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Posts from the ‘Ontario Custody’ Category

To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

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To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

An Ontario Court of Appeal decision recently brought to the forefront an interesting little legal point, about the court’s authority to make or change child support orders even after children are too old or too independent.

Under Canadian family law, section 15.1 of the federal Divorce Act allows a court to make an order requiring a parent to pay child support for any “children of the marriage”.   (And this term is defined by the Act to include: 1) a child under the age of majority (who has not otherwise withdrawn from his or her parent’s charge), and 2) a child who is over the age of majority but still dependent.)

Based on a prior ruling decided by the Supreme Court of Canada, a court only has the authority to make a child support order if, at the time of the initial application by the parent, the children fall under this “children of the marriage” definition.  In other words, if the support-recipient parent waits until the children are over the age of majority or no longer dependent, then he or she is out of luck since the court lacks jurisdiction to retrospectively make a child support order at that point.

A recent Ontario Court of Appeal decision called Colucci v. Colucci, the court considered a related question: Can a parent apply to the court to vary a child support order, even after the children stop being “children of the marriage”?

The facts of the case involved a father of two children who had been ordered to pay child support but eventually fell into arrears of more than $175,000.  By that time, both children ceased to be “children of the marriage.”  Faced by the prospect of a significant decline in his income as an unskilled labourer, the father brought a motion to change the child support order retroactively, and have his arrears rescinded on the ground that there had been a change in circumstances.

The Appeal Court reviewed the governing law when an order could be varied, as found s. 17 of the Divorce Act.  It was differently worded than the initial-support provision in section 15.1; the stated test for whether a court had the authority to vary an order was different from the test to make an order in the first place.  The Appeal Court concluded that based on that wording, a court did indeed have jurisdiction to vary an existing order even after the children are no longer dependents. (And from an Ontario family law perspective, it should be noted that this aligns with the court’s jurisdiction under the provincial Family Law Act to vary child support orders retroactively in such circumstances).

Although the Colucci decision does not foretell that every parent’s application to vary child support will succeed (since that must be determined on a case-by-case basis), the law is now abundantly clear that a court had the authority to change orders even after the children no longer fall within the “children of the marriage” definition.

For the full text of the decision, see:

Colucci v. Colucci

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: Does The Age of The Child Affect Child Support in Ontario?


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 we discuss 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 RussellAlexander.com

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

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Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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

 

In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

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In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

In even the most routine child custody, access and child protection determinations, courts are obliged to consider a vast array of factors that explore what arrangement will be in the best interests of the child.   Among the key considerations – particularly for an older child – are the child’s express wishes. For example, in the child custody context, the child’s own views will be explored on topics such as which of two separated or divorced parents he or she wishes to live with.

How Courts Currently Hear the “Voice of the Child”

In Ontario, and for all child-related proceedings and for any decision-maker under legislation impacting children, this purposive inquiry is legally-mandated under several statues, including the Katelynn’s Principle Act (Decisions Affecting Children). The fundamental principle is that “a child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.”  This concept is also confirmed and echoed in Article 12 of the United Nations Convention on the Rights of the Child.

As a sort of shorthand in family law matters, this is commonly referred to as the “Voice of the Child”.

Presently, the formal method for identifying the Voice of the Child in child-related matters is through a detailed, labour-intensive, and legislatively-mandated report prepared by the Office of the Children’s Lawyer (OCL) in each case.  The report can be prepared only after the child, and everyone involved in his or her life, is exhaustively interviewed by qualified experts.  The report must also include recommendations on “all matters concerning custody of or access to the child and the child’s support and education” as a means of assisting judges to make a decision as to the child’s best interests.

What’s New?

While still relatively innovative, there is a more efficient option on the family law horizon in Canada.  Called the “Voice of the Child Report” (VCR), it is a briefer, non-OCL-evaluated report written by a social worker, lawyer, or mental health professional.  The VCR simply outlines the child’s wishes in a neutral way, with the sole focus being on the child’s views.

Using a VCR results in a more streamlined, efficient, and cost-effective way to keep the child involved, while still providing the court with a sufficiently fulsome, but non-binding, glimpse into the child’s wishes.  The weight and impact given to the VCR will depend on numerous factors, including the age and maturity of the child, the clarity of his or her wishes, and how long the particular preferences have been held.  Both parents must consent to using a VCR, and they are responsible for paying the cost of its preparation.

