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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 98010
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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My matrimonial settlement took 5 years and now in year 6 my

Customer Question

My matrimonial settlement took 5 years and now in year 6 my ex husband has filed a motion to reduce support. The annual review date is Jun 1 but he claims to have misunderstood the Order and unilaterally reduced the support amount on Jan 1, 2014. I involved
the FRO who went by the Order and enforced a higher amount AND had a time of it chasing him for arrears. They had to garnishee his tax return. This is a nasty file. I have a disability and cannot work which is why support is such a hot issue. Opposing counsel
has done everything in her power to take advantage of my illness and discredit me at every opportunity. The Minutes of Settlement were literally a "dog's breakfast." Believe it or not, I'm quoting what opposing counsel said about her endeavor (and her colleague's)
to the Judge in Court. The conference was in Jun 2013 and we did not obtain an order until Jun 17, 2014. Three judges gave opposing counsel a very hard time about small stuff and unfortunately missed some of the ambiguity surrounding some bigger issues. Go
figure. My question: If there was no court order until Jun 17, 2014, can my ex actually apply for a reduction in support for the year 2014? He did finally make an application but it wasn't until Jul 30, 2014 which is past the deadline anyway. Would that likely
be permitted? He also passed the deadline (but just by 9 days) for his 2015 support review request. Opposing counsel is saying I "refused" this and "refused that" and the FRO can state otherwise. I think we should be smearing the payor so he will think twice
before wanting to go to court every year for a change in support. He is suing me for 2014 arrears because of my unnecessary involvement with the FRO who apparently miscalculated and of course 2015 arrears from Jun 1 to present. He is also suing me for court
costs. I think it's ludicrous.
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Legal Ease replied 1 year ago.

Hello again.

I'm sorry to hear this difficult situation that is ongoing. What specifically are you asking about now in terms of needing information?

Customer: replied 1 year ago.
It is very complicated. A court order was issued on Jun 17, 2014 indicating that support reviews would take place every year on Jun 1. My ex husband sent me some financial info and unilaterally reduced support on Jan 1, 2014. He later claimed he misunderstood and jumped the gun.My first question is, this. Since there was no court order, shouldn't we be bound by the Minutes of Settlement?The FRO took over as my ex would not comply and there were arrears to be collected. They enforced an amount effect Jan 1, 2014. He's where it gets complicated. The Minutes said support should be $5982 until annual review (Jun 1, 2014) and the FRO interpreted (misinterpreted) the amount to be $5721. Clearly there is a discrepancy. Does the Order supersede the Minutes?
Customer: replied 1 year ago.
When things got somewhat sorted, my ex applied for a review in support on Jul 31, 2014. Are the courts likely to deny his request given that he is two months late in applying?
Customer: replied 1 year ago.
The Minutes are worded "the Husband ought to pay the Wife the sum of $5721 commencing Jan 1, 2013. The parties have nevertheless agreed that for 2013, the Husband will pay the Wife $5982 per month." My lawyer interpreted that to mean until Jun, 2013 because of the review situation.The Order is written differently hence it was interpreted differently. It basically sorta says that he overpaid me and should have only paid me $5721.My layman's view would say the Minutes should dictate what happens from Jan 2014 until the Order is received.
Customer: replied 1 year ago.
Have you been offline for a while?
Expert:  Legal Ease replied 1 year ago.

I think there's a typo with the dates. Can you confirm that The order was made in 2013?

Do the minutes of settlement say that support will be varied based on the income and how that should be done or do they talk about mediation or arbitration or going to court?

Customer: replied 1 year ago.
The Order was issued June 17, 2014.
He unilaterally reduced support on January 1, 2014. He jumped the gun as yearly reviews are to take place on June 1.
He was advised of the error and subsequently applied (casually through me) on July 31, 2014. He missed his deadline. Question is, will the courts permit the change regardless of application date? He was delinquent with arrears; they were paid on August 29, 2014 for January thru May.He actually made application thru the courts for the 2015 review but he was 9 days late.All the Minutes say is "At the written request of either party, the quantum of spousal support payments will be adjusted annually on June 1 (commencing June 1, 2014) of each year based on the parties personal incomes..."It was the FRO that determined he required a court order to change support. The reason they gave (my words) was the Order was so poorly written and ambiguous that they could not decipher his definition of salary which was full of "ifs, ands and buts."He gets to reduce my support with no limitations. Can the FRO enforce the support amount for Jan 2014 to May 2014 when there was NO Order. At that point, the Minutes of Settlement (as I understand it) should have dictated.He works for himself so he reduces support at his discretion.
Expert:  Legal Ease replied 1 year ago.

