 

[LovingFather32]

Not going to make this thread about whether or not I am suffering undue hardship. I know I am...I can prove it. We'll leave it at that.

Section 9 of the CSG .. I'm above 40%. I have shared custody. CS should be altered. (Section 9 B is all I really need for a MCC...and I can prove it). Instead of listening to what you say constitutes Changes of circumstances...I think I'll follow the guidelines and laws.

I made the grave mistake of believing ex's lie that she would work. Unfortunately her benefits from welfare are too good.

Unless the contrast between your household and Mom's household is extreme (you're dumpster-diving for food and she's taking three-month vacations in the Caribbean), the simple fact that there are more goodies at Mom's house than at yours doesn't mean anything. My ex has a higher household income than I do because he is remarried to a high earner, but that has zero relevance to child support.

The standard of living test will be very useful to me. I have a ton of expenses. Ex has no utilities, barely any rent and a ton of money and free time. I have a chart, so I'll be fine. Judges will want to compare budgets.

And unless you've been cohabiting with your girlfriend and her child for at least two years, AND you have demonstrated the intention to treat her child as yours, you don't have a stepchild. You have a live-in girlfriend who has a child.

Cool. We've cohabited for 2 years now and of course I treat her as my own. So I guess all is good. I do have a step child.

Would you like a third try?

The fact that things cost money is not a material change, nor is the fact that Mom is unco-operative (you knew that at the time you signed the agreement).

No I didn't. She apologized for the false allegations, was very cooperative and promised she would gain full time employment in a prompt manner so that we could graduate to offset. This was our agreement.

your circumstances might be changing, but the changes aren't material, that is, they don't "matter" enough that they would have led to a different outcome had you known them at the time you signed the agreement.

I'm 100% certain the judge won't agree with your "opinion" of the situation.

You signed a bad agreement which committed you to paying table child support indefinitely to Mom

Yes ma'am .. and she was supposed to work. We agreed she would work F/T and switch to offset. No deadline? Groovy!..Lets get one next appearance. As I've mentioned before, I can prove she's swatting away job opportunities. Judges wont like that.

You've also stated Stripes that she has no obligation to work full time, or at all. I truly hope you've digested some of my posts (Welfare Act, Drygdala Test, etc).

I also hope you've peeked at the Child Support Guidelines on what it takes to vary a CS order (For example - 9(b)). I meet that criteria whether you agree with me or not. It's the law.

I don't think anyone's chasing their tail. Even if the judge sets a deadline for ex to get employed ... I walk out happy. Don't you agree that's worth the court date alone? Along with some possible rewording of the order?

 

[arabian]

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?

If you find this thread redundant than just hit the "ignore" button perhaps? No one is forcing you to participate.

 

[LovingFather32]

Best advice I've heard all night Arabian. It's quite redundant. I feel very repetitive. lol
With some posters its hard to even have a convo. It's just "you're wrong here".."you're wrong here"..."costs against you here", without really even taking a deeper look in to the situation. I should be used to it by now.

 

[Rioe]

I think you would have an extremely tough time proving undue hardship against a household where the only adult is on welfare, if you are employed and live with another adult in a financial partnership.

I think you would also have a tough time saying your common-law's child is your stepchild. Since you are not married, there's no legal obligation to her child.

These are the main rebuttals you can expect to have brought against you if you make those your main arguments.

What your ex would have a much harder time arguing against is that she is not intentionally underemployed.

Your agreement indicated she intended to find a job. You anticipated this happening before you went on EI for the summer. Full table CS instead of offset was never meant to be a permanent solution at the time of the agreement.

 

[Links17]

I think living with single mothers and subsidizing their children and their lives is really smart, good for you... I hope my ex finds somebody like you.

