child support

Collaborative Family Law Series: Successfully Concluding a Case

Wrapping up a collaborative family law case can bring mixed feelings. (Photo courtesy of SXC, all rights reserved.)

In previous postings, I’ve talked about starting and managing collaborative family law cases. Today’s discussion is about wrapping things up.

In my experience, “the end” in a collaborative family law case is almost always bittersweet. On the one hand, the spouses are relieved that they have sorted out their legal issues and don’t need to worry anymore about being sued. On the other hand, they realize that they are no longer spouses to each other and must move on with their lives.

In collaborative family law, most agreements are not binding until they’ve been formally executed. Therefore, once the spouses have agreed on a settlement, it’s important for the lawyers to act quickly to bring the matter to its formal conclusion.

Usually the final settlement agreement is written as a separation agreement with a few tweaks. Basic background information, such as the dates of marriage and separation, will of course be stated. The final agreement will confirm that both spouses have chosen the collaborative process and that each spouse has been aided by his or her own lawyer. Other professionals who have helped the couple during the process will also be specified along with the tasks they have performed.

If there are children involved, a separate parenting plan may be attached as an exhibit to the agreement. The parenting plan may be drafted by the child specialist or the divorce coach who has worked with the parents extensively as part of the collaborative process. Invariably, there will be clauses stating that the parents will remain flexible to accommodate special circumstances, such as illness and school events, and put the best interests of the children above their own.

Finally, there is almost always a special paragraph where the spouses acknowledge that they have been advised of the relevant laws and understand that their decisions as outlined in the settlement may differ from those adjudicated by the court system.

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

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2012 Brings Legislative Changes in Family Law in Ontario

As we welcome 2012, a few legislative changes in family law in Ontario have come into force. Most notably, the new Child Support Guidelines became effective on December 31, 2011, and the pension provisions added under the Family Law Act came into force on January 1, 2012.*

The changes in the Child Support Guidelines reflect taxation changes in recent years. Individual amounts payable may have gone up, down, or remained the same.

If you were ordered to pay child support under the previous table amount, you do not have to change the amount unless the court further orders you to do so or you agree to do so. By the same token, if you are a recipient and would like to have the amount changed, you must either apply to the court to change the order or convince the payor to pay a different amount.

If the Family Responsibility Office (FRO) is involved, you must advise the FRO of any voluntary or court-ordered changes to child support payable.

Keep in mind that spousal support is linked to child support payable. Therefore, changes in child support payable may have an impact on spousal support payable.

The new pension provisions under the Family Law Act were aimed to provide clarity and expediency in dealing with pensions for family law purposes. The Pension Benefits Act was also amended to reflect the changes.+ The preliminary value of the pension, for family law purposes, is determined by the administrator according to the regulations at the valuation date.

If you don’t know the imputed value of your pension, you may apply to your administrator for a Statement of Value. (Application fees may apply.)

Of course, there are several restrictions and provisions as to how the pension may be transferred and paid out. For details, please consult your family law lawyer.

*R.S.O. 1990 C.F3, s.10.1

+R.S.O. 1990 C.P8, s. 67.1-67.6

This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.

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Separation Agreements Are Subject to Best Interests of Child and Child Support Guidelines

(Courtesy SXC, All Rights Reserved)

Can you do anything you want in a separation agreement? In Ontario, the answer is no, even if the rules of natural justice are observed.

In both the Family Law Act* and the Children’s Law Reform Act,^ the law stipulates that all domestic contracts, including separation agreements, are subject to the best interests of the children.

For example, the parents can’t agree to never send their school-aged children to school. Nor may parents agree to leave their infants unattended at any time.

Besides the above, the Family Law Act also stipulates that domestic contracts are presumably subject to the Child Support Guidelines, even if the domestic contract addressed was entered into under the authority of another jurisdiction. Provisions not compliant with the Child Support Guidelines may be found unenforceable by the courts of Ontario.

In Blagaich v. Blagaich,+ the parties entered into a divorce settlement in the state of Maryland. The terms of the settlement were subsequently incorporated into a divorce order issed by the local court. The order provided that child support payments were to cease when the child reached the age of 18 or graduated from high school (which is inconsistent with the Federal Child Support Guidelines). The parties also stipulated that the settlement was to be governed under the laws of Maryland, and that the Maryland courts would have jurisdiction over the matter.

The Ontario Superior Court found that once the parties have attorned to (legal jargon for “submitted to the jurisdiction of”) the Ontario court, or once the Ontario court has assumed exclusive jurisdiction over the matter, the separation agreement (or divorce settlement) must comply with the laws of Ontario if it is to be enforceable.

Under the laws of Ontario, in determining the issue of child support payable under domestic contracts (including separation agreements, or in the present case, an order issued on consent of the parties according to the minutes of settlement), a court may disregard any provision that is unreasonable under the Child Support Guidelines.

