« Back to DSF Blog

Archive for Category: ‘Family Law’:

All Archives by Month:

Archive for the ‘Family Law’ Category

Common Law Spouses, your Property and the Law?

May 23rd, 2013

Question:

If a friend lives with me for many years, could s/he claim that s/he is my common law spouse and, as a result, be entitled to half my property?

Answer:

There are two questions that need to be answered in order to properly respond:

What is a common law spouse?

If I have a common law spouse, is my s/he entitled to half of my property?

Whether or not a person is in a common law relationship is a question of fact that needs to be answered prior to determining one’s rights and obligations in a relationship. In Ontario, what is referred to as a “common law” relationship is defined by section 29 of the Family Law Act. It is defined as a relationship in which two people, who are not married to each other, cohabit continuously for a period of not less than three years; or are in a relationship of some permanence if they are the natural or adoptive parents of a child.

If there are no children involved, simply living under the same roof with a friend, in a platonic relationship, for three years or more would not trigger the obligations, which arise between common law spouses. The case of Stephen v. Stawecki is instructive and provides that the entirety of the couple’s circumstances must be taken into account. There must be an demonstrated intention to actually be in a conjugal relationship and you must hold oneself out as being in that relationship with the other person. If you have attended gatherings with family and friends as “a couple”; if you share finances; if you cook and meet for your meals together; if you discuss moving forward in your life together as a couple for a period of three years or more, then there may be cause to consider whether you are in a common law relationship. If this is the case, you should contact a lawyer to discuss your possible rights and obligations. However, simply with a roommate, without these other indicia of a conjugal relationship, is likely not sufficient to trigger the obligations which arise between common law spouses.

This said, even if you are in a common law relationship, the statutes do not permit a right to share in the possession or value of property of the other spouse in the way that is associated with legally married spouses. Common law spouses do not have a “matrimonial home”; they do not have the right to share in the increase of your RRSP’s, pensions or investments. To learn more about “matrimonial home” watch this video. This said, they can make a complex legal argument that they are entitled to share in the increase in the value of a particular asset if they can show that you were “unjustly enriched” by the increase in value, due to their direct and substantial contribution to your asset. A successful claim of this sort is the exception and not the rule.

Common law spouses may have the right to spousal support, however, the entitlement to spousal support is made on a case-by-case basis, considering the length and nature of the relationship, as well as the means and needs of each spouse. To read our blogs on spousal support click here.

If you are concerned that you may be in a situation which may trigger the right to spousal support, or a claim for unjust enrichment due to your spouse’s contribution to an asset, you should consult with a Family Lawyer as there are ways, such as negotiating a cohabitation agreement, which may help protect you in such circumstances.

For more information on Common Law Spouses and Relationships, or if you need a Toronto Family Lawyer, please contact one of our Toronto Family Lawyers at Devry Smith Frank at Toronto Family Lawyers.

Getting Professional Help Making Parenting Decisions

May 13th, 2013

Getting Professional Help Making Parenting Decisions

This is a excerpt from Devry Smith Frank LLP Family Lawyer John Schuman’s book called Guide To The Basics of Ontario Family Law available on Amazon. For more info click here

After separation, parents who are in conflict frequently employ professionals to assist them with parenting issues. Alternatively, a court may order assistance from professionals. In separation and divorce matters, these professionals are most commonly involved as either parenting coordinators or as custody/access assessors. The same professionals can also act as mediators to help parents develop a parenting plan for their children.

Getting Professional Help Making Parenting Decisions in Toronto

Parenting coordinators help fighting separated parents resolve on day-to-day parenting issues. Parenting coordinators are almost always child-focussed social workers or psychologists. They take a child-centered approach to suggest solutions to disagreements between parents. Parents can agree, or the court might be able to order (1), that a parenting coordinator will have the powers of an arbitrator to make a decision when the parents cannot agree. Since the process involves a child-centred mental health professional, parenting coordination is a popular way to address minor parenting issues between parents who are always in conflict. Although parenting coordinators are privately retained, it is usually cheaper to pay one parenting coordinator than two lawyers to resolve issues such as when and where access exchanges will take place, how to get information from a child’s school, or which parent will attend a school function. The downside of parenting coordination is that it can provide easy access to a forum to keep fighting if one or both parents want to continue the conflict. However, if both parents want to find ways to end their conflict, parenting coordinators may be able to teach them how.

A custody/access assessment, which is also called a “Section 30 Assessment” (2), is very different from parenting coordination. Judges often feel that they do not have the proper training to determine what is in a child’s best interests, because a judge’s training is in the law and not in child welfare (3). So, judges often like to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like. There are two methods to obtain custody/access assessment. The first is that the parties can agree to have a custody/access assessment. The second method to obtain a custody access assessment is that a judge can order one if he or she is of the opinion that there are clinical issues that are outside the scope of the judge’s legal training (4).

Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work. They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart. The custody/access assessor usually meets with the children as well. Often the assessor will speak to other professionals and other people who are important in the children’s lives.

At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent. The assessor then communicates his or her opinion to the parties. If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial. The Trial Judge can accept or reject the assessor’s opinion (5). However, the opinion of a custody/access assessor is usually very persuasive to a judge.

The Office of the Children’s Lawyer can be involved in custody/access disputes before the court. A court can ask the Office of the Children’s Lawyer to become involved to assist a child. The Office of the Children’s Lawyer still has the discretion as to whether or not it will become involved in custody/access matters. In addition, the Office also decides whether it will appoint a lawyer for the child (6), or appoint a social worker to conduct a “Clinical Investigation,” (7) which is very similar to a custody/access assessment, or whether the agency will provide both. The Office of the Children’s Lawyer, which exists only in Ontario, takes the position that it is not necessarily its job to advocate for a child’s views and preferences, but rather to advocate for that child’s best interest. The child’s views and opinion are only one consideration that the lawyer representing them through the Office of the Children’s Lawyer will consider. The agency will consider all the circumstances surrounding the child and tell the court what it believes to be in the child’s best interests. The position of the Office of the Children’s Lawyer is very influential on a judge, because judges often view that Office as being impartial.

There may be many other issues besides custody and access between separating partners or spouses other than the ones discussed above. This is why it is important for you to consult Family Law lawyer regarding your specific custody and access concerns.

(1) Young v. Young 2010 ONCA 602.
(2)The order for these assessments are made pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended.
(3) Przygocki v. Przygocki [1993] O.J. No. 1743
(4) Levine v. Levine (1993), 50 R.F.L. (3d) 414
(5) Weaver v. Tate, [1989] O.J. No. 2201 (H.C.J.).
(6) Pursuant to section 89(3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.
(7) Pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.

How Step Parents And Grandparents Can Have To Pay Child Support

May 8th, 2013

How Step Parents And Grandparents Can Have To Pay Child Support

Parents and even Grandparents can find themselves on the hook for child support in Canada. This is episode of the Ontario Family Law Podcast explains how that happens. The basic premise of child support is that it is paid by all parents to a child. But, a child can have more than two parents. When parents or step parents step into the role of parents, they may step into paying child support. This podcast explains how judges decide whether someone is now a parent to a child and should pay child support. John Schuman also discusses how much support a step parent may have to pay when the biological parent in the picture and when biological parent is gone.

How Step-Parents and Grandparents Can Be On the Hook for Child Support

If you are becoming close to someone else’s children, or even your own grandchildren, you should listen to this podcast to findout whether you are putting yourself on the hook for child support.

Do Judges Care What Children Want In Child Custody Cases?

May 7th, 2013

Do Judges Care What Children Wants In Child Custody Cases?
I have a court appointed psychologist report recommending 1/2 custody, I applied for a motion and the judge announced we must go to trial, but I have no money to. Can a child of 13 yrs apply to court for her chosen custody?

In Child Custody Cases, custody and access assessments are not binding on judges. That means judges do not have to follow them. The report is only one piece of evidence, and the psychologist is only witness at a trial. The judge has to consider everything. For all the factors that a judge has to consider read this webpage: How do judges decide which parent gets custody of a child?.

At 13 years old, what a child wants is a factor that the judge has to consider, and it may be very important to the judge. In addition to all the other resources, you may want to listen to this podcast: What say do children get.

Judges are becoming more and more interested in what children have to say in separation and divorce. If the child has a clear preference, that is the result of pressure (intentional or not) from one party, that can be very important to how the judge decides. Judges care what children wants in child custody cases.

Judges care what children want in child custody cases in Toronto

If you have a report in your favour and your child’s views are in your favour, then you should make a formal offer to settle on the same terms as the report. If the judge agrees with the report after the trial, the judge can order your spouse to pay almost all of your legal fees from the day you made the offer until the day the judge made the order. If that order comes after a trial, then your spouse could owe you a lot of money. There may be some other strategies to get what you want while avoiding a trial, but those would depend on some very particular facts in your case. So, you should speak to a child custody lawyer about your situation.

You should also get a copy of this easy-to-understand $20 book on Ontario Family Law: Devry Basics Ontario Family Edition. It explains the court process, and gives several tips for how to succeed in court, and goes over the basics of Ontario Family Law so you have some idea of what your rights are. It goes over everything in this post in more detail. It may even be on sale on Amazon right now.

For further information or assistance in regards to family law, including questions and answers about topics like “Do Judges Care What Children Wants In Child Custody Cases?”, please contact one of our Family Lawyers in Toronto.

Podcast: Play in new window

Special and Extraordinary Child Support Expenses

April 22nd, 2013

Child Support’s Special and Extraordinary Expenses

This is episode of the Ontario Family Law Podcast is all about child support’s special and extraordinary expenses. Parents share those expenses on top of base child support, so it is important for them to understand how this component of child support works. This podcast explains what special expenses are and what extraordinary expenses are. It also explains how parents calculate how much of these expenses they should share. After that, John Schuman discusses the definitions of special expenses and extraordinary expenses and how they are different. He then gives specific information on sharing the following types of expenses as they relate to child support:

medical expenses
child care expenses
post-secondary education expenses
extra-curricular activities
sports – from beginning lessons to the elite level
hockey
private school

All separated parents should listen to this podcast to make sure they are paying, or receiving the right amount for special and extraordinary expenses.

Podcast: Play in new window

Can a CAS worker interview my child without my permission

April 18th, 2013

Can a CAS worker interview my child without my permission and What are the Parental rights of Parents with Special Needs Children?

Does a CAS worker have the right to interview my 14 yrs old daughter with severe learning disabilities, ADHD and ODD without my consent after I have notified the school in writing that they are not to hold these interviews on the school property? If the information they gathered while interviewing my child requires them to request an in-home interview with the parents and other children, must I comply and allow them into my home? What are the parental rights of parents with special needs children in Ontario?

Yes. In Ontario, a Children’s Aid Society has the right to interview children without their parents’ consent during the course of a child protection investigation (an investigation into abuse or neglect). The school cannot stop the CAS from interviewing a child either. There may be issues as to whether a particular CAS worker is qualified to interview a child with specific special needs. However, refusing to let a child speak to a CAS worker only makes it look like you are trying to hide something and you are afraid that the child may tell the CAS that you are abusing him or her.

Whether you speak to a CAS worker yourself is a more complicated matter – and you really need to consult with a lawyer who does child protection law. If you do not cooperate with the CAS, that will be held against you. However, if the concerns are that you did something contrary to the Criminal Code, then you also have a right not to speak to the CAS because the CAS worker will tell the police every thing you say. If you are charged, you statements may be used against you in criminal court. If you do not speak, your refusal to speak to the CAS may be used against you in child protection court and make it difficult for you to get your kids back if the CAS takes them. This is a very difficult situation to be in. Child protection lawyers (the small number of family lawyers who do Children’s Aid Society cases) can give you a lot of valuable advice, specific to your situation, to try to keep you out of trouble.

Another good reason to speak to child protection lawyer right away is that there is a big advantage to having a lawyer ready to fight back right away if the Children’s Aid Society does take your kids, or starts court proceedings, or asks you to sign an agreement permitting the agency to be in your life. There is also a chapter on what to do when the children’s aid society is investigating you in this $20 easy-to-understand book on Ontario Family Law: Devry Basics Ontario Family Edition.

It really is worth your while to consult a child protection lawyer and read the book because if you get yourself into a trouble in a CAS case, it can take a long time to get yourself out and that may mean that your kids are in foster care for a long time. Getting good advice early on parental rights of parents with special needs children in Toronto can keep you out of trouble.
John Schuman is the head of the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca

Child Support For Children With Disabilities and Back Support

April 10th, 2013

This is in regards to child support for children with disabilities. My son is 21yrs old, disabled and requires 24 HR supervision. I found out that his father had been lying about his income since 2002. He works for Trousers in Edmonton. A higher up position said he is making $24,000.00 a year. I am unable to work as I am caring for my son. As I see it his father owes us back support payments and should continue to pay support. He has never been in his sons life. Left when he knew our son had a permanent disability. My son and I live in Ontario, his father in Edmonton. What are our rights, I can’t afford a lawyer. Any advice would be helpful. Tried but legal aid Ontario won’t help. Please help us. Thank You, Sharon.

Child support will be around 15% of the father’s total income paid to you tax free. The link (below) to My Support Calculator will give you a precise figure. If you asked for the income information, and his father lied about it, then you will be entitled to a retroactive adjustment back for a long time. If your disabled son’s needs are not being met because of financial difficulties, a judge will not be sympathetic and may order the support adjustment retroactive to when the father started lying about his income. On top of that, he will have to pay a large (probably most) of the costs of “special expenses” in relation to your son’s disability, which could include respite care, medication, devices, and professionals not covered by OHIP. Again, this could be retroactive. Since your son is over 18 years old, you may want to look at this page as well: Child support does not end.

support-for-children-with-disabilities-toronto

In addition, if you cannot work because you are caring for a disabled child, you should have been receiving spousal support. That could be a big number too. Whether a judge will order spousal support in the circumstances is more up in the air because you did not ask for it right away. Since your not working is still related to the relationship, there is an argument to be made, but also an argument you should have asked earlier. (Of course if you knew his true income, you would have asked earlier.) For more on spousal support, this video and see these webpages: Spousal support will I get it and Spousal support how much will I get.

In the circumstances, it would likely be worth your while to hire a lawyer because the amount of money to which you may be entitled could be large (and except from bankruptcy if he tried that). A judge might also order him to pay some of your legal bills in the circumstances (as long as you act reasonably in the circumstances.)

To get more information about these, and many other, family law issues, and also information and tips for how to proceed in family court, get a copy of this $20 easy-to-understand book on Ontario Family Law: Devry Basics Ontario Family Edition

For further information or assistance in regards to support for children with disabilities or family law, please contact Toronto employment lawyer John Schuman.

Spousal Support and the Marriage Contract

April 4th, 2013

The marriage contract makes a clear statement that no spousal support will be paid after the divorce. Under what circumstances can the judge enforce the spousal support on the working spouse, if the second spouse is unemployed? We live in Ontario.

