Skip to content

Learn more about Ontario Divorce.

Ontario Divorce
Ontario Divorce
Child Support
Child Support
Child Custody
Child Custody
Property Division
Property Division
Spousal Support
Spousal Support
Collaborative Divorce
Collaborative Divorce
Separation Agreements
Separation Agreements
Adultery
Adultery
Passports
Passports
Tax Implications of Divorce
Tax Implications of Divorce
Spousal Spying
Spousal Spying
Selling the Home
Selling the Home
Ontario Divorce Help FAQ
Ontario Divorce Help FAQ
Domestic Violence
Domestic Violence
Changing the Locks
Changing the Locks
Texting & Divorce
Texting & Divorce
YouTube
YouTube
Our Story
Our Story

Posts from the ‘Children’ Category

Enforcement of Child Support in Ontario – video

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video, we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

 

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.

Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

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.

Is Summer Camp or Other Activities a “Necessity” for Kids? (Or Only for Parents’ Sanity?)

summer camp

Is Summer Camp or Other Activities a “Necessity” for Kids? (Or Only for Parents’ Sanity?)

The official start of summer is fast approaching. It’s a time when, as parents, we strive to keep children busy with various sports and activities, particularly through the long hot months of their summer vacation from school.

You might call these activities are “necessities” – at least from the point of view of parents who must juggle work and childcare responsibilities (and otherwise endure the frustration of having bored kids underfoot from June through early September!).

But – in the context of determining how and by whom they are paid for – are they really necessities in the legal sense?

The recent Ontario decision in Sutej v. Sutej tackles a scenario where the divorced parents of a boy disagreed on whether his soccer camp and other activities were something towards which the father should have to contribute financially. From a legal perspective the test was whether these activities fell under “section 7 expenses” under the Child Support Guidelines, which covers the payment of what are known as “extraordinary expenses” for extracurricular activities. Those expenses – which are above-and-beyond basic child support obligations – are to be shared by the parents in proportion to a number of variables, including their respective incomes. The Guidelines also clarify that a court must assess the appropriateness of any such “extraordinary expenses” by considering several factors, including the nature and number of extracurricular activities and their overall cost.

In Sutej, the mother had enrolled their couple’s son in a soccer camp in the summer, as well as in other summertime and year-round activities including both soccer and gymnastics. The father, however, resisted paying for these kinds of expenses for his son; he also objected to the fact that the mother was choosing what extracurricular activities the boy would be enrolled in, without checking with him first and obtaining his advance approval.

In this context, the court’s mandate was to determine whether such camp costs (and similar activities) met the test of being “extraordinary expenses” within the meaning of section 7 of the Guidelines.

Firstly, the court confirmed that the mother lacked the absolute right to enroll the child in a multitude of activities, and then ask the father for a contribution in paying for them. Quoting from another decision called Forrester v. Forrester the court confirmed that “the Guidelines do not grant a license to a custodial parent to inject a child into lavish additional activities and demand automatic payment.” Instead, the court emphasized, the expenses sought by the mother from the father to pay for the extracurricular activity must meet the threshold tests of “necessity” and “reasonableness”. Also, they must represent unusual costs that are not otherwise covered or subsumed in the ordinary payments that are paid by the parents.

Applying these principles to the present case, the court found that the costs to enroll the son in soccer camp and in his current roster of activities were not “extraordinary” in line with the Guidelines threshold. The court wrote:

“… as enjoyable and instructive as they may be, I do not consider them to be “reasonably necessary” to require [the father] to contribute to them. [The father] may wish to do so voluntarily, but that is between [the father and the mother], and ultimately, [the father and the son].”

Practically speaking, however, the court recognized that such extraordinary expenses may crop up from time to time as the child got older. To eliminate any future dispute between the parents, it ordered the father to pay a set amount each month to represent section 7 expenses for extracurricular activities. The court explained that part of its ruling this way:

In today’s changing world, [the mother] may find that [the son] would benefit from new and changing experiences to open the world up to him. Subject to any further order [the father] may seek as to what those experiences should or should not be, rather than give vent to either party and their respective personalities with respect to each activity as it comes up, I order [the father] to pay $50 a month for section 7 expenses to meet his responsibility for making contributions to [the son’s] extracurricular activities.

The court added that if other section 7 expenses arose in the future that required a greater contribution, then the parties could go back to court to increase the father’s share.

For the full text of the decision, see:

Sutej v. Sutej, 2015 ONSC 2064 (CanLII)

Forrester v. Forrester, 1997 CanLII 15466 (ON SC), [1997] O.J. No. 3437

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

Who Pays Child Support in Ontario? – video

 

Wednesday’s Video Clip:Who Pays Child Support in Ontario?