 

[stripes]

Well, obviously do whatever you think is right. I do think Mom ought to be working if she can, but as it's been only seven months since you signed an agreement in which you committed to paying her the full table amount, it will be difficult for you to make a case for undue hardship, intentional unemployment, extra dependents, etc etc, until and unless you get the wording in your agreement changed. All of this was known to you seven months ago when you signed. What you would like your agreement to say - Mom agrees to find work and move to offset - is clearly not what it actually does say - Mom agrees to notify you if/when she finds work. Fix that, and everything else will fall into place.

 

[arabian]

I think it is prudent to clean up the mess that your lawyer left you in and then go from there. I agree with others that you need to get the CS payments changed to offset or whatever is the "norm" when parents have 50/50 custody.

Regarding Undue Hardship:

If you have a substantial vehicle payment you can kiss undue hardship bye-bye...you would probably be asked why you have not sold it and picked up a bus pass (seriously). If you live with someone and your expenses are high you had better show that the person you are living with contributes fairly to the total household expenses. If you are in collection mode with FRO the current VAPS (voluntary repayment) will be examined to ascertain that it allows you to put food on the table. Judges don't often interfere with the collection actions of maintenance enforcement agencies because they know the maintenance enforcement agencies are empowered to make temporary arrangements with the debtor... you would likely have to prove that you made every attempt to negotiate a repayment schedule and that despite this you still cannot put a roof over your head.

When you fill out your respective financial statements (probably the most important document) judge will look at all expenses - not just the ones you cherry-pick. I suspect the financial statements will be examined long before your first appearance in court.

I am not trying to be negative but rather point out some things that I think might prove extremely difficult should you pursue an undue hardship claim.

I think what you really need to do is simply change the CS to offset. Then, like others have suggested, go after having income imputed. Of course when you are having the CS changed you can pave the way by ensuring important documents are inserted in the case record which you can refer to down the road when you want to impute income.

 

[LovingFather32]

Sloppy Seconds

Sloppy Seconds

What your ex would have a much harder time arguing against is that she is not intentionally underemployed.

I agree that she would also.

The main point is that I'm in a 50/50, and foolishly signed an agreement that ex would work a job. In most of the cases I've read it was a no-brainer for the judge to use offset or impute income on the spot. The hardest part of their job was always to determine if the 40% access threshold was met. CS was the easy part of their job.

I hope my ex finds somebody like you.

She couldn't handle someone like me.

Well, obviously do whatever you think is right. I do think Mom ought to be working if she can, but as it's been only seven months since you signed an agreement in which you committed to paying her the full table amount, it will be difficult for you to make a case for undue hardship, intentional unemployment, extra dependents, etc etc, until and unless you get the wording in your agreement changed.

Perhaps that should be one of my priorities in court, getting the wording changed.

I think what you really need to do is simply change the CS to offset. Then, like others have suggested, go after having income imputed. Of course when you are having the CS changed you can pave the way by ensuring important documents are inserted in the case record which you can refer to down the road when you want to impute income.

That's the plan. It's certainly more complex than it sounds. I think I have it pretty figured out based on everything I've read and seen. I have shared custody .. offset is the standard in these situations. I signed an agreement in good faith that ex would work. She signed in bad faith and decided not to.

Either way, I thank you all for the advice. All of the perspectives help me for sure.

 

[arabian]

One would think that a fairly simple application is required. The financial statements that you and your ex file speak for themselves. Don't volunteer information. If you have something that was in previous documents about her working/not working... child to go to daycare etc. you can insert that.

Attached hereto my affidavit is exhibit "x" (order of _____ date).
Attached hereto my affidavit is exhibit "y" (agreement ____ date).

and so on

Short, to the point, and something judge can easily rule on. If you have ANY court documents which direct your ex to work then of course that will be very, very important to include as an exhibit.

 

[OntarioDaddy]

You say you're doing all the driving, paying all extracurriculars, supporting your gf and her child, etc. There is no way you will qualify as Undue Hardship.

Anything regarding step child just sounds ridiculous. You're not married, not even common law. You would just prefer to pay less cs to your child so you can help out someone else's.

Increased costs for increased access was known at the time of your agreement.