There are specific circumstances in which a judge might set aside a marriage contract to order spousal support. They are discussed in more detail in this $20 easy-to-understand book on Ontario Family Law: Devry basics Ontario family edition. It is not a simple answer. You really should consult with a family lawyer about how the law applies to your particular circumstances because a little fact can make a big difference. But, I will give also give a brief summary.

Spousal support can be ordered because a marriage contract has been set aside in these circumstances:

1.The parties did not understand the marriage contract, meaning they did not each consult with an independent lawyer of their own choosing.
2.They did not exchange financial disclosure when they signed the contract.
3.The contract has terms that are not legal (and the terms of the contract are not severable).
4.There were problems with the negotiations – either one party was under duress, or one party was under pressure (the contract was signed right before the wedding), one party was trying to be “sneaky” with regard to the wording of the terms, there was unequal bargaining power, etc.
5.The parties did not contemplate the situation that they are in now at the time they signed the contract.

There is a more complete discussion of these considerations in the resources listed above. If your contract was drafted by a good family lawyer, then chances are it has all the terms and wording it needs to guard against being set aside. But you should take it to a family lawyer and have them check the terms, and the situation, and let you know your situation. Spousal support can be worth a LOT of money, so it is best to know your rights and not guess.

marriage-contract-toronto

One more note… The test for whether a court can order temporary or interim support is different from the test for making a final order for support. It is possible that a judge can order spousal support until the issue of whether spousal support should be ordered at all is determined in full. I realize that sounds a little confusing. It is complicated area of law… another reason to speak to a good family lawyer about your situation. For further information or assistance in regards to marriage contracts or spousal support, please contact one of DSF’s Toronto family lawyers.

How do I make a child support adjustments if I’m paying too much?

March 28th, 2013

I believe I’m paying too much child support and want to know how to make a child support adjustment. Based on the average of my last 3 years income, according to the online government charts, I am paying approximately $100 too much every month. Do I have any recourse? Thanks for your help.

If you have checked the tables, and you are a salaried employee, then you probably have your child support right. If you are self-employed, calculating your income is significantly more complicated and it may not be worth it to try to change support for $100 per month. Also, you may have an obligation to contribute to special and extraordinary expenses, and if you are not, that might eat up the $100 per month. For more on special expenses, watch this video: child support in Ontario or read this page: what about my son’s hockey fees and my daughter’s daycare expenses.

child-support-adjustment-toronto

If you are overpaying support, and you are paying under an agreement, then you can renegotiate that part of the agreement, possibly using mediation or arbitration as a faster, less expensive way to resolve the issue. If you are paying pursuant to a court order, then there is a simplified process under Rule 15 of the Family Law Rules (English elaws) to change support. You file a Motion to Change Form and a Change Information Form, along with a new financial statement and 3 years of Notices of Assessment, with the court. You then serve those documents on your ex. The court will schedule a case conference or DRO. After that, you may go to a motion to have the judge decide what the appropriate level of support will be. To navigate this process, it is best to at least consult with a family lawyer. In addition, more information about child support, and more detailed instructions about how to change support, as well as more in-depth description of the court process, can be found in this $20 easy-to-understand book on Ontario Family Law: Devry Basics Ontario family edition.

For further information or assistance in regards to child support adjustments or family law, please contact Toronto employment lawyer John Schuman.

Mother Denies Me Child Access, Do I Keep a Journal?

March 20th, 2013

Mother Denies Me Child Access, Do I Keep a Journal? How can I in force a court order?

If the mother is repeatedly denying you child access, against a court order, then you should keep track of the circumstances. But do not let it go on too long. You should go back to court, on a motion, and ask for the court to order make-up child access for the time you have missed at times that work for the children and you. The judge will not be happy that your ex is not obeying the court order. She will get told off. While the judge will always make the order that is in the best interests of the children an important factor in that is how willing a parent is to support another parent. Bringing a contempt motion immediately might make you look like a bully or part of the problem. However, if the problem persists, then you can use the judges comments on the first motion (for make-up time) as part of your evidence in the contempt motion and the second judge will probably be really angry.

If the mother says the kids do not want to go, check out this webpage Can I be held in contempt for the answer. That is often not a valid reason for denying access.

child-access-toronto

Whenever you go to court, you should consider the circumstances of your children and the effect that your actions might have on them. Judges really like it when you show you are sensitive to those considerations. To find out more about them, listen to this podcast The voice of a child protecting children during divorce.

The best way to make the best case to a judge is to have a lawyer help you. You should also get a copy of this $20 easy-to-understand book on Ontario Family Law, as it covers these topics, and gives advice on how to navigate through Family Court and how to keep the judges on your side Basics of Ontario Family Edition.

For further information or assistance in regards to child access or enforcing court orders, please contact John Schuman Toronto Family Lawyer at (416) 446-5080.

Child Support in Ontario/Canada: Who Pays and How Much?

March 20th, 2013

Child Support in Ontario/Canada: Who Pays and How Much?

In this episode of the Family Law Podcast discusses the basics of Child Support in Ontario and in Canada. It starts with who pays, and then moves on to explain how much child support should be paid by going over the calculation. There is more than one component to child support. There is both base child support and contributions to special and extraordinary expenses. This podcast explains what each component is. Finally, the podcast discusses some of the special circumstances in child support, such as when the children divide their time equally between parents, when some children live with one parent and other children live the second parent, and what happens when there are more than two parents.

Child support is an area where a lot of people get into trouble. This podcast is critical listening for anyone who is a parent to children, or who is about to become a parent either by birth or by moving with a new partner who has children.

Legal Separation agreement

March 14th, 2013

Legal Separation agreement In Ontario not through the court

Hi, I read that in Ontario you need to have a third party witness the signing of a legal separation agreement that is between Husband & Wife ( there own document ). Asked today from Pickering, Ontario
Answer by John P. Schuman, Toronto Family Lawyer.

Yes. To have legal separation agreement in Ontario, you have to meet three basic criteria: the separation agreement has to be in writing, it has to be signed and both parties have to have their signature witnesses. There are some additional considerations. A court can set aside the separation agreement, if either party asks, in certain conditions. These additional conditions essentially create other rules you must follow.

Those rules are:

Both parties have to fully understand the agreement – to understand a legal document judges think people should have independent legal advice, so this really means both sides need to see a Toronto family lawyer to at least have the agreement explained to them before they sign.
The parties must exchange all relevant financial disclosure. This usually means exchanging information about your income, all your assets (and their value) and all of your debts. This goes back to understanding again. How can you understand if your deal is a good one if you do not know what your ex’s financial situation is like?
The agreement must otherwise comply with the law of contract. There are rules for contracts. Lawyers know them.

toronto-family-law-lawyer

You would probably have to get a book on contract law to know them. Also, complying with the law of contract also means that the negotiations were done properly and the parties fully contemplated their circumstances at the time of the agreement and in the future. Again, the best way to make sure you have done this is to see a lawyer. If you do not follow these steps, you agreement may be worthless if you ever need to enforce it in court… meaning it is only good as long as you and your ex decide to keep following it.

Also, there is a lot more detail about the rules for legal separation agreements, and the Family Law that you need to understand in this $20, easy to understand book on Ontario Family Law Devry Basics of Ontario Family Law .

How Properties are Divided After A Marriage in Ontario

March 13th, 2013

How Properties are Divided After A Marriage in Ontario

When married couples separate in Ontario, they don’t just have to separate their lives. They have to separate their finances. One of the main reasons people see Ontario Divorce Lawyers is to help figure out how to divide up their assets and liabilities after they separate. This is episode of the Family Law Podcast discusses how property is divided in Ontario after a marriage. Many people think that spouses own each other’s assets. They do not. Family lawyers know that separated married spouses only get to share in some of the value of each other’s assets in the “property equalization” process, which can be voluntary process. In addition, not all assets and debts are shared. Some are kept out of the calculation. This podcast tells you what is in and what is out. It also describes some common pitfalls where people unnecessarily lose lots of money to a spouse, and it gives tips on how to protect your assets. Everyone who is going through a separation should listen to this podcast to know their property rights, how to protect them. Even if you are no in family court, you need to know whether you are making a good deal.

Partner does not want to sign a separation …….

March 7th, 2013

Partner does not want to sign a separation agreement document, what can i do?

What can I do if my partner does not want to sign up a separation agreement doc? We have a child and property together but I already said to her that she would keep the house. Regarding to our Son she does not want me access, she is not going to allow me to see my child unless it is inside the house. I have already said to her that we can arrange for custody in her terms cause I don’t know what to do but she does not want to sing up the doc accepting the issues that we solved which are: she keeps the house and our marital separation. What can I do?

There are many ways to try to resolve things with your spouse after separation and negotiating a separation agreement is the easiest and most sensible. It often results in the best outcome for everyone. When there are disagreements in the negotiations, you can choose from family mediation, family arbitration and collaborative law, all of which avoid the emotional and financial turmoil that court invariably causes. For more on the options see here Once I have separated do I have to go to court?.

toronto-family-law-lawyer

However, to pursue any of those “nice options”, both parties have to agree. If one (or both) parties are being difficult and cannot agree to anything you have to go to court. Court is the only process that you can force someone else to use. Due to the resulting safeguards, it is also the most time consuming, most expensive and the one that gives the parties the least control over the outcome. For more on the downsides of court, read The down sides of the court process.

Fortunately, if you have to go to court, you can always go back to negotiation, mediation or arbitration to resolve matters outside of court. Unfortunately, once you are in court, you cannot use collaborative practice.

At my firm, we are experts in both going to court and all the alternatives to court and knowing which option is the best for our clients. That is how I was able to provide so many links above. However, to know what is best for you, you should speak to a lawyer about your options. It also helps to have an objective understanding of each of the options and the law that is going to apply to your circumstances. This $20 easy-to-understand book covers the court process, the alternatives to court and the basics of all the Ontario Family Law that may apply to you Devry Basics of Ontario Family.

Ex wanting additional child support if I live with a girlfriend

March 4th, 2013

Ex wanting additional child support if I live with a girlfriend.

I have been legally separated for over 10 years … everything finalized in separation agreement … have joint custody of my daughter .. ex-wife is primary care-giver … I pay child support, the amount for my income based on the gov’t tables …no longer pay spousal … am soon moving in with my girlfriend of 3 years … is there any chance my ex-wife can demand more money (for any reason) from me based on my better financial situation being in a two income household … do not want to hinder the future of my relationship by the possibility she can …

Asked 1 day ago in Mississauga, Ontario
Categories: Family Law

Answer by John P. Schuman
Ontario lawyer
Regarding child support, unless you are somehow sharing income with your wife (you are paying her as subcontractor, have an arrangement with your employer to pay her instead of you, etc.) her (your girlfriends) income is not relevant for the spousal support calculation…. unless she steps into the place of a parent (meaning she becomes more that just a babysitter). If she becomes a parent, then she may be liable for child support. There will be a video blog on www.schumanlaw.ca soon, but here is a brief article But its not my kid. If your income has gone up since child support was originally set, you may owe more on that basis as child support is reviewable, and changeable, every year.

additional-child-support

Spousal support is more complicated. It should never be bases on your new partner’s situation, but it may be possible for your ex to ask to start it up again. A lot may depend on how support ended and whether you stopped paying pursuant to an order or agreement that specified an end date. It may also depend on how long ago that the spousal support stopped. If your wife has not been receiving spousal support for a while, then she may be “self-sufficient”, which is one of the goals of spousal support. If she has already achieved self-sufficiency, it may be difficult for her to ask for more support. But, to see if she might qualify for support again, read this post Spousal support will I get.

To get the most piece of mind, you should speak to a family lawyer who can apply the law to your situation. Also, this $20 easy-to-understand book explains child and spousal support in more detail, and explains what your spouse has to do to change the current support situation Devry Basics of Ontario Family Edition. It also explains the basics of almost every other family law issue.

Can you get a divorce if you don’t know where your ex is?

February 28th, 2013

My boyfriend wants to file for divorce from his wife. They have been legally separated for 7 1/2 years. No kids involved. He has had no contact with her and doesn’t know where she lives. We have tried finding her address and or phone number on line with no success. We found her and her daughter on Facebook. Sent them both messages and they have not responded. How does he file for divorce if we don’t have her address to serve her the papers. We know that she did at one time work At Superior Propane. Called there as well and they have no extension for her.

ANSWER

After you start the divorce proceeding, asking for only a divorce, you can bring a motion, without notice, asking for an order that the wife be deemed to be served by sending her a message on facebook, sending court documents to her last known address or similar. That motion can be brought “in writing” using a form 14B and supporting affidavit, so there does not need to be an actual in-person hearing before a judge. You can look at Rule 6(15) of the Family Law Rules e-laws by government of Ontario.

toronto-family-law-divorce

However, you may save time and frustration by getting a lawyer to do this for you. The lawyer will likely only charge a little bit more for doing this than he or she usually charges for an uncontested divorce. My firm charges $1500 for uncontested divorces. If you have to wait a few times in line at the court office while you get your paperwork in order, you may find that cost is worth it to avoid frustration. For more about uncontested divorces see this video How to get a divorce . For more information on family law matters, including the ones above, you may want to get a copy of this $20 easy-to-understand book on the Basics of Ontario Family Law

Does A Stepdad Have Rights To A Child If…

February 26th, 2013

Does a stepdad have rights to a child if they didn’t adopt them but the Childs last name was changed to the stepdads

I just answered that very question at a presentation I gave on Valentine’s Day.
toronto-family-lawer
However, the simple answer is that in Ontario, anyone can apply for custody or access to any child. So, you have the “right” to ask for either custody or access. The judge then decides what order is in the child’s best interest. The full list of the factors that judges consider in these cases are described here at How do judges decide which. However, in your case, the most important consideration is how close your relationship was with the children during the relationship.

If you were close, and the children viewed you as a parent, then you have a good case to ask for custody or access. To better understand what those terms mean, read this webpage What say do children get and this article Consent to treatment and parenting .

Note – having a good case to get custody or access of your stepchildren likely means that your ex has a good case to get child support from you for those children. That topic is also covered in the first podcast above, and this webpage But its not my kid. Cases involving children always revolve around the children’s best interests. What is in a particular child’s best interests depends on the specific facts of the cast. It is always best to talk to a family lawyer about your circumstances to learn about how the law applies to your particular situation and to find out what your options are. The lawyer should also give you some idea of the time and cost involved in getting what you want.

If you do not think you want to see a lawyer, then, at the very least, you should read this $20, easy-to-understand book on the Basics of Ontario Family Law that covers the issues above and many others Devry Basic Ontario Family Edition.

Can I be held in contempt if the kids are refusing …

February 19th, 2013

Can I be held in contempt if the kids are refusing, and what are the chances they will be physically forced?

