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Archive for the ‘Child Support’ Category

What Can I Do When My Spouse Relentlessly Pesters Me

June 10th, 2013

What Can I Do When My Spouse Relentlessly Pesters Me To Get More Time With The Kids?

Be warned! That pestering may not just be to irritate you. It may be a set up to get custody of the children! There are certain things you need to do!

In a divorce or separation, the best way to avoid conflict, unwanted communication, arguments and constant changes in the children’s schedule is to have a court order or agreement that sets out where the children are supposed to live at any given time. Then, unless there are problems with the arrangement such that it needs to be changed, your ex should have nothing to talk to you about. “Pestering” is not constructive communication and can lead to conflict. Anyone involved with family law issues will tell you that conflict is what harms the children – not the separation or divorce. For more on how parents should act after separation, listen to this Divorce Source Radio podcast.

If you do not have a parenting agreement or court order, you should visit a family lawyer or divorce lawyer and get one. That should eliminate the conflict, and the possibility that this “pestering” is an attempt to set you up to look like a bad guy who will not cooperate with parenting or share the kids. Your ex may use that as a basis to go back to court to get an order that is more favourable to her the current situation. For more information about how judges decide what the parenting arrangements should be, check out this webpage or listen to this podcast.

What Can I Do When My Spouse Relentlessly Pesters Me To Get More Time With The Kids and Children?

If you wife really is pestering you and it is having a negative impact on you and the kids, then it may be appropriate to get an order that restricts her contract with you and them or a restraining order. Judges can be really skeptical of people who ask for these orders and may think you are just trying to get some sort of tactical advantage. So, it is really important that you speak to a lawyer both to get an outside opinion of your circumstances and to make sure your evidence is compelling to a judge.

All of these issues are covered in more detail, but still in an easy-to-understand way, in this $20 book on the Basics of Ontario Family Law. It is likely a good investment for you.

Can Grandparents be Forced to Pay Child Support?

June 10th, 2013

Can Grandparents be forced to pay child support?

As families change, and tough financial times means that parents have to work more and more just to pay the bills, grandparents are becoming more and more involved with raising their grandchildren. To help out, grandparents can spend a lot of time looking after children so their parents can work. Sometimes, they spend so much time helping to look after children that they are actively parenting their grandchildren. But, grandparents need to be careful, especially when their children are separated or divorced. Anyone who parents a child can be liable for child support, not just the biological parents. So, just as step-parents can be forced to pay support, so might grandparents who, with the intent of helping out their children, start parenting their grandchildren. Most grandparents don’t think that they may have to pay child support to their former in-laws just by “helping out.” But, this is something grandparents should think about.

Liability for child support is not based only on biology (or an adoption order). Natural (biological) and adoptive parents are always liable for child support for their children. However, anyone who assumes the role of a parent of a child also becomes liable for child support. If grandparents, stand in the place of a parent, meaning that you are more than just babysitters and take an active role in parenting the children, then the children’s parents can ask them to pay child support too. Being in the role of parent means more than being the spouse of a child’s parent and occasional babysitter. To be liable for support, a grand parent (or step parent) must take an active role in parenting the child. Some facts that show that include: making major decisions for the child, disciplining the child, referring to the child as “my child”, providing financial assistance to the child and having a close emotional relationship with the child.

Can Stepparents be Forced to Pay Child Support too ?

It is possible for a child to have three or more parents for the purposes of child support and for two or more parents to pay the full Table Amount of child support to the parent with whom the child resides. Biological or adoptive parents always pay the full table amount. Other parents may or may not pay the full table amount. However, the more a grand parent acts like a full parent, the closer the child’s relationship with the grand parent, and the more the child is financially dependent on that grand parent, the more likely that grand parent may end up paying full table support based on the grandparent’s income.

For more on how grand parents (or step parents) can end up paying child support, check out this webpage, watch this video and listen to the last topic in this podcast. If you feel concerned after checking out these resources, you should make an appointment to see a family lawyer.

