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Posts from the ‘Children’ Category

Top 5 Principles Around Child Support in Ontario – Parents and Step-Parents, Take Note

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Top 5 Principles Around Child Support in Ontario – Parents and Step-Parents, Take Note

A was looking at an Ontario decision called Boivin v. Smith recently, and it made some good points about child support and what role it’s intended to play in the dissolution of the parents’ relationship. These general principles are worth keeping in mind when negotiating child support obligations, and especially when parents head to court to try to have those obligations varied.

By way of background: The court’s discussion was actually set against a child support dispute between the mother and the stepfather who, despite not being the child’s biological father, had nonetheless agreed to pay support for the child while living with the mother and even afterward. The agreement confirmed that the stepfather had a settled intention to treat the child as his own and support her; the mother had given the true biological father a “pass” by settling for less than the legislatively-mandated amount of support and by waiving payment of the arrears he owed her. Essentially, the mother had relied solely on the stepfather for the child’s support.

The mother eventually went to court to have the stepfather’s support increased, and the question arose as to whether and how much he should pay in the circumstances, including the complicated consideration of the financial obligations that should be (or should have been) imposed on the biological father over the years.

In this context, the court examined closely the precedent cases, and came up with the following list of principles that were derived from them (and I am paraphrasing):

1. Child support is the right of the child. It is aimed to give the child the same standard of living as when the parents are together, to the extent possible.

2. Child support orders do not take parents off the hook. Child support orders do not relieve either parent of continually ensuring the children receive and appropriate standard of living. They merely help parents by giving them some certainty and predictability in their everyday financial affairs.

3. There is no excuse for delay. A parent who is entitled to child support but does not pursue it is assumed to be acting unreasonably, unless he or she shows otherwise.

4. Avoiding child support obligations is wrong. A parent who knowingly avoids or holds back on the child support that he or she owes is blameworthy.

5. It’s not good enough to just “settle up” what is owed. A parent who is forced by the court to pay arrears or other unpaid amounts is doing the child an injustice. As the court put it: “A retroactive [court] award is a poor substitute for an obligation that was unfulfilled at an earlier time.”

For the full text of the decision, see:

N.B. v. J.S. (sub. nom. Boivin v. Smith), 2013 ONCJ 426

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.

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

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Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

The question in Fiddler v. Fiddler was whether a husband should be allowed to pay his first wife little or no spousal support simply because he had voluntarily assumed financial responsibility for numerous children with his new partner – even though most of them were not biologically his.

The court’s answer was: “No”.

The husband and wife had been married for seven years and had a 13-year-old daughter when they split up. Almost immediately the husband moved in with another woman and they eventually had two children together. She also had four other children of her own from a prior relationship, and for whom she received no child support from the biological father. The six children all lived with the husband and the new partner in a remote Ontario location; the brood was increased to seven during the summer months only, when the husband’s 17-year-old child from yet another relationship joined them.

Although the husband the first wife agreed that he should pay child support for the daughter, they disagreed on the wife’s entitlement to spousal support. She therefore applied to the court for an order forcing the husband to pay on an interim basis pending their divorce trial.

The court examined the facts: Here, the wife had been the primary caregiver for their now-13-year-old daughter during the marriage, and had made sacrifices to allow the husband to advance his career. The husband earned about $110,000 per year; the wife earned about one-quarter of that: i.e. just under $30,000. She had advised the husband soon after their separation that she was intending to ask for spousal support, so it could not be said that he was caught off-guard.

More importantly, it was the husband’s own choice to take on the responsibility of a second family, including financial responsibility for numerous children that are not his own. His self-imposed obligation to support those children should not be a factor in considering whether the first wife should get support, nor should it be used as a reason to reduce the support to which she was otherwise entitled.

The court granted the wife’s request; however it made one concession to the husband’s situation in that – given the living expenses in his remote location and the travel costs of exercising access to their mutual child – he was allowed to pay on the low end of the range recommended by the SSAGs in all the circumstances.

