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Posts from the ‘Children’ Category

Father’s Income Cut By Half – Can Support Arrears of More Than $70,000 Be Wiped Out?

man with two children at lake and mountain

Father’s Income Cut By Half – Can Support Arrears of More Than $70,000 Be Wiped Out?

Under the terms of a settlement agreement that had been confirmed in a court order, the father had been dutifully paying about $1450 a month in child support, and $450 in monthly spousal support, based on his income at the time of about $100,000 per year.

However, within a few years he had amassed arrears to the tune of $47,000 in spousal support, and $25,000 in child support.  The court explained the reason:

In 2015, [the father] lost his job.  He was not able to find similar work.  His current income at his new employment is substantially less.  He has also taken on the responsibility of a new family.  He has two step children from the new marriage.  Since 2015, given the change in his employment, he has been having problems making the support payments.

The court heard that the father’s current income was considerably reduced from his former six-figure mark: he was now earning around $45,000 per year.

In light of those changed financial circumstances, the father asked the court to eliminate his outstanding arrears entirely.  In response, the mother claimed he actually owed another $40,000 more, over and above the arrears, to cover his unpaid share of one of their children’s university expenses.

The court confirmed that under the provincial Family Law legislation, it had the power to retroactively discharge or rescind child support arrears – but only if there has been a “change in circumstances” as that term is defined in the Child Support Guidelines.   That threshold is met if the amount of child support, calculated using the current circumstances and the Guidelines, would result in a different mathematical figure than the one arrived at initially.

But as the court explained:

The accumulation of arrears without evidence of a past inability to pay is not a change in circumstances.  As well, the present inability to pay does not by itself justify a change order.  Such an order should only be granted if the payor can also prove a future inability to pay. 

There remains a conceptual difference between situations where:

  • The father was asking for relief from paying arrears due to his current inability to pay; and
  • His arrears accumulated due to a change in circumstances that affected his ability to make the child support payments when they came due.

Although that distinction may seem esoteric, the court’s decision on whether to reduce or eliminate arrears was also to be influenced by various factors, including:

  • Whether the father’s support obligations arise under contract, by statute, or by court order;
  • The child’s ongoing support needs;
  • The father’s ongoing financial capacity to pay, including his ability to reduce the arrears; and
  • The father’s conduct, including any voluntary payments towards the arrears.

The court must also consider both the hardship endured by the father if he is ordered to pay the arrears, as well as the hardship to the mother if he is allowed not to.

In all cases, the paramount governing principles are firstly that the best interests of the couple’s children must be taken account, and secondly that the court should not provide either parent with incentive not to meet his or her child support obligations.

Here, the father was requesting a retroactive change to his support obligations based on his current income level.  That being the case, the court would not typically agree to rescind or reduce his arrears unless he could establish, on the balance of probabilities, that he cannot and will not ever be able to pay them. The father failed to fully satisfy the court on that fundamental point.

In the end, the court decided not to vary the $24,000 in outstanding child support, since the payments were properly owed by the father throughout, in light of his duty to help with their child’s educational expenses.  However, the court did agree to reduce some of the spousal support arrears, but only for only that period that the father was earning less than the mother. This still left him with $32,800 in outstanding arrears for spousal support and a total of almost $58,000 in arrears all-told.

For the full text of the decision, see:

Jackson v. Jackson, 2019

At Russell Alexander Collaborative 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 RussellAlexander.com

 

 

Can Husband Be Forced to Obtain a Separate Home Appraisal?

beautiful house at sunset

Can Husband Be Forced to Obtain a Separate Home Appraisal?

In a recent case called Kraemer v. Kraemer, the court confirmed two important procedural points relating to property valuation:

  • The divorcing spouse who “owns” or controls an asset has the primary obligation to obtain an accurate valuation of it; and
  • In the event of a dispute as to an asset’s value, each spouse may be obliged to get a separate expert appraisal.

The couple had been married for almost 15 years and had three children.   In the course of their divorce proceedings, they ended up asking the court to help with their disagreement over the proper value of the matrimonial home they previously shared.

The wife had had it formally appraised at $735,000.   In contrast, the husband claimed it was worth $800,000, but offered no evidence to support that figure.  He resisted getting an expert appraisal of his own.

