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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 100379
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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Our separation agreement has defined custody as 50/50.

Customer Question

Our separation agreement has defined custody as 50/50. However, in 2015 the children (two ages 2 and 5 at the time) were with me my 50% of the time, plus 6am-6pm for a few months, and fulltime for 6 months except weekends (meaning both children spent 70-75% of their time (at least if not more with me). I receive the child benefits and universal childcare benefits. If the childrens father files for these child benefits and universal child care benefits and includes the seperation date of August 2014 (we have been living separate residences since June 2016), then my understanding is he could be given 50% of the benefits back paid for the last 11 months. However, my understanding is also that because the children primarly were with me I could appeal this with the CRA. My question is whether I understand the previous correct. If he files, is there a way to contact the CRA and legally prove that he is not entitled to the last 11 months retroactive pay because of the custody arrangements. Also, if he files I will no longer be watching the children for him on his weeks between 6am-6pm for him while hes at work so how do I best protect myself from him showing up at the door with the kids if his alternative care/ other arrangement falls through?
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Legal Ease replied 1 year ago.

Did he pay you child support during the time you had the kids more?

Customer: replied 1 year ago.
No he didn't pay me any more during that time. During he six months he was in school I tried to get some food out/groceries out of him and he maybe provide 40 worth but not enough to feed two children full time for 5 of his days. He didn't increase any payments for those six months. For the remaining months we had a verbal agreement where I would claim the child benefits and he could drop kids off between six am and six pm on his weeks. His employee records would show his work hours and neighbours see my mom at my house with the children everyday even on his weeks as she watches them here.
Customer: replied 1 year ago.
The verbal agreement or understanding that I was claiming benefits child tax and universal was from time we moved into seperate homes until now. I told him today he can file but I will not be watching the kids for him on his weeks going forward.
Expert:  Legal Ease replied 1 year ago.

The CRA would need some order or written agreement before they would agree to give you what you are clearly entitled to if he protests.

So you would likely have to go to court to get an order giving you sole custody during that time and/or an order requiring him to instruct the CRA to give you the full benefits.

You cannot protect yourself from him simply dropping the kids off at your door.

But you can get a firm order about custody and access.

Customer: replied 1 year ago.
I could file with the court an order for the priod of June 2015 until now saying the children were with me 75 or majority of the time and then send that order if granted to the cra so that it protects the child benefits from last year that were paid to me
Customer: replied 1 year ago.
Then I would only have to worry about from today onward what happens.
Expert:  Legal Ease replied 1 year ago.

You would ask for an order for sole custody and have the court also order that the father cannot claim these benefits and the court order would provide the dates for when he cannot claim the benefits. The court could deal with the benefits issue both retrospectively and going forward.

Customer: replied 1 year ago.
Okay so I can ask for an order of sole custody based on between x date and x date say until July 2016 based on him having the children 25% and me having them at least 75% based on these time frames each week. Does that mean it the court agrees with me which I wouldn't see why they wouldn't, that they are only granting sole custody between the times I am requesting or does that order change the seperation agreement permanently until he proves he is watching them 50% of the time. I don't want to stir the pot by filing for primary care over last year and him think I'm trying to take the kids fulltime permanently, just trying to protect what I was paid that covered the child expenses
Expert:  Legal Ease replied 1 year ago.

The court will not grant sole custody for a specific time frame. But you can be granted sole custody now and that, coupled with an order that the father tell the CRA you are entitled to the benefits will be enough.

You would provide that order to the CRA and then you would be set unless there was a new order.

He can always get joint custody on consent so you can say that when he is ready to have the kids half the time you will consent to varying the order and going back to the original agreement.

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