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Posts from the ‘Family Responsibility Office, FRO’ Category

How is Shared Custody Calculated? Daily? Hourly?

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How is Shared Custody Calculated? Daily? Hourly?

Under the federal Child Support Guidelines, there are certain rules that apply specifically to calculating child support in cases where a “shared custody” arrangement is in place. The Guidelines define this as being those situations where a parent has access or physical custody of a child for “not less than 40 percent of the time over the course of the year”. (And note that the fact that parent with access newly hits that 40 percent mark does not mean that he or she automatically pays less child support; it means only that a court is required to take certain specified factors into account in setting support amounts in such cases).

But how is that 40 percent threshold properly determined? By counting days? Hours? Minutes?

A recent case called L. (L.) v. C. (M.) adds clarity to this precise question. The court described the problem it was being asked to consider this way:

The mother and father have both provided calendars that apply their interpretation of the access and custody order. The father, who calculates his time in days (overnights), concludes that his access time is over 40 per cent. The mother, who calculates in hours, concludes that the father’s access falls well below 40 per cent. Both parties are very aware that this 40 per cent threshold is significant. I have now calculated based on their assertions and my conclusions and clarification.

The court then turned to reviewing the process by which the 40 percent custody is to be evaluated. For one thing, it noted that the Guidelines are not clear on precisely how the calculation is to be realized, and there is no court-endorsed universal method. On the other hand, it is clear that the threshold is strict, and that a court is not entitled to “round up” in cases that are on the border.

Next, the court observed that if a “days”-based approach is used, then a parent with access must have the child in his or her care for 146 days per year. If the calculation is based on “hours”, then the 40 percent threshold lies at 3504 hours per year. The method used can make a big difference. The court wrote:

With the changes in support that can stem from proceeding under s. 9 [the Guideline’s “shared parenting” provision] and the strict setting of the 40 per cent threshold, this calculation can be extremely significant. At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access …. For this reason, applying the appropriate method of calculation is crucial.
The answer as to which approach to take, according to the court, may have to be determined case-by-case. The Guidelines do advocate for a flexible and robust consideration of the parents’ individual circumstances; in some (though not all) circumstances, units smaller than days may be the fairest method of determining whether the 40 percent threshold has been reached. This can include an hourly accounting of time in the right circumstances.

(And as an aside, it is important to note that the calculation is based on the time the child is in the care and control of the parent, including time spent with nannies, or at school or day care, and time that the child spends sleeping at the parent’s house, etc. It does not count that the parent is merely physically present with the child).

Here, the court used the hourly approach and determined that the child was in the mother’s custody 67.4 percent of the time, and was with the father 32.6 percent of the time. The “shared parenting” threshold of 40 percent was not met in this case.

For the full text of the decision, see:

L. (L.) v. C. (M.), 2013 ONSC 1801 http://canlii.ca/t/fwslt

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.

Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

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Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

In tough economic times, it is not uncommon for a paying parent to rack up significant unpaid child support arrears, especially when there is some personal crisis or unexpected hardship on the job-front. One skipped payment leads to two…. and the arrears continue to accumulate, sometimes over a period of a year or more.

In such circumstances, paying off the outstanding arrears becomes a huge burden to the paying parent, and seems like an insurmountable challenge.

But do courts sympathize?

In an Ontario Court of Appeal case called Defrancesco v. Coutu, the issue was whether a father should be entirely relieved of having to pay $40,000 in unpaid child support arrears that had accumulated over almost a decade. He was an alcoholic and had trouble holding down a steady job. Unemployed and on public assistance for most of the time since the original court order, he was not even at a subsistence level of income. To further compound his difficulties, he was disentitled from receiving unemployment insurance benefits due to various circumstances (which included secretly working for a cousin while improperly claiming workers’ compensation benefits, and quitting a job due to a personality conflict with his boss).

He applied to the court to have his $40,000 liability for support arrears waived, claiming that his personal circumstances had changed significantly since the support order was first made. The child’s mother objected, pointing out that even when the father had money to make support payments or pay off some arrears, he did so only involuntarily; she frequently had to chase him down for the money.

