Wrapping up a collaborative family law case can bring mixed feelings. (Photo courtesy of SXC, all rights reserved.)
Toronto Family Law Lawyer Pei-Shing B. Wang:
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.
Sorry, No More Support Payments. I Found My Dream Job Flipping Burgers – Intentional Under-Employment in Family Law
(Photo courtesy of stock.xchng. All rights reserved).
Toronto Family Law Lawyer Pei-Shing B. Wang
When it comes to child support and spousal support payments, people react differently. Many honourable payors cut back on other expenses in order to make ends meet, while some others simply quit their jobs and claim inability to pay.
In Ontario, the table child support payments under the Child Support Guidelines are calculated exclusively according to the payor’s income, whereas spousal support obligations depend largely on the gap between the income levels of the payor and the recipient. In other words, the more you earn, the more you pay. Conversely, the less you earn, the less you are supposed to pay.
Therefore, it’s not unheard of that a payor would intentionally quit his or her job or switch to a lower-paying position voluntarily in a bid to reduce support payable. At times I’ve seen a payor’s six-figure salary reduced to social assistance payments, purportedly because of the “economic downturn.”
Thankfully, under the law, if the court is of the opinion that a payor is intentionally unemployed or underemployed, it can impute income and fix the support amount accordingly.*
In deciding whether income should be imputed, the court must ask whether the payor chooses to earn less than what he or she is capable of earning, or whether the reduction is involuntary and reasonable.
Of course, no litigant will state to the court that his or her income has been intentionally reduced in an effort to evade support obligations. The Ontario Court of Appeal ruled in Drygala v. Pauli that there is no need to find a specific intent to evade support obligations before income is imputed.^ As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. If the payor chooses to earn less than what he or she is capable of earning, income may be imputed. A finding of “bad faith” is not required.
When imputing income, the court must determine whether the reduction of income is voluntary or involuntary, and reasonable or unreasonable. The factors include the age, education, experience, skills and health of the payor parent. The court may also look at the support payor’s financial circumstances and the history of payment or non-payment. Available job opportunities may also be relevant.
*The same principle regarding imputation of income applies both to child support and spousal support. See, e.g., Rilli v. Rilli, 2006 CanLII 24451 (ONSC)
^ (2002), 61 O.R. (3d) 711 (C.A.)
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.