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Wednesday’s Video Clip: We’re Here to Help

Wednesday’s Video Clip: We’re Here to Help

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

Who Pays Child Support in Ontario?

Who Pays Child Support in Ontario?

The Details of Ontario Child Support

Child Custody and Access

When parents are going through a separation or divorce, some of the most difficult decisions that need to be made are those concerning the children. Who will the children live with? Who will have custody? What happens if the parents cannot agree?

Legal Aspects of Child Custody and Access

Ontario family law recognizes that children often benefit from having maximum contact with both parents. Where appropriate, parents should share in the parenting decisions related to their children, as well as the time spent with their children.

In some circumstances, parents wish to maintain joint custody and make decisions regarding their children jointly, but decide that it would be in the child’s best interests to have the child live primarily with one parent.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

In these situations, the parent with whom the child does not reside most of the time can foster her or his relationship with the child through “access.” This term simply refers to the time that the other parent will spend with their child.

Where parents can agree on how to split their time with their child or children, this arrangement can be as detailed or as open-ended as the parties agree. For example, parents may wish to outline which holidays are spent with whom in advance, so that the child does not feel any guilt about having to “decide” the issue when it arises.

This can also prevent any dispute as to what is an equitable sharing of the child’s time. Where parents cannot agree on the major decisions involving their children or on how the child’s time should be divided, a court can make an order to provide the parties with a solution.

Different Types of Custody

Shared custody

If each parent has the child at least 40% of the time, the Child Support Guidelines say there is “shared custody.” This refers only to the residential agreement, and should not be confused with the term “joint custody,” which refers to the parents’ joint right to make major decisions for the child. When there is shared custody, the amount of support paid to the parent with custody might be less than the amount set out in the table. Therefore, the term “shared custody” only refers to the amount of time spent with the child.

There is no formula in the Guidelines for determining how much time is spent with each parent in a shared parenting scenario. The onus is on the parent who claims they have shared custody to show that the child is with him or her at least 40% of the time.

If the judge finds that the child spends at least 40% of their time with the parent who pays support, the Guideline table amount will no longer apply. Instead, the judge will look at the gross income of each parent to determine the child support amount, as well as of time the child spends with each parent. This takes into account the reality of a shared parenting arrangement, because the more time the child spends with each parent, the more each parent is expected to provide basic items for the child, such as pajamas, toys, clothes, and bedding. Judges must consider these extra costs when they set support amounts for shared custody.

Split custody

Sometimes when parents with more than one child separate, one or more of the children will live with each parent. When this happens, child support depends on the income of both parents. How much support each parent would owe for any children living with the other parent is figured out according to the Guidelines. The parent who owes the higher amount must pay the difference between the two amounts to the other parent.

Take the example of one parent with custody of two children and an income of $25,000, and the other parent with custody of one child and an income of $45,000. According to the table, the parent with the lower income owes the other parent $211 a month in support for the one child who lives with that other parent. The parent with the higher income owes the other parent $680 a month in support for the other two children. When you subtract $211 from $680, the higher-income parent owes the other parent $469 a month in child support.

Sole custody

When a parent has sole custody of a child, this means that they are solely authorized to make major decisions for the child, to the exclusion of the other parent. In these cases, it makes sense that the child’s primary residence will be with the parent having sole custody. Therefore, to determine how much child support is to be paid, the courts are required to look to the Child Support Guidelines, which outline a table amount that is based on the payor parent’s income. The recipient parent’s income is irrelevant to this determination, as Child Support is the right of the child to receive. In some cases, the recipient parent’s income may be relevant, if there are special or extraordinary expenses to be shared above the Table amount. Since the Table amount is meant to cover only regular day to day expenses, such as food, clothing and shelter, any additional, or extraordinary expenses, are generally shared between both parents, proportionate to their incomes. Some examples of these expenses include daycare, dance lessons, and medical expenses not covered under a medical plan.

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

What is a Separation Agreement in Ontario?

What is a Separation Agreement?

