Sorry if this is repeated i touched briefly on part of it yesterday. A seperation agreement was drawn up in 2006, it was never registered with the family court, we made several changes verbally and in email and a written statement. Six years later mom is not happy and registers the 2006 agreement in 2013 and claims I owe her 4 years of child support. Now in court but FRO wants to enforce it all she had to do was sign an affidavite saying I am in arrears and FRO just assumes I am. in the case conference the judge did make a comment that no judge would go back that far an award that and told her to think carefully as to how she wanted to proceed and the court could award me costs, so even though we settled 2 out of 3 issues at the case conference and the 19K in arrears is being contested FRO still wants to enforce it by her affidavit. I sent my case confrence brief to FRO outlining my side and it is considered a legal document signed by me and my lawyer yet FRO enforcement still calls.
Seperation Agreement Not Registered
- Thread starter hjcfz750
- Start date
I'm told they enforce it until you a court order deems you don't owe it.
I'm assuming that you do owe the money or believe that through something not written that you don't owe it? Your post above is a tad confusing. But if you paid the money you should be able to provide proof of that which would assist you in your case. But sounds like you didn't pay it...
The FRO can only work with what is written in law. Meaning, if there is a legal document that provides you owe it and you can't prove you paid it, then yes, they will continue to garnish.
I can tell you that a judge in a case conference can have a very different opinion than the judges you will encouter at the next court dates. Tread lightly - you never know what you are going to be told moving forward. Bottom line - If you owe it you currently owe it. If you owe it and are contesting the amount, at the very least acknowledge that you owe it but give reason why you can't pay it. If you don't owe it then explain why you don't and provide proof of same.
I'm assuming that you do owe the money or believe that through something not written that you don't owe it? Your post above is a tad confusing. But if you paid the money you should be able to provide proof of that which would assist you in your case. But sounds like you didn't pay it...
The FRO can only work with what is written in law. Meaning, if there is a legal document that provides you owe it and you can't prove you paid it, then yes, they will continue to garnish.
I can tell you that a judge in a case conference can have a very different opinion than the judges you will encouter at the next court dates. Tread lightly - you never know what you are going to be told moving forward. Bottom line - If you owe it you currently owe it. If you owe it and are contesting the amount, at the very least acknowledge that you owe it but give reason why you can't pay it. If you don't owe it then explain why you don't and provide proof of same.
Rioe
Well-known member
If I recall the other thread correctly, they had a separation agreement in 2006 that said he would pay child support. This was never registered with a court or FRO. Later, they switched to 50-50 and there was no support to be paid, though it sounds like instead of comparing incomes and perhaps paying a small amount, he let the ex claim all the tax benefits instead. They never formally amended the separation agreement, but only had letters confirming the change.
Now, his ex has registered the 2006 separation agreement with FRO and convinced them he owes arrears based on that arrangement, when they had subsequent modifications to it.
He's going to need to take it to court, show all his proof that they had 50-50 (the letters, any emails about their schedules, etc), and get an amended court order that he can then bring to FRO to prove he does not owe arrears.
He may owe a bit of support, as this process will recalculate the offset he should have been paying, but with the right wording in the new document he can go to CRA to get his portion of the tax benefits back from her.
Now, his ex has registered the 2006 separation agreement with FRO and convinced them he owes arrears based on that arrangement, when they had subsequent modifications to it.
He's going to need to take it to court, show all his proof that they had 50-50 (the letters, any emails about their schedules, etc), and get an amended court order that he can then bring to FRO to prove he does not owe arrears.
He may owe a bit of support, as this process will recalculate the offset he should have been paying, but with the right wording in the new document he can go to CRA to get his portion of the tax benefits back from her.
I'm going to disagree with this statement. Offset is a *starting* point in most instances. And in most instances a judge will recommend that he pay full guideline amount. This is not in the spirit of the law necessarily but it is what happens more times than not. I suspect judges do this to move the parties closer together in coming to a decision and I also think that they recommend/order this because a scorned parent who isn't getting the money they think they deserve often takes it out elsewhere.
Again, I could be wrong but when my husband went to court the judge recommended he pay full guideline amount and he is a very high income earner who pays an enormous amount of SS and CS plus another 5-10K expenses a year (every year). I point this out because mom would have still had a very generous cheque every month had he just paid offset CS and his SS. And mom worked and takes all the CCTB (not rightfully) and lives with a high income earner as well.