In the end, the payor was ordered to pay child support pursuant to the Child Support Guidelines and the Family Law Act, notwithstanding the provision terminating support when the child reaches the age of 18 or graduates from high school contained in the consent order issued by the Maryland court.

*R.S.O. 1990, c. F.3., as am., s. 33, 56 and 58

^R.S.O. 1990, c. C.12, as am., s. 20, 22, and 24

+2007 CanLII 37325 (ON SC)

This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.

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Want a Cheap and Quick Divorce? Things to Consider

Beware the consequences of "quick and cheap." (Photo Courtesy of SXC, All Rights Reserved)

If you type “Toronto divorce” into your favourite search engine, chances are that the first 3 pages of results will each contain the words “cheap” or “quick” or both. Providers of this type of discount service often claim to offer “expert service” without claiming to provide legal advice at the same time. (As of May 2011, it is illegal in Ontario to provide legal advice regarding family law without being a lawyer.)

What consequences, if any, could there be to getting a divorce without proper legal advice?

For one, there is a limitation period for which equalization (property division) can be claimed. Once the time has run out, you may be legally barred from making such a claim. In fact, the affidavit for divorce form contains a warning: “I do not wish to make a claim for a division of property, even though I know it may be legally impossible to make such a claim after the divorce.

Another commonly overlooked issue on an application for divorce is child support. The law prevents the granting of a divorce by a judge unless he or she is satisfied that adequate provisions have been arranged for the children.

Of course, there are many other reasons that an application for simple divorce may run into difficulties. For example, if the residency requirement isn’t met, the court will have no alternative but to decline jurisdiction, resulting in unexpected delays.

In conclusion, unless you know what you’re doing, it’s wise to consult a lawyer before you decide to use a discount divorce service.

This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.

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Why Is Spousal Support So Hard?

For modest-income families with children, spousal support is hard to come by after the breakdown of the spousal relationship. There are several reasons for this.

1. Child support takes priority to spousal support.

Under both the Family Law Act* and the Divorce Act^, child support takes priority over spousal support if the payor is unable to pay both.

Depending on particular circumstances, the spousal support payable may be so low that it’s not worth the efforts of pursuing it. For example, a $25 monthly spousal support for two years is hardly justifiable given the associated costs.

2. Calculation of support owing is practically impossible for the layperson.

While the non-binding Spousal Support Advisory Guidelines (SSAG)+ provide a range of amounts payable, the exact calculation requires sophisticated computer calculation programs, which are not readily available to the public.

The SSAG also refers to two different kinds of calculation: spousal support without child support and spousal support with child support. The calculation takes into consideration such factors as these:

  • the income of the parties,
  • the individual net disposable income of the parties if child support is involved,
  • spousal support payable by the custodial parent,
  • shared and split custody arrangements, if any,
  • the length of support payable for adult children, if any,
  • the length of the marriage,
  • the age of the parties at the time of their separation.

With so many variables in the equation, calculation by hand is nearly impossible except for lawyers who are very familiar with the formula.

3. It’s difficult to interpret the results of the calculation.

The SSAG provides a range of amounts of spousal support payable – a ceiling and a floor. The discrepancy between these two amounts can range from several dollars for people earning modest income to tens of thousands of dollars for extraordinarily high income earners.

The interpretation of the results requires the application of case laws and legislative principles, and the analysis of the specific facts involved in the presenting case. Without the assistance of a lawyer who is familiar with these factors,the  parties are likely to find themselves stuck at an impasse, with the recipient claiming the ceiling and the payor the floor.

If you require assistance in finding out more about spousal support payable in your separation or divorce, give us a call at 416-433-5531.

PSWLaw is a results-driven law firm that practices in the area of family law.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

*R.S.O. 1990, c. F.3, s. 38.1

^ R.S.C. 1985, c. 3 (2nd Supp.), s. 15.3

+ The SSAG is a project developed by the federal Department of Justice and authored by Professor Rogerson and Professor Thompson, both of the University of Toronto.

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New Family Law Rules Coming into Force; Major Legal Publishers Clueless

On March 1, 2010, sections of the Family Statute Law Amendment Act, 2009* come into force, amending various sections of the Children’s Law Reform Act, the Family Law Act, the Change of Name Act ,and the Vital Statistics Act.

Under the amended Family Law Act, for example, child support payable  may be recalculated to reflect updated income information. While no cases are available for the interpretation of this section yet, I believe it will make the lives of many a lot easier if they unfortunately lose their jobs and become unable to pay support.

The Family Law Rules are also amended under the new legislation. The changes include an amended Form 6B: Affidavit of Service, while the new Form 35.1 is required for custody or access claims.

