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Posts tagged ‘Separation Agreements’

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

 

Wednesday’s Video Clip: Ontario Divorce Courts, Introduction to Collaborative Practice

Wednesday’s Video Clip: Ontario Divorce Courts, Introduction to Collaborative Practice

Collaborative Divorce, also known as “Divorce without Courts” or Collaborative Practice, is a new way for lawyers to help resolve your marital dispute respectfully, and without Courts. In Ontario, Lawyers can help negotiate divorce settlements, while maintaining open communication and creating a shared solution between spouses. In this video, an Associate Lawyer at Russell Alexander Family Lawyers, discusses the merits of collaborative practice in divorce.

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

 

 

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,  a 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

In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

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In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

The parents of a now 13-year-old boy and of three other now-adult children had separated very acrimoniously in 2012.  The court describes the end of the relationship this way:

The parties separated at the end of December, 2012. There was a meeting of the family, not including [the 13-year old son], in early January, 2013. It was hoped that that meeting would be civil, and would set the stage for an orderly transition to the parties living separately. Instead, matters went rapidly downhill thereafter. There were allegations of abuse, violence, theft, destruction of property, assaults, and other allegations of a similar nature. The [father] began videotaping interactions between the parties and their children. The police were called on many occasions. The Children’s Aid Society was involved.

After the ill-fated family meeting, the mother had primary care of the boy, while the father had access only on alternating weekends.  The court heard that under this arrangement, the boy was by all accounts thriving in his school and social environments.  He had a strong attachment to both parents, and was equally happy spending time with either of them.  His stated preference was to spend equal time with them both.

Nonetheless, the father applied for sole custody of the boy.  He claimed that the mother had abused all children for years, and indeed two of them and their paternal grandmother gave testimony to confirm that opinion. (And the court noted that two of those three adult children no longer wanted anything to do with their mother.)   Two of the boy’s siblings gave evidence that the boy would be much better off living with his father, and one of them felt that he would be better off not seeing the mother at all.  One sibling was more conciliatory, but also believed that the boy would do better living with the father.

The father’s opinion of the mother was unequivocal:  He claimed she was a “vindictive, destructive, and evil” person.

The court was left to resolve all this competing evidence in a high-conflict situation, to arrive at a workable resolution.  In doing so, it reiterated the guiding principle in such matters:

It is trite that decisions respecting the custody of or access to a child must be made in accordance with the best interests of the child. The interests of the parents are entirely secondary.

The court then added:

Having heard 16 days of evidence, it is quite clear that each party is, for the most part, concerned with his or her interests first and foremost. The hatred of these parties for each other is palpable. Control is of paramount importance.

Both parties have behaved unreasonably.

Against this background, the court concluded there had been no abuse of the boy, and that – when not embroiled in litigation – were good parents and have the boy’s best interests in mind.  Even though the parents lived quite some distance away, and assuming that the father could commit to getting the boy to school, there would be an order for joint custody, with an equal shared / parallel parenting regime involving at least 40 per cent of the boy’s time being spent with each parent.  (And if the father could not commit to the school-day driving then the current arrangement would remain, but with increased access to him).

The court added that it also wanted to avoid making an order for sole custody to one parent or the other, for fear that the chosen parent would consider themselves the “winner” and use such a determination as an “instrument of oppression.”

For the full text of the decision, see:

Hart v. Krayem

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

Wednesday’s Video Clip: The Need for a Support System

Wednesday’s Video Clip: The Need for a Support System

In this short video Russell Alexander discusses the importance of having a support system in place when you go through a divorce.

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

“Property” or “Income”? Appeal Court Rules on Structured Settlement Annuities

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“Property” or “Income”? Appeal Court Rules on Structured Settlement Annuities

Recently the Ontario Court of Appeal delivered a ruling on a very narrow, but important, issue:  Whether structured settlement annuity payments are considered “property” or “income” under Ontario family law legislation dealing with property-division by spouses on separation.