If there was ever a time when you need a lawyer, it is when facing a contempt motion. The judge can throw you in jail, for a significant period of time, impose large fines, or order other serious consequences. You need a good lawyer to advise and represent you to make sure the right facts are before the court. The court order for access requires you to do everything in your power to support the children having a relationship with their father. That entails telling them that they have to go. If that does not work, then you should have arranged for counseling or programs to assist them with their feelings toward their father.

contempt-motion

The judge will also want evidence that you are not subtly suggesting to the children that it is not ok for them to go with their father. Once your ex has established that the access did not happen, it is up to you to show that it was not possible for it to happen. Judges do not think that children aged 9 and 11 should have the final say on these types of issues. They may have input, but if there are problems, then someone has to arrange a way for the children to express their feelings, while at same time figuring out how to make the access work.

If you want more information about giving a children a voice in family law matters, listen to this podcast: What Say Do Children Get and this one: The Voice of a child protecting children during divorce . You can also read this article: Consent to treatment and parenting.

For more information on these, and other family law issues, I recommend you get a copy of this easy-to-understand book on the Basics of Ontario Family Law: Basics Ontario Family Edition . It goes over these matters in more detail, describes the court process and lists the most common ways to get into trouble in family court (with some advice to get out of trouble again).

Podcast: Play in new window

How Your Heart Can Get You Into Financial Trouble

February 14th, 2013

How Your Heart Can Get You Into Financial Trouble – Step Children and Matrimonial Homes (Special Valentines Day Edition)

This episode was a special live recording of a Valentines Day discussion of Family Law Issues. In light of the day, the topic of discussion was how your heart can get you into financial trouble under Ontario Family Law.

The discussion starts with a brief explanation of how property division works. It then moves on how property division works differently for matrimonial home and how that difference costs people money. The discussion then explores how a marriage contract or a family trust can avoid the problem.

The second way people can let their heart cost them money is by becoming a parent to step children. Step-Parents who are actively involved in parenting will have to pay child support for those children when the marriage breaks down -even if the biological parent is already paying support. this podcast covers how that happens, and how much support may have to be paid.

Of course, step-children will also have a right to continue to see any step-parent with whom they have a close relationship. In response to an audience members questions, there is a brief discussion of this topic as well.

This special Valentines Day edition of the podcast is essential listing for people who want to know what their heart can cost them.

Podcast: Play in new window

Are male thongs grounds for divorce?

February 13th, 2013

In Canada, we have what can be effectively termed “no fault” divorce. This means that a Court does not have to find one spouse or the other is at fault for the breakdown of the marriage.

grounds-for-divorce-toronto

Section 8(2) of the Divorce Act lays out the grounds upon which a couple can seek a divorce. Simply put, you are entitled to a divorce after a separation of one year. This is the most common ground upon which people in Canada are divorced. You do not need to establish that one spouse behaved badly in order to secure a divorce on the basis of a one year separation.

The other two grounds for divorce are much more difficult to rely on: you can seek a divorce on the grounds that your spouse committed adultery, or treated you with such mental or physical cruelty as to render continued cohabitation intolerable. A divorce on either of these grounds is available less than one year after separation. However, you must prove these grounds, unless your spouse is willing to admit to this behavior. For obvious reasons, not many people would admit to treating their spouse so poorly.

So, are male thongs grounds for divorce? While you could make a case that wearing such an item of clothing is mental cruelty that makes continued cohabitation intolerable, if this is the “straw that broke the camel’s back” in terms of your relationship, it may be easier to wait out the one year, and seek a divorce on that basis.

What is a Matrimonial Home(s) under the family law act?

February 12th, 2013

matrimonial-home-toronto

Section 18(1) of the Family Law Act says that “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home”

What does this really mean? Your matrimonial home is any home that you and your spouse usually lived in together. That a property is or is not a matrimonial home is only important if you do not hold title to that property jointly. If you hold title to a property jointly, then there is an assumption that the property belongs equally to both owners. Typically, your matrimonial home would be the home that you live in during the week. However, any number of homes owned by you could be matrimonial homes.

For example, if you have a cottage that you use together on weekends, it can be considered a matrimonial home. If one spouse uses the cottage exclusively, or almost exclusively, then it is not a matrimonial home. Conversely, if you own a condo in Florida that you spend your winters in, and that is the only time the condo is used by you or your spouse, that is likely a matrimonial home.

Any matrimonial home has certain protections under the Family Law Act. First, both spouses have the equal right to live in that home under the law. This means that one spouse cannot change the locks and refuse to let the other in. Secondly, the title spouse cannot, without the consent of the non-titled spouse, “alienate” the matrimonial home, meaning they cannot mortgage, sell or transfer the home without specific written consent.

The other very important characteristic of a matrimonial home is that if one spouse brings the matrimonial home into the marriage, they are not entitled to a deduction from their net family property for the value of the matrimonial home at the date of marriage, whereas they would be for any property that is not a matrimonial home.

It is possible, however, to ensure you only have one matrimonial home by both spouses executing a designation of matrimonial home. This designation is then registered on title to one matrimonial home, and makes it impossible for any other property to become a matrimonial home.

There is also an important exclusion for matrimonial homes that happen to be part of a farm property. Usually, the total value of the house, as well as the land upon which it sits, is divided equally between the parties on marriage breakdown. However, if the house happens to sit on a working farm, then only the land necessary for the use and enjoyment of the house is valued as the matrimonial home, and the balance of the land is valued separately.

Do I have to share my pension with my common-law spouse?

February 11th, 2013

I’m not married – do I still have to share my pension with my common-law spouse?

The short answer is NO.

pension-sharing-for-common-law-spouse-toronto
Division of assets on relationship breakdown is different depending on whether you are legally married or living in a common-law relationship.

As a common-law spouse, you must make claims in equity to share in your partner’s assets, such as a pension. The two most common claims in equity in relation to common-law spouses are constructive trust and resulting trust. These are complicated legal concepts. The Coles’ Notes version is this – constructive trust refers to the idea that the non-titled spouse somehow contributed to the acquisition or maintenance of an asset (i.e. paid mortgage payments, did housework, provided some funds for a down payment). A resulting trust refers to an “intention” for the non-titled spouse to share in the asset, which is clearly a much harder test to meet. The Courts can consider both financial contributions, and “money’s worth” contributions, or contribution of some effort that you did not get paid for, but the titled spouse would have had to pay another person to perform.

Depending on your pension plan, with the new legislation introduced in January 2012, you may be able to name your common-law spouse as the beneficiary of your pension. You should contact your pension administrator directly to obtain this information.

With respect to your Canada Pension Plan, a common-law spouse is entitled to apply for a division of your Canada Pension Plan credits upon separation, provided that you have been living together for at least one year.

Can we save money using one mediator instead of two lawyers?

February 8th, 2013

Can we save money using one mediator instead of two lawyers through our family law matter?

Many separated spouses want to save money working out their affairs and getting their divorce. Some have heard mediation is a way to save money, which it often is. However, a mediator supplements the parties each having their own lawyers, it does not replace lawyers. This blog explains why.

Separated spouses need one of two things to formalize the settlement between them: a separation agreement or a court order. Most separated spouses resolve matters through a separation agreement as going to trial to have a judge resolve the matters is time consuming and both emotionally and financially draining. The alternatives to court are: negotiation, collaborative practice, mediation or arbitration. All of these alternatives will result in a separation agreement.

Separated spouses always want their separation agreement to be a deal that lasts forever so they can move on with their lives. The alternative of repeatedly re-engaging a former spouse is not desirable because it prevents the spouses from becoming independent from each other, which is the point of divorcing. Certainly, a separated spouse does not enjoy having their former partner drag them through the whole process repeatedly. These are some of the reasons why courts like to respect separation agreements.

One thing that mediators cannot do is draft separation agreements. The Solicitors Act says that the only professional that can draft a separation agreement is a lawyer. Mediators can only write a Memorandum of Understanding, which is not binding. The separated spouses must turn that Memorandum of Understanding into a separation agreement, which usually means getting lawyers to write up the agreement. It is difficult to have a separation agreement that will last without having a lawyer put it together.

The Family Law Act sets out circumstances when the court does not have to respect a final separation agreement. The first of these is that either of the parties did not fully understand the nature and consequences of the separation agreement. This means not only understanding the terms of the contract, but also each spouse’s legal rights in the circumstances. Spouses must not only understand what they are getting but also what they are giving up. As Family Law is fairly complex, the courts have held that to really understand the separation agreement, each party must have had independent legal advice. That means that each spouse must have met separately with a separate lawyer to have their legal rights and the separation agreement explained to them. Mediators are also not allowed to give legal advice to one or both spouses because the mediator is working for both sides and cannot keep one spouse’s concerns or interests secret from the other spouse. Linked to fully understanding the separation agreement is the second requirement that the parties exchange full financial disclosure (For more see this blog). Lawyers are trained not only in how to exchange financial disclosure but also how to spot “red flags” that suggests that the other spouse is not being entirely forthcoming. A mediator cannot accuse one spouse of hiding financial information while still keeping the objectivity that is required for mediators.

Finally, the Family Law Act and the cases about enforcing separation agreements say that not only must terms of a contract not violate any of the Law of Contract, which lawyers ensure, but also that the parties must negotiate those terms in “unimpeachable circumstances.” This means that there cannot be a power imbalance between the spouses and neither spouse must be taking advantage of the other spouse’s situation. It also means that each spouse has the time to properly consider the agreement before signing. In addition, during the negotiations the parties must consider all of the factors that the courts expect the parties to consider when negotiating a separation agreement. From a practical standpoint, ensuring the negotiations of the separation agreement meet the standards requires the help of lawyers.

save-money-on-legal-fees-toronto

Both collaborative practice and arbitration require that the spouse’s sign agreements just to use them. The essential terms of those agreements explicitly require the parties to have lawyers.

Mediation does save a lot of money and heartache for the separating spouses. It does that by avoiding the long and very expensive court process. Working out a separation agreement through mediation costs a small fraction of the cost of fighting out the issues in court. However, to create a lasting separation agreement, the mediation process requires the involvement of lawyers, it does not replace the lawyers. Generally to save money, the earlier the parties consult with a family lawyer to learn their legal rights and obligations, the better the mediation process works (because both parties know what the proper settlement range is), and the more long lasting is the separation agreement.

Custody and Access: A simple explanation

February 7th, 2013

Many people confuse the terms “custody” and “access”. While commonly related in terms of parenting time, the two words mean different things.
custody-and-access-toronto

Custody refers to the legal right to make major decisions about your children. These decisions usually include education, such as what school your child will attend, and health, what treatment your child will obtain. The parent with custody also has the right to make decisions regarding religious upbringing, although this is a less common issue. Generally, the parent who has the children on a particular day makes the day-to-day decisions, i.e. whether your child should stay home from school sick.

Access is the time each child spends with a parent.

If you have joint custody of your child, you and the other parent must agree on any major decisions. However, this does not mean that your child spends half of their time with you. Two parents can have joint custody, but the child spends every other weekend with one parent and the balance of their time with the other. Similarly, one parent can have sole custody, but the child can reside entirely with the other parent.

Custody is assessed based on the best interests of a child, and that test is set out in section 24 of the Children’s Law Reform Act. Decisions with respect to custody are often based on two major factors: During the relationship, did the parents make decisions together, or did one parent make all of the decisions, and, since the separation, can the parents continue to make decisions together. Courts and professionals are also very aware of both parents’ ability to promote the child having a relationship with the other parent. A parent who discourages a child’s relationship with the other parent may be seen as “alienating”, which is a problem that is taken very seriously.

It is important, both to protect your children, and to protect your right to make decisions for your children, that you work together with the other parent in regards to custody and access following a separation, as long as the circumstances are appropriate to do so.

How Do Judges Decide Which Parent Gets Custody of a Child?

February 7th, 2013

custody-of-a-child-toronto

When parents cannot agree on how they are going to raise their children after separation, judges or arbitrators have to decide which parent should have custody of a child. That is unfortunate because judges usually have a very limited amount of time to spend with the family. They may not see the children at all, and yet the judge is making critical decisions about the rest of the children’s lives. It is almost always better for the parents to decide what plan will work best for their children because they know the children and themselves better than a judge will ever likely get to know them. Arbitrators can sometimes get to know families a little bit better, especially when they act in the role of mediator/arbitrator. But still, their knowledge of the family will never be as good as that of the parents.

When deciding which parent should have custody, judges and arbitrators give almost no weight, perhaps no weight at all, to what the parents want. The law requires that when a judge or arbitrator makes a decision in relation to a child, the only thing that matters is what is in the best interest of the child. That is often obvious, but sometimes it requires a greater analysis.

When the court must undertake a full analysis of what is in the best interest of a child, there are certain specific factors that it looks at. First are the love, affection and emotional ties between the child and each of the people claiming custody to the child, usually the parents, other members of the child’s family who reside with the child, most commonly the child’s siblings, and persons involved in the child’s care and upbringing, such as extended family, friends or maybe even professional caregivers, teachers or healthcare providers.
Another factor that the judge must consider is the child’s view and preferences, if they can be reasonably ascertained. This means that the child must be making a clear statement of what he or she wants. It is not up to the parents to go and try to elicit this from the child. This child’s opinion must be on that the child developed on his or her own.

Another factor that must be considered is the length of time that the child has spent in a stable home environment. This can be an important factor in custody and access cases because what the court looks at is where has the child been living, for how long had they been living there, and have things been working out. So if a child has been living in one place for a period of time, and everything has gone well, the court is reluctant to change things for the child. The situation in which the child is living is often called the “status quo”. Judges are very reluctant to change the “status quo” if things have been going on well. Further, the longer things have been going on well, the more reluctant judges are to change them.

Judges must also consider the ability of each of the parents to provide for the child. Judges look at which parent can best provide the basic necessities of life, and also provide education and guidance for the child. Where a child has special needs and one parent can provide for those special needs better than the other, that is another important factor that the judge takes into account.

To take into account all of the above considerations, each parent has to put together a plan for how he or she is going to care for the child. Judges, when considering who should have custody, also consider the plans that each parent puts forward. So when a parent is going before a judge to decide who has custody, he or she should have a plan that addresses all the considerations described above.

Judges are also required to consider the permanence and stability of the family unit in which it is proposed that the child lives. So a parent who has a transient lifestyle, or who has a number of partners going in and out of their life, will have a harder time getting custody.

Judges also care about each parent’s ability to act as a parent generally. Judges frequently think that someone cannot act as a good parent if that person cannot support the children’s relationship with the other parent.
Finally, the court is also required to consider the child’s relationship by blood, meaning DNA, or through an adoption order between the child and the people who are applying for custody. This gives biologic or adoptive parents a slight advantage over other people who are not as closely related to the child.

Judges are also specifically required to consider the issue of domestic violence. If a parent has exposed a child to domestic violence, then that parent will have a much harder time getting custody of the child, possibly even getting time with the child.