Related Podcast: http://www.devrylaw.ca/podcast/child-support-in-ontario-canada-who-pays-and-how-much/

Changes to Ontario Family Law

June 7th, 2013

Changes to Ontario’s Family Law

Overview of the Changes

In response to public outrage about a few unusual incidents related to cases before the Family Courts, the Ontario Government has passed the Family Statute Amendment Act. Only some parts of the Act have been declared in force. The entire law will be in force at an unspecified date in 2009. The makes three changes to Ontario Family Law. First, it changes “restraining/non-harassment Orders” made in Family Court. Second, it requires people seeking custody or access to file new court court documents requiring extensive information with the court. Third, it make specific provision for courts to make orders controlling how people parent children in their care.

Tougher Restraining Orders

The changes to “restraining orders” are designed to “toughen up” the Orders and extend more protection to more people. These provisions are already in force. Under the old provisions, it was only possible to get a “Family Law” restraining order against a person you had lived with for more than three years or with whom you have a child. Under the new Act, you can get a restraining order against a person you lived with for any period of time (maybe even only a day) or with whom you have a child. The changes have also created standard court orders for restraining orders. They will set out exactly who is not allowed to communicate with whom, where a person is not allowed to go and if there will be any exceptions. The clarity of these new orders is important because the Ontario Government removed the Provincial Offence for violating restraining orders. The only way for the police to enforce a restraining order is by laying a charge under s. 127 of the Criminal Code. The changes also include new provisions to allow courts to make orders limit contact between parents, or parties to the court case that are less than restraining orders and which will not be police enforceable.

New Extensive Court Documents for Custody Cases

Public outrage over the death of a child placed in the custody of a parent’s friend resulted in significant new requirements for documents to be filed with the court. If you are thinking about starting a case for custody or access, you should do it now because the new requirements are onerous and will involve a lot of effort by both you and your lawyer.

The changes require all the parties to file a parenting affidavit that includes a lot of detail about the children and a detailed parenting plan. If a party is not a parent, he or she will also have to file a criminal record check, provide every address where he or she lived since birth, and provide authorization for every children’s aid society in every jurisdiction where that person has ever lived to search their records and provide information to the court.

This will be a very labour intensive process. It was designed to make sure that judge’s are not missing any information that may be important in making a custody or access order, but which the parties do not want the judge to know.

New Terms for Parenting Orders

The last change is not really much of a change at all. Section 28(1) of the Children’s Law Reform Act has been amended to allow orders prohibiting:

speaking disparagingly about the other parent in front of the child,
changing a child’s residence, school or daycare with the other parent’s consent or a court order,
the removal of a child from Ontario;
one parent from withholding a child’s passport or health card,
withholding consent documents to allow the parent to get information about a child and
a parent from blocking contact between a child and another person.

The courts have made these orders as part of Custody Orders for a long time. This change may simply be designed to assist parents in understanding that a judge can make these types of orders.

It is far from clear how judges will interpret these new provisions. Everyone involved with Family Law cases is interested in seeing how these new provisions will work in practice.

When Child Support Payments Overwhelm

June 7th, 2013

When Child Support Payments Overwhelm

As a greater number of Canadian Children are growing up in “separated families”, a greater number of parents are paying or receiving child support. Child support can be a source of tension between parents. It is common for the support payer to feel that he or she is “paying too much.” In some occasions, the payers finds the support obligation financially crippling. This article will explain how the Child Support Guidelines work.

What are the Child Support Guidelines?

The Federal Child Support Guidelines are a regulation that was enacted by the Canadian government in 1997, although the tables that set out how much “base child support” should be paid were revised in May 2006. Pursuant to Section 15.1 (3) of the Divorce Act, a judge hearing a divorce case must order child support in accordance with the Federal Child Support Guidelines. Court cases that do not involve a divorce are governed by provincial legislation. However, every province in Canada has its own Child Support Guidelines. The provincial guidelines are essentially identical to the federal guidelines, although the provincial guidelines have sections to address when one of the parents is receiving social assistance. The law of every province requires the courts that are not granting a divorce to order child support in accordance with the child support guidelines of each province.