In Ontario, all parents have a legal responsibility to support their dependent children to the extent that they can. In this video, we examine who is responsible to pay child support and why.

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 Blameworthy Conduct Can Affect Retroactive Child Support

bad conduct

How Blameworthy Conduct Can Affect Retroactive Child Support

Perhaps it’s trite to say: Divorce does not bring out the best in people. The Ontario family courts are filled with litigation that is often spurred or exacerbated by bad behaviour, lack of cooperation, and unreasonable posturing by one or both parents.

In response, courts are certainly authorized to impose sanctions for various misconduct (for example in the form of granting orders to strike pleadings, impose costs, or declare a party to be in contempt). However, a less-tangible (but still permissible) method for addressing a family litigant’s bad behaviour comes in the form of an “adjusted” child support award – one that takes into account the paying parent’s blameworthy conduct.

This was illustrated in the Supreme Court of Canada called (D.B.) v. G. (S.R.), where the Court considered application by one parent for retroactive child support from the other. The Court turned its focus on precisely how and to what extent a family court should take into account a paying parent’s blameworthy conduct when evaluating the amount retroactive child support he or she should be required to pay.

In this regard, the Court made the following observations:

• “Blameworthy conduct” is anything that privileges a paying parent’s own interests over the right of his or her children to an appropriate amount of child support.

• No level of blameworthy behaviour by parents should be encouraged.

• Even if the paying parent does nothing to actively avoid his or her child support obligations, he or she might be acting in a blameworthy manner by consciously choosing to ignore those obligations.

• In other words, a paying parent who knowingly avoids or diminishes his or her support obligation to the children of the relationship should not be allowed to profit from that conduct.

• When considering the appropriateness of a retroactive award, family courts should not hesitate to take into account a paying spouse’s blameworthy conduct.

• In fact, courts should take “an expansive view” of what constitutes blameworthy conduct for these purposes.
There is no bright-line test as to what amounts to blameworthy behaviour in the family law context. However, the Court gave some examples of the type of conduct to avoid, stating:

• A paying parent cannot hide his or her pay increase from the parent who receives the child support, in the hopes of avoiding larger child support payments.

• Nor can a paying parent cannot intimidate a recipient parent in order to discourage him or her from bringing a child support application.

• A paying parent cannot mislead the other parent into believing that child support obligations are being met, when he or she knows that they are not.

For the full text of the decision, see:

S. (D.B.) v .G. (S.R.), 2006 SCC 37 (S.C.C.)

 

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.

When Does a Seriously-Ill Adult Child Stop Needing Support?

adult child

When Does a Seriously-Ill Adult Child Stop Needing Support?

In a brief decision from a few weeks ago, the court considered a narrow but interesting point: For an adult chid with a serious disease, when does he or she stop being a “child of the marriage” for child support purposes?

In Furlani v. Furlani, the father brought a motion to terminate the child support he had been paying as part of his divorce from the mother. The mother opposed the request as premature: she was concerned that the health of their adult daughter, who had Cystic Fibrosis, might not remain be stable enough in the future to warrant terminating support now.

The court reviewed the evidence jointly tendered by the former couple. In the course of finding that the daughter no longer fit within the definition of “child of the marriage” under the Divorce Act, and that the father’s support obligations should therefore be terminated, the court summarized the evidence and its conclusions this way:

[The daughter] was diagnosed at age three with cystic fibrosis. Her mother testified about the difficulties [the daughter] experienced as a child and the efforts that [the mother] had to make to get the doctors to finally arrive at the correct diagnosis. I understand very well the effect that diagnostic testing and treatment of young children can have on the child and the parents, alike.

I also understand how difficult it can be for the parents of a child who has gone through such testing and treatment to let go, once the child has reached adulthood. There is always a fear that the past will return with a vengeance. In [the daughter’s] case, it is a certainty that her illness will one day pose great challenges. In fact, she faces many challenges today, including requiring treatment for lung and sinus infections.

However, at present, [the daughter] is overcoming these challenges. She is now 21 years old. She lives in southern Ontario with a partner, with whom she is romantically involved. Although both her parents share concerns about it, [the daughter] has entered into a formal contractual relationship as an apprentice to learn the tattoo trade. While she is not yet earning income from that trade, [the daughter] does have income in the form of Ontario Disability Support Program (ODSP) payments that she has been receiving since she turned 18.