Note, that in all these factors the judges and arbitrators are required to consider in custody access cases, what a parent wants is not one of them. A parent’s schedule, or financial circumstances, or other needs are not factors that the judge must take into account. All that is important is what is in the child’s best interest. In court, parents should be focussing on their child’s best interests. However, often when parents are in family court on custody of a child or access issues, they have not given any thought to their child’s interests at all.

Why is my income for support purposes so much higher than my
total self-employment income?

February 1st, 2013

The process of calculating the child support or spousal support obligations for someone who is self-employed is much more complicated than it is to calculate support obligations for someone who is a salaried employee. Self-employed individuals have some ability to manipulate their income, or at least how it appears on their tax return. They can structure their affairs to pay significantly less tax than their employee counterparts. That reality led the courts to consider the fairest way to calculate income for support purposes.

One of the reasons the Child Support Guidelines, and subsequently the Spousal Support Advisory Guidelines, were implemented was to create uniformity in the way that support is calculated for separated parents and spouses. Ideally, people of the same financial means should be paying the same amount of support. However, people who are self-employed have a wide range of tools available to them so that they pay less tax, and thereby have more money in their pocket, than their salaried colleagues being paid the same amount. The courts decided that the fairest approach to determining support was to figure out a way to ensure that people with the same amount of money in their pockets every month paid the same amount of support, regardless of how they earned that money.

There are a few ways that the court may adjust the self-employed person’s income to adjust for tax savings and other advantages of being self-employed:

Child Support Guidelines

2.Self-employed individuals, who have a corporation, can leave some of the money they earn in the corporation, which means that income never shows up on the business owner’s tax return. Business owners can thereby keep savings in the corporation and invest the entire amount, where a salaried employee has to create savings from his or her after-tax income. The Guidelines make things fairer by requiring that any money that the business earns, which is not required for the ongoing operation of the business, be added into the owner’s income for child support purposes.

3.Some business owners reduce their amount of tax for the family by dividing the income between several family members, such as a spouse, children, or the owner’s parents. The amount that these family members receive may not reflect the work that they do for the business. These payments may be designed to divide the income due to the owner across several tax returns so that it is taxed at a lower rate. The Guidelines take into consideration payments that the business makes to non-arm’s length individuals when calculating the business owner’s income for support purposes.

4.Business owners can also write-off many expenses in the business, some of which may also have a personal benefit to the business owner. An obvious example is a cellular phone. The business owner likely requires a cellular phone for business purposes, which makes it a legitimate deduction for tax purposes, but as a result, the business owner does not need a personal cell phone and avoids that expense. Some expenses can have quite a large personal components and the business owner can receive significant benefits without reporting additional income on his or her tax return. The Guidelines require that the personal component to business expenses be added back to the business owner’s income for support purposes.

self-employed-support-toronto

As it is evident from above, many of these strategies have significant tax advantages for the business owner that allows him or her to pay less tax than a salaried employee. The law requires that an additional adjustment be made to take into account the tax savings that business owners can enjoy but salaried employees cannot. To accomplish this, the law does not just add back the amount of personal expenses or other amounts that do not appear on the business owner’s tax return, but also adds back the tax savings as well. This is called “grossing up” the support payers income for tax. For higher income individuals, this additional amount can be significant. The highest tax bracket is around 43%. This means that the law requires that for every dollar of income that the business owner is able to take off his or her tax return, $1.43 is added back to that reported income for support purposes. This is fair because the adjustments looks at how much money the business owner gets to put in his or her pocket and then bases support on how much a salaried employee would have to earn to have that same amount of money in his or her pocket.

The above are just some of the examples of adjustments to reported income that the law makes when determining income for support purposes. Income for support can be much higher than the “total income” as reported on a tax return. In any child support or spousal support case, it is important for both the support payor and the support recipient to speak to a lawyer to make sure that the level of support is appropriate.

Shared custody or shared parenting and the CRA

February 1st, 2013

There has been a tectonic shift in the way people are choosing to parent their children after separation in regards to shared custody or shared parenting. Many people, being mindful of the reality of their situation, are choosing to share the responsibility of parenting their children. This means different things for different families – some parents may choose to have their children rotate between their residences, whereas some families choose to have one child living with one parent, and the other child living with the other parent. Either of these scenarios are what is being called “shared parenting”.

Shared parenting situations affect the way that parents can claim the Canada Child Tax Benefit (“CCTB”), and the rules for that sharing have changed dramatically over the years.

It used to be that the lower income earning parent could claim the full CCTB for all of the children as this was viewed as maximizing the tax benefits available between separating spouses. In fact, the entitlement to this benefit was often negotiated in Separation Agreements, and commonly formed part of a final Court Order between parties.

The CRA became aware of this trend, and, predictably, changed the rules to minimize the amount of the benefit to be paid to either person. Until July 2011, the CRA required the parents to share entitlement to the benefit, and rotate that benefit on a semi-annual basis.

In July 2011, the Income Tax Act was amended to provide that shared custody parents can both be eligible individuals in any month. Therefore, both parents now receive half of the benefit that they are entitled to every month, rather than the full benefit for six months out of the year, and nothing for the remaining six months. Any persons who were previously sharing the CCTB on a six-month rotational schedule are now receiving their benefit monthly.

Even if you have a Separation Agreement or Court Order which directs you to claim the full amount of the CCTB regardless of your shared custody scenario will not likely be recognized by the CRA.

For more information on shared custody or shared parenting, visit http://www.cra-arc.gc.ca/bnfts/cctb/fq_lgblty-eng.html.

What does the term “custody of a child” mean – FAQ for Custody Lawyers

January 30th, 2013

What does the term “custody of a child” mean?

When there are children of the marriage, one of the things that custody lawyers hear most frequently at initial consultations is that the client wants either “sole custody” or “joint custody” of those children. However, it is rare for those same clients to understand what the term “custody” means. Custody no longer refers to where a child lives. In Ontario Family Law, the term “custody” refers to who makes certain decisions with respect to that child. In many cases, if not most cases, those decisions regarding the child are not controversial and so who has custody makes little difference.

When parents separate there are two important groups of issues that they, or if they cannot agree, a court or arbitrator, must decide with respect to the children. Those groups of issues are as follows:
custody-of-a-child-toronto

(b)Who will make the big decisions in relation to the child. Those big decisions are
decisions related to education, major medical treatment, religious upbringing and
extracurricular activities in which both parents will have to be involved.

It is the decision making, as described in Paragraph (b), that relates to who has custody. If a parent has “sole custody”, without any other limitations, then that parent can make those decisions in relation to education, medical treatment, religion and extracurricular activities by him or herself. If the parents have “joint custody”, then they must make those decisions together. Ironically, it is fairly rare for parents to have a disagreement over what school a child should attend, whether the child should have medical treatment, or what religion the child should be raised in. So for most separated families who has custody really makes little difference. In “high conflict separations”, the parents fight with each other over almost everything. They will fight over issues that they might not have fought over while they were together. Sometimes they will fight over simple things like what school the child should go to just for the point of having the fight. In those cases, joint custody does not work well.

Sole custody does not work well where one parent wants the other parent out of the lives of the children. If that parent has sole custody he or she may use it to make decisions to deprive the children of a relationship with the other parent. For example the parent may choose to have the children go to a school that is far away from the other parent or that in some way makes it difficult for the parent to visit with the children. Judges try quite hard to keep parents who are not supportive of the children’s relationship with the other parent from having sole custody. They either try to order joint custody or give sole custody to the parent who will facilitate a relationship with both parents.

Unfortunately, custody is usually more of a status symbol than a legal necessity. After separation, parents like to say that they have “custody” of their children. Parents will fight to have that “status symbol” when they would not have thought over the decisions that are made by the person who has custody. For that reason, it is becoming increasingly popular for separation agreements and court orders to not mention the word custody at all. Instead, the agreements, or court orders, state where the child will be living and when and which parent gets to make which decisions. When deciding those issues, the courts usually look at what went on during the marriage in terms of what time the children spend with each parent and who made the decisions during the marriage. If possible, courts try to leave things the way they were.

The only time that the term “custody” can become important is with regard to international disputes in relation to a child. If one parent wants to abduct a child to another country it can make a difference which parent has “custody” when there are legal proceedings to have that child returned. However, when one parent acts unilaterally to remove a child from the other parent’s care, judges in Ontario often do not have concerns about making an emergency custody order in favour of the parent who is left behind. In deciding whether a child should be returned to another jurisdiction, judges in Ontario are also more interested in what the parenting situation looked like before the removal than who had the label of custody. Put another way, when Ontario Family Court judges are considering what parenting orders to make in regards to custody of a child, how the parents parented the child in the past is usually more important than whether one of them had a label of “custody”.

What Does The Term “Custody Of A Child” Mean?

January 29th, 2013

What Does The Term “Custody Of A Child” Mean? How Does A Judge Decide Who Should Get It?

This episode is about the important issue of “custody of the children.” What does that term really mean? The legal meaning is very different from what most people think. Is it important to have custody? What is the difference between sole custody and joint custody? When is sole or joint custody appropriate? This podcast answers all of these important questions. It then goes on to discuss how judge and arbitrators decide who will get “custody” of children.

This podcast is essential listening for anyone in a separation or divorce, or thinking of separation, and who has children. It explains what is judges think is important in these cases and why it may be better to stay out of court. Listen and learn what rights your children have in a separation and divorce.

Podcast: Play in new window

Child support does not end at age 18

January 22nd, 2013

child-support-toronto

A family law lawyer will advise you that child support in Canada does not automatically end for a child when he or she turns 18 years old unlike several jurisdictions of the United States. In Canada, child support continues for children after their 18th birthday in one of two circumstances:

1. If the child is disabled, such that he or she remains dependent and cannot obtain employment that is adequate to meet his or her needs; or,

2. When a child is enrolled full-time in a program of education. In theory, that program of education must be career-oriented and not just an excuse for the child to remain dependant. There is a debate over whether a “victory lap” in high school, where a child who spends an extra year in high school, qualifies the child to continue receiving child support. Some factors to be considered are if the child is spending that extra year to hang out with friends, or to avoid entering the workforce or postsecondary education, rather than continuing their studies to meet the educational requirements of a particular program.

An important difference in child support for children over 18 years of age is that the child support tables no longer presumptively apply (although most judges use the tables as a starting point) and other arrangements can be made for their support to suit their particular circumstances.

For children over 18 years old, who are enrolled in a full-time program of education, their educational expenses may be special or extraordinary expenses. This means that the child’s parents must contribute to postsecondary education, tuition, books, residence, and other related expenses in proportion to their incomes.

This does not mean that children of separated parents are automatically entitled to have their entire postsecondary education paid for by their parents while their peers that have intact families have to pay for school. Judges are supposed to consider:

What arrangements would have been made for the children’s education if the family was still intact

What contribution the child should make to his or her own education. The longer a child spends in school, the more that the courts expect the child to consider. The courts expect children to apply for grants and scholarships and to incur a reasonable amount of student debt in light of the parents’ financial situation.

However, where it is not clear how these factors should impact on the amount of child support, judges err on providing support to the child.

It is common for the child support payer to pay full table amount of support while the child is at home from school and a reduced amount while away at school. The logic behind this is that a portion of the base child support is to pay for food and accommodation, but the parents are already sharing the cost of food and accommodation as special or extraordinary expenses. However, the recipient parent is also maintaining a home for the child to come back to, so some amount of support is appropriate to cover that expense.

Since the tables no longer presumptively apply, parents of adult dependent children are free to agree to other arrangements than the above to share the child’s expenses. Sometimes one parent pays all of the post-secondary costs and stops paying base child support. Sometimes the parents each agree to be responsible for specific expenses.

After a child turns 18, child support may not end, but the parents have more freedom over how they will share the child’s expenses. For further information regarding child support for children over 18, please consult a family law lawyer.

Why Income for Taxes is Different from Income for Support

January 16th, 2013

Why Income for Taxes is Different from Income for Support

This episode discussed how a self employed person’s income for support can be much different, usually higher, than what that person shows on their tax return. This is the case even when the self employed person is being entirely honest on his or her tax return. Self- employed people are taxed differently from people on salary, and so they are treated differently in relation to both spousal and child support. It is critical that when one or both separated spouse is self employed, both spouses understand the difference in how support is calculated. Support may be much too low or much too high if both sides do not understand how support calculations work.

Podcast: Play in new window

Divorce – What Does It Mean? How Do I Get One?

December 11th, 2012

Divorce – What Does It Mean? How Do I Get One?

This episode discusses divorce. What does it mean to be divorced? Who can get divorced? How do you get a divorce? What does a spouse have to prove to be divorced? Why might a judge refuse to grant a divorce? This podcast contains critical information for people who want to get divorced or remarry.

Being divorced is different from being separated. Also, while a divorce can include things like support, custody or property division. It does not have to do so. This podcast explains, in simple terms, what divorce means and what it means to be divorced.

Podcast: Play in new window

How to Have an Enforceable Marriage Contract in Ontario

December 10th, 2012

How to Have an Enforceable Marriage Contract in Ontario

This episode on the enforceability of Ontario marriage contracts (called “pre-nups” in the United States) was recorded live at intimate and interactive discussion of family law issues. This episode contains critical information for anyone who may need a marriage contract or cohabitation agreement: how to make that contract enforceable. It goes over the basic rules for making a marriage contract. John Schuman also describes some of the common reasons why judges refuse to enforce marriage contracts and cohabitation agreements. This episode should be mandatory listening for people considering a marriage contract or cohabitation agreement and people who know someone who should have such a contract.

Podcast: Play in new window

Deciding How to Resolve Matters After Separation

December 5th, 2012

Deciding How to Resolve Matters After Separation

There was a time when getting divorced meant going to court. Going to court meant fighting it out. However, that fight did not work out well for many families. It almost never worked out well for the children. It certainly did not make any sense with “no fault divorces” that recognized that sometimes people just grew apart and divorce was not always the result of someone acting badly.

Now there are options for resolving issues after divorce. While a full out fight is sometimes necessary, it usually is not. There are alternatives, even when the separating spouses strongly disagree with each other. The options can keep tensions, emotions and legal fees down. They are better designed to resolving matters in a child friendly manner.

Negotiation, mediation, mediation-arbitration, arbitration and collaborative practice are all alternatives to court that usually have outcomes that makes separated spouses happier than a court fight. What are these choices? Which one is right for you? Listen and find out. This podcast provides critical information for separating spouses that can impact the rest of their lives. It should be mandatory listening for everyone going through a separation or divorce.

Podcast: Play in new window

Separation and First Decisions

November 25th, 2012

Separation and First Decisions

This episode, hosted by John Schuman, the head of the Family Law Group at Devry Smith Frank LLP, discusses how spouse know they are separated and what steps they have to take first. It explores some of the initial issues that spouses, or unmarried partners, face at the end of their relationship. Those first decisions after separating can have a profound impact on the rest of the lives of each spouse – and the lives of their children. It can even affect how much money everyone will have at the end of it all.