To this last point, the court replied:

Mr. Kraemer takes the position that he cannot be required to value the home and, essentially, the value will be decided when the house is sold. In my view, he is wrong in that position.

Indeed, the husband’s (incorrect) position overlooked the core principles that in Family Law proceedings:

  • Each party just take disclosure “very seriously”, and is duty-bound to provide meaningful disclosure of asset values.
  • Each spouse has an obligation to provide credible, realistic values, including independent valuations – not a “guess” or a “fictional amount”.
  • A failure to provide credible evidence to support a value may result in a less-advantageous value being assigned by the court.

On the issue of which spouse is responsible for obtaining an accurate valuation:  The primary responsibility for establishing an asset’s accurate value on the valuation date lies with the spouse who “owns” or controls it.  This is particularly true if that spouse makes an assertion in his or her filed affidavit about the asset’s value.  The spouse then has the burden of proving the stated value is correct;  this may require the input of an expert.  If the other spouse does not agree to the value proposed, then he or she can respond with a valuation from a different expert entirely.

Having reasoned this way, the court found that the husband in this case was obliged by law to hire his own expert to provide a separate, accurate valuation of the matrimonial home.   The court also declined the husband’s requires to treat the latest valuation as a shared expense;  it noted that the wife had already paid for her own valuation, so the overall fees for both appraisals would effectively be split between them.

For the full text of the decision, see:

Kraemer v. Kraemer, 2019 

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 RussellAlexander.com

 

New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”

grey security cameras

New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”

A few years ago we reported on an important development in Ontario privacy law in a case called Jones v. Tsige, where the Ontario Court of Appeal recognized a new cause of action called “intrusion upon seclusion”.  We discussed how this can tie into former spouses’ desires to snoop on each other in a Family Law dispute context.

Recently, another important case – this time from the Supreme Court of Canada – expands on the nature and scope of the privacy rights to which all Canadian citizens are entitled.

In a criminal law case called R. v. Jarvis, the background facts involved a high school English teacher who surreptitiously recorded videos of female students using a camera hidden in a pen.  The recordings were of the students engaging in ordinary, school-related activities, in the common areas of the school.  Most of the videos focused on the students’ faces, upper bodies and breasts.  The students had not consented to being recorded, and were unaware they were being filmed.

In the context of confirming the teacher’s conviction for the criminal offence of voyeurism, the court considered the question of whether the students had a “reasonable expectation of privacy” in this scenario. This was relevant because the offence of voyeurism is defined to be one where a person surreptitiously observes or makes a visual recording of another person for a sexual purpose, when that other person is in circumstances that give rise to such a reasonable privacy expectation.

The Supreme Court in Jarvis noted that “privacy”, as it is ordinarily understood, is not an all-or-nothing concept. The question of whether this teacher’s surreptitious recordings were a breach of the students’ privacy required a review of the entire context in which they were made, and on a number of factors. These included the location, the students’ level of awareness, their relationship with the teacher, the manner in which the recordings were made, their subject-matter, the activity the students were engaged in when the footage was filmed, and any rules, regulations or policies that impacted the use of recordings.

The Court added that the crime of voyeurism was defined to include reference to the “circumstances” that gave rise to a reasonable expectation of privacy.  This suggested that elements of the offence are not governed solely by location, and it can be committed in public spaces, not just private ones.  This definition also allowed courts to take broader account an offender’s use of evolving recording technology, when deciding whether the crime has been committed.

Importantly, the Court stated that in examining privacy expectations, it could reflect on and incorporate the huge body of prior case law under s. 8 of t he Canadian Charter of Rights and Freedoms, which enshrines citizens’ rights against unreasonable search and seizure.  The Court in Jarvis concluded that it:

 … opened the door for the expansive history of s. 8 jurisprudence to inform privacy disputes in all areas of the law…

With that vast body of case law to draw from, the Court concluded that societal perceptions of when privacy can be expected are “informed by our fundamental shared ideals about privacy as well as our everyday experiences.”

Using this framework, the Court concluded that in all the circumstances the teenaged high school students would have had a reasonable expectation that they would not be recorded in the manner they were.  It upheld the teacher’s conviction for voyeurism.