I guess the moral of the story here is you must change your agreement when you change the terms. Verbal agreements are binding but difficult and costly to prove.
I hope this father has emails that can back up the terms that have changed. Many people can support dad by virtue of affidavits to verify how much he had the children too. Unfortunately doctors, teachers, principals, and coaches, etc. often don't want to "get involved".
Thanks my post was confusing, our salaries were pretty comparable so both lawyers said there would be no offset. Along with her two letters and several emails from her i also have 4 years of daycarerecords I signed her out in the afternoon and back in the next morning.in which it was shown i actually had her my child in my care physically 57% of the time, well over the 41% threshold, again in return for no support to be paid to her she was just pay the daycare and keep all the tax benefits.
My biggest complain is how a 2006 document can suddenly be registered in 2012 sent to FRO and told I was in arrears and FRO doesn't even contact me just a letter stating i am in arrears. The case conference judge said no judge would go back 6 years and award that amount, yet FRO still thinks i owe it.
Currently I am waiting to see if mother proceeds.
Along with the Fraud letter, I have had Ottawa Police Investigate me, the CAS investigate me, the Human Society investigate me, all cases closed and no issues with the care of my child or my animal. Never know what will happen next.
And to top it off a letter on my work letter head in my name said i would agree to pay a 1000.0 dollars in arrears with my signature etc. All fraudulent i would never agree to that especially after paying 5k to defend not paying it so fraud was committed. When I asked FRO for a copy of the letter I was told I was not able to have it, after arguing my HR department wanted a copy as it was there letter head that was used on a forged document FRO finally will send it to me.
I have no problem paying support i paid the two years originally then when we went 50/50 i stopped and now i am back paying so it isn't about how i can get away with not paying, its how I shouldn't be paying when I had the child in my care more then she did.
My biggest complain is how a 2006 document can suddenly be registered in 2012 sent to FRO and told I was in arrears and FRO doesn't even contact me just a letter stating i am in arrears. The case conference judge said no judge would go back 6 years and award that amount, yet FRO still thinks i owe it.
Currently I am waiting to see if mother proceeds.
Along with the Fraud letter, I have had Ottawa Police Investigate me, the CAS investigate me, the Human Society investigate me, all cases closed and no issues with the care of my child or my animal. Never know what will happen next.
And to top it off a letter on my work letter head in my name said i would agree to pay a 1000.0 dollars in arrears with my signature etc. All fraudulent i would never agree to that especially after paying 5k to defend not paying it so fraud was committed. When I asked FRO for a copy of the letter I was told I was not able to have it, after arguing my HR department wanted a copy as it was there letter head that was used on a forged document FRO finally will send it to me.
I have no problem paying support i paid the two years originally then when we went 50/50 i stopped and now i am back paying so it isn't about how i can get away with not paying, its how I shouldn't be paying when I had the child in my care more then she did.
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arabian
New member
I certainly hope you or your employer register a complaint with the police. If your ex manufactured the letter then this would definitely go against her credibility.
I am puzzled about the statement you say the judge said regarding CS arrears "... no judge would go back 6 years..." I have read many decisions where a judge did indeed go back many years. The next time I come across such a case I will post it on this thread.
Here is a decision regarding child support that was just recently made in Alberta. IT does INDEED go back to 2007 - fast forward to the last part of the decision and you will see the breakdown:
Knudskov v. Bueckert, 2014 ABQB 71 (CanLII), <http://canlii.ca/t/g3064
Here is a case from BC where retroactive CS is awarded going back to 2001:
Fray v. Borecky, 2012 BCSC 791 (CanLII), <http://canlii.ca/t/frjl5
I am puzzled about the statement you say the judge said regarding CS arrears "... no judge would go back 6 years..." I have read many decisions where a judge did indeed go back many years. The next time I come across such a case I will post it on this thread.