The Court of Appeal declined to relieve the father of his obligation. Although he clearly did not have the money to pay off his arrears now, this did not mean he would not have the money in the future. The court was also troubled by the father’s unwillingness to voluntarily support his children.

In coming to this conclusion, the court was entitled to look at the total picture, which included:

• the nature of the father’s obligation to pay support (i.e. by contract, by legislation, or by court order);

• his ongoing financial capacity to pay;

• the ongoing financial need of both the mother and the child;

• whether there was any unreasonable and unexplained delay on the mother’s part in seeking the arrears;

• whether there was any unreasonable and unexplained delay by the father to ask to be relieved of his obligation as to arrears.

Despite the father’s unfortunate circumstances, there was no legal basis to rescind the arrears. However, the court was not entirely unsympathetic: given the father’s situation, his going-forward child support obligation was adjusted downward to take into account his dire financial situation, alcoholism and bleak prospects for steady employment.

For the full text of the decision, see:

Difrancesco v. Couto, 2001 CanLII 8613 (ON CA) http://canlii.ca/t/1f7kx

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.

Varying Child Support – How Long is Too Long to Wait

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Varying Child Support – How Long is Too Long to Wait ?

In this case, the mother of a child – whose finances had taken a downturn for a few years – narrowly missed being deemed too late to have her child support obligations reduced accordingly.

The child’s father agreed to have custody when he and the mother split up in 2007. At that time the mother was ordered to pay him $211 per month in child support, based on income that the court had to guess was in the range of $25,000 per year.

Three years later, in 2010, the mother brought an application to vary that order, to have the support reduced in line with her lower-income during those subsequent years. (And it must be noted that she was in arrears under the original order at the time of her application).

The mother explained that her circumstanced had changed: she had held a variety of jobs and had been fired from at least two of them because the Family Responsibility Office was taking enforcement measures against her salary. She was in the process of trying to build a photography business with her new boyfriend, but it was faltering and was in fact operating at a loss.

The mother therefore asked the court for a support adjustment, to bring it in line with her $18,000 income for 2007, and her $0 income for both 2009 and 2010, when the photography business was losing money. At the same time she asked the court for an after-the-fact extension of the time for her to file her variation application. (The child’s father did not object to the mother’s application in this regard, and filed no material to refute the mother’s figures.)

The mother was largely successful on her application, though the court refused to vary her support obligation for 2007. However, it agreed to reduce her support liability to $157 per month for 2008, $40 per month for 2009, and $28 for 2010. For the years 2011 and 2012 she was relieved of child support obligations entirely. The child turned 18 in late 2012, so child support after that time would cease in any event.

Although the court commented on her 3-year delay, it concluded that the mother – who was unrepresented – had not intended to let the matter drag on; rather, she was unaware of the correct deadlines for doing so, and unsure of the proper documents to file.

More importantly, the court found that the significant reductions in the mother’s income were a “material change in circumstances” under the law, and were of the type that warranted a corresponding reduction in her child support obligations.

What’s the lesson to be learned? Don’t delay in bringing your variation application! And get a lawyer, so that you know your rights!

For the full text of the decision, see:

Stirling v. Willrich, 2013 ONSC 2003 http://canlii.ca/t/fwx5s

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 Russell Alexander.com

Ticket to Space, Anyone? Court Orders Sale of Space Flight Tickets to Satisfy Support Arrears

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Ticket to Space, Anyone? Court Orders Sale of Space Flight Tickets to Satisfy Support Arrears

Family law cases come in all shapes and sizes. A decision from a few years ago called Gibson v. Gibson caught my eye recently. It begins:

Peter Gibson feared financial ruin. So he put money out of his wife, Melanie’s, reach. Then he bought a ticket for a flight into space. Cost: $218,700.

Peter feared financial ruin. So he started spending on himself. Then he took a trip to Arizona, trips around the world and a trip to Las Vegas. Cost: $100,000.00.


