Was the agreement regarding child support part of a broader BFA under PART VIIIA of the family law act or a stand alone BCSA, & did both parties agree to have it be a registered agreement with the CSA?
Obviously I can't comment on your likelihood of success should you seek to have it enforced via the FCCoA, BUT, depending on the answer to my questions, if it's a accepted as a BCSA then under the CS Assessment act, the test for setting aside is not a material change in circumstances, but exceptional circumstances, which is a higher bar. Also if it was agreed by both parties to be registered with the CSA as a BCSA, then again much less wriggle room for him.
Hi Atticus. Thank you so much for your comments and questions.
Yes - the BCSA was/is a stand alone BCSA. We both had to have lawyers explain it and sign it off. It was/is registered with CSA - his solicitor sent it to them and never even provided me with a copy - I had to get a copy from CSA. Essentially it states that we will have Child support as assessed, and in addition, we will each bear 50% of the school costs of them attending their current school.
CSA will enforce the 'child support as assessed', but won't consider any recovery of the additional school costs.
The Property settlement Orders that were lodged when we were in Family Court had a notation that we would be entering into a BCSA - I now realise this was probably a clever move by his solicitor to have a notation rather than a clause.
Essentially he got most of the real property - 2 houses that were mortgaged and some investments. He has had changes in circumstances, and so have I - as expected over the course of the 13 or so years that the BCSA covers. He currently (still) earns more than I do, has married, and had 2 more children. He developed a recreational drug habit with his wife that became a big problem for them, hence squandering the proceeds of the 2 houses. Maybe that would be classed as exceptional? This was well documented in the Children's proceedings and reflected in the Children's orders, so I don't really even consider it a change in circumstances but it's hard to know what a court would decide. We can all shirk our responsibilities if we choose.
As the children are both in high school now the fees are becoming crippling for me. But it is their community, not just a school, and they are excellent students. We are very fortunate now to have part scholarships.
What has put me off all along is the fact that I will have to find the funds to pay a solicitor and go back through court with no real certainty of recouping 1/2 the costs. He has investments that I put in place that mature in a couple of years - I could possibly put a caveat on if I was to be successful. If I had known this was how hard it would be to survive and not disrupt the children I would definitely have not done things this way.
Anyway, thank you for your comments.
