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“Beer, Bingo and Boyfriends” – Should Support Payors Have a Say in How Money is Spent?

bingo

“Beer, Bingo and Boyfriends” – Should Support Payors Have a Say in How Money is Spent?

In a recent Blog  we wrote that in Ontario, support-paying parents are not given sway over how their child support payments are spent and allocated: Once the support payment is in the hands of the recipient (custodial) parent, they are free to use the money for the child’s benefit as they see fit. The parent who provided the funds has no say in the matter.

An obvious related question is this: Does the same rule apply to spousal support payments as well?

This was one of the issues in an older case called Reniewick v. Reniewick, 1985 CarswellOnt 345, [1985] O.J. No. 812 (Ont. Prov. Ct.).

Under the particular court order that dealt the former couple’s support obligations toward each other, the husband had been ordered to financially support the wife until she either remarried or began living with another man. When the husband found out that the wife had a new boyfriend he became convinced – based on the findings of a private investigator he hired – that the two were living together, and stopped paying support. However, the wife claimed it was not a cohabitation arrangement within the wording of the court order, that she and the new boyfriend were just dating, and that the husband’s support obligations should therefore continue.

Not surprisingly, this gave rise to a perhaps-awkward dispute between the former couple, and the matter went before the court for its resolution. Using a long list of the established legal hallmarks of “cohabitation”, the court had the task of examining in detailing the dating and sleeping arrangements of the wife and her new boyfriend. It found that although the boyfriend often stayed over with the wife, he kept his own home and did not contribute to the upkeep of hers; at present they had no plans to get married or live together. At most, they had what the court called a “serious romantic attachment and sexual relationship” that was “of no concern to this court or to the [husband]”.

In this context, the court stated:

Counsel for [the husband] submitted to this court that his client is indirectly supporting [the new boyfriend] because that man makes no financial contribution to his former wife’s household. There was, however, no evidence presented before me that [the boyfriend] was exploiting or consuming his host’s resources and I am not prepared to draw any inferences to that effect merely from the fact that he is allowed to stay at the residence overnight. It is not uncommon for husbands or former husbands to complain before the court, “But Your Honour, she spends the money I give her on beer, bingo and boyfriends”. The standard response of the law is that, once the support money is in the woman’s hands, it is none of this court’s business nor that of the payor to dictate how she should spend it …

Therefore, having failed to establish that the court-ordered “cohabitation” threshold for ending support had been met, the husband’s application to terminate spousal support was dismissed.

For the full text of the decision, see:

Reniewick v. Reniewick, 1985 CanLII 1822 (ON CJ)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

What Does it Mean to be “Living Together”, Exactly?

living together

What Does it Mean to be “Living Together”, Exactly?

A few weeks ago I considered a case  that addressed whether support payors should have any input on how their support payments are spent. In reflecting on that question, the court speculated on the support payor’s disgruntlement at seeing his former spouse spend support payments on “beer, bingo and boyfriends”.

This kind of scenario provides a good jumping-off point for a related issue: If the former spouses both agree that support will terminate if the recipient spouse “lives with” a new partner, when does that threshold get crossed, exactly?

Although there are many cases from Ontario that consider this, I noticed a good discussion in an older Newfoundland case called Cooper v. Cooper. There, the husband had agreed to pay support to his ex-wife, with whom he had a traditional marriage for 28 years. However, the now-divorced couple agreed that spousal support would end if the ex-wife decides to “remarry or reside with another man, as husband and wife.”

In 1993, about a year after the divorce, the wife started a relationship with another man, with whom she lived in Florida for the winter months of each year (and particularly so since she had been declared redundant at her work). About five years after that, the husband finally asked the court to terminate his support obligations to her, on the basis that his ex-wife had been “living with” another man within the wording of their agreement.

In order to determine the issue, the court gave detailed consideration to the relationship between the ex-wife and her boyfriend. In making this assessment, it considered a prior judgment in a case called Soper v. Soper where the court said:

I think it would be fair to say that to establish a common law relationship there must be some sort of a stable relationship which involves not only sexual activity but a commitment between the parties. It would normally necessitate living together under the same roof with shared household duties and responsibilities as well as financial support. I would also think that such a couple would present themselves to society as a couple who were living together as man and wife. All or none of these elements may be necessary depending upon the intent of the parties.