The court added that while the Divorce Act’s “child of marriage” definition excludes a child over 18 who is “unable, by reason of illness, disability or other cause” to withdraw from her parents charge or to obtain the necessities of life, the daughter in this case did not fit that category; indeed the court noted that “[s]he appears to be a determined young lady.” It also pointed out that the parents’ provision of financial assistance from time-to-time did not change that assessment; the court observed “this is something that parents of young adults are often called upon to do.”

Finally, while acknowledging that the parents were concerned about their daughter’s future, the court pointed out that it was charged with making a determination based on her present situation. In this particular case, the daughter was able to remove herself from her parents’ charge and would continue to be able to do that for the foreseeable future; the father should no longer be obliged to pay support for her. Another motion could be brought in the future, if her health and abilities were to change.

For the full text of the decision, see:

Furlani v. Furlani, 2015 ONSC 1582

 

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.

Common Questions About Child Support in Ontario – video

 

Wednesday’s Video Clip: Common Questions About Child Support in Ontario

In Ontario, both parents have a responsibility to financially support their children, both when they are living together and if they separate. This applies to all parents, regardless of whether they were married, living together or have never lived together.

In this video we review some common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends.

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.

Father Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

refundFather Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

It’s not often that a court comes right out and calls the behaviour of a parent “shocking”, but in a recent Ontario case called George v. Gayed that was the court’s unequivocal response to the father’s audacious request to be reimbursed for the support he had already paid.

The couple had been married eight years and had two daughters, who were now 30 and 27 years old. The father was an engineer with a Ph.D. specializing in aerospace and marine technology and naval architecture, while the mother was trained as a medical doctor specializing in ophthalmology, though was working in a different field currently. They separated in 1988.

In 1995 the father was ordered by the court to pay $750 per month in support. Shortly afterwards he claimed he was unable to pay this amount because his income had been reduced; however, he failed to provide any proof. Over the following few years, he remained uncooperative with the mother’s attempts to get full financial disclosure from him, and in 1999 – after realizing that she would never get the needed information and that she could not afford the legal fees to pursue the full child support entitlement – she eventually moved forward for a divorce. This resulted in the father being ordered to pay $360 per month based on what the court speculated was his income at the time of $25,000.

However, a few months after that 1999 order, the father unilaterally cut off all contact with the children and remained out-of-touch for about 13 years. He did not contact them even on special occasions, such as their birthdays, Christmas or graduation. The mother was unable to locate him despite her diligent efforts, which included hiring a private investigator. This left her solely responsible for raising and supporting the children, and she racked up significant expenses of her own to put their daughters through post-secondary education. The daughters themselves contributed to a very reasonable extent, but they were left with large debts in the process.

In 2012, the father suddenly re-surfaced and claimed in a motion that he had actually overpaid support by $68,000. The mother, not surprisingly, brought a counter-motion asking that she finally be given full financial disclosure by the father, that she be awarded greater child support based on those accurate figures, and that she be awarded her full legal costs.

The court summed up its view of the father’s position this way:

I conclude that the [father’s] conduct in this case is shocking. He has abandoned his daughters and burdened the [mother] with the responsibility of providing for their support and university education. He now comes out of hiding and seeks a reimbursement of amounts he claims he has overpaid when he clearly should have paid more.

Rather than grant the father’s ill-conceived request, the court took the opportunity to make some serious inquiries into the father’s finances, and among other things ordered extensive disclosure of the father’s income and assets (and indeed forced him to sign authorizations for the release of third party information in the mother’s presence). As a result, it was revealed among other things that the father and a previously-undisclosed investment account that held almost $127,000, which account the court ordered frozen. He also had corporate income in the role of president, sole shareholder and officer/director of his consulting company, and was receiving a pension from the United Kingdom.

Further, the court accepted the mother’s evidence, including the expert report she had commissioned, and concluded that her support entitlement calculations were not only reasonable, but were actually conservative. The daughters’ educational goals were also well in-line with the family expectations, and they had contributed a reasonable amount to their own tuition and expenses.

In short, the father did not get the “refund” of support he claimed; to the contrary, he was ordered to pay a lump-sum of more than $60,000, reflecting the amounts he should have been paying during his 13-year self-imposed absence from the children’s lives. He was also ordered to pay the mother’s outstanding costs of $17,000, plus her full legal costs of just under $70,000.

For the full text of the decision, see:

George v. Gayed, 2014 CarswellOnt 12841, 244 A.C.W.S. (3d) 398, 2014 ONSC 5360 (Ont. S.C.J.).

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.

Ontario Child Support: How Do You Arrange For Support To Be Paid? – video

 

Wednesday’s Video Clip: Ontario Child Support, How Do You Arrange For Support To Be Paid?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, we review how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

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.