The Child Support Guidelines are most frequently applied to set the amount of child support that is paid between natural or biological parents of a child or children. However, people other than biological parents can be required to pay support. In Ontario any “person who has demonstrated a settled intention to treat a child as a child of his or her family”, except a foster parent, can have an obligation to pay child support. This means that a stepparent or another person who has been “acting like a parent” to a child can be required to pay child support. However, the law does not apply exactly the same to biological parents as it does to “other parents.” Biological parents must almost always pay child support according to the “tables”, which will be discussed below. Section 5 of the Child Support Guidelines both federal and provincial gives the Courts descretion to move away from the “tables” for non-biological parents, especially where a biological parent is already paying child support.

The court can also stray away from ordering child support as set out in the “tables” when there is a “shared parenting situation”. This is a situation where the children spend close to an equal amount of time in the care of each parent. The actual cut-off is that the children must spend at least 40 percent of their time with one parent. In “shared parenting situations” the court is supposed to divide all the costs of parent a child between the parents in an amount that reflects the income of each parent.

Under Canadian law, every parent to a child has an obligation to support that child in accordance with the Child Support Guidelines. That obligation exists at least from the moment when parents separate. A parent who is not caring for a child at least 40 percent of the time ought to start paying child support in accordance with the “tables” immediately. The Child Support Guidelines tables can be found online at Child Support Table Look-up.

How the Amount of Child Support is Calculated

The premise behind the the Child Support Guidelines is that the amount of child support that a court would order a parent to pay, is predictable and easy to calculate. Section 3 of the Child Support Guidelines says there are two components to Child Support Payments:

The base or the table amount
The contribution towards “special and extraordinary expenses”.

The base or table amount is a monthly amount that is set out in the tables that are a part of the Child Support Guidelines. Once the parties know the payer’s annual income, they simply turn to the appropriate table and find the required child support for that income. There are different tables for different numbers of children from one to “six or more.” There are also different tables for each province.

The basic principle behind the tables is that the monthly support amounts reflect the amount that a parent at each level of income would otherwise spend on their child. There are different tables for each province to reflect that the cost of raising a child varies across the country. The base amount of child support should be affordable for a person making the payer’s income. It is impossible to convince a judge that the table amount is not appropriate except in a very limited number of circumstances. Those circumstances are where the child is over 18, the payer’s income is very high, the parent has an unusually high number of debts from supporting the family during the period of cohabitation, the parent has unusually high expenses in relation to exercising access or the payer has a legal obligation to support another child or adult.

The income of the recipient is not a factor in determining the base amount of support except in “share parenting situations.”

The second component of child support award is the payer’s contribution to “special and extraordinary expenses.” These are sometimes called “Section 7 Expenses” as Section 7 of the Child Support Guidelines provides the method for determining this portion of monthly child support payment.

“Special and extraordinary expenses” are just that. They are expenses that are out of the ordinary for the household combined income of the parties. The most common of this type of expense are for expenses like those associated with the child’s participation in a sport at a higher level. Parents know that children who demonstrate skill in a sport such as hockey or gymnastics and pursue that sport to the full extent that their skill allows, cause their parents to incur substantial expenses. When that child’s parents are separated, their parents are expected to share those types of expenses in proportion to their incomes. What constitutes a special and extraordinary expense does change with the parents’ incomes. As the parents combined income goes up, so does the amount that expense must be to be considered special and extraordinary.” On the other flip side, for parents with lower incomes, some expenses are simply unaffordable if the parents cannot afford to bear an expense for their child, then it will not be a “special and extraordinary expense.” Obviously, this is an area where there is lot of fluctuation and cases really do turn on their own set of facts so it is important for a person to speak to a lawyer if they are facing a claim, or think they may have a claim, for special and extraordinary expenses.

Since both the base and the special expenses portion of child support un the Child Support Guidelines take into account what is “affordable” at each level of income, it is not the amount of support that the guidelines require people of certain incomes to pay that causes parents to run into trouble, but how their income is calculated.