For the full text of the decision, see:

Fiddler v. Fiddler (2014), 2014 ONSC 4068

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 our main site.

After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

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After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

Family law has no shortage of interesting cases; in this Ontario decision, which was handed down just a few days ago, there was a “plot twist” that would rival one you’d find on any reality TV show.

The couple met in 1997 when they were both in relationships with other people. (In the woman’s case, she was married and in the process of separating from her husband). They started a casual sexual relationship, and about eight months later the woman gave birth to a child. The mother estimated the child must have been born 10 to 12 weeks prematurely; apparently both assumed the man was the biological father and they signed the birth papers accordingly.

The man started paying $100 in monthly child support, and continued to pay faithfully for 16 years, even though they never lived together as a family and no real parent-child relationship was ever fostered.

Then, everything changed: At the request of Ontario Works (from whom she had been receiving social assistance) the woman took the man to court to ask for a substantial increase in the amount of child support he was obliged to pay, which was to be geared to his current income. In response, the man asked for a DNA paternity test, which proved he was not the biological father.

With these results out in the open, they then agreed to terminate the man’s obligation to pay child support, but he (again at the behest of the social assistance office) took it one step further – he asked to have all his prior payments over the past 16 years returned to him, totalling almost $17,000.

The court refused the man’s request. Even though he was not the true father (and indeed claimed he had not even seen the child since 2000, which the court questioned), the man had shown a settled intention right from the beginning to treat the child as his own, and could not now withdraw his financial support unilaterally. As the court observed: “Of considerable importance was [the man’s] comment that he always considered [the child] to be his son until the DNA paternity test said otherwise in 2014.” It was also important to note that in law, the needed “settled intention” was not contingent on the man actually knowing the child was not his.

Also, there was no evidence that the woman had misled the man into believing that he was biological parent; to the contrary, at the time of the child’s birth she honestly believed he was the father. Even if the man had doubts himself, he did not investigate: In the first year or two the woman had mentioned there had been some “overlap” between the end of the sexual relationship with her former husband and the beginning of the casual relationship with the man. The man could have requested a paternity test at the time, but instead he waited another 14 years.

In this case, the best interests of the child governed. Even though he was not the real father, the court confirmed that in law the man had a historical obligation to pay child, and declined to order the money returned. (By agreement, he was no longer obliged to pay going-forward, however.)

What are your thoughts on this decision? Should the man have gotten his child support money back?

For the full text of the decision, see:

Day v. Weir, 2014 CarswellOnt 15022, 2014 ONSC 5975

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 our main site.

How Base Child Support is Calculated – video


 

Wednesday’s Video Clip How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

The table sets out the amount of support that must be paid at different income levels from $8,000 to $150,000, depending on the number of children. A base amount is given for every $1,000 increase in income, along with a way to calculate amounts in between.

There is also a Simplified Table where you can look up the paying parent’s income to the nearest $100, without having to do any calculations.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

A judge might do this if the parent:

• fails to provide the required income information

• is deliberately unemployed or under employed, or

• is self-employed or working “under the table”, and there is reason to believe they do not report all of their income

Before the Guidelines came into effect, judges had more flexibility in deciding the amount of support. Now, in simple cases, judges must order the amount shown in the table. Judges can order different amounts, but only in special cases. And they must use the table amount as a guide

What Are The Child Support Guidelines? – video


 

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

In this law video Kiley discusses 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.

A link to the Federal Child Support Guidelines is provided in the More Information, Courts and Statutes section of our web site www.russellalexander.com

Child Support Entitlement – How Does Social Assistance Factor In?

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Child Support Entitlement – How Does Social Assistance Factor In?

Ontario has two social assistance programs that help eligible residents who are in financial need. They are:

• The Ontario Disability Support Program (ODSP); and

• Ontario Works.