Theirs was a lavish lifestyle that an income of over $1 million could not support. Much of this four week trial focused on exorbitant spending by both Peter and Melanie. Allegations were made of hidden bank accounts, dissipation of assets, fraud.

While unusual in its details, this case illustrates the types of challenges that courts face: Whether it involves a family of substantial means or one with more modest budgets, the courts must examine the financial circumstances of the parties leading up to and after separation, including the mis-management and squandering of funds. The court does so as part-and-parcel of its role in making determinations in connection with child and spousal support issues upon divorce.

To help the spouses meet their obligations and untangle themselves financially, the court will use a large arsenal of tools at its disposal; primary among them is to make Orders to achieve an appropriate allocation of income and assets so that child and spousal support obligations can be satisfied. To do this, the court may:

• assess income (both actual and potential, in the case of deliberate under-employment by a spouse)

• consider the effect that any change in circumstances may have on income levels (for example, where one of the spouses has lost his or her job)

• consider the ability by any children of the marriage to contribute to their own support

• trace funds and examine inappropriate / hidden spending

• order the sale of existing assets

• examining in minute detail both the needs and the spending habits of the parties

In the case of Gibson v. Gibson, the court clearly had its work cut out for it. Despite both parties enjoying a lavish lifestyle (which description the court said was an “understatement”), the court concluded that “both Melanie and Peter have issues with financial control and restraint.”

In particular, the husband professed an inability to meet his spousal and child support obligations, and had racked up significant amount of arrears. Part of the various courts’ role in the case was therefore to make detailed Orders to assist him to arrange his financial affairs so that those obligations could be me. For example:

In his endorsement, Nelson J. found that Peter’s issue was not an income problem but rather a cash flow problem. To remedy this, the court suggested that Peter sell his ticket to space. Peter did so. On January 26, 2010, Peter received $175,712.00 from the sale of his ticket. Of this, $70,000 was paid to FRO [Family Responsibility Office], reducing the arrears of support to $39,619.49.

Not many of us have Tickets to Space to sell, but all separating and divorcing couples have the duty to structure their financial affairs so that their obligations will be met. One way or the other, they will find themselves legally forced to by a court.

For the full text of the decision, see:

Gibson v. Gibson, 2011 ONSC 4406 (CanLII)   http://canlii.ca/t/fmf26

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 Russell Alexander.com

Common Questions About Child Support


 

Wednesday’s Video Clip: Common Questions About Child Support

In this video, family lawyer Russell Alexander discusses common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends

Wednesday’s Video Clip: How Long Does Child Support Continue?

Wednesday’s Video Clip: How Long Does Child Support Continue?

In this video, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

Top 5 Tips for Dealing with the Family Responsibility Office

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Top 5 Tips for Dealing with the Family Responsibility Office

A while ago I wrote about the role of the provincial Family Responsibility Office (FRO) More About The Family Responsibility Office, Some Common Problems Addressed.  (For those who aren’t aware: In Ontario, all child support orders are automatically filed with the FRO, which operates under legislation giving it an arsenal of mechanisms by which to encourage and enforce timely payment of support on the part of the paying parent.)

If you are such a payor pursuant to a court-issued Support Order, here are five tips for dealing with the FRO:

1. Always keep the FRO updated on address changes.

Otherwise, you may miss out on receiving the various noticed that the FRO is required by law to give you. These may include a warning that the enforcement mechanisms that can be levied against you are about to be stepped up – for example a notice that your driver’s license is about to be suspended.

2. Keep the FRO apprised of your employment situation.

If you have lost your job, have been laid off work, or have had your income reduced due to disability or a reduction of overtime, then the FRO should be made aware. In such situations your next step may be to obtain a variation of the filed child support order that triggers the FRO’s involvement in the first place, which will in turn affect the FRO’s role and mandate in the enforcement process.