  • A separation agreement is a contract between two people who used to live together and are now living apart.
  • The separation agreement can explain each person’s rights and obligations upon their separation, including:
    • Any issues regarding property and its division (ie: Who keeps the car? Are we selling the house? Do we have to share our bank accounts?)
    • Financial support for each other or any children of the relationship;
    • Who is responsible for caring for the children?
    • Where will the children live?
    • Any other issues that might come up as a result of the separation.

Do I need a Separation Agreement?

  • No one needs a separation agreement to be legally “separated”. Once you or your spouse has decided to separate, and have no intention to resume your relationship, you may be considered separated – even if you’re living under the same roof.
  • A separation agreement provides the peace of mind of knowing that your issues have been settled.
  • Having a clear understanding of what your rights and obligations are to your former partner or spouse can reduce tension and conflict that often arises during this difficult time.

Can I draft my own separation agreement?

  • You do not need to have a lawyer draft your separation agreement.
  • A separation agreement is considered a legally binding contract if it is signed by both parties, in the presence of a witness, and dated.
  • There are many reasons why you may want to hire a lawyer For example:
    • In order for your agreement to “stick”, you must understand the interplay between the legislation that governs these types of agreements, to ensure your agreement is written in accordance with the law;
    • To get a full understanding of what it is you are exactly “agreeing” to; and
    • To understand the full scope of your rights under the Family law.
  • If you are thinking of doing your separation agreement, make sure you:
    • Are thorough in what you cover in the agreement;
    • Are precise in the language use, to avoid multiple interpretations of the agreement in the future;
    • Confirm the facts, and ensure that all dates, names, account numbers, addresses, etc., are listed accurately;
    • Are specific in listing all assets – Individual or family assets should be itemized and described in great detail, to avoid uncertainty and confusion;
    • Avoid using a “kit” – it is dangerous to use any precedent unless you fully understand its meaning and the legal implications; that’s what lawyers are for;
    • Avoid using “boilerplate” clauses; make sure that the clauses cover your particular circumstances specifically;
    • “Predict” the future; make sure your agreement gives you a mechanism of addressing any possible changes in the future;
    • Are realistic; any provisions in your agreement that are unrealistic or too difficult to abide by should be avoided. Unrealistic clauses open both parties up to a breach of the agreement, and potential conflict.
    • Have the agreement reviewed; a second opinion by a trained professional may bring matters to your attention that may have been overlooked.

How can I make sure my agreement is valid?

  • Once you have decided to have an agreement completed, you want to make sure it is valid, and that it will stand up to scrutiny by the Court, if the agreement is ever disputed.
  • Make sure you are open and provide full disclosure to your spouse.
  • Make sure it is freely negotiated – If one of the spouses exerts undue pressure on the other one, if the relationship is characterized by one party being psychologically or emotionally dominant over the other, or if the separation agreement was signed in a situation involving duress, then a court will likely strike the agreement down.
  • Get independent legal advice.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

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

What Happens When Your Marriage Gets Voided? And How is it Different from Divorce?

What Happens When Your Marriage Gets Voided? And How is it Different from Divorce?

Divorce is a common solution for those who find themselves married to people that they are no longer in love with.   But in prior posts we covered a case in which the wife was asking the court to declare her marriage to the husband legally “void”.

You may be wondering what the difference between divorce and a void or voidable marriage is, and why a spouse may opt for the more uncommon remedy for being in a bad marital relationship.

This esoteric legal issue was covered comprehensively in a recent case called Lowe v. A.A. where the court traced the historic need for the distinction.  It noted that a “void” or “null” marriage is not a divorce by another name.   Rather, it is one that is regarded – for all purposes – as never having taken place.   The marriage never existed because it was flawed from the outset, and no legal consequences ever arose from it.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

A divorce, in contrast, presupposes that a previous marriage did exist; the divorce order serves to put that married status to a formal end.   A divorce can be granted where there was a valid existing legal marriage in the first place, but where some cause to end it arises afterwards.  The divorce does not impinge on the reality that the marriage did exist in the past.