Why are VCR’s a Good Option?

A study by two Canadian professors of Law and Social Work, respectively, suggests that the use of VCRs should be widely endorsed by stakeholders in the family law system.   After a pilot project to use VCRs in a handful of Ontario court regions, their study involved interviewing parents, children, judges and lawyers on their experience with using VCRs.  Most parents and professionals found the shorter reports helpful in resolving disputes.  The children also reported that they enjoyed the opportunity to be heard on their custody and access-related wants and preferences.

The authors’ resulting report, titled the Views of the Child Report: The Ontario Pilot Project – Research Findings and Recommendations, suggests that the use of streamlined VCRs has many benefits:  It can avoid the intensive interview and recommendation process, keep costs and delay at a minimum, yet still uncover a child’s true wishes around custody and access.  Plus, separated parents who opt to use VCRs often find themselves encouraged to settle; the VCR’s straightforward statement of the child’s own, unfiltered sentiments can help parents re-focus on the true objectives behind the litigation in which they are often embroiled.

VCRs have not been formally adopted or mandated for use in Ontario family law matters. However, in conjunction with the provincial Attorney General’s office, there are plans afoot to explore whether they should be introduced into the court system, through an amendment to the current legislation.

What are your thoughts?  Are VCRs a good idea for child custody and access matters?

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

 

 

Long-Awaited Update to Federal Child Support Guidelines

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Long-Awaited Update to Federal Child Support Guidelines

Important news for those who pay – or are eligible to receive – child support anywhere in Canada.

What are the “Guidelines”?

As most of my readers will know, the Federal Child Support Guidelines (the “Guidelines”) are the government-sponsored tool that help separated and divorcing parents set the appropriate amounts of child support that must be paid in respect of the children they have together.

The Federal Child Support Tables, which reflect the principles and calculations mandated by the Guidelines, set out the basic monthly amounts of child support that are result from various permutations.

The Guidelines and the corresponding Tables have been in force since late 2011, and until recently have reflected the calculations that accord with 2011 tax rules.

What’s New?

The Guidelines and corresponding Tables have been amended to reflect more recent tax rules, and have been incorporated into an updated version that takes effect on November 22, 2017. The official (and updated) Federal Child Support Tables, plus additional information and some “legalese” about these new amendments, are located here.

Where, and When?

As with the last version of the simplified Tables in PDF, there is a streamlined, simplified version of the 2017 Tables (also in PDF).  There is also a Child Support Table Look-up for both the 2011 and 2017 versions.  There is also an updated, Step-by-Step Guide.   (Note however that these streamlined and simplified versions are not “official”; only the original Federal Child Support Guidelines and Tables are considered legally-authoritative as to child support amounts.  This also means that the amounts of calculated support may be different when using the official Guildelines or Tables versus the more simplified tools).

One final point:  the new 2017 Guidelines and Tables come into force on November 21, 2017.   For people who need to determine how much child support is owed for a period before that date, the prior version of the Guidelines should still be used.  (And for those who need to calculate child support for a period earlier than December 31, 2011, an even earlier version of the Tables should be consulted.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

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Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

A few weeks ago, I wrote about a case in which the court was asked whether a separation agreement signed by a couple 20 years earlier should be upheld.

Coincidentally, another recent Ontario Court of Appeal case involved a similar circumstance.

When the couple started living together 20 years ago – and at the husband’s insistence, since he’d had a prior relationship end acrimoniously – they signed a cohabitation agreement.  The husband took care of having it drafted, and he presented it to the wife for her signature.  He wanted the security of having the agreement in place before moving forward in the relationship and buying a home with her.

The wife did not have independent legal advice at the time, although she was given the opportunity to obtain it.  Under the terms of the agreement she signed, the wife agreed to give up all her claims to spousal support.

Still, when they separated 20 years later, she claimed for spousal support nonetheless.  The trial judge upheld the separation agreement, and dismissed her claim for support.  The wife brought an appeal.

In evaluating whether to allow that appeal, the court had to embark on a two-stage analysis, the first stage of which required it to:

1) look at the circumstances surrounding the negotiation and execution of the agreement, to determine whether there was any reason to discount it; and then

2) consider the substance of the agreement, to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time it was formed.