3. Don’t ignore anything you have received from the FRO.

Many of the processes involving the FRO allow for only a few days for you to respond; the FRO may quickly escalate the remedies available to assist with collection and you don’t want to be surprised by any of them. The FRO’s available avenues for encouraging your compliance and payment can include: suspending your driver’s license or passport, a garnishee of your wages (via a “Support Deduction Order” sent to your employer), filing writs or liens against your property, seizing your income tax refunds and HST rebates, seizing your bank accounts and – last but not least – imposing jail time of up to 180 days.

4. Document everything.

This includes not only your correspondence with the FRO, but also the paper trail of any support payments that you have made. Payments to the FRO can be made by way of internet banking or telephone banking and may be the easiest to document; payments by cheque or money order are more cumbersome to track. But regardless of the method, make sure to designate the FRO case number on any payment that you make.

5. Always make the mandated support payments if you can.

As mentioned, the FRO has a wide arsenal of options to deal with delays or non-payment, including jail time if necessary. Naturally, these shorter-term consequences should be avoided if at all possible. But there can be longer-term drawbacks as well: arrears in child support payments will show up negatively on your credit bureau report, which can affect you for years to come.

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 http://www.russellalexander.com/practice/family-responsibility-office-fro-and-default-hearings/

So what do you think?  Do you have any tips or comments for dealing with FRO?

Ontario Divorce: Does The Age of The Child Affect and Child Support in Ontario. Wednesday’s Video Clip


 

Ontario Divorce: Does The Age of The Child Affect and Child Support in Ontario. Wednesday’s Video Clip

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.

Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

 
Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider:

1. Filing and deduction is automatic.

If the obligation to pay support arises through a court order, these are automatically filed with the Ontario government’s Family Responsibility Office ( or “FRO”). The role of the FRO is to process child and spousal support orders and to provide enforcement support for recipients through various means. The court will also make a “support deduction order” which is filed with the FRO, which directs the paying spouse’s employer to deduct specified support amounts from the paying spouse’s regular pay, and to send those amounts directly to the FRO.

2. Other support agreements filed voluntarily.

In cases where the support obligation comes not from a court order but rather under a domestic contract (such as a separation agreement, cohabitation agreement, or paternity agreement), the support payments can be enforced privately, or if necessary they can still be processed through the FRO. For this to occur, the contract must first be filed with the court, and then filed with the FRO.

3. Enforcement of support payments.

In cases where the paying spouse has not been making the required child or spousal support payments, or has not been making them on time or in full, then the recipient spouse can take legal action to recover the money owed. Potential avenues of individual recourse include having the paying spouse’s wages or bank account garnished, seizing his or her RRSP, or registering the support order as charge or filing a writ on his or her home. The recipient spouse can also request a hearing before a court to obtain an order for payment from the paying spouse, failing which, he or she may be sent to jail. All of these steps can also be taken by the FRO on behalf of a recipient spouse, if the obligation to pay arises pursuant to a court order or if a domestic agreement has been filed with the FRO.

4. Additional enforcement mechanisms through the FRO.

In addition to the list of legal remedies above, the FRO has certain other avenues of recourse and powers available to it, including:

• forcing public officials or individuals to product any records containing information about the paying spouse’s employment and financial circumstances;

• deducting at source any money owed by the federal government to the paying spouse (for example, income tax refunds and/or Employment Insurance benefits);

• suspending the paying spouse’s driver’s license;

• reporting the paying spouse’s default to a credit bureau; and

• taking steps with the paying spouse’s employer to achieve court-ordered enforcement of the support deduction order that has been imposed

We hope you have found this video helpful.  If you require further information about enforcing support payments please give us a call or visit our website at www.russellalexander.com

Parent as “Nothing More Than a Wallet”

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Parent as “Nothing More Than a Wallet”

A while ago, I highlighted some cases in  our blog Do You Have an Obligation to Support a Child Who Wants Nothing to Do With You?  which examined whether a parent’s obligation to support a child can be affected by the fact that the relationship between parent and child is strained or irreparably broken.

