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Posts from the ‘Children’ Category

Wednesdays Video Clip: How Base Child Support is Calculated

 

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.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province or territory, the table for that province or territory is the one that applies.

You can get a copy of the Child Support Table for Ontario by phoning 1-888-373-2222.

Or you can visit the Department of Justice Canada’s web site at www.canada.justice.gc.ca/en/ps/sup and click on “Simplified Federal Child Support Tables” to find the table for each province and territory.

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.

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

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

Uncooperative Child

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

In a Blog a little while ago How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?, I discussed the obligation on parents to ensure, to the best of their ability, that a child complies with a custody or access order. Not only does this accord with our general sense of justice, but in some circumstances if an order is breached because a child is uncooperative, his or her parent can even be found in contempt of court.

But as custodial parents will attest, the practical task of ensuring that kids comply with a court-ordered access/visitation schedule can seem impossible, particularly when the child is reluctant, resistant, or downright defiant. Forcing an unwilling child to participate only engenders bad feelings on the part of both parents, not to mention the child him or herself.

Still, Canadian family law principles make it clear that a parent cannot simply leave participation and compliance with custody and access orders up to the child; courts have repeatedly stated that to do so amounts to “an abdication of parental responsibility” and more importantly amounts to a shortfall in the parent’s positive obligation under the court-imposed order.

Over the years, various courts have expanded on this general principle, providing a list of the concrete steps that parents must take in order to fulfill their responsibility to coax an uncooperative child to comply with a custody or access order.

Here are the points to know:

• Although courts do recognize that it may be increasingly difficult, a parent’s obligation to compel a child to comply does not diminish as the child gets older.

• A parent must go beyond simply “accommodating” access (i.e. making the child available and encouraging him or her to comply); rather, the parent must require the child to participate, and must actively facilitate that participation.

• A parent must take concrete measures to apply normal parental authority to have the child comply. In assessing whether those measures are sufficient, the court will consider whether the parent:

o Engaged in a discussion with the child to determine why he or she is refusing to go with the other parent;

o Communicated with the other parent about the child’s resistance, and how to overcome it;

o Offered the child an incentive to cooperate; and

o Stated clear disciplinary consequences for the child, if he or she continues to refuse to comply.

The obligations, steps, and responsive measures will vary with each case, and will also depend on the child’s age and emotional condition.

There are many cases that discuss these principles. See for example:

Geremia v. Harb, 2007 CanLII 30750 (ON SC)

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

How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?

access

How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs, I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents while respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (ON SC)

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

What is “Contempt of Court” in Family Law? — Part II

dad

What is “Contempt of Court” in Family Law? — Part II

As we have reviewed previously, I set out the general legal principles behind the concept of “contempt of court” in family proceedings, which had been considered in great detail in the recent Ontario decision in Jackson v. Jackson.

The mother in that case had asked the court to declare the father in contempt, since she claimed he had breached the terms of prior temporary access orders and had thwarted her access in a long-standing campaign to gradually eliminate her from their two children’s lives.

After embarking on a detailed, sometimes historically-based consideration of the law and principles that underpin the contempt penalty in Canadian family proceedings, the court then turned to the more practical aspect: the specific, fact-driven legal tests that the mother had to meet in order to prevail in obtaining a contempt order against the father.

Specifically, the mother had to establish all of the following:

• That there was a valid, live court order that was to be enforced.

• That the father had actual knowledge of the order that the mother claims he breached.

• The order clearly and unequivocally states what should and should not be done.

• That, on the facts, the father disobeyed the order. (And there is no need to establish that he violated a specific term – it is enough for the mother to show that he disobeyed to the extent that it foiled the implementation of the court order).

• That the father disobeyed the order deliberately and willfully.

Moreover, the mother had to prove all these things, beyond a reasonable doubt.

Over the next 60 paragraphs of a very careful judgment, the court closely scrutinized the facts surrounding the various failed or unsatisfactory supervised visits, keeping in mind that the parents’ relationship had been turbulent and the separation was very acrimonious. (The mother had been criminally charged with assaulting one of the children, and which led to the supervised access order in the first place).

Overall, the court concluded that the father, while perhaps over-protective of the children and not sufficiently mindful of the mothers’ progress in addressing her parenting and emotional issues, was not in contempt within the meaning of the legal test. The necessary elements of the test were simply not made out.

For the full text of the decision, see:

Jackson v Jackson, 2016 ONSC 3466 (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 RussellAlexander.com

When Can A Parent Apply For Child Support – video

 

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we review how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible.

Sometimes parents with custody do not want or need child support at first, but later their situation changes. They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled.

But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended.

A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

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.

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.

