I'm Back !!!!

Old Nov 5th 2012, 11:21 am
  #106  
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Default Re: I'm Back !!!!

Originally Posted by Hawk13
Obviously they don't need a divorce but if a couple lives together then decides to split - everything gets divided 50/50 - just like a divorce, right?
Not in Ontario, it's two years here before any such provisions apply.
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Old Nov 5th 2012, 11:26 am
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Default Re: I'm Back !!!!

Originally Posted by Hawk13
I must be missing something. I have two kids, one with me as primary residence, the other 50/50. I pay for all their extra expenses. My dead beat ex sits on her ass all day and doesn't work so that I pay all the child support. Her partner works.

So, where do you get to right off child support payments? I was told you can only right off spousal support?

Enlightenment please.
You agree an amount of child support then have it documented as spousal support. I assume you don't care what it's called, just that it costs less.

Here, at least, her partner's income (and your partner's income) could be considered in the calculation, though to force that one would have to go to court; it's unlike to be worthwhile doing so because of the legal fees involved.
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Old Nov 5th 2012, 1:17 pm
  #108  
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Default Re: I'm Back !!!!

Originally Posted by Hawk13
Obviously they don't need a divorce but if a couple lives together then decides to split - everything gets divided 50/50 - just like a divorce, right?
No. Assets are split between any couple on the basis of trust rules and the equitable remedy of unjust enrichment. Matrimonial property legislation overrides such rules. Even with married couples, there are exemptions to the "50/50 split" rule. This is a case where such issues were discussed by the Supreme Court of Canada: Kerr v. Baranow


Originally Posted by Hawk13
Spoken like a true lawyer - what are you talking about?
You wish to obtain assistance and yet you choose to insult me. I thought I made myself clear and I do not intend to waste any more time on this.

Last edited by Almost Canadian; Nov 5th 2012 at 1:51 pm.
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Old Nov 5th 2012, 1:26 pm
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Default Re: I'm Back !!!!

Originally Posted by dbd33
You agree an amount of child support then have it documented as spousal support. I assume you don't care what it's called, just that it costs less.
That works in separation agreements but does not work if a Court becomes involved. The Court will invoke the parens patriae doctrine and will wish to ensure that appropraite provisions have been made for the child. Usually, this requires the parties to provide financial disclosure to the Court proving their income and, once this and access has been resolved, it is a simple matter of applying the child support regulations to the parties.

The Divorce Act specifically provides that a Divorce Judgment should not be granted by a Court unless the Court is satisfied that appropriate provisions have been made for any children of the marriage. This usually requires confirmation that custody and access has been agreed (or determined by the Court) and that child support is being paid in accordance with the guidelines. Once that has been achieved, the parties can obtain a Divorce Judgment which can have any issues not resolved (spousal support for example) severed from the Divorce Action and the parties may continue to argue about that for the rest of their lives should they wish to do so.

Originally Posted by dbd33
Here, at least, her partner's income (and your partner's income) could be considered in the calculation, though to force that one would have to go to court; it's unlike to be worthwhile doing so because of the legal fees involved.
One cannot get divorced without going to Court. I appreciate that there are paper based procedures that mean that neither party has to attend a hearing but, in Alberta at least and I would imagine all other Provinces, the same information has to be provided during the paper based process as would be provided if the matter went to a hearing.
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Old Nov 5th 2012, 1:59 pm
  #110  
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Default Re: I'm Back !!!!

Originally Posted by dbd33
You agree an amount of child support then have it documented as spousal support. I assume you don't care what it's called, just that it costs less.

Here, at least, her partner's income (and your partner's income) could be considered in the calculation, though to force that one would have to go to court; it's unlike to be worthwhile doing so because of the legal fees involved.
Very interesting and if you can pull that off, that's awesome. But if your ex turns wingnut she can go to court and force you to pay child support, retroactively - no matter what you have already agreed upon. Mine did.

Originally Posted by Almost Canadian
You wish to obtain assistance and yet you choose to insult me. I thought I made myself clear and I do not intend to waste any more time on this.
Are you thick? I'm not asking you for any assistance but you keep on responding.
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Old Nov 5th 2012, 2:03 pm
  #111  
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Default Re: I'm Back !!!!

Originally Posted by Hawk13
Correct me if am wrong but once you live together for 6 months, you are considered common law. Is it a year? Or have the rules changed?
Originally Posted by Hawk13
Obviously they don't need a divorce but if a couple lives together then decides to split - everything gets divided 50/50 - just like a divorce, right?
Originally Posted by Hawk13
Are you thick? I'm not asking you for any assistance but you keep on responding.
I guess I must be thick. I won't respond to you any more.
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Old Nov 5th 2012, 2:05 pm
  #112  
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Default Re: I'm Back !!!!

Originally Posted by Almost Canadian
That works in separation agreements but does not work if a Court becomes involved. The Court will invoke the parens patriae doctrine and will wish to ensure that appropraite provisions have been made for the child. Usually, this requires the parties to provide financial disclosure to the Court proving their income and, once this and access has been resolved, it is a simple matter of applying the child support regulations to the parties.