It’s Tax Time! Some Tips About the Canada Child Tax Benefit

CCTB

It’s Tax Time! Some Tips About the Canada Child Tax Benefit

It’s tax season in Canada, which means that many of us are toiling and agonizing over our personal Income Tax returns, which for most people are due to be submitted to the Canada Revenue Agency (CRA) on April 30, 2015.

Among my clients, questions sometimes arise about how taxes are to be filed after a separation and divorce, especially the question of who is entitled to claim the Canada Child Tax Benefit (CCTB). While I emphasize that it’s important to get solid tax advice that is customized to address your specific scenario, there are a few general and basic tips that I can offer about the CCTB:

• The CCTB is a tax free, monthly government benefit payable to eligible parents for each child who is under the age of 18. It is designed to help families with the cost of raising their children.

• Generally speaking, the CRA determines the amount of eligibility for the CCTB by looking at the prior year’s tax returns for each of the parents.

• When parents have separated or divorced, the provisions of the federal Income Tax Act and its regulations govern the determination of which of the two parents is eligible for the CCTB.

• The baseline test for CCTB eligibility is this: The parent who resides with the child and who primarily fulfills the responsibility for the care and upbringing of the child is the one eligible for the CCTB.

• If due to the breakdown of the marriage or relationship the parents have separated for a period of more than 90 days or have divorced, and where the child spends considerable periods of time with each parent at their respective residences, the CRA will review the circumstances to determine which of them is entitled to the CCTB.

• Among the many factors considered by the CRA in this shared-care situation are the following: 1) whether the child actually resides with both parents; 2) who is primarily responsible for his or her care and upbringing; and 3) whether there is a court order in place.

• In cases where custody of the child is equally shared, both parents may fully satisfy the threshold “resides with” and “primary care” requirements. In such cases, the CRA splits the annual benefit by giving each parent 6 months’ worth of the CCTB (subject to the recipients’ own individual income-based eligibility determinations).

It’s important to emphasize that the Income Tax Act and its regulations contain the governing provisions, definitions, and rules that determine CCTB entitlement in favour of parents generally. The question of precisely how those rules apply to separated and divorced parents can get a little complicated, and even more so where the parents have struck an agreement between them that contains CCTB-related clauses. This is because the contract provisions may contradict or purport to countermand those that are set out in the legislation, or may reflect circumstances that have changed since the agreement was reached. In such cases it is especially important to consult an experienced lawyer for tailored tax advice.

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

More on the Splitting the Costs of Kids’ Hockey

tape

More on the Splitting the Costs of Kids’ Hockey

A few weeks ago I wrote about how courts allocate the costs for kids to play hockey, and as an example put forward a case where only certain hockey-related costs were considered “extraordinary expenses” that were subject to division between the separated parents, pursuant to s. 7(1)(f) of the federal Child Support Guidelines.

However, it is important to point out that there are no absolute rules in this regard – the treatment of hockey and other activity-related costs can vary even in terms of how they are categorized for child support purposes. Depending on the situation, they might be classified differently from one family to the next: – in some cases being classified as an “extraordinary expense”, while in others being included as a component of the monthly child support amounts.

This surprising dichotomy can occur because in some families, everyday, “ordinary” expenses associated with sports and other extracurricular activities are contemplated and anticipated because of the family’s overall lifestyle and means, and are therefore simply funded from the child support that is paid in connection with the child. This was the outcome in an Ontario decision called Watt v. Watt, where the costs for the children’s hockey and dance were not considered to be extraordinary expenses in the overall context of the particular family’s lifestyle.

In any event, the point at which hockey or similar costs stop being “everyday” expenses and start being “extraordinary” ones is a difficult one to identify. Fortunately, the Child Support Guidelines do offer some guidance in his regard, stating that the question of whether an expense has become “extraordinary” (for the purposes of s. 7(1)(f)) involves the court considering several things, (set out in s. 7(1.1)) namely:

1) whether the expenses exceed those which the support-paying parent can reasonably cover, bearing in mind his or her income and any child support received by him or her; or

2) if these first considerations are not applicable, then the court can consider:

a. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

b. the nature and number of the educational programs and extracurricular activities,

c. any special needs and talents of the child or children,

d. the overall cost of the programs and activities, and

e. any other similar factor that the court considers relevant.

As a final point, it should be noted that in making the assessment the court will not consider the merits of the proposed extracurricular activity; rather, the court will look only at financial aspects, measured against the various family-specific factors set by the Guidelines.

For the full text of the decision, see:

Watt v. Watt, 2011 ONSC 1279 (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