These kinds of cases are glibly referred to as being of the “parent as wallet” variety; a recent case called Veneman v. Veneman is one of them. The question before the court was whether the father should be obliged to continuing paying child support in connection with the post-secondary education expenses of the couple’s 19-year-old daughter. The wrinkle in the story was that the daughter – despite the father’s efforts – wanted nothing to do with him. The father felt that he was entitled to be relieved of his usual support obligation in the circumstances.

In evaluating the father’s application, the court considered an earlier Ontario case, called Nitkin v. Nitkin, which was similar. The court in that case summed up the father’s position as follows:

Mr. Nitkin feels that in the absence of any just cause for terminating her relationship with him, he is viewed as nothing more than “a wallet” or cash machine by Brenna and her mother. He submits that Mrs. Nitkin-Siegal’s alienating influences have resulted in Brenna rejecting him. No court has found Mr. Nitkin’s conduct to be deserving of this result.

The court in Nitkin had found that the daughter was a “mature young lady” of 18 who had nonetheless unilaterally terminated the relationship with her father without any apparent reason. This played into the court’s evaluation of whether the daughter was still a “child of the marriage”, and by extension whether the father still had support obligations toward her. After taking into account the daughter’s current efforts and future plans for university education, and her financial dependence, the court found that she was still a “child of the marriage” requiring the father’s support, despite the fact that her relationship with him had been unilaterally severed.

Returning to the more recent Veneman case, the court took arrived at the same conclusion, but for different reasons. First of all, the court attributed appropriate blame on both parties for the estrangement of the 19-year old daughter as well as their other younger child. The court wrote:

I certainly appreciate and understand the view advanced by [the father’s lawyers]. Once a child has become an adult, and he or she chooses to have no relationship whatsoever with a parent, one can easily sympathize with the parent’s view that it is unfair to require any further financial contribution to the child’s welfare. As noted by Professor James McLeod in an annotation to Filice v. Lepore … “A parent has a right to be more than a wallet.”

In this case, there can be no question that Mr. Veneman is nothing more than a wallet. While the allocation of fault or blame for situations of this sort is difficult, at best, it seems to me that in this case both parents must assume a share of the blame.

While Ms. Veneman denied it in her evidence before me, I think it is clear that she allowed her view of Mr. Veneman’s new companion to rub off on her children. When she became apprised of the relationship, she knew nothing more about Ms. Gore than the fact that she had met Mr. Veneman over the internet and that she had children of her own. This was hardly enough reason to refer to her as an “Internet Whore”. Many people seeking companionship meet over the internet, and some solid relationships, including this one, develop. It is clear from Ms. Veneman’s email communications that she did not want Ms. Gore associating with her children. I have no doubt that the children understood this, and responded accordingly. They knew nothing more about Ms. Gore than their mother did.

Mr. Veneman’s attempts to foster a meeting between his children and Ms. Gore were admittedly clumsy and insensitive. It is not unusual for young girls to undergo emotional turmoil when their father develops a new relationship. He should have handled the situation better. However, hundreds of new relationships are developed every year. Almost invariably, children adapt to the new circumstances, even if their parents’ attempts to introduce new partners are handled in less than ideal ways.

In the final analysis, the rupture of the relationship here is entirely irrational, and could and should have been avoided.

I have no doubt that in due course, perhaps later in their adulthood, the children will come to wonder why they hate their father so much. They will have no good answer. Their father did not beat them, or ignore them. Indeed, he made superhuman efforts to reach out to them.

Nonetheless, the court observed that the father had consented to paying support despite the parent-child rift — and indeed at a time when that situation of estrangement was already in place. There was no legal reason to change that obligation now. However, the court did add that the daughter must contribute more than a nominal amount towards her own education; specifically she was ordered to pay 75% of the approximately $10,000 she herself earned in part-time employment.

For the full text of the decisions, see:

Veneman v. Veneman, 2012 ONSC 6324  http://canlii.ca/t/ftss5

Nitkin v. Nitkin, 2006 CanLII 23153 (Ont. S.C.J.)  http://canlii.ca/t/1nwn7

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.