Podcast: Play in new window

Devry Smith Frank Defends Ethics in Family Law

November 23rd, 2012

A case in which the Devry Smith Frank Family Law Group was involved has received national attention. See the articles: Court finds former mayoral candidate ‘sandbagged’ opposing counsel and Family Law Lawyer Ordered to Pay Costs Personally. While this decision, shows that the lawyers at Devry Smith Frank LLP win even when the other side breaks the rules, the way this case has come to public attention is not something lawyers should celebrate. Lawyers who do not follow the rules do a disservice to the proper administration of the courts, the children involved in family law disputes, their clients and the legal profession. That these events occur, and that judges have to intervene to stop them, is a sad situation.

Equally important are Justice Sherr’s comments:

[71] It is this court’s observation that the overwhelming majority of family law lawyers conduct themselves with integrity, collegiality and professionalism. They do so in the midst of highly-charged emotional situations. Mr. Schuman’s conduct in this case is an example of what lawyers are supposed to do in difficult cases. He kept Mr. Achampong informed about the status of the case in the Ontario Court of Justice. He tried to arrange early resolution. He tried to facilitate service of the court documents promptly, in a manner sensitive to the mother. He was trying to arrange an orderly process for resolution of the temporary parenting issues.

Justice Sherr also laid out what family lawyers should do in their cases. It is important for family lawyers to be a positive force in the lives of their client, the children involved, and, where possible, the entire family. It was important for the DSF Family Law Group to reinforce to the Courts, and the public, that we believe family law should be practiced in a positive, not a destructive, manner. We want our clients to finish off their separation or divorce and start their new lives with a positive outlook.

Managing your legal bills – some tips from the pros

November 21st, 2012

Many times, people involved in a matrimonial dispute are faced with their first real experience using a lawyer. When they receive their first bill, they are sometimes shocked, and frightened, by the financial cost of the dispute, especially in “high conflict” cases. Below are some tips to help you manage your legal costs.

First, you must remember that every time your lawyer works on your file, you are billed for the lawyer’s time – no matter whether you send a one line email or leave a three minute voicemail message. It is important to manage your communications with your lawyer to optimize your spending. Rather than calling and emailing your lawyer several times a day whenever something occurs to you that you need to communicate to someone, ask yourself if it is an emergency that your lawyer needs to know about right away. If it is not, keep a journal, and send one email per day or every few days. This keeps your lawyer apprised of your situation, but in a more cost effective manner.

Second, it is important to remember that a separation is a very emotional and stressful time in your life, and it is perfectly understandable that you want to talk to someone about it. It may be hard to talk to your friends, and you may be tempted to turn to your lawyer to fill that role. Don’t forget, your lawyer charges you by the six minute increments, so this could be very expensive. It would be better to ask your lawyer to recommend a divorce coach or a therapist for you to work with, at a much lower hourly rate. Those professionals can help you work through the emotions related to your separation, and let your lawyer focus on the legal issues.

Third, when your lawyer gives you advice, you must trust that they are doing so with your best interests always at the forefront. You are always entitled to an explanation from your lawyer about their advice. If you doubt the advice that you receive from your lawyer, you can always seek a second opinion. However, arguing with your lawyer about his or her advice will only cost you money and may make it difficult for your lawyer to help you.

Fourth, you must remember that your lawyer acts on your instructions. If your lawyer tells you that you are being unreasonable, that is their advice, which is what you are paying for. However, if you insist on your lawyer taking an unreasonable position, you should expect that will be very expensive for you. You may make your case more complicated that in needs to be. A judge or arbitrator may order you to pay your spouse’s legal bills if you are unreasonable. Taking unreasonable positions is one of the fastest ways to drive your legal bills through the roof.

Finally, when you and your lawyer first meet to discuss your case, your lawyer crafts a strategy to move your matter forward in the fastest, most cost efficient manner. Sometimes, that means going to mediation/arbitration or some other form of alternate dispute resolution, and sometimes that means Court. Whatever strategy you and your lawyer choose, your lawyer will maintain that strategy in their communication with your spouse’s lawyer. Sometimes, sending several letters a week to the other lawyer does not generate a response, as the other lawyer becomes inundated with your lawyer’s communication. Other times, the other lawyer becomes frustrated with your lawyer, and starts a letter-writing campaign in response. This will only serve to escalate your legal bills and will never make things happen faster. You should take your lawyer’s advice with respect to how often and about what issues correspondence should be sent to another lawyer or your former spouse.

If you follow the above tips, then you should be able to keep the cost of your divorce low. However, even if you follow all of the above advice, your spouse may act in way that drives up your legal bills. Everyone is entitled to a day in court, and so is your spouse, even if his or her position makes no sense. All you can hope is that the judge or arbitrator will make your spouse pay some of your fees back. You should talk to your lawyer about how much each step of your case is going to cost and whether it is worth it.

Tips for completing your Family Law 13.1 Financial Statement

November 21st, 2012

Many people faced with having to complete a 13.1 Financial Statement find it a daunting task. Here are a few tips to simplify the process.

The idea of completing an accurate monthly budget has some people collecting bank statements and credit card statements for the past year, and averaging out their expenses over that period, and then breaking them down to a monthly figure. Although it is important to be realistic in your budget, this exercise is not necessary. It is ok to “ballpark” how much you spend on groceries in any given month. Although it used to be that spousal support would be loosely based on the “Budget” section of your Financial Statement, now that the SSAGs have become widely accepted in Court, the “Budget” has become less important. It is still important to ensure that your budget makes sense in a global way. Your budget should not be wildly off base, or your spouse will ask to see all the bank statements and receipts. If your budget indicates that you are running a deficit every month, but you do not have any corresponding increase in your debt, the accuracy of your Financial Statement may be called into question.

With respect to the property section of the 13.1 Financial Statement, it is designed to capture three specific dates: the date of marriage, valuation date (which is the date you separated) and today. Any property that you owned between your date of marriage and valuation date, but did not own on either of those pertinent dates, is not entered on your Financial Statement. The exception to this rule is if it is property that you have disposed of within the past two years. Part 8 deals exclusively with property that has been disposed of during the past two years. Perhaps the easiest way to understand how to complete the property section of your Financial Statement is this: If you took a photograph of your financial situation on the date you were married, the date you separated, and the day you are completing your Financial Statement, these are the figures that you put into the respective columns. Finally, the Financial Statement that each party completes addresses only the property that they have an ownership interest in. For example, if your matrimonial home is in your spouse’s name, you do not put it on your Financial Statement because you do not “own” it. Similarly, if you lease your vehicle, it does not get entered on your Financial Statement because you do not “own” it.

When you are completing your Financial Statement, you should keep all of the documents that you relied on to prepare the Financial Statement, so that you can give them to your lawyer together with your draft Financial Statement. This step will save you a lot of time and hassle in the future, as your lawyer will most certainly ask for these documents. If you are involved in a Court proceeding, it is important for you to know that a Court will not accept your Financial Statement if you have not attached your last three years’ Notices of Assessment (the form you receive from the CRA that has your income tax refund cheque attached to it). You can order copies of these documents by calling 1-800-959-8281. You should always do this as soon as you are asked to fill out a Financial Statement because the process of receiving them takes about six weeks.

Financial Statements are important no matter what path you have chosen to resolve your matrimonial matters – litigation, collaborative practice, negotiation of a Separation Agreement, or mediation/arbitration. The most common reason that resolution of matrimonial matters is set aside by a Court at a later date is for lack of financial disclosure. The thinking is this: if you did not know what you were giving up because you did not have all of the information you needed, how could you have made an informed decision about whether or not it was the right choice for you? This is true when entering into a Marriage Contract as well. Think of it this way – if you are releasing your future right to receive spousal support, but you do not know how much your spouse earns, you may have made a different decision if you had all of the information available about your spouse’s income and income potential.

The Top Five Do’s and Do Not’s of Separation and Divorce

October 24th, 2012

Separation is something that most individuals never planned on happening to them. This article offers some simple tips to help you take the first step on the road to resolving and recovering from your Separation.

1. Do not involve your children in the breakdown of the relationship. Children are often the ones who truly lose in separation and divorce. You have to remember that it was you and your spouse who have decided to separate and not the children. Even if you were not the one who decided you wanted to separate from your spouse, you are separating because the relationship you and your spouse had is no longer what both of you is looking for. This has nothing to do with your children. Your children are not there to emotionally support you through this process and should not take the place of your friends or family counsellors. They should never be asked to deliver messages or support cheques. These activities put them directly in the middle of the divorce and children, even teens, should never be directly involved in such adult matters.

2. Do talk to your children about how they feel. Children are smart and will know that the family is changing. When you and your spouse have decided to separate, you should have a conversation with them to reassure them that everything will be okay, however the conversation should not stray from how they are feeling. If you and your spouse decide on a primary residence and access schedule for the Child or children, then the Children should not be “questioned” or pressured by either parent to decide who they want to live with. Work with your spouse, your lawyers orcounsellors to determine what is in the best interests of the children and work with the children to implement those plans. You will have a more well-adjusted child as you work through your separation as a family. Remember that your Children are part of both of you, and so they should never hear negative feelings that you may have about the other parent.

3. Do seek counseling, even a few sessions, for yourself and for your children. Separation and divorce is extremely stressful and many professionals liken it to a death in the family. Seeking the help of a registered psychologist will help you work through those feelings of loss that often lead to bitterness and anger toward your former spouse. They will help your child with any feelings of guilt and loss they may be feeling. Your family doctor will be able to direct you to one of these professionals and often these resources are covered by health insurance when you are referred by a family physician.

4. Do consult with a lawyer. While many spouses try to tell the other that retaining lawyers creates animosity between them, it is actually often the opposite. There are reasons that your marriage is breaking down and an inability to communicate is often one of the key reasons. The right lawyer will give a necessary “buffer” between you are your spouse. A lawyer will also advise you as to your rights and obligations consistent with the law.

Finally, even if you and your spouse are able to agree as to the terms of spousal support, child support, and a division of assets , a lawyer will need to explain the agreement to you and be able to suggest clauses that should be included in the agreement based on recent caselaw to ensure the agreement is enforceable and adequately protects you. Without an enforceable agreement all your hard work together may be all for nothing down the road. Remember that lawyers are people too and finding the right “fit” with your lawyer is important. You should research your lawyer and find one that you feel will best suit your personality and goals.

5. Do seek out government resources to help you locate assistance in your community. There is a lot of help out there. Use this support to find the help you need to work through this difficult time. Courthouses where Family Law matters are dealt with have Family Law Information Centres (Often referred to as “FLIC” offices) that will help you determine what resources you need. In Ontario, a list of courthouses where these FLIC offices are located can be found at www.attorneygeneral.jus.gov.on.ca.

Back to (paying for) school: Child support and postsecondary education

September 11th, 2012

In Ontario, child support does not necessarily end when a child turns 18 years old. It can continue if the child remains dependant on her parents because she is pursuing full-time education or suffers from some infirmity that prevents her from becoming financially independent. However, child support can change a lot after a child turns 18 because the parents, and the court, have greater freedom to deviate from the child support tables.

The cost of postsecondary is a special expense under Section 7 of the Child Support Guidelines. Those costs, over and above that the child can reasonably contribute, are shared by parents in proportion to their incomes (if postsecondary education should be affordable for the family). The amount that a child is expected to contribute to her postsecondary education costs goes up with every year of that education as that child can earn more from summer employment or other sources. However, families that can easily afford those educational costs may be expected to pay the bulk of them the whole way through, while lower income families may be simply unable to contribute at all. All “children” are expected to take advantage of any scholarships, bursaries, or grants that are available to them.

Child support often works very differently for children who stay at home for their postsecondary education versus those who go away for school. For children who stay at home, base child support often continues under the tables while parents share required cost of tuition, books and other education related expenses. It does not have to be this way and parents can agree to other arrangements to meet the child’s financial needs.

A Child going away to school creates more opportunities, or issues, to meet that child’s financial needs. Part of the cost of going away to school, which the parents will share, includes the cost of housing, food, and similar expenses while away at school. However, those expenses are supposed to be covered by base child support. One option is for the parents to share all of the away from school education costs and to reduce the base child support while the child is away to reflect the fact that the recipient parent only has the cost of keeping a home for the child to come back to. If the child moves back for the summer, then the table child support resumes for those months. If the child does not show any interest in returning home, then the question arises to whether their base child support should continue at all. However, this is just one option. Sometimes, the support payor offers to pay the full costs of all the child’s expenses related to school away from home, without contribution from the other parent, in exchange for an end to the base child support payments. There may be other options that work well for the family.

Once a child turns 18, but is still dependant due to her education or health, parents have the freedom to restructure child support to whatever works best for them. The system of having base child support in accordance with the tables, and a sharing of special and extraordinary expenses, is no longer mandatory. Still, judges will expect that the child support arrangements will benefit the child as much as that system, even if the arrangements are very different.

The Implications for Child Support…

June 28th, 2012

The Implications for Child Support of Social Networking, Anonymous Gamete Donation, the Immigration Process and Step Parenting

A previous blog (click here) discussed how a non-biological parent can be liable for child support, perhaps even owing as much child support as biological parent. The Alberta Court of Appeal’s decision is S.S. v. P.S. (available here), illustrates how that can happen and how a parent can end up paying full child support for non-biological children. It also held that when a parent has children using donated gametes, subsequent partners can be on the hook for the full table amount of child support because there is no biological parent with whom to share the child support obligation.

In the S.S. case, the wife, who lived in Mexico, had twins using sperm from an anonymous donor. She subsequently met the husband, who was from Alberta. After a short courtship, the husband and wife were married. The husband sponsored the wife and the children to immigrate to Canada. The couple subsequently had another child together. The husband referred to all three children as “his children” on social networking websites (presumably Facebook). The marriage broke down after only two years. The wife claimed child support for all three children. The husband agreed to pay support for only his biological child. The wife refused to allow the husband access to any of the children and returned to Mexico.

The Alberta Court of Appeal held that since the husband stood in the place of a parent to his “step children” because he:

(a) had referred to his “step children” as “my children” on the social networking sites,

(b) had sponsored their immigration to Canada, which included an undertaking to be financially responsible for them while they are in Canada, and

Further, as there was no known biological parent for the step children, the Court of Appeal said there was no basis on which it could reduce the husband’s child support below the full table amount, even though the marriage lasted only two years and the husband had been involved with the step children for less than half of their young lives.

The S.S. case is a cautionary tale regarding how non-biological parents can very quickly, and without intending to do so, make themselves liable for same amount of amount of child support as a biological parent.

What marriage contracts or cohabitation agreements cannot do

June 26th, 2012

A previous blog discussed the many benefits to having a marriage contract or cohabitation agreement. That blog described how couples can have certainty in their lives, if they are married through a marriage contract, or if they are living together through a cohabitation agreement. There are many ways that they can set up their lives to be better than they would be if the couples stayed under the provisions of the Family Law Act, or went to court to resolve the matters between them.