Although Jarvis is a criminal law decision, it will no doubt inform issues around the law of privacy as they arise in other legal contexts, including Family Law disputes.

For the full text of the decisions, see:

Jones v. Tsige, 2012

R v. Jarvis, 2019 

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 RussellAlexander.com

Should Court Trust the Expert Opinion of Asset Valuators?

Should Court Trust the Expert Opinion of Asset Valuators?

In the course of making its various determinations in your divorce proceeding, including how to divide up your former home and assets, the judge will usually have to put a dollar-figure on those items.

Naturally, this will not involve the presiding judge actually examining and putting a value that awful antique vase you inherited from Aunt Millie; instead, the judge will receive the input from independent expert valuators.

But how truly “neutral” and “independent” are these valuators, really?

Some Ontario courts have commented on the ostensible – and perhaps questionable – impartiality of such expert valuators.  In Plese v. Herjavec, for example, the court was faced with vastly-different figures offered by each of the valuators hired in a case where the high-net-worth former couple had many assets to divide.  In the course of determining their respective Net Family Property values, the court heard expert evidence on the value of husband’s business interests on valuation day.

The wife’s expert valuator put a mid-point value on the business at $52.5 million, while the husband’s own expert pegged it with a value of just over $24 million, but then discounted that figure further, claiming that the true value was only 90% of that, because of what were called “phantom options”.   There was a similarly large gap in the values given by each expert in connection with the former couple’s matrimonial home.

About the glaring disparity in the figures and the apparent partiality of these valuators, the court said:

The valuators disagreed on both the values of both [the matrimonial home at] High Point Road and [the husband’s business].  In each case, each valuator, supposedly acting entirely independently, suggested values that benefitted the position of the party who had hired him.   Similarly, when it came to expert opinion on [the husband’s] income, [the husband’s] expert, in particular, seemed particularly aligned with [the husband’s] position.   Sadly, this is often the case.

As an aside, the court added that it might be better if the spouses agreed to jointly hire a single trusted expert to provide the court with one conclusive set of valuation amounts:

I have always been tempted to ask valuators whether their opinions would have been the same had the other party retained them.  I have never given in to that temptation, but merely make the observation.   It seems to me that in order to provide the court with truly independent, unbiased and reliable opinions, it would be preferable to require the parties to jointly retain a single expert, or, perhaps, to require the parties to fund an expert who would be retained by the court, at the parties’ expense. 

Indeed, courts will take active steps in this direction, by ordering that the spouses to jointly retain a valuator of their mutual choosing. However, this does not solve the problem of a spouse being unwilling to cooperate with the expert even if he or she helped to choose them.

This was illustrated in recent case called Rezai v. Gibbons, where the court expressly ordered the couple to hire a joint valuator, only to learn that the husband refused to cooperate.  In particular, he failed or refused to provide the valuator with nine key documents that were needed to assess the husband’s income, and in the court’s words this rendered the valuator’s resulting report “virtually useless”.

The court responded by re-apportioning responsibility for valuator’s fees, and requiring the husband to pay the wife’s full share of the $32,000 in fees that the valuator charged for the services.

For the full text of the decisions, see:

Plese v. Herjavec, 2018 

Rezai v. Gibbons, 2019 

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 RussellAlexander.com

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

In a recent Blog we talked about an Ontario Court of Appeal case called M. v. F.,  where Justice Benotto made some observations about the “win/lose” mentality of provincial child custody laws.  Specifically, she noted that:

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.”

That call-to-arms by Justice Benotto has finally been heeded by the federal government, in the form of upcoming changes to the Divorce Act. Those amendments, which are found in Bill C-78 but are not yet in force, have an unwieldy title:  “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”.

Although these Bill C-78 amendments implement a broad and ambitious range of changes to existing Family legislation, one of the more important ones is to replace the terms “custody” and “access” in the Divorce Act with more neutral terms like “parenting orders” and “contact orders”, respectively.  These newer concepts also give courts an embedded opportunity to give specific directions as to the care of children.

That revised Divorce Act wording also acknowledges the fact that family law academics – and judges like Justice Benotto in the M. v. F. case – have long encouraged this tweak to the terminology.  It eliminates the “winner/loser syndrome” she spoke of, as well as the unproductive mindset that the current custody regime fosters.  By allowing courts to grant orders for “parenting” and “contact” instead, the level of parental conflict will be reduced, and by extension the best interests of children will be promoted.