So do you mean he reduced support on January 2015?

But yes, the court will allow the application even after the deadline but the variation, if any, will go back to the deadline date.

FRO cannot enforce Minutes of Settlement and can only enforce an order that is very clear in terms of the amount or how to calculate it.

Customer: replied 1 year ago.
It's confusing, I know.He reduced support on Jan 1, 2014 which put him five months in arrears (Jan to May); the review wasn't until JUNE 1, 2014.
He paid the arrears from Jan to May on Aug 29, 2014. Subsequently, however, with no authorization at all, he continued his reduced payments until June 2015. The FRO chased him and he got himself all paid up in the nick of time for a formal court application for 2015 support.He is suing me for the difference between his calculation and the FROs for all of 2014 (saying stupid stuff) and he is also suing me for court costs. Now he wants to offer 2014 support at his calculation (and I would owe him) but will keep the same amount thru to 2016.I don't like complicated and if we dismiss the FROs due diligence and agree to what he wanted in the first place, doesn't that look bad for me on the court costs. And won't it affect my taxes? My lawyer is hoping they will disallow his late application.
Customer: replied 1 year ago.
I do have another question. Do I have any leg to stand on re: the fairness of the variation? I don't see how since it all depends on his earnings. What is considered to be under employment?
Expert:  Legal Ease replied 1 year ago.

OK. Now I understand. Sorry about that.

Everyone asks for their costs.

And your lawyer will undoubtedly advise you to make an offer to settle because if you do better than your offer in court you will get an order for your costs. If you don't understand what I am saying it is vital you ask your lawyer about this.

If you get an adjustment in support it will affect your taxes unless you come to an agreement where you both agree that he will not deduct the support from his income and you won't then have to include it.

It seems to me that you need a better order that the FRO will not hesitate to enforce if necessary.

It doesn't necessarily depend on his earnings in the sense that if he is deliberately under employed then the court will impute income to him and base support on that income.

So if he is now earning less and there is no bona fide explanation this is a major issue to bring before the court.

Customer: replied 1 year ago.
I think I understand and if I know my ex husband that offer will be right on the line. He is forensically calculating and manipulative.The harassment continues; they are now calling me unstable. To what end, I'm not sure. I just keep categorically "refusing" everything. It's all lies. Why must they beat me so.Perhaps I will calculate how much support has dropped yearly since he's been paying (2012). I should think he won't be dropping it too much more as he approaches 65. His salary started out at $250K and he's now down to $150K at age 60. People get used to a certain income and that's quite a drop.Yes, I can assure you his offer will be right on the line. I'm glad you told me they will allow his application past the deadline. I should think his lawyer would encourage him to try and be timely though. It's kind of a good faith gesture and if he could jump the gun 6 months early he could certainly make a point of getting to the deadline.Thank you.
Expert:  Legal Ease replied 1 year ago.

Be sure to speak to your own lawyer about putting in a good offer.

Customer: replied 1 year ago.
Could you please clarify what you wrote: "But yes, the court will allow the application even after the deadline but the variation, if any, will go back to the deadline date."It's the "but" I find misleading. Do you actually mean to say the court will allow applications for review even after the deadline AND variation will be effective from the review date (in this case June 1). He actually didn't make application for 2014 until June 9, 2015; he's killing two birds with one stone.
Expert:  Legal Ease replied 1 year ago.

In most cases the court would look at the support for each time period and then decide if the support was right or should be varied.

If he waited a full year for no reason then it may be the court will say he could have done this before, did not and so the court will not consider the year before so you will have to try and show why this will cause undue hardship and that there was no reason for the delay he will have to show good reasons for waiting this long.

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