The Divorce Act specifically provides that a Divorce Judgment should not be granted by a Court unless the Court is satisfied that appropriate provisions have been made for any children of the marriage. This usually requires confirmation that custody and access has been agreed (or determined by the Court) and that child support is being paid in accordance with the guidelines. Once that has been achieved, the parties can obtain a Divorce Judgment which can have any issues not resolved (spousal support for example) severed from the Divorce Action and the parties may continue to argue about that for the rest of their lives should they wish to do so.
Well, I've only direct experience of one case. There were extended negotiations over what amount of child support would be appropriate (notwithstanding our having been separated and payments having been made for a couple of decades prior to the divorce). Once an amount had been determined we went before a judge (not in a formal hearing but in his office). I asked, on my accountant's advice, if it would be ok to write the payments up as spousal rather child support and he agreed. It didn't seem that the judge or lawyers were surprised by the idea and so it came to pass.

From my perspective, I went from paying in after tax dollars to paying in pre-tax dollars. That's a saving though, of course, I'd have to live to be a thousand for the saving to equal the legal fees involved in converting a separation to a divorce.

Originally Posted by Almost Canadian
One cannot get divorced without going to Court. I appreciate that there are paper based procedures that mean that neither party has to attend a hearing but, in Alberta at least and I would imagine all other Provinces, the same information has to be provided during the paper based process as would be provided if the matter went to a hearing.
The procedure, as I experienced it in Ontario, was that an application for a hearing is made, it takes three years or so to get an appointment to physically attend a hearing. In the interim negotiations continue. If a deal is reached an informal session with a judge is arranged in his or her office. The deal is discussed. Thereafter processing of the agreement on paper or, I suppose, by electonic form, takes place without anyone physically attending court. It may be that one is nominally deemed to have had a "day in court" but, in fact, the court just rubber stamps whatever deal is on the table.
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Old Nov 5th 2012, 2:09 pm
  #113  
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Default Re: I'm Back !!!!

Originally Posted by Hawk13
Very interesting and if you can pull that off, that's awesome. But if your ex turns wingnut she can go to court and force you to pay child support, retroactively - no matter what you have already agreed upon. Mine did.
She can't ask for the introduction of child support payments retroactively because she's been receiving child support all along (albeit she's agreed to have it called something else for tax reasons). She might argue about the amount of the support but people can always do that.
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Old Nov 5th 2012, 2:12 pm
  #114  
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Default Re: I'm Back !!!!

Originally Posted by dbd33
Well, I've only direct experience of one case. There were extended negotiations over what amount of child support would be appropriate (notwithstanding our having been separated and payments having been made for a couple of decades prior to the divorce). Once an amount had been determined we went before a judge (not in a formal hearing but in his office). I asked, on my accountant's advice, if it would be ok to write the payments up as spousal rather child support and he agreed. It didn't seem that the judge or lawyers were surprised by the idea and so it came to pass.

From my perspective, I went from paying in after tax dollars to paying in pre-tax dollars. That's a saving though, of course, I'd have to live to be a thousand for the saving to equal the legal fees involved in converting a separation to a divorce.

The procedure, as I experienced it in Ontario, was that an application for a hearing is made, it takes three years or so to get an appointment to physically attend a hearing. In the interim negotiations continue. If a deal is reached an informal session with a judge is arranged in his or her office. The deal is discussed. Thereafter processing of the agreement on paper or, I suppose, by electonic form, takes place without anyone physically attending court. It may be that one is nominally deemed to have had a "day in court" but, in fact, the court just rubber stamps whatever deal is on the table.
Interesting. I have experience of it working in separation agreements but never in a Court proceeding. It sounds very good if you can get approval from the Court. Although I do see one issue with it and I am confident that you are aware pf this particular point: Child support will stop once the child is no longer a child of the marriage (this usually happens sometime between the ages of 18 and 22), unless there is a date of cessation of payments for spousal support, one assumes you will be paying that indefinitely
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Old Nov 5th 2012, 2:23 pm
  #115  
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Default Re: I'm Back !!!!

Originally Posted by Almost Canadian
Although I do see one issue with it and I am confident that you are aware pf this particular point: Child support will stop once the child is no longer a child of the marriage (this usually happens sometime between the ages of 18 and 22), unless there is a date of cessation of payments for spousal support, one assumes you will be paying that indefinitely
In this case the child is disabled and so would never "age out" of support payments. The wording of the agreement is that payments continue until the death of my ex, I have a life insurance policy to cover them after I die. If, for whatever reason, the insurance is discontinued before I die and my ex lives longer than I do, I will be in breach of the terms of the divorce. I don't worry about this unduly as recourse through the courts will be cumbersome due to me being a) in a far country and b) dead.
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Old Nov 5th 2012, 3:02 pm
  #116  
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Default Re: I'm Back !!!!

Originally Posted by dbd33
She can't ask for the introduction of child support payments retroactively because she's been receiving child support all along (albeit she's agreed to have it called something else for tax reasons). She might argue about the amount of the support but people can always do that.
That is interesting.

With mine, the first agreement was that I basically had to agree to split all the assests in her favour (75 / 25), pay for all her medical expenses ($800 / month), pay for everything with the kids from tampoons to dance lessons (she only put food in their mouth and a roof over their head). All that in lieu of not having to write her a cheque every month. It worked fine for a little over a year until her boyfriend left her (who was her boss) and she was fired (for having an affair with her boss who was married). Went back to court and was basically told that you can not get out of paying "child support" no matter what kind of side agreement you have.

My consolation is that my kids understand things a lot better now and I've only got two more years dealing with the ex through the kids and then I will finally and truly be Divorced.

Great to hear that it works out better for others, though.

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Old Nov 5th 2012, 3:04 pm
  #117  
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Default Re: I'm Back !!!!

Originally Posted by Almost Canadian
I guess I must be thick. I won't respond to you any more.
The key is "assistance"
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