Here, the evidence pointed to something more casual and less full-fledged than a common law marriage:

Although they lived together in Florida periodically – where they participated in neighbourhood, community and social activities together – the ex-wife kept her own apartment. They did not share bank accounts or property ownership, preferring to keep their financial affairs separate. They did not share financial information with each other, either. The boyfriend paid for expenses, while he ex-wife paid for food costs and her own long distance calls. And while they did have a sexually-exclusive relationship, the ex-wife stressed that she was a free and independent woman.

In assessing this arrangement, the court kept in mind the observations in an earlier case called Deering v. Deering:

According to the evidence, Mr. Smith and Mrs. Deering keep constant company with each other but do not live together as man and wife. They do have sexual intercourse with each other and she sometimes will prepare his meals.

If there prevails what is generally known as a common law relationship or a domestic relationship, then it seems unfair and indeed improper that a person should be called upon to contribute to the support and maintenance of the former spouse who is a party to such a relationship.

There may, however, be only a social relationship which may or may not involve intimacies but which would not of itself preclude the spouse from claiming maintenance from his or her former spouse.

The relationship that prevails between Mr. Smith and Mrs. Deering falls somewhere between these two, closer to the former than the latter. There is a business relationship also because Mrs. Deering pays rent to Mr. Smith. They frequently share each other’s beds and bodies and dining table but fall short, albeit by little, of having an actual common law relationship.

Returning back to the facts of the present case, the court added:

I question whether one should automatically regard it as unfair for support to continue merely because the ex-wife ends up in a common law relationship, after a lengthy traditional marriage as in the present case, where the wife has probably been economically disadvantaged by her involvement in raising children.

The clause in the former spouses’ agreement governed; there was no husband-and-wife relationship between the ex-wife and boyfriend, so the threshold for ending support had not been met. The husband was obliged to continue his financial obligations (and his subsequent appeal of the ruling was dismissed).

For the full text of the decision, see:

Cooper v. Cooper (1998), 168 Nfld & PEIR 58; 42 RFL (4th) 317 (NL SCTD)

Cooper v. Cooper, 2001 CarswellNfld 17, 2001 NFCA 4, [2001] N.J. No. 19 (Nfld. C.A.)

Soper v. Soper (1985), 44 R.F.L. (2d) 308; 67 N.S.R. (2d) 49 (N.S.C.A.)

Deering v. Deering (1986), 60 Nfld. & P.E.I.R. 230 (Nfld. T.D.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

How To Find More Information About Ontario Family Law – video

 

Wednesday’s Video Clip: How To Find More Information About Ontario Family Law

In this video we review the different ways you can get more information about family law.

There are many professional people, organizations and other sources that can help you or provide information about family law issues, including:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for
many of these resources, and

10. A librarian at your public library may also be able to help you.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

U.S. Judge Sends Kids to Jail for Snubbing Dad

bad boys

U.S. Judge Sends Kids to Jail for Snubbing Dad

We all know that the break-up of a family can be hard on children, partly because they may feel they are being unwillingly wrenched away from one of their parents, or because they may feel they have to “choose” between them. The situation gets even more fraught when the acrimony between parents gets transferred to the children, by way of one parent trying to “poison” the children against the other one.

In a Michigan case heard in late June of this year, the judge concluded that three children had been subject to this sort of “brainwashing” – better known in legal circles as “parental alienation” – by their mother against their father. Against the background of five full years of legal wrangling by the parents, the children (aged 9, 10, and 15, and living full-time with the mother) refused to have anything to do with the father, and would not even talk to him.

Despite placing the blame squarely on the mother for the children’s uncooperative conduct, the judge declared the kids in contempt, primarily for being completely unwilling to establish a healthy relationship with their father. She initially ordered all three to spend the rest of the summer in a juvenile detention facility, and added that they would not be permitted to visit with their mother (who was herself in breach of several court orders). The detention order would be reviewed, the judge said, when the children indicated willingness to at least dine with their father and be “normal human beings”.

The judge made this contentious order over the objections of both parents, but noted that the children were each represented by lawyers who had no concerns about this admittedly unusual ruling.