Here is a decision regarding child support that was just recently made in Alberta. IT does INDEED go back to 2007 - fast forward to the last part of the decision and you will see the breakdown:
Knudskov v. Bueckert, 2014 ABQB 71 (CanLII), <http://canlii.ca/t/g3064
Here is a case from BC where retroactive CS is awarded going back to 2001:
Fray v. Borecky, 2012 BCSC 791 (CanLII), <http://canlii.ca/t/frjl5
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Thanks I have read several forums on what discretion the judge has, past history contempt, false financials etc in looking at my case that was his statement that they would not go back that far, do i have faith in that statement no, especially with the case you have listed , in the Ontario court web pages I found a lot of comments stating they would normally they go back 3 years as a starting point.?
arabian
New member
Here is a case from Ontario which might answer your question:
Savoie v. Savoie, 2010 ONSC 1470 (CanLII), <CanLII - 2010 ONSC 1470 (CanLII)
Another one from Ontario:
Paula Scott v. Martin James Cosgrove, 2011 ONSC 2423 (CanLII), <http://canlii.ca/t/flc9n
Brown v. Brown, 2011 ONCJ 752 (CanLII), <http://canlii.ca/t/fpdtp
And finally, this case should also answer many of your questions:
Domik v. Ronco, 2013 ONCJ 197 (CanLII), <http://canlii.ca/t/fx2xh
Good luck!
Savoie v. Savoie, 2010 ONSC 1470 (CanLII), <CanLII - 2010 ONSC 1470 (CanLII)
Another one from Ontario:
Paula Scott v. Martin James Cosgrove, 2011 ONSC 2423 (CanLII), <http://canlii.ca/t/flc9n
Brown v. Brown, 2011 ONCJ 752 (CanLII), <http://canlii.ca/t/fpdtp
And finally, this case should also answer many of your questions:
Domik v. Ronco, 2013 ONCJ 197 (CanLII), <http://canlii.ca/t/fx2xh
Good luck!
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How far can the courts go back
How far can the courts go back
I guess it all depends on the judge again I came across this on a divorce web site and who knows if it is correct.
Q - If retroactive child support is ordered, how far back might the court go? A retroactive child support order would generally go back to the date the recipient parent gave the payor parent ‘effective notice’. ‘Effective notice’ means the recipient parent brought up the topic of child support with the payor parent, and indicated that child support should be paid, or, if support was already being paid, that the amount should be increased. If the payor parent ignores the recipient parent’s ‘effective notice’, then the recipient parent would be expected to follow up by, for example, applying to court.
As a rough guideline, the Supreme Court of Canada has said that in most cases a retroactive child support order would not go back more than three years, even if ‘effective notice’ was given earlier than three years back. However, sometimes a retroactive child support order might go back further, particularly if the payor’s conduct was blameworthy. The amount of a retroactive child support order would be determined based on the facts and applicable law (eg. Divorce Act and Federal Child Support Guidelines for divorced or divorcing parents).
How far can the courts go back
I guess it all depends on the judge again I came across this on a divorce web site and who knows if it is correct.
Q - If retroactive child support is ordered, how far back might the court go? A retroactive child support order would generally go back to the date the recipient parent gave the payor parent ‘effective notice’. ‘Effective notice’ means the recipient parent brought up the topic of child support with the payor parent, and indicated that child support should be paid, or, if support was already being paid, that the amount should be increased. If the payor parent ignores the recipient parent’s ‘effective notice’, then the recipient parent would be expected to follow up by, for example, applying to court.
As a rough guideline, the Supreme Court of Canada has said that in most cases a retroactive child support order would not go back more than three years, even if ‘effective notice’ was given earlier than three years back. However, sometimes a retroactive child support order might go back further, particularly if the payor’s conduct was blameworthy. The amount of a retroactive child support order would be determined based on the facts and applicable law (eg. Divorce Act and Federal Child Support Guidelines for divorced or divorcing parents).
arabian
New member
I believe part of the information you have stated was taken from a case (and likely not properly cited).
All the cases I have provided to you are within past 4 yrs (some only a few months ago in my previous post) and all have gone back further than 3 yrs. to calculate.
You are best advised to get legal advice. All of these divorce forums are merely opinions of people who aren't lawyers.
All the cases I have provided to you are within past 4 yrs (some only a few months ago in my previous post) and all have gone back further than 3 yrs. to calculate.
You are best advised to get legal advice. All of these divorce forums are merely opinions of people who aren't lawyers.
