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Posts from the ‘Ontario Child Support’ Category

Proposed Family Law Act Amendments Broaden Support Obligations to Disabled Adults

Proposed Family Law Act Amendments Broaden Support Obligations to Disabled Adults

Under proposed recent amendments to the Family Law Act, parents will be required to support an adult child who has an illness, disability, or other issue that makes them unable to support themselves.

Bill 113, which is a NDP-backed private member’s Bill introduced late March 2017, contains amendments which reiterate that “every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child.” The Bill then adds that this obligation extends to any child who is “unable, by reason of illness, disability or other cause, to obtain the necessaries of life.”

Currently, parents who are tasked with the care of adult children with disabilities are only able to obtain child support orders if they were married, with support being ordered as part of the separation and divorce process under the federal Divorce Act. At the moment, Ontario law does govern the rights and obligations of parents who are unmarried, but fails to specifically address the issue of support for disabled adult children. Bill 113 seeks to fill that gap in the provincial law.

The Bill’s introduction follows upon the recent court application on March 24, 2017 by a Brampton single mother named Robyn Coates, who asked an Ontario judge to rule that the yet-unamended Family Law Act discriminates against her 22-year old developmentally disabled son. The judge decided to reserve judgment, and when the ruling is handed down it will only affect Ms. Coates’ particular scenario.

However, the amendments to the Family Law Act under Bill 113 were introduced shortly after. The Bill is currently at the first-reading stage.

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

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Wednesday’s Video Clip: Child Support in Ontario – Introduction to Child Custody


Wednesday’s Video Clip: Child Support in Ontario – Introduction to Child Custody

In Ontario, like other jurisdictions, both parents have a responsibility to financially support their children. For the spouse without custody, the amount of child support that must be paid is based on income and the number of children. In this short video clip we talk about custody and answer questions many people have about child support.

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

 

Wednesday’s Video Clip: Obligations to Pay Child Support Even with Undue Hardship


Wednesday’s Video Clip: Obligations to Pay Child Support Even with Undue Hardship

In this video we review a court decision in which the court confirmed that a father was still obligated to pay support for his two children from a first marriage even though: 1) he no longer had a relationship with them; 2) he had a new family (and two other small children) to support; and 3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

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

Evidence from the Internet – Is It Good Enough for Court?

Evidence from the Internet – Is It Good Enough for Court?

In a case I reported on recently called Caine v. Ferguson the father claimed that his income was too low for him to pay child support for his daughter. The court considered evidence designed to refute his claim, put forth by the opposing side and taken from various U.S. music-industry-specific websites. The court wrote:

[The lawyer] submitted that the [father] could be earning $35,000 per annum as a musician. In support of this argument, she attempted to introduce internet articles from two websites from the United States, called Payscale and Musician Wages.com.

The court reflected on the general trustworthiness of these kinds of tendered materials sourced from the Internet, and pointed out that the dependability will vary with their source and nature:

In [prior court cases, the court] permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However … I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination.

Ultimately, in this instance the court rejected the music-industry website evidence outright, stating:

The documents sought to be introduced here are much more problematic. There was no evidence led that the documents were from reputable sources …  No foundation was provided as to the qualifications of the writers of the documents. The articles were both from the United States. The author of the Musician Wages.com article is an associate conductor of a Broadway play. There was no evidence indicating that he would have any knowledge about what level of income a freelance musician could earn in Toronto. The articles were from 2007 and 2008 respectively. I did not admit the documents into evidence as they did not come close to achieving threshold reliability.

Although a court’s determination will vary from case-to-case, the question of the admissibility and reliability of internet evidence can arise in virtually all kinds of cases, not just those that spring from family disputes.

In fact, it came up squarely in a 2017 immigration case called El Sayed v. Canada (Citizenship and Immigration), where the court’s conclusions included a commonsense point: Information from official web sites, developed and maintained by the relevant organization itself, is more reliable than unofficial ones which contain information about the organization but which are maintained by private persons or businesses.

In a future blog post, I will discuss some of the other principles confirmed and summarized in that recent immigration case.

For the full text of the decisions, see:

Caine v. Ferguson, 2012 ONCJ 139 (CanLII)

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (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

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.

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

Must Support-Paying Father Abandon Music-Career Dreams?

Must Support-Paying Father Abandon Music-Career Dreams?

In a case called Caine v Ferguson, the court was asked to consider whether a support-paying father of a child, who now had additional children to support, should be relieved of paying $11,000 in support arrears, because he acted as a stay-at-home dad while pursuing a fledgling part-time music career.

The 29-year old father had been previously ordered to pay $332 per month for his first child, who was now 9 years old, based on what the court imputed to be his income of about $35,500. He paid no support whatsoever, and the Family Responsibility Office started taking steps to collect on about $11,000, representing the unpaid support arrears that had accumulated so far. The child’s mother was on social assistance.

The father was now married to another woman with whom he had two additional children. The court described his part-time musical endeavours this way:

He stated that he is a talented musician and that he is writing, performing and producing his own music. He showed the court his recent CD. He says that he is not making any money yet, but he is giving away the CD at no cost and performing at shows for free in order to become better known. He said that his music is being played on music stations. He also has made some music videos that are on the internet.

The father brought a motion asking the court to eliminate the arrears entirely, claiming that he earned no income in the two most recent tax years.