Needless to say, the judge’s order garnered significant controversy and backlash in the media and among the legal community. The judge subsequently defended her decision to the press, pointing out that this was an unusual scenario and that all other avenues had been exhausted. She also noted that the children were housed in a short-term facility within the juvenile detention center, and not amongst the young criminal offenders.

(In a later development in early July, after the children had already spent a few weeks in juvenile detention, the judge reversed her initial order and had the children transferred to a summer camp instead).

Do you think that the judge went too far in this case? Should kids be strong-armed into maintaining a relationship with one or both of their parents?

For a sampling of some of the media coverage of this story, see these links:

media coverage 1

media coverage 2

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

 

You Be the Judge (Part 2): Should Grandmother Be Included in Kid’s Custody Award?

granmother 2

You Be the Judge (Part 2): Should Grandmother Be Included in Kid’s Custody Award?

In our recent blog we asked our readers to consider how they themselves would rule in light of the facts in a recent case called McGlade v Henry. It featured two of young parents whose 4-year old child received an exceptional level of care, financial support, and emotional guidance from his grandmother on the father’s side. The grandmother had teamed up with the child’s father to ask the court for three-way joint custody (i.e. mother, father and grandmother); however the mother resisted and asked the court to grant her sole custody instead.

We asked the following question for readers to consider: Should the court, in the context of deciding which of the parents should have custody, take into account the grandmother’s role, extensive involvement, and influence? Should the grandmother be included in the court’s custody award if one or both parents object?

The court’s judgment began with a review of all the facts, including a detailed examination the parties’ current and historical interactions and interrelationship with each other, and with the child. Under the relevant family legislation, the court pointed out, it had to consider the boy’s needs and circumstances, including the love, affection and emotional ties between the child and anyone else who might claim custody or access – which in this case would include the grandmother. The legislation also required the court to consider her ability and willingness to act as “parent”, and to provide the boy with guidance, education, and the necessaries of life.

The court also underlined the fact that legally – and perhaps surprisingly – biological parents are not necessarily given preference in terms of getting custody of their own child. Rather, the child’s best interests must govern at all times; the fact that an applicant for custody happens to be a biological parent is only one of many relevant factors. As the court put it:

Accordingly, [the mother] and/or [the father] do not have general preferential custodial status over [the grandmother] simply because they are the biological parents of [the boy], but the difference in their blood relationships with [the boy] will be one of the factors considered by the court in determining [his] best interests. Nevertheless, [the mother’s] claim for sole custody will be given serious consideration because she is a biological parent of [the boy], and [the father’s] claim for joint custody will be given serious consideration for the same reason.

The law also indicates that grandparents should not be given preference in relation to custody solely because they are more mature, have more parenting experience, and have access to greater material resources than biological parents, because, otherwise, grandparents would often be in a favoured position compared to adequate biological parents, and the closer blood relationship between adequate natural parents and their children would, in many cases, be susceptible to being outweighed by those considerations …

The court added:

None of these imperatives imply, however, that [the grandmother’s] claim for joint custody should not be given serious consideration. In fact, in all of the circumstances of this case, her claim also deserves serious consideration.

With that said, the grandmother’s extraordinary level of involvement, and the fact that she had been “remarkably financially generous” to the boy and the mother, had what the court considered to be somewhat of a down-side. As the court explained:

Further, there is uncontradicted evidence that she overindulgently gives [the boy] anything he wants and, as a result, he has been prone to behavioural acting out when he does not get what he wants.

Additionally, although she is always glad to have [the boy] spend time with her when his mother or father are not available, the evidence indicates that she may have, intentionally or unintentionally, disempowered them, at least to some extent, by taking a controlling and directive approach in relation to [the boy] and using her superior resources to do so.

The court does not doubt that she has [the boy’s] best interests at heart, but she might, intentionally or unintentionally, not be advancing those best interests at all times.

After taking everything into account, the court summarized the key factors. From the boy’s perspective, it was very important that he have continued and significant contact with all three parties; they each had what the court called “a very strong love” for him. Depriving him of that exposure would be emotionally disruptive and harmful.