The Calculation of Income and How Payers Can Get Into Trouble

Most litigation over child support is about what a payer’s income is for child support purposes. In many cases, the court finds a payer’s income to be higher than the payer thinks it is. This results in a higher child support payment than the payer thinks is fair.

For the vast majority of child support payers, the determination of their income is a very easy and straightforward process. These are the people who are employees whose income is as reported by their employer on payer’s T4 slip. Where all of a person’s income comes from employment, then the determination of their income for child support purposes is very easy.

For most payers, for their income child support purposes is the same as their income as reported on line 150 of their income tax return. There are two main exceptions to this rule. The first is where a payer is earning less income than he or she is capable of earning. The second is where the payer is self-employed or has other mechanisms available to him or her to reduce his or her taxable income, while not reducing the money that the payer has available to spend. Section 19 of the Child Support Guidelines allows a judge to find that a person’s income for child support purposes is higher than their income as reported on line 150 of their income tax return.

A person’s income for tax purposes is not necessarily their income for support purposes. Where a person’s education, skills and experience suggests that that person can be earning more income than he or she is, a judge can order that that person pay child support in an amount that reflects what they could be earning with their education, skills and experience. Some people reduce their income simply to avoid child support. This is a self-destructive behaviour as child support is always a portion of a person’s income so an increase in income should never be completely consumed by an increase in child support. Judges have no problem in ordering them to pay child support based on what that person could be earning.

When Child Support Payments Overwhelm

The Child Support Guidelines also recognize that people who are self-employed, have family businesses or trusts, or who have other means to decrease the amount of income that they report on their Canadian income tax return, should not use line 150 of that return to calculate the amount of child support that they owe. The principle behind the Child Support Guidelines is that all people of the same income should be paying the same child support. The Child Support Guidelines expects that people who have the same after-tax income will spend the same amount on their children. When people have mechanisms to reduce their taxable income, the court will look at how much “cash” the parent has received and then figure out what income that person would have to earn as a regular employee to receive the same amount of “cash.” The court will then use that calculated number as that parent’s “income” and use it to calculate child support. Many self-employed individuals structure their business so that they minimize the number that appears as “taxable” income on their income tax return. Those people should not be surprised if the court bases child support on a level of income that is higher than what their tax return says.

Where a parent who owes child support refuses to provide financial disclosure, the court will not wait to make an order until after it has full financial disclosure. Instead, the court will “guess”. The court may “guess” high so as it prevents the children from suffering a financial disadvantage as a result of their parents’ failure to comply with the court’s requirements.

Child support is supposed to be recalculated every year based on the parents’ most recent income information. Separated parents have an obligation to keep the other parent informed about their income every year. If a parent’s income goes up and he or she does not tell the other parent, the courts have no difficulty in ordering that parent to pay the support that he or she ought to have been paying all along pursuant to the Child Support Guidelines. However, the converse is not true if a parent’s income goes down and he or she does not tell the other parent, the courts are not particularly inclined to find that that parent “overpaid” where that parent did not provide the required background information.

It is by the “imputing” of income that a payer can find that he or she has to pay child support in an amount that is more than he or she feels she can afford.

Kids in Divorce

June 7th, 2013

Should the Kids Be Involved in the Divorce???

Kids in Divorce: Should the Kids Be Involved in the Divorce???

Parents involved in a separation and divorce often wonder if the children should be involved in the process of creating the new reality for the family. On the one hand, the change has profound impact on every aspect of a child’s life and changes his or her life forever. Because of that, children often want input. On the other hand, separation and divorce involve a lot of adult issues, there is no doubt that exposure to conflict between parents has a negative impact on kids and often children do need or want the stress of having to make decisions about their parents, which can sometimes mean making decisions FOR their parents. Nobody wants to hurt their own kids. On this page you will find crucial information and links to protect your children in a divorce or separation.

John recently did a TV interview on what role children should play in their parent’s divorce. The video, below, discusses whether the children should be involved, and whether their opinion matters in court. John also explains what to do if a child does not want to see one parent and what happens if a parent brings a child to family court. As a Certified Specialist in Family Law, with years of experience, John explains how to protect your kids in a separation or divorce.