As yet, there is no specific date announced for the implementation of the Divorce Act changes, but they are expected to be rolled out at some point in 2019.

Is this a promising development in the legislation around custody? Will it work in helping to reduce parental conflict, as hoped?  What are your thoughts?

For a copy of the legislative amendments to the Divorce Act, see here.

M v. F., 2015 

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 Russellalexander.com

10 Things You Should Know About Ontario Child Support in 2019

One of our most popular articles 10 Things You Should Know About Child Support was published nearly ten years ago in 2010. We challenged ourselves to provide deeper information for each topic. Family law can be a very tricky terrain to navigate. Understanding one’s responsibilities with respect to child support raises a lot of questions for parents and guardians, which we hope to outline and answer here.

father and child hands

  1. What is Child Support?

All dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child.

This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

Learn more about Child Support:

Common Questions About Child Support in Ontario

Child Support in Ontario: An Introduction to Child Custody

Introduction to Ontario Child Custody: How do Decisions Get Made

Child Support 101: The Details of Ontario Child Support

 

  1. Parents and Guardians

Parent or guardian can be the birth mother or father, an adoptive parent, or step-parent, who has been married to someone with children, or who has lived as a couple with someone with children, and who has shown an intention to treat those children as members of his or her own family.

Learn more about Parents and Family Law:

Ontario Custody and Access: Who is Entitled to the Child?

Ontario Child Custody: Who is Considered a Parent?

When a Non-Parent Wants Custody of a Child

 

  1. Who Pays Child Support

Child Support is the legal responsibility of parents or guardians to provide financial support for all dependent children. When there is an arrangement in which a child lives primarily with one of the parents or guardians they are assumed to have “custody” of that child and bear the day-to-day expenses of raising them; however, they may be entitled to receive child support from the other parent. This entitlement to child support may continue even if the custodial parent remarries or starts to live with someone else.

The amount of child support is usually set according to the Child Support Guidelines. More than one parent can have a legal duty to pay child support for the same child. For example, if a parent with custody of a child separates from their marriage or common-law spouse who is not the child’s birth parent, both the child’s other birth parent and the step-parent may have a legal duty to pay child support.

Learn more about the legal responsibility to pay child support:

Who Pays Child Support in Ontario?

Top Four Questions About the Children of Common-Law Relationships

Can an Ontario Support Agreement or Order be changed?

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

Can a Parent Replace Child Support…with Gifts?

 

  1. When to Apply for Child Support

Applying for child support is usually done right after separation or when applying for a divorce but can be applied for at any time thereafter. It is usually best to deal with these matters as early as possible and when sorting out the custody of the children. In the beginning, parents and guardians may feel they don’t want or need the support but as time goes on and the expense of raising children increases the need may arise at which time they can apply, even after divorce or settlement of matters arising from the separation have been dealt with. Under some circumstances the court has awarded custody and support while the parents or guardians are living separately under one roof but the court usually doesn’t make an order until one of the parents or guardians have physically moved out.

If the social and emotional relationship between the step-parent and child have disbanded for a lengthy period of time, it is less likely that the court would order the step-parent to pay child support.

Learn more about application:

• Video: When Can a Parent Apply for Child Support?

• Video: When do the Child Support Guidelines Apply?

 

  1. When Does Child Support End?

Child support must be paid if a child is still a dependant and they are under 18 years of age.  However, the following circumstances and criteria can terminate responsibility of child support:

  • the child has married;
  • they are 16 or older and have voluntarily left parental control;

There are situations where even if the child has turned 18 years of age they are still considered a dependant. For instance, any situation where the child is unable to support themselves due to any of the following:

  • they have a disability or illness;
  • they are attending school full-time;

In a situation where the child is 18 years of age or older and is living away from home because they are attending school, child support may have to be paid if the child’s primary residence is with the parent with custody. This circumstance usually requires child support to be paid until the child is 22 or receives a post-secondary degree or diploma.

In some of these situations, a judge can order the child support to continue past this point. If the judge decides child support must be paid past the age of 18, they will take into consideration how much the child has in earnings or income before determining the amount of child support to be paid.