Then, in the second stage, the court had to consider – now 20 years later – whether the wife had established that the agreement no longer reflects the original intention of the parties, and whether the cohabitation agreement is still in substantial compliance with the legislated objectives of the modern-day Divorce Act.

Applying those standards here, the wife argued that the agreement was invalid, and that the trial judge failed to consider certain important facts when applying this two-stage test, namely:

  • That there was a power imbalance between her and the husband;
  • That she had not discussed spousal support with the husband;
  • That the husband’s financial disclosure was incomplete; and
  • That she did not have independent legal advice.

While conceding that she was not coerced, the wife argued that the agreement simply did not align with the overall objectives of the Divorce Act, whether now or back when it was signed.  This was particularly true since the couple went on to have an 18-year relationship, they had two children together for whom the wife bore the primary responsibility, and his income exceeded hers.

The Appeal Court considered the wife’s arguments.  After examining the objectives of the legislation, it rejected her spousal support request. There had been no error of law or misapprehension of fact by the trial judge, who carefully reviewed the relevant test and found:

  • The wife was aware of the husband’s desire to have a cohabitation agreement.
  • They had discussed the cohabitation agreement before the wife received it.
  • She was aware of all of the husband’s sources of income and assets, but did not pursue further disclosure.
  • She skimmed over the cohabitation agreement, reading some parts but not others.
  • There was no fraud, coercion, or duress.
  • Although given the opportunity, the wife did not seek independent legal advice even though – on her evidence – she had six weeks to do so.
  • At the time of signing the agreement, the wife thought it was fair and that it fairly outlined the parties’ discussions regarding the purchase of a house.
  • The agreement is in substantial compliance with the Divorce Act.

The court noted that the trial judge was entitled to make the findings that he did on the evidence, and are entitled to deference from appeal court.  It added that even if the cohabitation agreement did not exist, on all the facts the wife would not be entitled to spousal support anyway.  The court dismissed her appeal.

For the full text of the decision, see:

Smith v. Smith

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

 

 

Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

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Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

After separating from the father, the mother had full-time custody of their two 17-year-old children.  The father agreed to pay a set amount of child support, based on his long-distance trucker’s income of $66,000.   However, he was prohibited from communicating with any of them, under the terms of his bail following a guilty plea for assaulting the mother.

About a month after the consent order for child support was made, he claimed that he had experienced a bout of encephalitis, which afflicted him with facial paralysis, dizziness, vertigo, and some mental impairment.   He claimed he was no longer able to work at his job from that day forward; thus with no income, he claimed he was unable to pay child support.

However, he filed no current medical reports with the court to support that contention, other than certain 2-year-old notes and reports that the court found unhelpful.  While it was true that he was on short-term disability right after he quit, he did not provide any evidence as to whether he even applied for long-term disability at all.

The court didn’t buy it.

The father had quit his job for no reason.  His purported illness – which was medically confirmed not to have been a stroke – lasted only a short period of time.  He did not lose his truck driver’s license because of it.

In short:  the father had no valid excuse for not continuing to work and continuing to live up to his financial responsibilities to the children, as he had done before.  He had essentially chosen not to continue working, likely as a bid to avoid his child support obligations entirely.

In light of the fact that he was capable of earning more, the court relied on one of the provisions of the Child Support Guidelines that allowed it to impute income.  As the court explained:

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

Notwithstanding the father’s current state of self-imposed unemployment, the court set the father’s income back at the $66,000 level.  It ordered him to continue paying support at the same level as he had done before he quit, and sorted out the amount of the unpaid arrears as well.

For the full-text of the decision, see:

Armstrong v. Wallace

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

 

 

Dad Loses Joint Custody, But Gets Access to Give Son Needed “Down-time”

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Dad Loses Joint Custody, But Gets Access to Give Son Needed “Down-time”

In a case called Newman v. Nicholson, the parents of a 14-year old boy had been subject to a court order, granting them each joint custody.  The boy lived in the primary care of his mother since he was 2 years old.

Over that period, the mother had done most of the work around attending to the boy’s needs:  For example, she facilitated his involvement in highly-competitive Triple-A level hockey, as well as high performance athletic programs, hockey camps and high school sports.

In contrast, the father had been comparatively unreliable in meeting the boy’s needs, and sometimes had trouble getting him to school or sports functions on time.  This was compounded by the fact that his driver’s license had been suspended by the Family Responsibility Office for non-payment of child support.   His income had also dropped for unrelated reasons, and the mother claimed he had increased his consumption of alcohol.  She also had concerns that the boy spent too much time playing video games while in the father’s care.

The mother applied for sole custody (but with generous access to the father), on the basis that there had been a significant change since the order had been made.  She pointed out that while she had taken charge of attending to all the boy’s needs, the father had not even honoured his financial obligations as a parent.  More troubling was the fact that the father deliberately ignored her emails and was unresponsive in his communication with her about the boy’s various existing health issues, some of which required monitoring.

The father wanted the joint custody to remain as-is.

After considering the boy’s best interests, the court concluded that the existing situation was indeed ripe for change, primarily due to the nature of communication between the parents, which the court called “abrasive and contemptuous.”  That, coupled with the father’s historic inability to get the boy school and sports on-time, was justification for removing the father’s entitlement to joint custody and reducing his access time.  Although both parents had a strong bond with the boy, and both wanted a role in parenting him, the mother had played the lead role with respect to his schooling, medical needs, activities registration and scheduling.  The court added that at this point in his life, the boy needed consistency and routine.

However, the father was to continue to play a meaningful role in the boy’s life.  In particular, the court found that the boy’s time with his father was “an opportunity for [him] to play video games and allow him some ‘down time’”.

The court accordingly imposed a schedule for reduced access, which would be increased once the father got his license back.

For the full text of the decision, see:

Newman v. Nicholson

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

Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

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Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

In cases where spouses are separated or divorced, the decision of where a parent can live and work is no longer his or her alone.   Rather, the Family Court may become involved, and may be asked to give the parent permission to relocate, particularly if that involves moving with the child to a faraway community or jurisdiction, such that convenient access by the other parent is foreclosed.

Recently I talked about a noteworthy decision in a case called Porter v. Bryan where the Ontario Court of Appeal considered the various interests that must be considered when granting (or denying) permission in such cases.

In identifying those factors, the Court drew from a decision by the Supreme Court of Canada in a landmark case called Gordon v. Goertz, where the country’s top Court said:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

However, while the custodial parent’s views are entitled to “serious consideration,” and were part of a balancing of the two parents’ competing interests as well, it was actually the child’s best interests that were to be given what the court called “superordinate consideration”, with the entire analysis to be determined using a child-centred perspective.   This was in line with the Court’s own prior ruling in a case called Berry v. Berry as well.

Applying these principles to the fact situation in Porter v. Bryan:   While the mother’s reasons for moving – while entitled to “great respect” – were relevant only to the extent that they related to her ability to meet the needs of her son.   The overall focus was to remain – at all times – on what was in the best interests of the child.

For the full text of the decisions, see:

Berry v. Berry

Porter v. Bryan

Gordon v. Goertz

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

With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

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With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

In 2015, the parents of a 5-year-old boy separated, and agreed to an arrangement involving joint custody, as well as shared parenting.  This agreement was brought before the court for its endorsement in a court order.

In the context of the mother’s bid to relocate the boy to another city (which was the subject of a prior blog a narrow legal question arose:  If there is “joint custody”, together with “shared parenting”, can there still be a “primary caregiver”?

The question is important because under the family law principles relating to mobility – meaning the ability of a parent to move elsewhere with the child – the decisions of the “primary caregiver” are given added weight by a court in evaluating the plan to relocate.  (This principle will be the subject of an upcoming Blog).  But the question is arguably muddy when, as in this case, the parents have agreed to a joint custody and shared parenting model.

The Ontario Court of Appeal cleared up any doubt:  In rejecting the motion judge’s conclusion that in such cases there can no “primary caregiver” in law, the three-member panel of the Court wrote:

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother’s evidence, but from the father’s admission on his …affidavit, his answers in cross-examination, and affidavits from two of the father’s aunts.

Accordingly, with the mother designated as having the primary caregiver role, the court gave her reasons for moving the child special consideration, relative to other factors including the father’s objection to the plan.

For the full text of the decision, see:

Porter v. Bryan

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