The court found that – despite his child care obligations to his new family – the father was deliberately under-employed, and his decision to stay at home was simply not reasonable in light of his obligations to support his first child. (And it did not help him for the court to learn that he quickly depleted a $10,000 personal injury settlement, obtained after a car accident, by traveling to St. Maarten with his new wife and making music videos).

Rather than try to pursue his music career part-time, the court found that the father could have been earning at least $21,300 per year at a minimum wage job, even taking into account his child care responsibility to his other children. As the court put it:

He is choosing to pursue a speculative music career at [his first child’s] expense. He has no desire to pay child support for [her] and appears quite content with the status quo

He refused to pay child support and completely ignored the order. He has financially abandoned this child. … The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

… [The mother’s] social assistance entitlement has remained unchanged. It has been the taxpayer who has had to subsidize the [father’s] financial neglect of [his child]

The court concluded that he had made nominal efforts to seek work since 2008, when the order for support of his first child was initially made.  Nothing about his current situation called for a change to that order, other than to adjust the $35,500 that had been imputed to him at the time, since in all the circumstances it was unrealistically high.

The court retroactively imputed that amount of income to the father, and adjusted the arrears slightly to accord with the lower income figure that it imputed. The court also observed that the father could still pursue his musical aspirations on a freelance basis, if he remained adamant.

For the full text of the decision, see:

Caine v Ferguson, 2012 ONCJ 139 (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

Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

In this video we review some key points to keep in mind.

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

Father Who Paid $400K in Legal Fees to “Cause Financial Harm to the Mother and His Son” Ordered to Pay Mother’s Costs Too


Father Who Paid $400K in Legal Fees to “Cause Financial Harm to the Mother and His Son” Ordered to Pay Mother’s Costs Too

If a father runs up almost $400,000 in legal costs – including nearly $75,000 in expert fees – in pursuit of a low-dollar-value victory in court, should this be considered in assessing legal costs later on?

In Jordan v Stewart, court was asked to allocate legal costs in connection with the parents’ dispute over whether the father’s obligation to pay child support for their now-20-something son should be terminated. The young man had been attending University in London, Ontario but when the father learned that he was switching to a college in Toronto, he applied to have child support cut off, on the basis that the young man would be independent and no longer be living with his mother in London. In fact, the father asked for the termination of his support obligation to be back-dated three years.

The father brought a motion to have the support obligation end; the mother wanted the father’s motion dismissed. Although the issues were relatively straightforward, the hearing took up several days of court time, and required expert evidence and scrutiny of the father’s income.

The father did not get the order he wanted, but the mother wasn’t fully vindicated either, since there were additional legal issues that were also addressed at the same time. Given those rather mixed results, the judge was challenged to apportion legal costs, which under Ontario civil procedure are usually (but not always) given to the winning party. So the court had to determine which of the parents had been the “successful” one in the proceeding so far.

The stakes were potentially high: The father had incurred about $373,000 in costs in preparation for certain proceedings, including almost $75,000 paid to an expert to provide an opinion on his income for child support purposes, for the years 2010 and 2011, based on various financial scenarios. But despite the staggering run-up of costs, the father was asking for only 25% of it from the mother – which was still just under $90,000.

The court rejected the father’s claim that he was the successful party, stating that his rationale “stretch[ed] the reality of the outcome.” Instead, the judge stated that “even if I found the father was somehow technically successful, I would award the mother costs.”

The judge’s stern stance against the father was explained by the following passages from the 130-paragraph ruling:

This case is another example of courts struggling to determine entitlement and quantum of costs. The costs issue is made more complex by the father’s willingness to spend approximately $400,000 in legal and expert fees. This amount is significantly disproportionate to any amount that he advances as his best possible financial outcome. The father also knew that, if successful, he probably would not recover the costs in any significant way from the mother as she has limited financial resources and appeared in court without counsel.

This case is an extreme example of a person who was prepared, as he has been in the past, to spend significant sums of money without concern for costs or outcome.

While I cannot conclude that the father in this case deceived the court in any manner, his willingness to spend money on legal and expert fees so out of proportion to any economic benefit defies logic. The reasonable conclusion is that the father was prepared to cause financial harm to the mother and his son even at incredible expense to himself. He certainly never expected to recover his costs [from her].

He does not seek to recover most of the significant fees he spent, a signal that the money was not a factor in his pursuit of the case or relevant to any resolution. He was prepared to spend more money than any financial benefit to him if he succeeded.

The judge also observed that the mother had made multiple reasonable offers: she had suggested mediation, and offered to accept reduced support.  The judge found these offers were all “worthy of the father’s consideration”, and would have been far more financially beneficial to both parties than what transpired.

In the end, using the father’s own tally of his costs as a representative “measuring stick” of the fair compensation to which the mother should be entitled, the judge awarded her the nearly $90,000 in costs to be paid by the father, plus the $34,000 he already owed her.

For the full text of the decision, see:

Jordan v Stewart, 2013 ONSC 5037 (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

Wednesday’s Video Clip: When do the Child Support Guidelines apply?


Wednesday’s Video Clip: When do the Child Support Guidelines apply?

In this video we discuss when the child support guidelines apply.

If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.

This is true whether the order is applied for under:

• the Divorce Act by parents who are divorcing

• the Family Law Act by parents who were never married, or who were married and have separated but are not getting a divorce

The Guidelines must also be applied whenever a parent applies to the court to change any support order, even if it was originally made before the Guidelines came into effect.

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

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments


Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

In this video we review 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 will review four points to consider.

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