Learn more about criteria for child support:

Does the Age of the Child Affect Child Support in Ontario?

What Happens if Kids Skip School?

How Long Does Child Support Continue in Ontario?

 

  1. What is a Child Support Agreement?

How the child support is paid and how much is paid, is determined with a Support Agreement. There are three different ways parents can obtain a Support Agreement such as:

  • In a situation where the parents can work together to form a Support Agreement, it is encouraged that they look at the Child Support Guidelines to find out the amount a judge would likely order. The paying parent will have to give complete and true information about their income. It is suggested that one parent should have a lawyer put the agreement in writing and that the other parent get a different lawyer to review it, before signing it. This way, both parents will know the agreement says what they intended it to say, while also protecting their rights and their children’s rights.
  • If the parents need help working out a Support Agreement then they can see a mediator who will help them come to an agreement they both can accept. The mediator is an unbiased party that does not offer legal advice. In this situation it is still recommended that the agreement is reviewed by both parent’s independent lawyers before signing, and filing with the court.
  • If the parents cannot agree on a Support Agreement then both parents should hire their own lawyer. The lawyers can then attempt to negotiate support terms that both parents can agree upon. If no agreement can be reached then they will go to court and ask a judge to determine support. The judge will then make a court order that states how much child support is required to be paid.

Learn more about paying for child support:

• Video: Ontario Child Support: How do you arrange for Support to be paid?

• Video: How Base Child Support is calculated

• Video: How are Child Payments Taxed?

 

  1. Access When Child Support is Not Paid

Even if child support is not paid, a parent should not keep the child from seeing their other parent. It is assumed that it is generally good for a child to have a relationship with both parents. Keeping the child from seeing their other parent is considered punishing the child and the law will not punish the child due to their parent failing to pay child support.

Parents who do not have custody are usually given “access” to the children so that they can spend time together and maintain their relationship. The only way access can be refused or limited, is if the parent’s behaviour is likely to cause harm to the child, or harm the child in anyway. The courts will not refuse access because the parent fails to pay child support, and the parent with custody should not refuse access for this reason either. There are ways to obtain child support from a non-paying parent without refusing access.

Learn more about Child Support and Access:

Can parents be kept from seeing their children if they do not pay their child support?

Child Support and Access Rights in Ontario

 

  1. Enforcement of Child Support in Ontario

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.

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. 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.

Learn more about child support enforcement:

• Video: Enforcement of Child Support in Ontario

The Role and Power of FRO

 

  1. How Can FRO Collect Child Support?

The FRO (Family Responsibility Office) uses different ways to get the payments that are owed. It can:

  • get the payments directly from the parent who is supposed to pay support
  • have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)
  • register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes
  • garnish (take money from) the bank account of a parent who fails to pay support
  • garnish up to 50% of a joint bank account that he or she has with someone else, or
  • make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

  • suspending their driver’s licences
  • reporting them to the credit bureau so that it will be difficult for them to get loans, or
  • cancelling their passports.

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.

Learn more about the FRO:

Top 5 Facts About the FRO

Top 5 Tips for Dealing with the Family Responsibility Office

 

  1. How to Reduce Child Support

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.

FRO can be contacted by calling 1-800-267-7263 or you can also visit their website.

Learn more about reducing child support:

Varying Child Support – How long is Too Long to Wait

Could Trucker Dad Avoid Child Support Due to Dizziness?


Russell Alexander Collaborative Family Lawyers has been providing answers and solutions to child support questions for over twenty years. If you need assistance determining whether you should be receiving child support for your child or collecting your support from the other parent, or if you believe that you should no longer be paying child support, we are here to help.

Can You Get Child Support from Your Ex After 50 Years in Ontario?

us money bills

Can You Get Child Support from Your Ex After 50 Years in Ontario?

Multiple reports of a 74-year-old California mother getting $150,000 in child support owed to her from 50 years ago are hitting the headlines.

CNN reports:

“Toni Anderson married Don Lenhert in 1966, but the couple split two years later.

During the divorce proceeding in mid-1970, the judge ordered Lenhert to pay child support for their 3-year-old daughter Lane, consisting of monthly payments of $210 for the first 2½ years, and then dropping down to $160 per month until Lane turned 18.