However, the law prohibits marriage contracts from doing eight important things:

1. Marriage contracts cannot set parenting terms (address issues regarding custody or access). Judges always have the right to make the custody or access order that they feel is in the “best interest of a child”, regardless of an agreement between the parties. While the Family Law Act specifically allows marriage contracts and cohabitation agreements to address the educational and moral training of children, the Act also says that judges can override the contract if doing so is in “best interest of the child”.

2. A marriage contract or cohabitation agreement cannot restrict either married spouse’s right to be in a possession of a matrimonial home. On separation, married spouses have an equal right to stay in any matrimonial home, and there can be more than one. Marriage contracts cannot require one spouse to leave a matrimonial home. They also cannot authorize one spouse to sell, mortgage or otherwise encumber or dispose of a matrimonial home before the spouses are divorced or they have a separation agreement or court order addressing the issue. Only married spouses can have matrimonial homes, so this restriction does not apply to cohabitation agreements unless the parties marry with the agreement still in effect. (Note: A cohabitation agreement could create rights to a property that are same as matrimonial home rights for parties who are married.)

3. A marriage contract cannot opt parties out of the Child Support Guidelines unless the provisions benefit the child as much or more than the Child Support Guidelines. In any event, the court always has the right to make an order that is in accordance with the Child Support Guidelines if the judge does not like the terms of the agreement.

4. A marriage contract cannot require that the parties go to mediation or arbitration instead of court after separation. The Family Law Act only allows parties to agree to mediation or arbitration after the dispute between them has already arisen. The parties can say that they would like to maintain a good relationship and use a more amicable process than court after they separate, but those terms in the marriage contract are not binding on the parties.

5. Marriage contracts are not recognized under the Income Tax Act with regard to the treatment of support. Periodic spousal support paid during or after the marriage pursuant to the terms of a marriage contract or cohabitation agreement will not be deductible to the payer and taxable in the hands of the recipient. Unless the parties sign a separation agreement, or obtain a court order, confirming those terms. People who are living together cannot agree that one will pay support to the other to shift the tax burdens to the person who pays tax at the lower rate.

6. Marriage contracts cannot waive a spouse’s entitlement to receive disclosure before signing the contract or signing a separation agreement. The Family Law Act gives judges the power to set aside any marriage contract, cohabitation agreement, or separation agreement that was negotiated without the parties receiving full financial disclosure.

7. A marriage contract or a cohabitation agreement also cannot waive a spouse’s right to obtain independent legal advice on either the marriage contract, cohabitation agreement, or a subsequent separation agreement. Again, judges always have the power to set aside an agreement that one or both spouses did not understand. The best evidence that the spouses understood an agreement is for them to have had independent legal advice.

8. A marriage contract or a cohabitation agreement is also not enforceable in relation to circumstances that the parties did not contemplate at the time that they signed it. If the couple wants their marriage contract or cohabitation agreement to be enforceable no matter what circumstances happen in the future, it is important that the agreement state that they have contemplated all possible future happenings and have still decided that, no matter what happens, they wish to be bound by the marriage contract or a cohabitation agreement. (Ensuring that a marriage contract meets this requirement is one of the trickier aspects of marriage contracts and it is another reason why lawyers need to be involved in the creation of a marriage contract.)

The above are some of the restrictions on the creation of marriage contracts or cohabitation agreements. As long as couples stay away from the above restrictions, they will likely have an agreement that the court will enforce that will give them some certainty with regard to their affairs after marriage breakdown.

Family Matters Deserve Lawyer’s Attention

June 25th, 2012

A little good advice can make life a lot easier. Family law matters can be extremely complicated. A little mistake can make a big difference in the end. Many people learn their actions, when getting married or separating, had unintended consequences. At times of high emotion, it is easy to make mistakes that cost you the cottage, the family business or the home you have loved for years. Making the wrong move can also, unintentionally, turn a friendly disagreement into an all out battle that has kids in the cross fire. Fortunately, all of that can be avoided with the assistance of a family law team devoted to guiding a client every step of the way.

Good Family Lawyers can anticipate potential problems and prevent them from the very beginning – sometimes even before the marriage ceremony. If things start to go downhill, a good Family Lawyer can keep you on track for the type of separation or divorce that you want, while still getting the best possible results. They may even be able to fix serious mistakes. Still, it is always better to start off right and avoid doing something that costs you too much. It is important to have a lawyer who spends time to listen to what you want and has the time, experience and skill to get it for you.

You can tell right from the first meeting whether a law firm can give you the attention and assistance you need. Having two lawyers meet with you doubles the knowledge, experience and perspective that the firm brings to your situation. It also makes sure that vacation, illness or other matters do not prevent you from talking to a lawyer who knows your life. A full service firm ensures you get the right results when your Family Law matter touches on other areas of law, be they corporate or criminal or in between. Excellent clerks can do work at a lower cost. The lawyers you meet should explain all the many options for resolving your matter in the way you want. You should leave the meeting feeling you learned a lot and the lawyers know how to address your concerns.

Devry Smith Frank LLP has family litigators, mediators, arbitrators and collaborative lawyers who deal with every type of case. Visit us at www.devrylaw.ca. Book a consult or buy John Schuman’s book on Family Law at www.amazon.com.

Marriage contracts: What they can do for you

June 20th, 2012

More and more people are going to see Family Law lawyers before they get married to arrange for a marriage contract (called a “pre-nuptial agreement” in the United States or a “cohabitation agreement” if the parties are living together but not getting married). This trend seems to reflect couples desire to avoid the uncertainty of what may happen in Family Court and to avoid, from the outset, the possibility of a long, bitter fight. Since marriage contracts can also cover how the couple will organize their affairs during the marriage, some couples view them as an important part of considering what marriage means and how they will live their lives together. In addition, as people are getting married later in life, they are entering their marriage with more assets, and possibly business interests, that they do not want to have affected by the marriage. Since marriage contracts can be signed at any time, not just before a marriage, some couples use them as an alternative to separation as they can address the issues that are causing friction between the spouses.

Negotiating a marriage contract may not be romantic, but it should not be difficult. If the couple cannot work out the terms in a friendly manner, then what does that say about their married life together? If each fiancée has a fundamentally different view of what the marriage means, isn’t that something that it is best to discover before the wedding?

Marriage contracts can cover a lot of issues. There are some things they can’t do, but that will be the subject of another blog. Some of things that couples can do with the marriage contract are the following:

Set out which spouse will own what and how property will be divided if the parties separate. There are very few restrictions on this and the spouses can divide their property in a manner that is very different from what would usually be the case under the Family Law Act.
The parties can set exactly what amount of spousal support would be paid between them when they separate or specify that no spousal support will be paid.
Set out which parent will direct the educational and moral training of the children during the marriage. However, if the parties disagree about this point after separation, the court always has the right to decide what is in the best interests of the children.
Require the spouses to honour the terms of a shareholders agreement for a business, requiring a spouse to do things like resign from a family business on separation or not enforce judgements against a family business.
Requires spouses to designate a certain property, or kind of property, as the “matrimonial home” so that other properties such as a cottage are not tied up as a matrimonial home regardless of how the family uses them.
Specify who pays for what expenses during the marriage and set out what will happen if one spouse does not honour that obligation.
Prevent either spouse from attacking the others pension to ensure that the pension remains intact even if the marriage does not.

The above are just some of the many advantages to negotiating a marriage contract. They show how a marriage contract can offer a level of certainty about what will happen if the marriage breaks down. That certainty simply does not exist without a marriage contract.

Child Support 101

May 22nd, 2012

“Do I have to pay child support?” This is a question family lawyers hear almost every day. The short answer is yes, parents have a legal responsibility to financially support their children. Child support itself, however, is paid by the parent who does not have day-to-day care of the child to assist the other parent who provides the day-to-day care to the child and thus carries the associated costs.

The amount of child support you will have to pay is calculated using the Child Support Guidelines, which solely uses the amount you earn and the number of children for whom you are paying support. The income level of the other parent (aka the recipient) is irrelevant to determining the basic amount you will owe. Go to http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/legis/fcsg-lfpae/2011/index.html to see the table of figures and find your ballpark amount.

This figure, however, is not final and you may have to pay more. Special expenses, such as daycare, medical expenses, private school, post-secondary education, etc., are not included. These are added to the amount and are shared by you and your spouse in proportion with your incomes.

These Tables in the Guidelines, however, assume that the child spends the majority of his or her time with the parent who is receiving the child support. You may be able to reduce the amount of child support you owe, if you have “shared” parenting. Under section 9 of the Child Support Guidelines, an exception to the standard calculation of child support is permitted when the child spends over 40% of their time with each parent. The appropriate amount of support is then determined based on what each parent is or should be paying on the children’s expenses. You should note, however, that time spent in school, away on holidays, with friends does not count as time taken away from the custodial parent.

For more information, please contact one of the family lawyers at DSF.

If you care about your public image, Family Court is not for you

May 17th, 2012

One of the things people in court frequently forget is that everything filed and said in court, as well as all of the judge’s decisions, are public record. Anyone can walk into a court in Ontario (except for child protection proceedings or where there is a specific order) and sit and listen to the proceedings or go to the counter, get a court file and read all of its contents. People don’t even have to go to the court to read the judge’s decisions as many of them are posted on the court’s websites or on CanLii. What happens in court is very public and it is out of the control of the parties to a proceeding. People who want to control their image may want to choose to resolve their disputes in mediation, arbitration, or collaborative practice, which are all private (unless one of the parties appeals the result to a court).

There are an abundance of examples where the public nature of the court has come back to haunt people who went to Family Court. One recent example is that of a person who submitted a application in the United States. The people considering that application did an internet search and found a court decision in relation to the applicant. Unfortunately, the judge who heard the matter, and made the decisions, believed that the applicant had deliberately deceived the court and otherwise behaved badly. Those decisions hurt the applicant badly, again. The applicant wanted the court decisions removed from the internet, but court decisions are public documents and the public is entitled to access them.

Another example relates to a contractor who had not been completely honest in reporting his income (much of it cash) to the Canada Revenue Agency. The opposing party’s lawyer, John Schuman, had done an effective investigation of that contractor’s bank accounts and found that the spending did not match the reported income. The contractor made the mistake of denying the obvious and forcing a motion in court on the issue of support. That motion required a detailed calculation of the contractor’s bank accounts and spending be filed with the court. The contractor lost the motion. But worse, the CRA had developed an interest in the contractor’s true income. An agent went to the court, looked at the court file, and used the information in it to go after the contractor for tax evasion. Apparently, it is not uncommon for the CRA to check the contents of court files.

It is important to consider the consequences of going to court. The parties cannot control whether the judge will like them. A bad, publicly available decision, can impugn a parties character for a long time. Courts can also be a very bad place for people whose financial records are not the best as the opposing lawyer, or the judge, may highlight those problems and make the taxman’s job easy. These are good reasons for parties to consider alternative dispute resolution to keep their personal lives and finances private.

The Down Sides of the Court Process

May 9th, 2012

Quite often, I have clients who say to me, “I want my day in court”. While entering the court process is sometimes the only way to try to resolve a family law dispute, it is usually the most financially expensive, the most emotionally draining (particularly if children are involved), and more often than not, takes the longest amount of time to achieve any resolution, either by settlement or once a court order is made. While many clients seem to believe that going to court will solve all of their problems, the reality is that in a great number of cases, clients are disappointed with the process.

Why is court so expensive?

Typically, lawyers initially try to come to an interim agreement for their clients outside of the court process. Often, a great deal of time (and therefore, money), has been spent leading up to the commencement of any court process. Once negotiations break down, as they often do, and a client decides that he or she would like to go to court, the drafting of numerous court documents begins. These documents are the first documents a judge will usually see and must be drafted persuasively and with precision. Throughout the court process, many other documents will be drafted, including conference briefs and sometimes, affidavits for motions. At each step of the litigation, documents must be served on the opposing party or his or her lawyer and filed with the court. In many cases, there are additional fees associated with this. Once the day finally comes when the parties attend at court, they will be paying for their lawyers’ travel time and waiting time. Depending on the court, they may have to wait all day, and in some cases, may not even see a judge. Meanwhile, they will be paying their lawyers’ hourly rates during this wait time, as it is difficult for a lawyer to do any other work for another client when they are at court.

Why is court emotionally draining?

I have never met a client who has not said to me that he or she is nervous before a court appearance. The anxieties and concerns that come with having a judge offer guidelines or provide a decision that directly affects one’s family, is a terrifying experience for most people. In many cases, my clients have not seen or spoken to their ex-partner for many weeks or even months, and are then forced to come face-to-face in an unfamiliar and usually adversarial environment. This also creates anxiety, anger and, sometimes, fear. In cases where children are involved, the stakes are even higher and therefore, emotions are heightened. The sense of losing control to a third party judge can easily affect a person’s ability to cope well in this process.

Why does it take so long to reach a resolution in the court process?

There are hundreds of governing rules that apply once a client decides to enter into the court process. These rules consist of specific timelines and procedures for filing documents and attending at court. Before a party can be heard by a judge, these procedures and timelines must be met. In addition, there is a significant backlog in many Ontario courts, thus taking several months before a date can be scheduled. As there are many steps that must be followed before a trial, every step of the process typically requires a period of three to six months before the next step can occur, making it years, usually, before a trial occurs.

As I indicated previously, in many situations, it is necessary to go to court. However, for those clients who simply want to “have their day in court”, they may want to re-think their beliefs (or, in an ideal world, go observe a day in family court to see what actually happens!), as they will likely face a great deal of financial and emotional stress along the way that may not be worth it to them.

Exchanging Financial Disclosure Is Necessary for ANY Domestic Contract

January 23rd, 2012

There are many types of domestic contracts – marriage contracts, cohabitation agreements and separation agreements are the most common types. For all types of domestic contracts, the basic requirements of contract law are necessary: the agreement must be in writing, signed by both parties and witnessed.

Even when these basic contractual requirements are met, however, your domestic contract may not be enforceable in a court of law unless these additional rules have been followed:

1. Both parties fully understand the agreement and the consequences of signing the agreement. In order to properly understand the agreement, both parties must have received independent legal advice regarding the terms of the contract;

2. Full, complete and accurate financial disclosure has been exchanged between the parties; and,

3. The agreement itself or the circumstances arising from the agreement must not be unconscionable (meaning, the agreement is so unfair, it would “shock the conscience of the court”).

Any good family lawyer will tell you from the beginning that collecting and producing your financial disclosure to your spouse is not so much an option as it is a necessity. There is, frankly, little point in spending the time and money to negotiate, draft and execute a domestic contract that will hold little weight, if any, if one party in the future decides to challenge a term or terms of the agreement. It makes more sense, from an economic, as well as from an emotional standpoint, to spend the extra time and money to arrive at an air-tight agreement that you can lean on as you begin a fresh chapter in your life.