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Thanks Arabian I am sure you are right, I have another question for you, does having your child over the 41% threshold over ride a separation agreement that was never registered with the court and in which many items were not followed or verbally changed and agreed to by both parties. I can prove i had my child but her mother states that's irrelevant i still owe her the support and the extra time was just being a good father.
arabian
New member
Here is another case which you might find interesting as the judge does talk about how separation agreements are not binding in the courts.
Willis v. Willis, 2010 ABQB 534 (CanLII), <CanLII - 2010 ABQB 534 (CanLII)
Willis v. Willis, 2010 ABQB 534 (CanLII), <CanLII - 2010 ABQB 534 (CanLII)
Rioe
Well-known member
The agreement might say one thing, but your status quo says another. If the ex does not agree to update the agreement to reflect the status quo, you'll have to take her to court. For court, you will need to have solid evidence of your history of equal access.
Your ex just sees all this potential money falling through her fingers, and is fighting that instead of being reasonable. So she'll say and do whatever she thinks will deter you.
Seperation Agreement Not Registered
So to update, mom took me to court over the arrears even though I had my child in my care and can prove it. We had two court appearances and both times all the judge would deal with was the support differential from this date to this date, we went again both times mom and myself were ready to present my case and the judge felt that it would need a two day trial and to discuss a deal between us. we struck a deal but then mom backed out last minute. So from June to Dec there was no action and I received a letter from the court that unless there was more motions the case would be closed(I know this isn't the correct terminology. So 4 months later. Since the agreement was registered with FRO and the courts all payments are current and a few hundred dollars in arrears owing. So I called FRO and said in 4 months the arrears will be paid will the extra funds be stopped and my monthly payment lowered. I was shocked when the worker told me that I still owed X amount of dollars from before the document was registered with the courts or FRO. The worker in one breath told me Fro could not lower my support as my income went down that I needed a court order and had to spend 300 dollars in days off and process servers etc and file a moton just to save 485. Isn't worth the hassle. Yet in the nex breath the worker told me they would not stop the extra funds as I was in arrears for the money that is allegedly owed. I told the worker read the judges comments he states allegedly owed and that both of us must prove our case.. Apparently FRO cant reduce my amount owing to the tabled amount of my income but they can go after money on just the mothers affidavit which isn't correct.. The figures the mother supplied to FRO are not even accurate but now I have to defend myself against the mother and the Family Responsibility Office. And for the record I have no issuing paying my support it is an obligation however I think a level playing field is only fair.
So to update, mom took me to court over the arrears even though I had my child in my care and can prove it. We had two court appearances and both times all the judge would deal with was the support differential from this date to this date, we went again both times mom and myself were ready to present my case and the judge felt that it would need a two day trial and to discuss a deal between us. we struck a deal but then mom backed out last minute. So from June to Dec there was no action and I received a letter from the court that unless there was more motions the case would be closed(I know this isn't the correct terminology. So 4 months later. Since the agreement was registered with FRO and the courts all payments are current and a few hundred dollars in arrears owing. So I called FRO and said in 4 months the arrears will be paid will the extra funds be stopped and my monthly payment lowered. I was shocked when the worker told me that I still owed X amount of dollars from before the document was registered with the courts or FRO. The worker in one breath told me Fro could not lower my support as my income went down that I needed a court order and had to spend 300 dollars in days off and process servers etc and file a moton just to save 485. Isn't worth the hassle. Yet in the nex breath the worker told me they would not stop the extra funds as I was in arrears for the money that is allegedly owed. I told the worker read the judges comments he states allegedly owed and that both of us must prove our case.. Apparently FRO cant reduce my amount owing to the tabled amount of my income but they can go after money on just the mothers affidavit which isn't correct.. The figures the mother supplied to FRO are not even accurate but now I have to defend myself against the mother and the Family Responsibility Office. And for the record I have no issuing paying my support it is an obligation however I think a level playing field is only fair.
Sorry for such a long time to respond, a lawyer did the calculation and I had my child 59% of the time give or take a few days so no i my mind I do not owe this money, but try explain that to FRO even without a court order and they no the amount is disputed back to court we go, the last order did not say I owed the arrears unfortunate it also didn't say I do not owe them so FRO is going to garnish without a court order. So now child's mother sits back and I have to battle FRO, real fair system.