You also knew you were agreeing to shared access and no offset, so saying you're now 50/50 and therefore it should be offset makes no sense.

Your case law of judges ordering imputed income and offset doesn't help either. Those people didn't have an agreement on consent.

You have shared access. You both share the child benefits. You pay no spousal support. You're also in cs arrears from way back, which continues to grow today. Ex gets paid about $170/week from welfare. You work full-time.

If ex shouldn't qualify for OW, they would cut her off.

No material change has occurred which is your first step to even get in the door. You consented to shared access and you paying support. If ex works full time more than 30 days without switching to offset, then you have something to go after. Until then, why would ex agree to change the wording or anything with the agreement.

 

[LovingFather32]

You say you're doing all the driving, paying all extracurriculars, supporting your gf and her child, etc. There is no way you will qualify as Undue Hardship.

Hi Dad. Clearing a few things up. I dont support my g/f and step child. But having a step child comes with it's obvious time/costs. I hope you read y previous posts where the CSG guidelines mentioned that they do in fact take that in to consideration. There won't be any kind of focus on this at court, simply another piece to the puzzle when the judge is comparing standard's of living in each home.

You would just prefer to pay less cs to your child so you can help out someone else's

What a disgusting thing to say. No. I would like to pay less CS because I have shared custody (is it really that hard to understand?), ex promised to work, having financial difficulties at the moment.

You also knew you were agreeing to shared access and no offset, so saying you're now 50/50 and therefore it should be offset makes no sense.

Motions to change are a great thing and there for a reason. She agreed to work and move to offset. Kids in school ..Shared custody .. she didn't do that. You're right .. she shouldn't have consented to work then offset. That was in bad faith.

Now I just have to get some rewording in that order and see what the judge feels about relying on Welfare her entire life when she's educated, able bodied, bilingual...and has worked her whole life. I look forward to it.

Increased costs for increased access was known at the time of your agreement.

We already had this talk. Go back a few pages. But if you want to have it again..sure. No, I wasn't aware to the extent it would be. As mentioned I also anticipated an offset approach. Unfortunately she didn't feel like working so I endure full CS....and increased costs of 50/50.

I really don't even need a case, to vary a CS order all I need to prove is 9(b) of CSG. I have shared custody .. the judge will get it whether I signed an agreement that she would work or not. I wish you got it.

You also knew you were agreeing to shared access and no offset, so saying you're now 50/50 and therefore it should be offset makes no sense.

I was agreeing that she work full time so that we could move to offset. She promised everyone in the room that she was going out to get that. SO saying I'm 50/50 and she didn't pull her end of the bargain (to move to offset) makes perfect sense.

Again, Shared custody = offset. This is standard. Everyone anticipated her working. She chose not to. Its not me that will look ridiculous in court (much to your dismay).

If I signed an agreement foolishly believing her that she would work ... I'll simply get that wording changed, deadlines given and schedule a reappearance. Tell me ONDaddy .. what's so "ridiculous" (your word of the day) about that? Seems fair to me.

You have shared access. You both share the child benefits. You pay no spousal support. You're also in cs arrears from way back, which continues to grow today. Ex gets paid about $170/week from welfare. You work full-time.

I dont know how much welfare claws back. But thanks for bringing this up. Another material change, as Arabian pointed out, is that clawbacks are coming to an end.
I have our budgets on a comparison chart and she's doing very well living off our tax dollars, shopping at food banks and running a babysitting business under the table.
She's better of financially than I am right now. She should have to work (move to offset as per the agreement), pay rent/bills and buy groceries like the rest of us. Don't you think?

No material change has occurred which is your first step to even get in the door.

But I've told you like 10 times I already satisfy 9(b) of the CSG..I've felt the increased costs of shared custody ad can prove it. I underestimated the costs and anticipated her working at the agreement. I have shared custody. Thats ALL the judge needs to know. That's the law for god sakes.

Here, I'll post it. Digest it.