From the mother’s perspective, there was an evident adverse effect to the grandmother’s extreme financial generosity and support: it diminished her own role and authority as the boy’s parent. The grandmother had implicitly – though likely unwittingly – undermined the mother over the years.

As for the father, the court concluded that he was clearly devoted to the boy as well, but was the least involved amongst the three caregivers. More importantly he still lacked the maturity needed to be an effective parent and key decision-maker for the boy.

In the end, the court found that joint custody shared by all three parties was not in the boy’s best interests – though not because of the grandmother’s heavy-handed involvement. Rather, to recognize both women’s contributions (both past and future), it “parcelled out” certain aspects of the boy’s care and upbringing to the mother and grandmother, while relegating the father to a more secondary role overall.

Specifically, the mother was to provide the boy’s primary residence, and was given sole custody in relation to his hygiene and health, and his religious upbringing and welfare. However major decisions on education were to be made jointly by the mother and grandmother. The court summed up its ruling this way:

In summary, the court finds that it is in [the boy’s] best interests to strengthen [the mother’s] maternal role, while maintaining [the grandmother’s] vital role in relation to his education, and encouraging all three parties to continue to nurture their critically important emotional ties with [the boy].

To our readers: Is this the way you would have settled this dispute? What are your thoughts on this outcome?

For the full text of the decision, see:

McGlade v Henry, 2015 ONSC 3036 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Ever wonder what happens if you die without a will? – video

 

Wednesday’s Video Clip: Ever wonder what happens if you die without a will?

This LawPro video emphasizes how preparing a will can avoid a lot of headaches. As stated in the video, a surprising 65% of Canadians don’t have a will. Everyone should consider getting a lawyer to help them prepare a will if they don’t have one, or to review any will that hasn’t been updated recently.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

You Be the Judge: Should Grandmother Be Included in Kid’s Custody Award? (Part 1)

grandparent

You Be the Judge: Should Grandmother Be Included in Kid’s Custody Award? (Part 1)

This is the first in a two-part Blog.

Custody battles are difficult enough when they are fought by the parents, but as I have written in a past Blogs grandparents may also have rights in relation to access (or even custody) of children of separation of divorce.

But even when the grandparents are not themselves asking for access, an interesting question arises: When making a custody determination between the parents, should courts take into account the role, participation and influence of the children’s respective grandparents? And should a grandparent be included in a custody award even over the objection of one of the parents?

This week’s Blog will give my readers a chance to answer that question themselves and play “amateur family lawyer”.
Consider the facts in the recent case of McGlade v Henry, where the young parents – who at age 19 had met online and immediately conceived a child – were fighting for custody of their now four-year-old autistic boy. The boy’s 45-year-old paternal grandmother also joined the court battle; she and her son (i.e. the boy’s father) wanted to share joint custody with the boy’s mother.

The court heard evidence of the significant extent to which the grandmother – who refused to let her son “run from his responsibilities” — had been involved right from the beginning in helping the inexperienced young parents’ raise their child. She gave both parents extensive financial and parenting support, and generously continued to help the boy’s mother even after they separated. (Which split, incidentally, was prompted by the boy’s father sending the mother a break-up text while she was away with the 3-week old boy visiting family. A second, final break-up was instigated by the boy’s father via Facebook message).

Indeed, throughout the four years of the boy’s life, the grandmother played a major role in his upbringing: She provided almost full-time babysitting, and encouraged and paid for the mother to go to school and find suitable employment. She furnished and bought / rented several suitable homes for the mother and boy to live in, paid the utility bills, and purchased groceries and baby supplies. During some periods she also gave the mother a monthly stipend of up to $500 for her expenses, and provided her with a car and cellphone. On one occasion, she gave her a $5,000 lump sum to “treat herself”. She also paid the boy’s school fees, liaised with his teachers, and took care of his medical and other needs.

However, there was routine friction in the relationship between the two women, and at one point the grandmother successfully obtained a court order for temporary custody of the boy. Eventually the parties ended up in court to resolve competing claims between the mother on the one hand, and the grandmother and father on the other.