The Role Children Play In Divorce
In this video, John Schuman explains how important is to understand the role children play in divorce.

Kids in Divorce

John P. Schuman is an expert on the voice of the child. He is known for his sensitivity for children’s’ interests and his concerns for children’s rights. Divorce Source Radio interviewed John on “Kids in Divorce.” You can listen to that interview by CLICKING HERE. John has also done many public appearances discussing what role the children should play int their parent’s separation or divorce and how to best to protect the children during that process. One of John’s “intimate and interactive discussions” was converted into and episode of the Ontario Family Law Podcast. John discusses the issue of what to do if a child says he does not want to see the other parent on this page. You can listed to that episode by CLICKING HERE. You can also learn how to help a child who is desperate to be heard in divorce court by reading this article. On the left are links to several articles and other media about children’s issues in divorce and separation.

The following is an excerpt from John Schuman’s Book The Devry Smith Frank Guide to the Basics of Ontario Family Law. This section discusses the roles that children can play in their parent’s separation and divorce. (The full book is available – at discount – by clicking here, or looking at your local bookstore. You aslo get one at initial consults with John that can be booked through Brooke Kennedy at 416-446-5847 or click here to email her.)

Kids in Divorce – Should The Children Be Involved In The Divorce Process?

Kids in Divorce: Should the Kids Be Involved in the Divorce?

Temporary Care and Custody Motion on a First Appearance

June 5th, 2013

The Pros of Arguing a Temporary Care and Custody Motion on a First Appearance in a Children’s Aid Society Court Case

If a Children’s Aid Society / Child and Family Services Agency takes your children away, you have to act fast! This article was written for lawyers to advise them how to act when helping a client whose children were just apprehended and put into foster care.

Not many child protection clients can get themselves into a lawyer’s office within 24 hours of a children’s aid society apprehending their children. Even if they are able to retain counsel so swiftly, there are problems in gathering appropriate evidence to put before a court by the first return date especially since the Society’s materials will not have been received. There are, however, situations in which there has been some prior period of involvement by the CAS before an apprehension or the initiation of an application. For example, in cases where the Society has asked the parent or parents to agree to a temporary placement while the Society conducts its investigation, there is an opportunity to prepare anticipatory materials. In such situations, it is possible to, at a minimum, put together a reasonable “safety plan” to present to the court at the outset. Provided that interested family or community members are prepared to cooperate, and the lawyer and client have sufficient stamina, comprehensive plans that include schedules for supervision, criminal/vulnerable persons checks, reports from previously involved third party professionals and even, where the financial resources permit, home-studies, can be completed within 36 to 48 hours. Whenever possible, the best practice for helping parents is to get their case together and take on the Society’s case at the earliest opportunity – the first appearance.

If retained in time, parent’s counsel should always put together materials and prepare to argue for the return of the children or, at least, their placement with a family or community member. There is no such thing as a “first appearance” under the Child and Family Services Act. The judge has to make the least intrusive order before any adjournment, including the first, so the “best practice” for parents’ counsel, if possible, is to get material together, including affidavits and a plan of care, and to argue for the return of the child. Parents will usually have a fairly clear understanding of the concerns that led the Society to take action and so will have the ability to put together a plan to address those concerns. If the nature of the concerns is such that rebutting evidence can’t be obtained very quickly (i.e. suspicious physical injuries), the goal will be to put together a plan that addresses all of the Society’s safety concerns as if they are assumed to be true. If, on the other hand the Society has acted on the basis of information that can be swiftly and clearly proven to be baseless, the materials should be prepared with a view to dismissing the application immediately. For instance, someone has reported that the parent is mentally ill and has failed to provide adequate supervision for the child, you get reports from her psychiatrist, her community worker, the child’s day care provider and affidavits from family members indicating that she is compliant with treatment, has always followed doctor’s advice, has always made contingency plans for the child, you will want to put the Society to the test right away.