In Hunks v. Hunks, the wife had been injured while shopping at a supermarket.  She was hit by either a shopping cart or a pallet, and sued the store for damages.  When her claim was later settled, about $300,000 from the proceeds of her settlement were used to create a structured settlement annuity.  This paid out funds to her on a regular, pre-determined basis since she was no longer able to work.

At the point when she and the husband separated, the wife was still entitled to receive about 13 years’ worth of payments from the annuity.

In the context of determining their respective Net Family Property amounts for the purposes of equalization, a legal question arose as to whether the wife’s annuity payment entitlement should be counted as “property” or as “income” as those terms are used in the Ontario Family Law Act.

This was an important distinction:  If they were “income”, then they would be taken into account when calculating spousal support obligations.  If they were “property”, then their treatment would depend on other provisions of the Act that might allow for their exclusion.

The Court of Appeal concluded that such structured settlement annuities are properly considered “income” under the Act.

The key was that the annuity arose from a structured settlement, which is created when some or all of a personal injury settlement is deposited with a life insurance company in exchange for guaranteed, tax-free payments for the recipient’s lifetime, or for a specific number of years.  The court noted that annuities arising from personal injury settlements are very specialized contracts, and are subject to certain legal contingencies and stipulations.

The net result is that the casualty insurer is actually the legal owner and beneficiary of the contract.  Using the wife’s case as an example, it was the casualty insurer that purchased the annuity, and made an irrevocable direction to the issuer of the annuity contract to make all payments directly to the wife.  The court noted that an individual, such as the wife, is not entitled to purchase a structured settlement him or herself.

With that vantage-point, it could not be said that during the marriage the wife “received” the $300,000 used for the structured settlement.   The court also noted that payments received pursuant to a structured settlement annuity were analogous to disability benefits, which was another reason they should be treated as income.  Like disability benefits – which prior courts have concluded are “income” for these purposes – structured settlement annuity payments are meant to replace employment income that the wife would have earned if she had been able to work.  Since they provide her with financial support because she cannot work, they are “of the same nature as the income she would have earned had she not been injured.”

For the full text of the decision, see:

Hunks v. Hunks

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

 

Is Sex Addiction Relevant to Divorce?

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Is Sex Addiction Relevant to Divorce?

With the recent coverage of the Harvey Weinstein scandal, there has been speculation in the Canadian media about the validity of his claims to have a “sex addiction”, and whether such a so-called affliction really exists at all.

In the Weinstein case, sex addiction is being used by the perpetrator of objectionable and oftentimes criminal behavior towards women.   But in a Family Law case from a few years ago called Yunger v. Zolty, it was the flip-side:  It was the wife who wanted to raise the husband’s sex addiction to bolster her legal position on various disputed issues, namely to shed light on the reason for the marriage breakdown and to cast doubt on his ability to parent their daughter.

But in rejecting the wife’s request for the husband’s medical records on his treatment, the court explained:

Production of the father’s medical records

The mother asks for an order that the father produce his medical records from Bellwood Health Services and any other health care professionals relating to his sexual addictions.

The father denies that he has sexual addictions.  He says he went to counselling in relation to this issue because of pressure placed on him by the mother and her family.  He says he is currently seeing a counsellor to help him deal with the difficult issues arising from the marriage breakdown.

 The mother submits that disclosure of the medical records would assist in determining whether the father had or has sexual addictions and why the marriage broke down.  I have difficulty, however, in understanding how these determinations are relevant to the issues in this litigation.

The mother suggests that the father’s addictions may be related to [their daughter’s] difficulties with her father.  However, there is no evidence, at this point, that this is or may be the case.

The disclosure of medical records is highly intrusive.  There are compelling reasons for preserving the confidentiality of communications between the father and his doctor or therapist.   In the absence of evidence that such records would be relevant to any of the issues in this case, in particular, to the parenting issues, I decline to order that they be disclosed.

Although the court in this case made it clear that alleged sex addiction was not relevant to the particular issues between the divorcing husband and wife, one is left to wonder where there are other scenarios where it might be.

What are your thoughts?

For the full text of the decision, see:

Yunger v. Zolty

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