The mother based her claim for sole custody on the feeling that the grandmother was too involved in the boy’s life, and that the boy’s father had abdicated his child-rearing and decision-making responsibilities about the child to her. As the court described it:

[The mother] believes that her proper role as [the boy’s] mother is inappropriately suppressed by [the grandmother’s] overwhelming directive influence over [the boy’s] life. [The mother] suggests that she needs sole custody or she will always give in to [the grandmother’s] views because she does not have the mental, physical, or financial resources to oppose [the grandmother’s] who always gets her way.

[The mother] wants peace and no arguing. She says she is afraid to make suggestions because an argument will start with [the grandmother]. She believes that joint custody will result in endless court actions and that sole custody is the only way to avoid every issue becoming a dispute with [the mother] …

In short, she believes that neither [the father] nor [the grandmother] support her role as [the boy’s] mother.
In terms of her desire to provide the boy with his primary residence, the court described the mother’s position this way:

[The mother] testified that she understood that it was initially difficult for [the boy] to leave [the grandmother] (with whom he frequently travels internationally, and who, according to [the mother] gives him anything he wants, including his own pony and any toy he points out while in a store) to live with [the mother] (who is a student, working part-time, and supported by Ontario Works), but she persevered in adjusting his expectations.

From a legal perspective, the court was asked to examine the best interests of the boy against the background of various factors and interests, giving rise to two competing scenarios:

• Should the claim for sole custody by the mother – who was his biological parent – trump any competing joint custody claim by anyone else, including the grandmother?

• Or should the grandmother (and notionally, the boy’s father) be part of a joint custody awarded in favour of all three of them?

How do you think the court ruled this case? Should the court consider the grandmother’s intensive involvement as a mature and reliable caregiver for the boy, in making its custody award?

Find out in the next Blog later this week.

For the full text of the decision, see:

McGlade v Henry, 2015 ONSC 3036 (CanLII)

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Business Owners Beware: Court Can Force Your Hand to Compel Appropriate Child Support

wall street

Business Owners Beware: Court Can Force Your Hand to Compel Appropriate Child Support

Consider this scenario: A separated or divorced parent draws their entire income from a corporation for which he or she is single-handedly “running the show”. That means the parent has considerable discretion in deciding things such as salaries, bonuses, and retained earnings for the corporate entity.

But that parent is also obligated to pay child support, which we know is geared to income.

The question is this: How far should a court go to force the parent’s hand, in terms of withdrawing funds from the corporation to pay that child support?

This was the legal question underlying a case called VanSickle (Elms) v. VanSickle. Specifically, for the purposes of calculating the child support he owed the court had to grapple with whether to impute income to the father – who was the sole shareholder, officer and director of a company he ran from a home office – because he had kept too much of the available money sheltered in the corporation.

To make its ruling, the court undertook a detailed analysis of the finances, structure, and operations of the father’s business. The corporation had no significant debt, and it had a significant cash surplus of more than $150,000. That money, as the father made clear in his evidence, was available for his own personal use when needed. (For example, he took money out of the corporation and declared it as income when he needed funds to pay his legal fees). Also, the court noted the father’s lifestyle since the first child support order had significantly improved; yet he had not had a corresponding obligation to pay added support to his children.

Given that the father had displayed a liberal hand at drawing money out of the corporation for her personal needs, he was equally able to withdraw some money to pay retroactive child support, the court found. There was no unusual hardship to the father in this scenario.

The court also noted (perhaps sardonically) that since 2008, when the litigation between the father and the mother started, the corporation had suddenly and consistently had an upsurge in retained earnings (meaning money that the father kept in the business, rather than withdraw as income). To this observation, the court added:

Although I certainly accept the [father’s] evidence that his business is seasonal and fluctuates and that it is a prudent business practice to retain some earnings in the corporation to make sure monies are available when needed, I am also satisfied that one of the reasons the money remained in the corporation was so that his income was not increased for child support purposes. As I stated earlier, he had no difficulty in taking out additional money from the corporation to pay his legal fees, to purchase a roof, to pay his personal income tax liability or provide a bonus to either he or his wife. As the sole officer, director and shareholder of the corporation, he had sole decision-making authority and is able to access funds as he sees fit.