The order commenced January 1, 1971.

But Lenhert never paid.

Those monthly payments comprise a principal of about $30,000, Anderson said, and with a 10% interest rate, he owes her $150,000.

“The first check bounced and then he went off to Canada with his girlfriend and had two more kids. He completely disappeared,” Anderson said.

Last year, Anderson realized there’s no statute of limitations for child support payments in California.

She Googled her ex-husband’s name and, she said, found photos of him living what appeared to be a financially sound life in Oregon, with a big house and a boat.

She filed a motion to ask for unpaid child support. Last month, she made her case in court. The judge granted her request.”

Does this sound fair to you?

Some would argue that the mother should have taken steps earlier to enforce support order and it is too prejudicial to require the father to pay now after 50 years. The child is an adult now so the $150,000 amounts to a windfall for the mother.

Others could properly point out that an Order is an Order, not a suggestion and the father should have complied 50 years ago, and any prejudice now is the result of his own misconduct.

Could this happen in Ontario?

As we have written previously the leading case in Canada for child support and retractive support awards is the Supreme Court of Canada’s decision in D.B.S.

If the claim for child support is made for the first time when the “child” is an independent adult, then the short answer is no. Child support is for children of the marriage, not adults who used to have that status.

If the basis of the retroactive claim is valid separation agreement or court order, then the answer would likely be yes. But each case is unique, and the court sets out several factors to consider in determining retroactive awards including, proper and timely financial disclosure, delay in seeking enforcement by the recipient and blameworthy conduct of the support payor.

At Russell Alexander Collaborative 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 RussellAlexander.com.

“Winner/Loser Syndrome” and Child Custody

“Winner/Loser Syndrome” and Child Custody

It is no secret that the dispute resolution component of the Family Law process can foster a certain competitiveness among its participants.  Sometimes parents and former spouses lose sight of the larger objectives, to focus instead on a “win-at-all-costs” approach to their litigation.

This was the undercurrent in a case called Spry v. Estevez.  The mother wanted sole custody to remain with her, but the father wanted any order except for that one – joint custody, shared parenting, or anything but the one the mother was asking for. As the court put it:

He seeks any arrangement other than one in which Ms. Spry will have sole custody. He asks: “Why is custody, as requested by Ms. Spry, necessary in these circumstances?

The father pointed to comments by the Ontario Court of Appeal in an earlier decision called M. v. F., where Justice Benotto of that Court observed that provincial Family legislation did not require a trial judge to make an order for custody as part of any proceeding;  rather, a judge may grant custody if he or she saw fit.   This permissive, non-mandatory power was a good thing, since it allowed sparring parents to get away from the win/lose mentality and instead focus on the best interests of their children.  As Justice Benotto put it:

For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

After reflecting on this passage from the M. v. F. case, the court in Spry v. Estevez agreed that the legislation did not require a judge to make a custody order in every situation.   But it took a more pragmatic approach to the question of whether a “winner”/ “loser” mentality could really be avoided in Family Law cases:

I agree with [Judge] Benotto’s comments; however, the use of terms is for the parties to overcome if they proceed to trial. Lawyers, mediators, conference judges and all others in the family law system should make every effort to avoid custody litigation. By the time it comes to a trial, however, on the basis of positions taken and decisions made, there will be winners and losers. Given the narrow issues that I am asked to answer, if [the father] is successful on his view of the issues, he will be the “winner”, at least for the purposes of costs at the end of the trial.

If the “winner” gloats and attempts to abuse the other in some fashion based on the trial judge’s decision, there will, of course, continue to be losers – and likely more litigation. If the “loser” fails to accept the determination of the trial judge and fails to makes the best of the new terms in the best interests of the children, there will continue to be losers. That is for the parties to determine. It seems to me that a trial judge can only hope that his or her decision is correct and is presented to the litigants in a fashion that is understandable and acceptable the extent that it can be. It is not for the trial judge to do something other than to apply the law to the facts as found simply because someone may take it badly.

Should the embedded notions of “winning” and “losing” be actively removed from the Family Law regime?  Would this make the process better?

What are your thoughts?

Spry v Esteves, 2016

M v. F., 2015 

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 RussellAlexander.com