Can I afford to divorce in tough economic times?

January 19th, 2012

Tough economic circumstances can make continuing a marriage intolerable. However, some spouses feel that they cannot leave a terrible marriage because it will just cost too much to get divorced. There is no question that waging a nasty war in divorce court will be very expensive. In addition, family court judges must apply the law when deciding cases, which means they cannot devise creative solutions to difficult family economic situations. However, that does not mean separation is not an option for unhappy spouses. It just means that court is not the right choice for resolving family law issues.

Family mediation and collaborative practice are two options for separating couples that have large advantages in tough economic times. Both can allow separated couples to resolve the matters between them for a fraction of the cost of fighting things out in court. An even bigger advantage of family mediation and collaborative practice is that it allows for the parties, with the help of their lawyers, to be much more creative in resolving financial matters. The separating spouses can create a resolution that is fair to both spouses and also reflects the reality of their difficult financial circumstances. Any financial settlement through mediation or collaborative practice must benefit minor children as much or more than a strict application of the Child Support Guidelines. However, aside from that requirement, there are a few other limitations on what terms are possible in a family law settlement. The parties do not have to strictly apply Family Law, in the way that a judge must, in collaborative practice or mediation. However, it is still useful each of them to have a lawyer so that they know that the settlements they are considering is fair and benefits them as much as, although differently than, what a judge would order. (Each party must have independent legal advice for any settlement to be enforced by the court.)

Mediation and collaborative practice allow the parties to tailor a resolution that meets both of their needs. That can include addressing tough financial circumstances. The settlement can put off having some money change hands until times are better. Those settlements can also involve having debts or assets change hands in a way that the court cannot order, even though it makes more financial sense for the parties. There can be many other creative ways to address each spouse’s needs depending on their particular circumstances.

Avoiding the cost of a nasty court battle leaves more money available for the children, to say nothing of avoiding the emotional cost of a war between parents. However, both parties must choose to use either collaborative practice or mediation. One spouse cannot require the other spouse to use one of those options. If one spouse is going to be uncooperative, then court may be the only possibility. However, if both spouses are going to be sensible, then they can get divorced, including resolving all of the issues between them, for a minimum cost and create a new financial reality for the family that makes the most money possible available for everyone.

New Changes to the Federal Child Support Guidelines

January 6th, 2012

Effective December 31, 2011, the Federal Child Support Guideline Tables have changed. In many cases, the child support payments will increase. In others, the payments will decrease. How this affects you and the child support you pay or receive still depends on the province in which the support payor lives, the number of children, and the payor’s income.

The fact that the child support Tables have changed will have a corresponding effect on spousal support under the Spousal Support Advisory Guidelines when using the “With Child Support” and “Custodial Payor” calculations.

You may visit http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp to run a quick calculation to determine how the new child support Tables will affect the child support that is currently being paid. However, in many cases, including those that involve a self-employed payor, it may be beneficial to discuss the payor’s income on the amount of child support payable. The self-employed payor’s Line 150 income, as displayed on his or her income tax return, may not be appropriate to determine the amount of child support payable based on the Tables. One of our family lawyers will be able to assist you with this issue and with the Spousal Support Advisory Guidelines calculations.

Spousal Support Entitlement

December 14th, 2011

In this video blog Julie Tyas discusses Spousal Support Entitlement.

http://www.youtube.com/watch?v=brJzgTth5hE

Is there a reason why I should stay in our home?

December 9th, 2011

Many people have heard that if they separate from their spouse they should try to stay in the matrimonial home. There are a lot of rumours as to why that is important. In reality, there are only two reasons for staying in the matrimonial home after separation. If those two reasons do not apply to your circumstances, there is no reason to stay. The two reasons for staying in the matrimonial home are 1) To remain a custodial parent of any children; and 2) For financial reasons if both parties are entitled to stay in the home.

The most important reason why a spouse should stay in the matrimonial home after separation relates to the children. Ontario Law says that if one spouse walks out leaving the children behind with the other spouse, the spouse with the children has de facto custody of the children. The “staying spouse” has the right to make all of the decisions of a custodial parent. If a spouse wants to be remain actively involved in making decisions for the children, that spouse must either stay in the matrimonial home, get the other spouse to agree in writing to joint custody, or get a court order that permits the leaving spouse to continue to make decisions for the children. The idea behind is that the parent who is caring for the children on a daily basis is probably the parent who is best suited to make the big decisions for the children. Once there is a regime that is firmly in place allowing one parent to “have custody” and make all the decisions, that situation can be very hard to change in court. Staying in the house also has the advantage of not requiring the parties to agree on parenting or access schedule. If both parents are still living to together in the same house with the children then it is easy to maintain an equal sharing of the children’s time. That equal sharing can be continued into a parenting plan when the parties do finally move into separate residences.

The second reason for staying in a matrimonial home is that both parties are legally entitled to stay in that home until there is an agreement or court order to the contrary. Neither married spouse could kick the other out of the matrimonial home – only the court can do that. A separated married spouse may find that it is too expensive to rent or buy a new home by him or herself. It can be far more cost effective for the separated spouses to continue to share the cost associated with living in the matrimonial home and both spouses continuing to live there.
Ontario Law does not give common-law spouses the right to stay in a family home after separation. The person who owns the home, or whose name is on the lease, gets to say who lives there, subject to landlord – tenant legislation if it applies.
There are no other reasons for staying in the matrimonial home with a spouse after separation. Leaving the matrimonial home does not mean that the leaving party has their name taken off title if the parties were joint tenants, or that the leaving spouse is giving up the right to ask to share the value of the equity in that home. Who leaves does not affect the amount or duration of spousal support. However, courts may not view that there is a need for support payments while the parties are living together in the same house and one or both of them are meeting their spouse and children’s needs. It is almost always cheaper to maintain one household instead of two, so that can be a practical reason for remaining in the home.

Another practical reason for remaining in the home with the kids is that the staying parent has control over where the children go and when. The staying parent can stand in the way of the leaving parent seeing the children. However, that is not behavioural that the law condones, in exceptional circumstances, nor that a judge will tolerate. The leaving parent will only be cut off from the children until the parties can get into court, or the staying parent follows the advice of a family lawyer.

Maintaining involvement with the children and needing a place to live are the reasons for staying in the home after separation. If neither of these is a consideration, then there is no reason to stay in the home.

Can I lose my family home or cottage to my spouse?

December 9th, 2011

When a family home or cottage is been in a family for generations, the spouse who is inheriting the property may be worried that the property will be lost to a spouse in divorce. If the spouses used that traditional family home together as a matrimonial home, a court can order that the “non-inheriting spouse” can stay in that home until the parties divorce, which may take several years. The court cannot order that the “non-inheriting spouse” gets legal title to the property. However, the family property regime in Ontario can force a spouse who has had a home in the family for generations to transfer it to the other spouse out of financial necessity.

The difficulty surrounding traditional family homes is mostly caused by the requirements in Ontario’s Family Law Act that any matrimonial home be included at full value in a spouse’s net family property. A matrimonial home can be any home that the spouses used or occupied together during the marriage. There can be more than one matrimonial home. Both a home and a cottage can be a matrimonial home at the same time. If one spouse inherits the traditional family home prior to separation, the value of that property on the date of separation is shared between the spouses. If the other spouse has significant assets, the value of which must also be shared, then this may not have much impact on the traditional family home. However, if the “non-inheriting spouse” does not have many assets, then the equalization of the party’s net family properties can require in the inheriting spouse making a very large payment to the other spouse. That payment may be half the value of the inherited property. Inheriting spouses may have no option but to either sell the traditional family home or transfer it to the other spouse to satisfy this obligation.

The breakdown of a marriage after only a short time can result in circumstances that are quite unfair. If a spouse inherits the traditional family home prior to the marriage, the whole value of that property may be shared on marriage breakdown. A spouse does not get credit for bringing a property into the marriage if that property was a matrimonial home on separation. Even after a very short marriage, the entire value of that matrimonial home must be shared, which may result in a situation where the inheriting spouse has to either sell the property or transfer it to the other spouse.

There are two ways to prevent the above circumstances that can result in the loss of a traditional family home. The first is for the spouse not to inherit a property prior to a separation. If a spouse does not own a property, it is not included in that spouse’s net family property and so the value is not shared. The second, and perhaps more practical option, is for the parties to sign a marriage contract that excludes the traditional family home from the calculation of net family property. A marriage contract cannot require that the non-inheriting spouse leave the traditional family home on marriage breakdown or prevent a court from allowing the non-inheriting spouse to stay in the property until the divorce is finalized. However, the marriage contract can ensure that at the end of the whole process, a traditional family home can still be owned by a member of the family.

Access/parenting schedule for infants and toddlers?

December 9th, 2011

Separated parents frequently feel that they do not get to spend enough time with the children. Those feelings can be amplified when the children are very young. Many parents want to make sure that their children bond with them at a young age. A parent who wants to be actively involved in a child’s life usually wants to be actively involved from when the child is a young age. However, the child’s needs at the early stages of development can limit how much time the non-residential parent spends with the child.

There is good research about how much time a non-residential parent should spend with a child. Especially at a young age, a parenting schedule has to be designed around the needs of the child rather than the needs of the parent. Very young children need their routine, a single bed to sleep in, naps during the day, and possibly to breast feed. All of that can limit the amount of time that the non-residential parent can spend with the child. Fortunately, to develop a bond with a parent a child does not need to spend a lot of time with that parent, but does need to see them frequently.

Research shows that children benefit enormously from a close loving relationship with both of their parents. To develop that close loving relationship with a non-residential parent at a young age, frequency of contact is important. For a child who is only months or a couple of days old, a couple of days is a very long time. For an infant or toddler to build or maintain a relationship with a non-residential parent, the child must see that parent frequently: Every couple of days. However, especially for infants, it is not helpful for the child to be away from the primary parents for long periods of time, and definitely not overnight, as that can lead to a level of stress that not only induce the development of a relationship, but development in general.

It is also important that the non-residential parent spend time with the child if the child is scheduled and not the other way round. Routine is very important to young children. They also need their nap and to feed in their usual way at their usual time. This can make long visits impossible.

Fortunately, frequent short visits are what a young child needs to develop a close relationship with a parent. If a very young child has those frequent short visits, there will be a strong parent – child relationship that should evolve to include overnights after the child turns three years old and may further evolve into an equal sharing of time between parents during the child’s school age years.

Children’s relationship with their parents can be badly damaged, even destroyed, along with that child’s development and potential, by exposure to conflict. Frequent contact with both parents can seriously harm a child if that contact results in exposure to conflicts. Children’s experiences with this, especially when they are very young, affects both their brain development and how well they will interact with other people for the rest of their lives. Children who have positive experiences as their brain develops build neural pathways designed for learning (which increases intelligence) and interacting with others in a positive way. Children who are exposed to conflict structure their synapses to avoid and deal with dangerous environments. Their brain does not develop in a way that facilitates other types of learning (thereby limiting intelligence) or forming relationships with other people that are not characterized by conflict. Parents who are in constant conflict with each other must create a parenting plan that does not expose their children to conflict.

Good family lawyers and mediators know about child development and what a child needs from each parent. They can help create a parenting plan that, to the extent possible gives each child the benefits of a good relationship with each parent.

How is property divided after a marriage in Ontario?

December 1st, 2011

In Ontario, married couples share in the wealth accumulated during the marriage. Common-law couples usually do not. This does not mean that married couples own all their assets jointly or have any other form of interest in each other’s property. Married spouses are entitled to a payment that “equalizes” the growth in the spouses wealth during the marriage.

At the end of a marriage, married spouses in Ontario are entitled to a payment that makes each spouse’s growth in net worth during the marriage the same. There are some exceptions which will be briefly discussed below. This is a right to receive a payment, similar to the right to receive a payment under a contract. This right does not give either spouse any form of ownership interest in the other’s property. At its simplest, the parties add up the value of all their assets on the date of separation, and deduct the value of all of their debts. From that figure, each spouse also deducts his or her net worth on the date of marriage (net worth being total assets minus totals debts and other liabilities.) That calculation results is a number called a spouse’s “net family property.” The spouse with the larger net family property has to make a payment to the other spouse to makes the two net family properties equal.

There are some important adjustments to the calculation of each spouse’s net family property. First, gifts and inheritances from third parties during the marriage are not included in a spouse’s net family property unless a gift or inheritance has been co-mingled with the other spouse. Second, spouses can exclude the value of specific assets from the net family property calculation by using a marriage contract. Third, the whole value of all matrimonial homes owned on the date of separation are included in the spouse’s net family property. A spouse does not get to deduct the value of a matrimonial home owned on the date of marriage if that property is still a matrimonial home on the date of separation. Fourth, the payment of a personal injury claim for pain and suffering is not included in the net family property calculation. However, the portion of a payment for personal injury relating to loss of future income may be included in net family property. Also, while spouses share any increases in their net worth during the marriage, they do not share in any decline in net worth during the marriage.
Judges cannot order that property change hands to equalize the spouse’s net family property. They can only order a payment of money. Such an order for payment is enforced in the same way as any other order for payment of money and can be significantly affected by a bankruptcy by one or both spouses. Spouses can agree to transfer property to each other in fulfillment of family law claims. That can be a significant incentive to settle matters outside of court.

The property claims arising from the breakdown of a marriage can be worth a lot of money. There are nuances to the law that can affect the size of the payment that is made. Family lawyers can ensure that a spouse’s rights are protected. If the spouses are resolving financial issues at mediation, it is important that they choose a mediator who understands the law well in order to obtain a fair result.

Spousal Support… How Much Will I Get?

November 15th, 2011

Once you are able to prove you are entitled to receive spousal support (or, if you are the payor, once you have been advised that you will have to pay some spousal support to your spouse), the next question is, how much and for how long? There are no legislated guidelines for spousal support similar to the federal Child Support Guidelines for child support. The closest tool we have, which most judges are relying on, is the Spousal Support Advisory Guidelines, or the SSAGs, as commonly referred to. The SSAGs are extremely complex and it is advised that you speak with a family lawyer about your spousal support rights and obligations while using this tool.

The SSAGs take into account the parties’ ages at the time of separation, the length of cohabitation, the parties’ incomes, and how much child support is being paid, among other more complicated factors. Once this information has been plugged into the SSAG software program, a range of spousal support, both for the quantum and the duration, will be calculated. The range, based on quantum, will be set out using a low-end point, a mid-point and a high-end point on a scale. The mid-point is usually a good starting place to determine how much spousal support should be paid, although there are many factors to consider when determining a fair amount, both to the payor and to the recipient, while taking into account both parties’ standards of living and needs. For example, in cases where the recipient is disabled, spousal support based on the high end of the scale may be appropriate. Conversely, in situations where the cohabitation period was only two years, spousal support based on the low end of the scale may be appropriate. The range, based on duration, will be set out using an end date range that corresponds with the amount of time the parties cohabited together. In some cases where the parties have had a long-term relationship and one party earns a great deal less than the other, the duration may be calculated as “indefinite” using the SSAG program. This suggests that a time-limited period of spousal support may not be appropriate given the facts of the situation.