The first appearance is often an excellent opportunity to advance the parents’ case as the Society will probably not have had the opportunity to put together its best evidence and will be relying largely upon hearsay and, too often, speculation. Putting materials before the Court from the parents at the earliest opportunity is important in the sense of showing the Court that they are committed and proactive. In the majority of cases, the only version of events, and impression of the parties, that is available for the Court’s consideration is that of the Society. At the first appearance, the parents have the opportunity to give the Court a sense of who they are and to address the Society’s concerns before it can find new ones during the adjournment period while the children remain in its care with very limited access by the parents. At a minimum, active advocacy on behalf of the parents at this stage is likely to result in more than the de minimis access being offered by the Society and more stringent timelines being imposed upon the Society to investigate any safety plan being proposed. If much of the work has already been done, it is more difficult for the Society to assert that it will require 6-8 weeks to investigate a safety plan.

There are legitimate concerns about challenging the Society’s case at the first appearance. The Court often has little time available for such appearances. The judge likely has a full docket of other cases, so, may be unable to give full consideration to the matter, or even to adequately review the materials filed. In these circumstances, the general tendency of the Court is to “err on the side of caution” and rule in favour of the Society. The Court may make a “with prejudice” temporary order without having had a complete opportunity to consider the evidence and submissions. Since disclosure of the Society’s file will not have been made, the parents’ materials may be deficient in certain areas. Where there are parallel criminal 11 proceedings, there is the risk of making inconsistent or even inculpatory statements. The Society may later take the position that, since the parents insisted upon arguing the issue of temporary care and custody, having filed materials, and lost, the Society will not have to meet the same threshold of likely harm on any future occasion.

In practice, however, the Society will at all stages have difficulty maintaining an argument that, where there has already been a temporary care and custody hearing, despite that there is new evidence about the safety concerns, new family plans have come forward or problems are developing in the Society’s plan, the parents must meet some higher threshold to vary the order. It is always the Society’s onus, and public obligation, to satisfy the Court that it is pursuing the least disruptive remedy that is consistent with the child’s protection and best interests. Subsequently developing evidence that the Society’s concerns lacked substantial foundation, that its plan for the child is beneficial in effect or that there are familial or community placements that afford adequate protection for the child, will very likely be viewed as constituting a material change under 51(6)

All of these issues are covered in more detail, but still in an easy-to-understand way, in this $20 book on the Basics of Ontario Family Law. It is likely a good investment for you.

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.

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

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 21 years 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.

Child Support For Children With Disabilities and Back Support in Toronto Ontario Canada - Devry Smith Frank LLP

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, Child Support For Children With Disabilities and Back Support or family law, please contact Toronto Family lawyer John Schuman.

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.

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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.

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.

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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.

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. If you did not have a great relationship with the kids then you may not get much time with them. Depending on the children’s ages, what the children want may also be a consideration – check out this podcast 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.

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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).

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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.

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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.

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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.

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.

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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.

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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.

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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.

Guardianship decisions – no “minor” matter!

October 30th, 2012

Preparing a Will is something many put off as something we all know we should do, but something we really just don’t want to think about right now. Planning for what happens after one’s death can, understandably, be thought of as morbid and unnatural – if nothing else, downright uncomfortable. Add to that the consideration parents must give to guardianship and it’s no wonder half of all Canadians do not have a Will.

As a parent I can think of only one thing that would make me more uncomfortable than having to decide who looks after my child should anything happen to me – letting someone else decide. In Ontario, if both parents die, the decision regarding guardianship is left up to the courts. The court will have to decide between competing relatives and may even appoint the Children’s Aid Society as guardian.

It would take less time, money and effort to make guardianship decisions now than leave these decisions to be made by others who either do not know what your wishes are or are unable to honour them because the law does not permit them to do so.

Your lawyer is best suited to advise you on what to consider when naming a guardian. Your lawyer can also identify and make provisions for other concerns that may arise, such as education trusts and other discretionary trusts for children. When making guardianship decisions, remember – this is no “minor” matter!

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.

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.

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.

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.

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.