 

Did Son Work for Free in Father’s Company for Almost a Decade?

business

Did Son Work for Free in Father’s Company for Almost a Decade?

A recent Ontario decision demonstrates the down-side of family businesses – as well as the risks involved in allowing assumptions to remain unspoken. More importantly, it shows what can happen when business-operating family members fail to document important agreements, expectations and obligations in written form.

A company was founded and was being run by the father Larry. Six of his adult children were now holding key management positions. One of his sons, Emmanuel, initially went off to pursue his own business interests, but eventually returned to the fold in 1999 to assist the company in various capacities, including tax consulting in connection with the company’s application for federal and provincial tax credits for the years 1999 through 2010. Emmanuel’s efforts resulted in the company securing approximately $2.6 million in scientific research and experimental development (SRED) tax credits for a 20-year period.

The court introduced the facts this way:

While the claims are framed as traditional commercial disputes, the substance of these actions is really a story about the tumultuous relationship between a father and son. Emmanuel assisted the family business (LTM) without an expectation of compensation, admittedly, in order to acknowledge the debt of gratitude he felt he owed to his father and out of a sense of obligation he felt for his family.

Evidently that changed, because once the father died unexpectedly Emmanuel requested that the company pay him almost $420,000 to cover 25% of the tax benefits it received on account of his tax consulting efforts. Management denied his requests, so Emmanuel sued under an implied contract for what he considered was his entitlement. He also asserted a claim based in quantum meruit (i.e. a promise to pay a reasonable amount for work performed).

Emmanuel brought these claims despite the lack of any written contract or document to evidence the alleged agreement to pay him. He also conceded that he never requested payment for his services at all for 8 years, until 2011 when he presented the company with his invoice. He explained to the court that he decided to withhold asking for compensation because he was dealing with family, and because he believed he would eventually become an owner of the company. He also claimed that he knew that the company had insufficient cash to pay him during those years, and was relying on his father’s prior promise to pay him.

In considering his legal position, the court assessed Emmanuel’s evidence “disfavouably”, finding that some of it contradicted other evidence, or else was downright incredible. For example, his claim that he refrained from asking for compensation during times when the company had cashflow problems did not hang together well with the fact that he did not ask for payment even during those periods that the company was flush.

In the end, the court concluded that Emmanuel was not entitled to payment for his historic services to the company from 1999 through 2010, and in any event he had was too late: the 2-year limitation period for bringing any claims had expired by the time he got around to suing.

For the full text of the decision, see:

1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2015 ONSC 2664 (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 RussellAlexander.com

Judge may ascertain child’s views and preferences through a judicial meeting

child 3

Judge may ascertain child’s views and preferences through a judicial meeting

Our summer Student Amelia Rodin recently researched the issue of Judicial Interviews of children, she notes that decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process.

Representation of the child by a lawyer is perhaps the most prevalent method, and children are often assigned a lawyer from the Office of the Children’s Lawyer to represent their interests. Expert reports written by professionals such as social workers or psychologists are also used to communicate the child’s preferences to the court in an unbiased manner. Perhaps the least common method of ascertaining a child’s views and preferences is through judicial interviews, or meetings between a judge and child . Judicial interviewing has historically been a controversial method for determining a child’s views, and whether the court embraces this approach is largely based on the judges comfort level and training.

However, in appropriate situations, judicial interviewing may be an important supplement to legal representation and expert reports . In G. (L.E.) v. G. (A.) the court identified three main purposes for judicial interviews with children:

Obtaining the wishes of children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

An interview can occur at many different stages of a case, and in G. (B.J.) v. G. (D.L.), the court held that:

Judicial interviews can take place both at the more informal judicial dispute resolution stage, such as at a family case conference or a settlement conference, and during more formal court hearings and trials.

In the Ontario case P.L.M. v. L.J., Justice R.J. Harper conducted a judicial interview with a 12-year-old child for the purpose of hearing her wishes in regards to custody issues.

In this case, the child was not represented by a lawyer from the Office of the Children’s lawyer, but had seen a therapist who had submitted a report to the court. Despite the therapist’s records, there were concerns that the child did not feel heard by the court.

The interview was held privately in the judge’s chambers and recorded. In addition to the judge and the child, the court reporter, court services officer, and the child’s therapist were present.

Throughout the interview, the child was able to express feelings of parental alienation, and describe situations of deep conflict between her mother and herself. In consideration of the insights provided by the interview, as well as the totality of the evidence presented throughout the case, the judge ordered custody to the father.

For the full text of the decision, see:

P.L.M. v. L.J., 2008 CanLII 35923 (On S.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 RussellAlexander.com.

Does The Age of The Child Affect Child Support in Ontario – video

 
Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered.

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

 

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, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses 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.