The court was also somewhat circumspect about the father’s practice of income-splitting with his new wife. While the father had done nothing illegal or inappropriate in choosing to income-split, the court took issue with the amount:

Although I do not doubt that the [father’s new] spouse works hard and is entitled to compensation from the corporation, the amount of that compensation is excessive when considered in relation to the income the [father] receives. For example, despite being the president and sole shareholder of the corporation and working incredibly long hours, the corporation pays the [father’s new] wife the same salary that he receives. In fact, in some years, she received more than he did. … It is also of note that prior to this marriage, the corporation did not employ anyone to do the job [the new wife] was hired to do. …

In the end, the court concluded that the father’s income for child support purposes had been understated. It imputed between $68,000 and over $90,000 in income for each of the three years that were the focus of the mother’s retroactive support claim, and attributed another $5,000 per year to the father’s income on account of the overly-generous income-splitting with his new wife. The court made a few other adjustments, including taking into account certain home-office expenses from which the father also benefited (e.g. meals, telephone, cell phone, internet, fuel, repairs, gas, and insurance).

The result was a court order for annual retroactive child support amount of between $10,000 and $15,000 for each of the three contentious years, to be remitted by the father a rate of $1,500 per month until paid in full.

For the full text of the decision, see:

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

What Are The Child Support Guidelines? – video

Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this law video we review the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Can a Parent Replace Child Support … with Gifts?

child gift

Can a Parent Replace Child Support … with Gifts?

Even for the best-intentioned of parents, the mechanics around fulfilling the obligation to pay child support can be a challenging part of any separation or divorce. If for nothing else, there is the fact that once you blindly hand the money over, you have little control over how (or even whether) it is actually spent to benefit your child. The lack of input and control – and the need to put faith in the integrity and follow-through of the other parent – can be frustrating.

As a support-paying parent it might be tempting for you to take matters into your own hands, perhaps through what I’ll call a self-help “direct delivery” method. For example, you might be tempted to pay (older) children their child support entitlement directly, or buy them needed items yourself, rather than relying on the other parent to use the support money to do so.

Unfortunately – and unless this has been expressly allowed in a court order – this isn’t an option.
In fact, this approach was expressly rejected in an Alberta case called Haisman v. Haisman. The father, who had been in arrears on child support for his daughter to the tune of $14,000, had over the course of a few years spent about $6,000 on clothes and other items for her nonetheless. A lower court judge, in calculating his overall support obligations, had apparently taken into account the $6,000 and reduced the arrears by that amount. The Alberta Court of Appeal found this was an error, stating:

When a mother has custody of a child and a court orders the father to make payments to the mother for the maintenance of that child, it is not open to him to make payments to the child instead. Nor is it open to him to buy things for the child and to claim that the amounts which he spends in this way should be deducted from the maintenance payments which he was ordered to make to the mother. In neither case has he complied with the order of the court. Further, the mother, as the custodial parent, is entitled to decide how maintenance payments for the child will be spent.

As the court in another Alberta decision called Kazeoleas v. Kazeoleas added:

If this were not so, a father could, for example, buy expensive skis for his child and then reduce his maintenance payments by the cost of the skis. The mother would then be left to find the money to house and feed the child without any help from the father. This cannot be right.

This same approach was applied in an Ontario case called Szucs v. Freeman, where the court said:
Gifts to the children do not constitute support to the custodial parent. It is the custodial parent who pays the rent, pays the utilities, purchases the groceries, purchases the children’s clothing, and so on. Gifts to the children do not in any way contribute to the lessening the custodial parent’s obligation in that regard.

These decisions all confirm that a support-paying parent does not have the unilateral right to decide to give gifts or other items in lieu of support, then claim that his or her child support obligations have been satisfied. Nor, for that matter, does that parent get to choose how money that should be earmarked for child support is to be spent by the other parent, which is a topic I will address more fully in an upcoming Blog.
For the full text of the decisions, see:

Haisman v. Haisman, 1994 ABCA 249 (CanLII), reversing 1993 CanLII 6988 (AB QB), leave to appeal to S.C.C. dismissed without reasons, [1995] S.C.C.A. No. 86.

Kazoleas v. Kazoleas, [1997] A.J. No. 820, (July 9, 1997) 9103 00516 and 4803 80820, Edmonton (Alta. Q.B.).

Szucs v. Freeman, 2007 ONCJ 96 (CanLII).

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