Neither of the current Consolidated Ontario Family Law Statutes and Regulations (2009) nor Ontario Family Law Practice (2010) reflects the pending changes. When asked, the respective publishers told me that there won’t be a supplementary edition to reflect the changes, and I will have to buy new books in the summer.

Does anyone care?

* S.O. 2009, c. 11

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Lost Your Job and Can’t Pay Child Support?

Let’s face it: the economy is still in a slump and many remain laid off. What happens if you lose your job and can no longer afford child support?

Make no mistake: your obligation to pay child support doesn’t go away because you are no longer employed. The Family Responsibility Office (FRO) cannot vary or reduce the amounts of child support payable. The child support in arrears will grow once the payments have ceased. If you have a significant amount of child support owing in arrears, the FRO may impose sanctions such as suspending your driver’s licence.

In Ontario to reduce the child support payable, you must obtain a court order. It may be obtained through a Motion to Change Final Order.

In support of your motion, you should provide compelling evidence in demonstrating that your financial situation has changed. For example, the following information may be helpful:

  • Record of Employment (ROE) from your last employment
  • A detailed record of your job search attempts
  • Interviews that you have attended
  • Employment Insurance (EI) stubs
  • Income tax returns, notices of assessment, and any attachment for the past three years

If the judge is not convinced that you’ve done your best to get a new job, your motion may be dismissed. If so, you remain obliged to pay the original amount of child support. read more…

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A Brief Note on Child Support and Extraordinary Expenses – What Counts?

As I mentioned in my blog yesterday (“A Brief Note on Child Support and Undue Hardship“), there are two kinds of child support payable in Ontario – the basic amount and the extraordinary amount. While the basic amount refers to the amount set out in the Child Support Guidelines,* what constitutes “extraordinary expenses” is subject to interpretation.

For the purposes of this blog, we will refer to the federal version of the Guidelines.

According to the regulation, the term “extraordinary expenses” means “expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table.”

In plain language, the term refers to the extra costs of raising the children that the recipient spouse can not seasonably afford on his or her own. The granting of extraordinary expenses means that the other spouse will have to help pay part of these costs.

Examples of extraordinary expenses may include the following:

  • child care expenses
  • medical and dental insurance premium attributed to the child
  • tuition or fees for educational programs to meet the child’s particular needs
  • expenses for post-secondary education
  • costs for extracurricular activities

In determining whether the extraordinary expenses are allowable, the court may also consider the following:

  • the amount of expense in relation to the income of the spouse requesting such expenses
  • the nature and number of the educational programs and extracurricular activities
  • any special needs and talents of the children
  • the overall cost of the program and activities

read more…

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A Brief Note on Child Support and Undue Hardship

In Ontario there are two kinds of child support payable – the basic amount and the extraordinary amount. (For more information, see my December 4 blog “A Brief Note on Child Support and Extraordinary Expenses.”)

The basic amount (also called “table amount”) of child support payable is determined solely by the income level of the support payor under the Child Support Guidelines.* In other words, the income level of the recipient is irrelevant for the purpose of determining the basic amount payable.

Exceptions to the basic amount are few. The most commonly seen exception is for “undue hardship.”

For the purposes of this blog, we will limit the discussion to the federal Child Support Guidelines, enacted under the Divorce Act.+

There are several circumstances that may support the claim of undue hardship: an unusually high level of debts incurred to support the receiving spouse and children prior to the separation or to earn a living; unusually high expenses in relation to exercising access; and a legal duty to support another person.^

However, to claim undue hardship, the court must consider differences of living standards between the households. Under the law, the claim for must be denied if the court determines that the household of the spouse claiming undue hardship would have a higher standard of living than the household of the other spouse.

In comparing standards of living, the court would follow the schedule under the regulation, which provides an elaborate calculation formula. The formula provided is complicated, to say the very least, especially if you attempt to do the calculation with pen and paper. Therefore, most family law practitioners use a specialized computer program.

read more…

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A Brief Note on Terminating Child Support

In Ontario the majority of child support payments are enforced by the Family Responsibility Office (FRO) if the payments are made pursuant to a court order or a registered domestic contact, unless the parties have withdrawn their file from the FRO.

The support obligation in Ontario, unlike other jurisdictions, is not automatically extinguished under the law when the child turns 18.

There are two ways to cease the enforcement of child support. If both the payor and the recipient agree that the support should be terminated, they can file their consent with the FRO and the FRO will close the file accordingly.

If the parties can’t agree whether the support obligation should end, there’s nothing the FRO can do. Instead, the support payor must bring a motion to change before the court that granted the child support payments in the first place.*

It’s perhaps a good idea to discuss the proposed termination with the recipient to find out whether a consent order to terminate child support could be a possibility. If so, the support payments may be terminated without the parties’ attending the court by way of a consent motion. If not, the support payor will have to ask the court to change or terminate the support.

*Family Law Rules O. Reg. 114/99, R. 15

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