Spousal Support… Will I Get It?

November 15th, 2011

Spousal support is one of the more complex issues in family law. A spouse, whether married or common-law, does not automatically receive spousal support from the other spouse. In order to receive spousal support, one must prove that they are entitled to receive it. Proving entitlement under section 33(9) of the Family Law Act involves considering all of the following:

Both parties’ current assets and means;
The assets and means that both parties are likely to have in the future;
The dependant’s capacity to contribute to his or her own support;
The payor’s capacity to provide support;
Both parties’ age and physical and mental health;
The dependant’s needs (while considering the standard of living the dependant had while the parties resided together);
The measures available for the dependant to be able to provide for his or her own support and the length of time and cost involved to take those measures;
Any legal obligation of one of the parties to provide support for another person;
The desirability of one of the parties to remain at home to care for a child;
A contribution by the dependant to the payor’s career potential;
If the parties are spouses, the court will also consider:
1. the length of the cohabitation;
2. the effect on the spouse’s earning capacity due to the responsibilities assumed during the cohabitation;
3. whether the spouse has undertaken the care of a child who is older than 18 but has an illness, disability or other cause withdraw from parental control;
4. whether the spouse has undertaken to assist with the education for a child older than 18 or who is unable to withdraw from parental control;
5. any housekeeping, child care or other domestic service performed by the spouse for the family;
6. the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and,
Any other legal right of the dependant to support, other than out of public money.

The conduct of the parties is only relevant if one party’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship”. Therefore, the fact that one spouse may have had an affair or the parties signed an agreement opting out of spousal support when it would be grossly unfair in the circumstances, may not enough to extinguish the obligation of one spouse to pay support to the other if that person is a dependant and entitled to receive spousal support. It may, however, affect the quantum.

Access Assessments Help Courts Decide Who Should Parent the Kids

November 6th, 2011

Judges sometimes feel that they do not have the proper training to determine what is in a child’s best interests, because a judge’s training is in the law and not in child welfare. In difficult cases, they may want to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like. Often, parents agree that the court needs help from a professional to determine who should parent the children. However, a judge who feels that there are clinic issues that are outside the scope of the judge’s legal training can order such an assessment to investigate those issues.
Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work. They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart. The custody/access assessor usually meets with the children as well. Often the assessor will speak to other professionals and other people who are important in the children’s lives.
One or both of the parties pay for the custody/access assessments. It is rare for such assessments to costs less than $10,000.00. If the parents cannot afford that amount, the court can ask the Office of the Children’s Lawyer to become involved in the case. That publically funded agency can decide whether to accept the referral and what type of assistance it will provide. It may decide to provide a “clinical investigation”, which is a similar to a custody/access assessment. If the Office of the Children’s Lawyer refuses to assist, then a judge can still order a custody/access assessment even if it will cause financial hardship for the parents.
At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent. The assessor then communicates his or her opinion to the parties. If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial. The Trial Judge can accept or reject the assessor’s opinion. However, the opinion of a custody/access assessor is usually very persuasive to a judge.

Joint, Sole, Shared, Split…Custody in a Nutshell

November 4th, 2011

For most people, the term “custody” brings about thoughts of who will see the children when and how much time each parent will see the children after a separation. In legal terms, “custody” has very little, if anything, to do with scheduling each parent’s time with the children. Custody, in the legal sense, refers to who makes the important decisions regarding the children.

I am often asked, “What are the important decisions?” The major decisions include decisions related to the children’s health, education, religion and extra-curricular activities. The day-to-day decisions involving the children, such as what they will wear and eat, are typically made by the parent who is caring for the children on that particular day. The major decisions, however, are made by the parent or parents with custody.

Until a court order or a written agreement is made to the contrary, there is a presumption in law that both parents have custody of the children. Both parents are presumed to start off on an equal footing once they separate (whether that is the reality or not is an entirely different issue!). Joint custody means that the parents are able to co-parent together to make major decisions about the children mutually.

Sole custody, on the other hand, involves only one parent making the important decisions about the children. In most cases, a court order or written agreement is necessary for one parent to have sole custody. In some cases, one parent may have what is called “de facto” custody, which means he or she may temporarily make the important decisions regarding the children solely, as a result of the other parent leaving the family or matrimonial home. One should not assume, however, that as a result of the other parent leaving, he or she has sole custody.

Shared and split custody scenarios, although using the word “custody”, really have less to do with the decision making for the children and more to do with the time each parent has with the children and the effect on child support. Shared custody, which is defined under section 9 of the Child Support Guidelines, is a situation when the children spend at least 40% of the time with each parent. Split custody, as defined under section 8 of the Child Support Guidelines, involves a situation when each parent or spouse has custody of one or more children (i.e. the children are split up between each parent). There are special rules that apply to these types of situations in terms of paying child support.

Determining custody is often much more complex than what I have outlined here. If you have recently separated and have children with your spouse, sorting out custody will likely be your main priority. For assistance with this, please consult with one of our family lawyers and we will be happy to help you determine what is best for your children and your family.

I keep hearing about Mediation…is this for me?

November 1st, 2011

Mediation is a process whereby the parties meet with a neutral third party mediator to try to resolve the issues between them that they are unable to resolve on their own. The mediator is not allowed to make a decision regarding the issues in dispute. Rather, the mediator’s role is to assist in facilitating an agreement that the parties come up with themselves. If the parties reach an agreement at mediation, the agreement will become part of a Memorandum of Understanding and later, will form part of a Separation Agreement. While the terms of a Separation Agreement are binding, if no agreement is reached in the mediation process, in most cases, neither party can use whatever was said during the process against the other in a different process, such as court.

Whether or not your family law matter can proceed by way of mediation depends on a couple of things:

Firstly, it depends on whether your spouse is agreeable to proceeding through the mediation process. If both parties are not entering into the mediation process voluntarily, the process will likely fail.

Secondly, if there is any form of domestic violence or a power imbalance that would lead one party to intimidate or compel the other into making an agreement they may not otherwise want to make, the mediation process cannot move forward. The mediator will be trained to screen for these power imbalances.

People going through a difficult separation are often drawn to a process, such as mediation, which allows them to be in control of the decisions that are directly affecting their family, as opposed to having a judge impose a decision on them (typically after waiting for months, or years, for this to happen). You may choose to have your lawyer very involved or less involved in the mediation, depending on the complexity of your case. Even if your lawyer is involved in all aspects of mediation, mediation is almost always a cheaper and quicker alternative to court. This may be the route for you. Please give our family law team a call to discuss this and other alternative dispute resolution options available.

What about my son’s hockey fees and my daughter’s daycare expenses?

October 21st, 2011

If you are the payor of child support, you may also have to contribute to your child’s hockey fees and daycare expenses on top of making your monthly child support payment. These expenses may fall into the category of “special or extraordinary expenses”, which is defined in Section 7 of the Child Support Guidelines. Another name for “special or extraordinary expenses” is “section 7 expenses” or “add ons”. If an expense is determined to be a “special or extraordinary expense” under section 7 of the Child Support Guidelines, the cost is generally shared between the parents, proportionate to income, after the appropriate tax deductions are subtracted.

Pursuant to section 7 of the Child Support Guidelines, a court may apportion the net cost of certain “special or extraordinary expenses”, so long as they are reasonable and necessary, having regard to the best interests of the child. The list of what may constitute a “special and extraordinary expense” is exhaustive. It includes items such as child care expenses that are incurred as a result of the custodial parent’s employment, disability, illness or educational training, medical, dental and some other health-related expenses, extraordinary educational expenses, post-secondary educational expenses, and extraordinary expenses for extra-curricular activities.

Although the law is not entirely clear on whether the expenses listed in the paragraph above are “extraordinary”, the trend is to consider the family’s expenses in relation to income. Generally, a child will have some small fees for extraordinary activities, and these would not require additional child support.

In order to determine whether you should be paying or receiving additional child support for your child’s special or extraordinary expenses, please contact one of the lawyers in our Family Law Department.

How Long for an Ontario Divorce?

October 12th, 2011

See Julie Tyas describe the length of the divorce process in Ontario. www.youtube.com

What is the “table” I keep hearing about in relation to child support?

September 26th, 2011

The “table”, as commonly referred to, means the Federal Child Support Guidelines table. This table, which has been in effect since May 1, 1997, is a grid setting out what the payor of child support must pay to the recipient based on his or her income and the number of children. Judges are reluctant to sway from applying the table amount of child support in family law cases, except in extraordinary circumstances, such as cases of undue hardship. Proving that you are unable to pay the table amount of child support based on undue hardship is not as easy as it sounds. That being said, if you are the payor of child support, you should be paying the table amount of support based on your income.
In situations where the payor sees the children for more than 40% of the time (which is called a “shared parenting” arrangement), the payor should not have to pay the full table amount of child support. In these types of arrangements, a “set-off” should apply. In other words, you should calculate the table amount that the payor would pay if he or she had the children less than 40% of the time and subtract what the other parent would theoretically be paying based on his or her income if he or she had the children the majority of the time. The difference is what the payor should be paying.
For more information, please contact one of the family lawyers at DSF and pick up a copy of John Schuman’s book, Guide to the Basics of Ontario Family Law.

But It’s Not My Kid

September 14th, 2011

The following is a hypothetical example taken from the next edition of the DSF Guide to the Basics of Ontario Family Law, due out in January 2012:

Before meeting Molly, Desmond had a “one night stand” with Michelle and fathered a daughter. Desmond pays table child support to Michelle. At the time of the one night stand, Michelle was in a relationship with Jude. She let Jude believe he was the father for several years. Jude was an active parent to the girl and became close to her. The relationship ended when Michelle told Jude he was not the father. Michelle obtained full table child support from Jude because of his close parenting relationship with the child. Michelle then lived with Dr. Robert for a couple of years. Dr. Robert also tried to be a good parent and was actively involved in the girl’s life, but never to the same extent as Jude. He did not hire a lawyer when asked to pay child support. The court ordered Dr. Robert to pay one quarter of the table amount of child support for Dr. Robert’s income.

Know your risks and obligations for child support. Contact one of our family lawyers and get all the information you need.

When Should I Separate?

September 7th, 2011

Well, that depends on whether you fall within the “norm” of separating couples. As recently reported in The Globe and Mail[1] , September and January are the busiest months of the year for family lawyers. The family lawyers at DSF are not excluded from this trend. There are many speculations about why the start of a new school year and the start of a new calendar year lead people to take what is often the first step in separating from their spouse: consulting a family lawyer. Both September and January are months that mark change for many people. Both times of year symbolize the return to work and both symbolize the end of a period usually filled with a great deal (perhaps a great deal too much?!) of vacation time with one’s spouse. Nobody wants to kick off or interrupt their summer vacation or Christmas holidays with a letter to their spouse from their new lawyer. So people wait. They wait until now, when our phones are ringing off the hook.

Perhaps it does have to do with the fact that people often make changes and new resolutions for their futures in September and January. Or, perhaps it has to do with choosing to enjoy “one last summer” or “one last holiday season” with the family before taking active steps to separate. Either way you view it, our family law team is accustomed to and prepared for the shift in new clients that come to us this time of year. So please give us a call; we can handle the September separation movement and are here to help.

[1] http://www.theglobeandmail.com/life/relationships/love/divorce/hello-september-so-long-spouse/article2150593/

Bank Executives with Stock Options Face Difficult Divorces

September 1st, 2011

Some bank executives receive part of their compensation through stock options. They represent a great way to be compensated because the executive can receive pay at a lower tax rate. If the stock goes up in value the benefits are even greater. However, stock options create big problems in divorce proceedings.

Stock options can be both property, and income for support in divorce proceedings. They are property, the value of which must be shared as of the date of separation. Determining the right value for the stock options is difficult, as it depends on when the executive earned the options (not when the company issued them), when the executive can exercise the options, when the executive will exercise the options, the volatility of the stock price, the risk that the executive never exercises the options and the taxes associated with them. Stock options existing on the date of separation will be equalized as property, even though the executive may not be able to exercise them until later. The executive may not be able to make an equalization payment until the he exercises the options.

Bank executives may have to share his stock options twice! To the extent that stock options are pay, they are income when calculating support. The stock options at the time of separation may not show up on the executive’s tax return for several years until they are exercised. At that time, the other spouse may want to use them as income for calculating support, even though she has already received half the value. Using the same stock options for both property and support calculations can result in the other spouse receiving payments worth more than the value of the options. That is not fair. Careful attention is needed to prevent it.

A marriage contract can set out fair terms for the stock options on separation. Without that, both separated spouses need skilled family law lawyers to assist with the complicated issues associated with stock options.

Once I have separated, do I have to go to court?

August 23rd, 2011

There are various paths you can take that do not involve going to court:

1. I recommend retaining a lawyer who practices exclusively in the area of family law. This lawyer will be more proficient with the provincial and federal family laws to negotiate a separation agreement for you in a manner that is both cost and time efficient.

2. Depending on the circumstances of your case, you may also participate in the collaborative law process. Most of the lawyers in the family law department have been trained as collaborative family law lawyers. The collaborative law process involves a written commitment to resolve your family law issues through a series of meetings between lawyers and parties and most importantly, involves a commitment to not go to court.

3. Once you and your partner have each retained separate lawyers and financial disclosure has been exchanged, negotiations regarding support, property, custody, access and other more complicated family law issues can take place.

4. Often negotiations take place through four-way meetings with the parties and their lawyers.

5. If negotiations break down, parties can enter into a mediation/arbitration agreement. This involves signing a contract to participate in mediation with an independent and neutral third party, who is often a senior family law lawyer and proficient in all areas of family law. Mediations can resolve issues in as little as half a day or can be continued over weeks.

6. Should mediation fail, the mediation/arbitration agreement will bind you to then participate in the arbitration process, usually with the mediator who then switches hats and becomes the arbitrator. Arbitrations are conducted the same way a trial is conducted and the award provided by the arbitrator is as binding as an order made by a judge at the conclusion of a trial. The benefit of proceeding by way of mediation/arbitration is that most files are resolved at the mediation stage and those that are not are often resolved much quicker in arbitration than trial.

7. The last way to resolve your family law dispute is through the court system. Before you are entitled to have your case heard at a trial, however, there are a series of steps you must participate in first. These steps include one or more case conferences, settlement conferences and trial management conferences. In addition, motions for temporary orders may be heard throughout the process. Because of the numerous steps involved before a case is heard at a trial, most cases do end up settling before they get to trial.

In summary, there are many alternate dispute resolution mechanisms that are available to you once you separate that do not involve going to court. I encourage you to speak with one of the family law lawyers at Devry Smith Frank to determine which route is best for you and your particular needs.