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Long-Overdue Divorce Act Amendments Are Likely On the Horizon

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Long-Overdue Divorce Act Amendments Are Likely On the Horizon

Canadian law has not seen a substantive change to the federal Divorce Act in more than 30 years.  But with the mid-2018 introduction of Bill C-78 (which has the unwieldy title of “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”) that long-overdue revision and update is in sight.

Bill C-78, which is expected to be passed into law in 2019, is touted as having a long list of legal substantive and procedural objectives, including:

  • Simplifying certain processes, including those related to family support obligations;
  • Creating duties for parties and legal advisers to encourage the use of family dispute resolution processes (including negotiation, mediation, and collaborative law);
  • Introducing measures to assist the courts in addressing family violence; and
  • Establishing a framework for the relocation of a child.

Importantly, the Bill also proposes to give clarity to what is considered the “best interests of the child”, by establishing a non-exhaustive list of criteria.  It also strengthens the court’s ability to focus on a child’s best interest when crafting its orders, by mandating that the court consider the child’s own views and preferences in the context of his or her age and maturity (unless those views cannot be ascertained in the circumstances).  This is in keeping with existing court rulings on the point, and essentially imports the established principles into a more modern version of the statute.

Bill C-78 also injects two important concepts into the existing legislation:

  • That part of fostering the “best interests of the child” requires a court to consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
  • That grandparents, or other persons who play an important part in a child’s life, may be eligible to obtain a court order formally entitling them to have contact with the child.

Finally, the Bill updates terminology throughout the existing Divorce Act, so that references to “custody” and “access” are replaced with terminology related to “parenting” and “decision-making responsibility” instead.

In a nutshell, the changes proposed under Bill C-78 are designed to clarify and promote some well-established family law principles (especially those relating to children), and to make the family justice system more accessible and efficient.  Further updates on these pending changes will follow in future Blogs, as the Bill gets closer to being passed.

At Russell Alexander Collaborative 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

 

Ontario Child Custody, Who is Considered a Parent? – video


Wednesday’s Video Clip: Ontario Child Custody and Who is Considered a Parent?

When it relates to family law, a parent can be the birth mother or father, an adoptive parent, or a step-parent.

In this video we review who is considered a parent for the purpose of child support, along with the role of step parents.

Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

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Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

The couple, who had married in 1973, separated almost 40 years later. During the marriage the husband had worked at a local mill and mine, while the wife had a traditional role and stayed home to raise their children.

They owned the matrimonial home jointly, and the husband continued to live in it after they split.

The wife applied to the court for an order that the matrimonial home should be listed for sale; she also asked the court to order the husband to pay her occupation rent, pending the eventual sale.

After considering the various factors, the court granted part of her request forcing the home to be listed – even though the home was located in a small mill town where the mill had closed, there was still a market for real estate in the area and the home was to be listed at a mutually-agreed price after consulting with a realtor.

However, the court declined to order the husband to pay occupation rent. Pointing out that its ability to make such an order was fully at its discretion, the court still had to balance the various relevant factors to determine whether ordering occupation rent was reasonable in all the circumstances. It concluded that at this stage, such an order would be premature.

This was because the current arrangement allowed the husband to live in the house inexpensively, so it did not make sense to force him out of the home in the winter when there was no one available to look after it. Instead, the court ordered that the house did not have to be put on the market until April, and the proceeds could be put into trust until the court made another order.

For the full text of the decision, see:

Charron v. Charron (2014), 2014 ONSC 496, 2014 CarswellOnt 694, J. deP. Wright J. (Ont. S.C.J.) [Ontario]  http://canlii.ca/t/g2s0h

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.

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Aperture: The Finer Points of “Income”

A few weeks ago, we wrote about More on the Ins-and-Outs of “Income” and how Ontario family law treats some of the more specific sources of income in the hands of a paying spouse, for the narrow purpose of calculating child and spousal support.

Perhaps because RRSP contribution time just passed, and federal Income Tax time is looming on the horizon, we are prompted to revisit some of the finer points of that concept. Here are some additional principles for you to know:

1. Recurring capital gains and losses are usually treated as income for the purposes of calculating support; they can be offset by capital losses in some circumstances. The court will also assess them, using financial records, to confirm that the amounts are reasonable. Note however that capital gains and losses are not treated identically, and there are special rules as to how each are dealt with. One-time capital gains, on the other hand, are usually treated as one-off occurrences which are excluded from income. However, a court must be satisfied that the capital gain was indeed a one-time event, and will usually consider the paying spouse’s pattern of income for the previous three years.

2. Income fluctuations and non-recurring income is generally considered by a court on a situation-by-situation basis, since they represent an irregularity in the paying spouse’s income pattern. With this in mind, a court will try to determine to determine a more reasonable “baseline” or establish pattern of income that should be used in calculating the support owed, generally by using a simple averaging calculation applied over the previous three years.

Common examples of non-recurring income include:

• Redeeming an RRSP. In contrast to how this is treated for federal Income Tax purposes (where it is conclusively included as “income” for the tax year), a one-time redemption of an RRSP will generally not be considered part of the paying spouse’s income for child or spousal support purposes.

• Stock options. The regular exercise of stock options will be treated differently, but a one-time redemption will generally not be included as income for support purposes, but it depends on several factors.

• Personal injury or other damages awards. The outcome will depend on the nature of the damages award: If they arise from a personal injury action and are intended to compensate for pain and suffering, then they are generally excluded; if they are paid to compensate for loss of income, then they are usually included in income for support purposes.

Have questions about what constitutes “income” for support purposes? Feel free to contact us for fact-specific advice that is tailored to your situation.

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.

10 Ways to Get Information About Family Law

There are many ways and resources available to you to learn more about family law issues. This post lists 10 of them.

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