9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
• (a) the amounts set out in the applicable tables for each of the spouses;
• (b) the increased costs of shared custody arrangements; and
• (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

That's what we call a material change in circumstance. Of course I budgeted and anticipated higher costs, but it seems I underestimated. These situations are why "Motions To Change" even exist. Ex is not working. Not part of the agreement. I didn't anticipate this either. Please stop saying I have no MCC's. I have plenty. I won't even require the undue hardship route.

If ex shouldn't qualify for OW, they would cut her off.

Oh I know she's hidden her money well and made sure she qualified..for YEARS.

What about the Welfare act? Nobody follows the laws anymore? I'm so surprised here on odf that there are so many trying to justify remaining on social assistance instead of helping me find ways for her to show D5 how to be responsible and work a job to make a living. It's mind-boggling.

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

In the end ONDaddy, wouldn't you agree that even if the judge rewords the order and sets a deadline for my ex to get a job...that it was a good day? (Why is this question being ignored?..lol)

Until then, why would ex agree to change the wording or anything with the agreement.

She probably won't. Hence "Motions To Change". I signed in good faith that she would find employment since we were now 50/50 and our child is in full time school. Unfortunately this wasn't on her radar. So I'll have to get a judge to wake her p from her fabulous dream of no bills, expenses and money falling from the sky .

Sorry if you think that's not a good idea. I think it's a stellar one.

 

[LovingFather32]

Sorry ONDaddy, but you've been wrong my entire case. Had I listened to you at all I probably wouldn't have 50/50 without having to go to trial right now. Nonetheless thanks for stopping by.

 

[Tayken]

Sorry ONDaddy, but you've been wrong my entire case. Had I listened to you at all I probably wouldn't have 50/50 without having to go to trial right now. Nonetheless thanks for stopping by.

But, ONDaddy does have a good point about agreements made on consent having a much higher standard of evaluation. If you consent to something it is hard to undo this early after having consented to it.

You may simply need more time to bring a new application to have an agreement made on consent changed. You may find an unsympathetic judge who shares a very similar view to ONDaddy. So make sure you have all bases covered before bringing a new Application.

Agreements marked final that are made on consent that had lawyers involved in writing are really hard to change. Unless you were under some form of medical duress that you have good evidence to support.

That is why I again remind everyone to really understand the impact their consent agreements and orders are... especially when made FINAL.

Again, it isn't about wrong or right LF32. Even if ONDaddy is wrong about you a judge can be just as wrong in evaluating your materials and position.

 

[LovingFather32]

Get the ball rolling

Get the ball rolling

But, ONDaddy does have a good point about agreements made on consent having a much higher standard of evaluation. If you consent to something it is hard to undo this early after having consented to it.

Yes I agree with you. But when I consented everyone in the room, including myself anticipated that she would work. That was the agreement.

You may simply need more time to bring a new application to have an agreement made on consent changed. You may find an unsympathetic judge who shares a very similar view to ONDaddy. So make sure you have all bases covered before bringing a new Application.

That was my initial concern .. bringing it too early.

But then again, I dont think many judges would disagree to changing the wording of that agreement and setting a deadline or review of her employment search efforts. Just to get the spotlight on her game would be worth it I think.

Agreements marked final that are made on consent that had lawyers involved in writing are really hard to change. Unless you were under some form of medical duress that you have good evidence to support.

I agree with you about final orders, believe me. There was a final order for me to pay table CS and for my ex to work a job and immediately switch to offset. I fulfilled my part of the agreement, but she has not.

I'd be okay if the presiding justice gave a little kick in the a$$ for her to work and a deadline for doing so....just to get the ball rolling.

 

[arabian]

So you have an Order marked "FINAL" in which there is written instruction for her to get a job? That would be very helpful for you.

 

[standing on the sidelines]

So you have an Order marked "FINAL" in which there is written instruction for her to get a job? That would be very helpful for you.

I cant remember for sure but I think it said that she would inform him when she found fulltime work. I could be wrong.