As the name suggests, the ODSP helps those with disabilities, while Ontario Works helps those with temporary financial need. Both programs can provide recipients with financial and employment assistance, and are often used by those who have experienced some sort of setback – and unexpected disability (in the case of ODSP) or a temporary decline in financial resources (in the case of Ontario Works).

The question sometimes arises as to how a parent’s entitlement to child support plays into the whole equation of receiving benefits under either of these two social assistance programs.

The answer is simple: Whether for new applicants and those already receiving benefits, both the ODSP and Ontario Works programs require that the person make reasonable efforts to get financial support from the child’s other parent. (This remains the case even if the two parents were never married, or if the other parent is not really the child’s biological or adoptive parent, but has merely demonstrated a settled intention to treat the chid as if it were his or her own).

A parent in receipt of ODSP or Ontario Works benefits who does not make reasonable efforts to pursue child support to which they are entitled may find that their benefits are reduced or cut off entirely.

Note that eligibility for social assistance does not depend on the actual receipt of the child support payments, but rather the efforts that are being made to obtain that support. These include attending court appointments and providing the ODSP or the Ontario Works office with current information, including information about the other parent. Also, in some situations the requirement for the recipient parent to actively pursue support may be waived, for example where the other parent is deceased where his or her whereabouts are unknown, or where the child’s paternity cannot be determined. There are also certain specified situations in which the pursuit of support can be temporarily waived or deferred.

In any case, the intention behind these policies is that the ODSP or Ontario Works benefit recipient continues to be eligible only as long as he or she is making efforts to obtain the child support payments to which they are entitled. That principle seems fair enough.

A little more contentious is the policy that child support payments, once received, are typically deducted from social assistance benefits (although there are exceptions). As this article illustrates, there have been calls from the public to have that approach changed.

What are your thoughts? Should receiving ODSP or Ontario Works benefits be contingent on pursuing child support? And should child support be deducted from social assistance benefits?

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 our main site.

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 review who is responsible to pay child support and why.

Kids and Travel – Interactive On-line Form for Letter of Consent

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Kids and Travel – Interactive On-line Form for Letter of Consent

In past Blogs we have discussed the various issues and requirements around children’s Passports,  and the application process for obtaining them. Obtaining a Passport for a child becomes particularly important in situations of separation and divorce, since if one parent wants to travel with the child, then the other parent must usually agree to (or at least condone) the intended plans.

The Government of Canada strongly recommends that even after a valid Passport has been issued, any time there are plans made by one parent for a child to travel outside Canada, whether accompanied by that parent, alone, or with another person (e.g. a relative or family friend or in a group), a Letter of Consent should be obtained from the other parent. For these purposes, a “child” is anyone under the age of majority.

While strictly speaking it is not mandatory, the Letter of Consent serves as evidence that the child has the consent of both parents to travel. It is signed primarily by the individual(s) with the legal right to make major decisions for the child (i.e. the custodial parent or guardian); however, even if it is a parent with sole custody who is travelling with the child, to be on the safe side it is recommended that Letter of Consent be filled out by any parent or other individual with access rights.

The Letter of Consent can be presented upon demand by immigration authorities when entering or leaving a foreign country, or by Canadian immigration officials upon the child’s return. While having a Letter of Consent handy does not guarantee that there will be no difficulties crossing a border, it will likely make the process much faster and easier.
Although there is no standard form, and no official guidelines for its contents, the federal government website now has a interactive on-line form that can be modified and filled out to fit each situation. It is always recommended that the Letter be completed with as much detail as possible.

Finally, the Government of Canada has a useful Frequently Asked Questions page , which sets out the answers to questions arising in various travel scenarios.

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 our main site.

Ontario Child Custody: Who is Considered a Parent? — video


 

Wednesday’s Video Clip: Ontario Child Custody: Who is Considered a Parent?

When it relates to family law, a parent can be the birth mother or father, an adoptive parent, or a step-parent.

In this video we take a look at who is considered a parent for the purpose of child support, along with the role of step parents.

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 common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends