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Enforcement of Child Support in Ontario – video

 

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.
Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

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

Child Support in Ontario: Introduction to Child Custody – video

 

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, Shelley, a senior family law clerk at Russell Alexander Family Lawyers, talks about custody and answers 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.

Wife “Doctors” E-mails – And Undermines Her Credibility with Court

email

Wife “Doctors” E-mails – And Undermines Her Credibility with Court

It’s safe to say that family court proceedings don’t necessarily bring out the best in people. The period leading up to an interim hearing or divorce trial usually features acrimony and ill-will, and this sometimes breeds a “win at all costs” mentality.

In an Ontario case called Jesse v. Jesse, the mother even went so far as to alter certain e-mails and submit them to the court as evidence, in an attempt to malign the father.

The had parents separated after almost 10 years of marriage and three children. The mother worked as a physiotherapist, while the father had a spotty work history involving numerous computer and technology-related ventures. Beyond that, the facts and issue were complicated: The parents were in dispute on a wide range of issues, including the usual ones such as custody, child support, and spousal support. But they were also at odds over matters such as the precise amount the father was earning, whether the children should go to private school, the costs of the children’s activities, and a host of other things, all of which had to be untangled and resolved by a court.

Moreover, neither of the parents had behaved particularly civilly in the days and months leading up to the trial itself. The court summarized the tenor of that proceeding this way:

Unfortunately, this long trial offered each of them a perfect forum to deliver a final salvo at the other, and to define, once and for all, the mistreatment each had suffered. They did not waste their opportunity.

To give a sense of the flavor of the disputes, and the detailed (and arguably trivial) nature of their quibbles with one another, the court recounted some of the incidents:

I am not going to spend time describing particulars of [the father’s] misbehavior before the separation, or his angry e-mailed messages afterward when [the mother] allowed a relative to take the boys to the barber and their heads were shaved. She admitted her mistake. Similarly, it is unnecessary to examine in detail [the father’s] angry e-mails and name calling when he was left with the children without explanation while [the mother] enjoyed her “hot yoga” class. He did apologize the next day for his intemperate outburst. … certainly [the mother] calling in the Children’s Aid Society to investigate [the father’s] having allowed [the son] (in the company of a bunch of the neighbor kids) to cross the creek and hike in the woods at the back of the ravine was “over the top.”

The court was equally frustrated with the parents’ testimony. Although it called the father “facile and glib” at times, it was especially critical on the mother, describing her this way:

[The mother] was an unusual and even frustrating witness. She was scattered and hard to understand. Sometimes witnesses become evasive and do not respond to questions put to them in cross-examination by opposing counsel who are, obviously, intent on casting doubt on their case, but [the mother] showed little inclination to answer even [her own lawyer’s] questions directly. She had made up her mind to tell a story which cast her in the best possible light and which would make her out to be a mother beyond reproach. After admonishing her on several occasions to simply answer her counsel’s questions, I had to give up. She was determined. …

But in the court’s view among the more troubling incidents was the mother’s attempt to doctor some of the e-mail evidence she tendered in court. In its indictment of this conduct, the court wrote:

I am much more reluctant to dismiss [the mother’s] actions with the e-mail she introduced in evidence …. She is a bright, very resourceful woman who was patently heavily invested in this proceeding and all the injustices to which she (and her father…) have been exposed by [the father]. That was her perception and that coloured her testimony, about which I became very cautious. I find that [the mother] took two previous e-mails from [the father] and forwarded them to herself after changing the words and paragraphs, adding in uncomplimentary phrases about herself to make it appear as if [the father] was abusing her. I find she attempted to mislead me with this doctored e-mail. Her credibility suffered considerably as a result.

Although the court went on to find that – to their credit – the parents did not disparage each other to the children nor expose them to any “obvious unpleasantness”, it was left to sort out the rights and responsibilities of two parents who were determined to make their separation and divorce difficult for everyone: each other, themselves, and the court itself.

For the full text of the decision, see:

Jesse v. Jesse, 2010 ONSC 861

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

Time To Nominate Our Favourite Law Blogs For the 2015 Clawbies — #clawbies2015: @DanPinnington, @ @PrecedentMag and @CanLIIConnects

CLawBies

Time To Nominate Our Favourite Law Blogs For the 2015 Clawbies — #clawbies2015: @DanPinnington, @PrecedentMag and @CanLIIConnects

Yes it’s the most wonderful time of year (no not Christmas) — time to nominate your favourite law blogs for the 2015 Clawbies.

Three Canadian blogs that we follow and have caught our attention this year and constitute our nominations for the 2015 Clawbies are:

1. Dan Pinnington’s “Avoid A Claim”

Well know for his “tech tips” author Dan helps lawyers avoid malpractice claims and helps LAWPRO reach out to its stakeholders. His vision, energy and ideas have made practicePRO an internationally recognized claims prevention initiative. His blog has great technology and practice tips that all practitioners will find immensely useful.

2. Precedent Magazine

Precedent is Toronto’s lifestyle magazine for lawyer that features a lively assortment of professional news, tips, fashion and opinions on hot topics.

3. CanLii Connects

Created to make it faster and easier for legal professionals and the public to access high-quality legal commentary on Canadian court decisions.

Good luck to everyone who is nominated and to our judges who will have a tough time deciding who are best of the best, cream of the crop, the top guns in legal blogging. With over 400 Canadian legal blogs on the internet it will not be easy finding Goose and Maverick.

Special Mentions:

Above The Law – US

Takes a behind-the-scenes look at the world of law. The site provides news and insights about the profession’s most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments.

Divorce Discourse

Divorce Discourse is a three-time ABA Blawg 100 popular vote winner. Rosen has been there and done that and shares his experience with you

Jim Calloway’s Law Practice Tips

An Oklahoma-based weblog about law practice management, the Internet and technology as it applies both in law practice and in all of our lives.

Click here to learn more about the 2015 Clawbies.

What’s the Lawyer’s Job? – video

Wednesday’s Video Clip: What’s the Lawyer’s Job?

Our office will help you by providing you with guidance during this transition and what maybe a difficult time in your life. This means providing you with the information to help you to identify and understand the issues, as well as the options and opportunities available to you.It means working with you to design a plan to help you make progress and achieve your goals.

We will keep you informed about matters as they arise and discuss with you any significant decisions that you are required to make. We will provide you with our best legal advice, but ultimately you will make the final decisions and provide us with instructions.
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.

Ashley Madison: Hackers Release More Data

amm

Ashley Madison: Hackers Release More Data

As many of you will know, in mid-July of this year the infidelity website AshleyMadison.com, which enables married people to find partners with whom to conduct secret affairs, was the target of hackers who released certain user information to the public.
Earlier this week, the culprits struck again, releasing a second larger “dump” of data that reveals not only information on the users’ identity, but other sensitive information as well.

The group taking credit is known as “Impact Team”; it had initially targeted Ashley Madison’s Toronto-based parent company, Avid Life Media, claiming that it had ripped off customers by charging them a $19 fee to delete their data permanently, but then not actually deleting it. Alleging that the false “full delete” service had netted the company $1.7 million in 2014, Impact Team then threatened to release more data if the entire site was not disabled permanently.

The most recent data exposure releases information on approximately 32 million Ashley Madison users – the vast majority of whom are male – and includes their names, usernames, addresses, phone numbers, and dates of birth. It also includes users’ own descriptions of themselves in profiles they would have set up during registration (e.g. “Let’s start as friends….”) as well as sensitive credit card information, login details and passwords.
Apparently, the latest release also reveals certain emails linked to the website’s founder and chief executive of the parent company, Noel Biderman.

Needless to say, from a public-interest standpoint, the data breach and its fallout has been particularly “sexy” fodder for discussion (pun intended); it has raised sort of legal issues and water-cooler chat relating data integrity, privacy, and criminality, not to mention the more obvious social issues relating to infidelity, ethics and morality.

But even leaving aside the more salacious aspects of the divulged information, at the very least it shows the widespread prevalence of actual or potential cheaters, and hints at the question of whether society’s appetite and tolerance for infidelity has changed. Indeed, using the latest release of Ashley Madison user data some socially-curious minds have even “run the numbers” to generate a worldwide map that illustrates the distribution of assumed cheaters across the globe.

Interesting stuff.

What are your thoughts?

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

To learn more, we have written several blogs on adultery and affairs, including:

Adultery and Affairs

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

In a Failed Romance, Can You Sue for Negligence?

Can You Sue Your Ex’s Affair Partner for Damages?

Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

Top Five Points About Adultery That You Probably Didn’t Know

Can I Keep My Ex’s New Partner Away from My Kids?

new partner

Can I Keep My Ex’s New Partner Away from My Kids?

This week, in response to an inquiry from a reader, I thought I’d address a common, day-to-day concern that separated or divorced parents may have about custody and access arrangements for their children.

It arises in the context of a common scenario: You and your Ex have spit, and he or she has gone on to form a new romantic relationship with someone else. The relationship may be an established one, or it may be brand-new. But either way your concern, quite understandably, may relate to items such as:

• the amount of time the children spend in the new partner’s company;

• the extent of his/her caregiving, and discipline imposed;

• the overall influence that the new partner may have on your children;

• differences in values or lifestyle that the new partner may expose your children to;

• the “message” that the new partner’s presence will convey to your children (e.g. possibly that your own role in their lives is about to diminish, or that you are being outright “replaced”).

You may wonder whether you are legally-entitled to voice your say or have any influence on the situation, particularly if you are not a fan of the new partner personally. Can you refuse to co-operate you’re your Ex’s custody / access entitlement, to avoid having the children spent time with a new partner you don’t like? Can you refuse to allow your children to have overnight visits if the new partner is also staying over at your Ex’s home?

The short answer is (generally): No. You and your Ex both have the right to form new relationships; unless there is a court order in place that expressly prohibits your Ex from exposing your children to any new romantic partners (which, frankly, is rare) then there may be little that you can do.

Of course this presumes that your Ex has valid custody or access rights and is exercising them in a reasonable and appropriate manner, with no concerns over the child’s health, safety or well-being. If there is doubt, a court will certainly assess the situation from the vantage point of what is in the children’s best interests. But – leaving aside any normal human resentment or jealousy of your own – the motives for blocking your children’s access to a new partner are likely not based on any legally-recognized concerns. In other words: You probably just have to live with it.

With that said, the situation might be different if you and your Ex have expressly agreed not to expose the children to a new partner (or to do it only gradually) and that agreement is breached. It may give rise to dispute between the two of you, which in turn may prompt friction on the bigger issues of custody and access.

This was precisely the scenario in a case called Billard v. Billard, [2014] N.S.J. No. 350, 2014 NSSC 246, where the court described the conflict this way:

The parties disagree on whether [the child] responded well to the weekly arrangement. They do agree that Jeremy does better with a structured routine.

The parties had discussed and agreed to a slow introduction of new partners, and that [the child] would not be taken overnight to a new partner’s home. When [the mother] learned that [the child] was spending time at [the new girlfriend’s] home, she raised safety concerns about the presence of a large pit bull dog and a ball python. She also requested [the new girlfriend’s] address, which was not provided.

These simmering issues came to a head the night of November 23, 2013, when [the mother] removed [the child] from the home of [the father’s girlfriend … who] was caring for [the child] while [the father] went out with friends.

That incident significantly eroded the relationship between the parties. Access became difficult as a result.
In these kinds of situations, a court may regulate the children’s exposure to the new partner and rule on the extent to which they are to be left in that person’s care (if any), all as part of a custody / access order that binds the parents.

For the full text of the decision, see:

Billard v. Billard, [2014] N.S.J. No. 350, 2014 NSSC 246

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.

Child Support & Access Rights in Ontario – video

 
 

Wednesday’s Video Clip: Child Support & Access Rights in Ontario

In this video Kiley discusses child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

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.

Think Your Past Support Obligations Are Up-to-Date? Make Sure That Belief is “Reasonably-Held”

Closeup on man`s hands writing a check

Closeup on man`s hands writing a check

Think Your Past Support Obligations Are Up-to-Date? Make Sure That Belief is “Reasonably-Held”

Few weeks ago, a wrote a Blog about an important Supreme Court of Canada decision called S. (D.B.) v. G. (S.R.), which is the leading Canadian case on the question of the factors that go into making a retroactive child support order – meaning an order that the paying parent “cough up” support that should have been paid all along, but which (for various reasons) was never paid.

According to the court, one of the considerations is whether there has been “blameworthy” behaviour by the paying parent; that assessment is a subjective one, but there are several objective factors and elements to be considered as well.

One of those arises from a simple corollary question: Did the paying parent have a reasonably-held belief that he or she was already meeting the required support obligations? If yes, then this is what the court called a “good indicator” of a lack of blameworthiness; if no, then he or she may have been actively or passively avoiding paying the required child support, in which case a retroactive child support order might certainly be warranted.

So what constitutes to a “reasonably-held belief”, in this context?

Naturally, it depends on the scenario. But the concept was illustrated in a subsequent Ontario case called Grose v. Summers, where the court applied the principles in S. (D.B.) v. G. (S.R.), and evaluated the conduct of the support-paying father, as follows:

It is inconceivable in today’s world that a support payor would not know that child support is linked to the payor’s income. A payor cannot have a reasonably held belief that his payment of child support fulfills his legal obligation if he ignores the fact that his income is increasing annually. Mr. Summers income in 3 of the years between 2002 and 2007 was 50% higher than the income upon which his support payment was based. His conduct cannot be excused. While his is not the worst case of blameworthy conduct, it is definitely blameworthy and this court so finds.

It should be noted that this assessment of whether the belief is “reasonably-held” is fact-based, but according to the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), there are certain hallmarks that the evaluating court can use. For example:

• A court may use a straight calculation of how much should have been paid, as opposed to how much was actually paid; the closer the two amounts, the more reasonable the belief by the parent that his or her obligations were being met (which in turn informs the blameworthiness assessment).

• A court assessing the situation should consider any previous court order or agreement that the paying parent was following; since these are presumed valid, the paying parent should be presumed to have been acting reasonably when paying it.

The bottom line is this: a parent who consciously avoids his or her child support obligations, or who does not disclose relevant increases in income, are very likely to find themselves facing a retroactive support order. All the more so where the avoidance/lack of disclosure is calculated and deliberate.

For the full text of the decision, see:

S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.)

Grose v. Summers, 2009 CanLII 55695 (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 www.RussellAlexander.com.

The Finer Points on Court-Ordered Interim Support

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The Finer Points on Court-Ordered Interim Support

As regular readers of my Blog likely know, in cases of separation and divorce the entitlement to child or spousal support is governed mainly by Canadian federal law, and (to a lesser extent) by Ontario legislation. Those laws allow a court to make a final order that intends to fully address the estimated future needs of former spouses and children, taking into consideration the various factors that have been established as being relevant to assessing need.

As much as it would be ideal for a court to be able to make such an order immediately, from the moment the couple irrevocably separates, the reality is that the process leading to a formal divorce is lengthy and often costly, and that the parties’ needs and means remain pressing and immediate, yet may change over time.

For this reason, Canadian law empowers a court to make one or more temporary or “interim” orders for support, which are intended to address the support recipients’ needs on a shorter-term basis, pending the full resolution of the issues that arise from the dissolution of the couple’s relationship.

These temporary orders (which at one time were called “interlocutory”), are generally governed by the same considerations that affect a court’s decision-making on final orders: Child and spousal support rights/obligations arise from sections 15.1 and 15.2 of the Divorce Act, respectively, with additional guidance being given by the Spousal Support Advisory Guidelines and the federal Child Support Guidelines. For example, section 15.2 set out the specific factors that must be considered when making either an interim or final order, including:

• the length of time the spouses lived together;

• the functions each of them performed;

• any order, agreement or arrangement relating to the support of either of them.

The section also sets out in detail the various objectives that the court should strive to meet when making either a final or temporary award.

However – and despite the overall similarity in approach – courts have also recognized that the objectives of a final order versus an interim order are not identical, and that there are slight nuances in the assessment exercise. Plus, each case is different, and the court must balance the factors as the situation dictates.

For this reason, an Ontario case from a few years ago named Driscoll v. Driscoll remains helpful in formulating an approach to interim orders in particular, by providing an added list of governing principles. The court, citing a contemporary B.C. decision named Robles v. Kuhn, endorsed the following eight points:

(1) On applications for interim support the [support recipient’s] needs and the [support payor’s] ability to pay assume greater significance;

(2) An interim support order should be sufficient to allow the [recipient] to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;

(3) On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;

(4) The courts should not unduly emphasize any one of the statutory considerations above others;

(5) On interim applications the need to achieve economic self-sufficiency is often of less significance;

(6) Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional circumstances indicate otherwise;

(7) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and

(8) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

The court in Driscoll also emphasized that these principles are not exhaustive; rather they are intended to assist the court in providing a “contextual analysis”.

Do you have questions about your interim support rights or obligations? Contact us for some advice that is tailored to your unique situation

For the full text of the decision, see:

Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC)

Robles v. Kuhn, 2009 BCSC 1163 (CanLII), [2009] B.C.J. No. 1699

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