Returning to flawed marriages:  They can be “void”, or “voidable.”   A marriage is legally void from the outset in certain defined circumstances, for example where:

  • One or both spouses was married to other people at the time of the marriage;
  • One or both of them did not consent to the marriage, or they lacked the mental capacity to consent;
  • The spouses are related to each other within prohibited degrees;
  • One or both of them is under the age of majority at the time of the marriage; or
  • The marriage ceremony was incomplete.

What may be surprising is that since a void marriage never existed in the first place, there is no legal need to formally annul it by way of a court declaration.  (Still, some spouses may want to go that extra step to avoid problems in the future, or for religious reasons.  Any court declaration they receive would merely confirm the existing state of affairs.)

A voidable marriage, on the other hand, is one that can be declared void by a court after-the-fact, in cases where:

  • The marriage was entered into for fraudulent purposes; or
  • Consummation of the marriage is impossible because: 1) one or both spouse lack the capacity; or 2) a spouse willfully refuses to consummate the marriage, for example due to repugnance.

In these situations, the marriage does exist and has full intended legal consequences under the law and otherwise, until it has been declared annulled by a court of competent jurisdiction.  In other words, it is a valid and subsisting marriage until it has been pronounced to be otherwise.

So how does this affect spousal support rights and entitlements?   Family law is generally geared toward protecting formally-married and common-law couples, so the fact that a marriage was actually void and never existed could theoretically impact the rights of the participants.  Fortunately, under the Ontario Family Law Act, the definition of “spouse” specifically includes individuals in a void or voidable marriage, provided one or both parties underwent the marriage in good faith.

For the full text of the decision, see:

Lowe v. A.A., 2018 ONSC 3509 (CanLII)

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

 

 

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

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

Did Husband’s Poor Character Justify Marriage Annulment Based on Fraud?

Did Husband’s Poor Character Justify Marriage Annulment Based on Fraud? 

In a case called Sahibalzubaidi v. Bahjat, the court grappled with whether to annul the marriage between a woman and a man based on an unusual ground, namely “fraud”.   The woman claimed that in order to induce her to marry him, the man and committed fraud against her and her father, by misrepresenting that he had good character when he did not.

The man and woman were merely passing acquaintances while attending the University of Malaysia at the same time.  As a devout Muslim, she could not date or have an in-depth conversation with him in that environment.   However, when she returned to Canada to join her family, they continued to exchange emails and over time this led a discussion of marriage.  To her, “the most important thing in a potential husband was and is that he be honest, kind, moral and upright character and share my religious values which involve respecting me as his wife”, as she later told the court.

The man proposed to the woman by e-mail.  She accepted – subject to her father giving his consent, especially since she was his only daughter.  The father interviewed the man and his parents, and they gave him their assurances that the man possessed the character and qualities of a suitable husband for the woman.

The father approved the marriage, which took place in the customary manner involving both a civil ritual and a religious one. During that ceremony, the man promised to keep the woman safe, respect her, and take care of all aspects of her life.   He also directly promised the woman’s father that he would keep her safe and respect her.   The imam, who performed the marriage ceremony, told the man that if he tried to hurt the woman, she would have the right to make the marriage fasid, which means to have it annulled.

The court described the woman’s evidence as to what happened soon after:

[The woman] deposes that upon his arrival in Canada, [the man’s] true character emerged and had she known this she would have never agreed to marry him. [The man] breached his promise to keep her safe and respect her. … [T]he woman states:

He began to assault her, once even dragging her onto the front lawn of her parents’ house where everyone could see, which was a particularly debasing and humiliating act against someone of the [woman’s] cultural and religious background. The [man] threatened her and had her call his parents in Iraq to ascertain that, indeed, he had shot his father and broken his mother’s arm. The [woman] confirmed these facts with members of the [man’s] family, other than his mother and his father. He also implied that should she ever disobey him, a similar fate would await the [woman]. He would repeat the same complaint or instruction to her, not simply ad nauseum, but literally a hundred times a day in a succession. He refuses to recognize that he has any kind of personality disorder and will not under any circumstances obtain professional help in order to deal with it.

In light of these developments, the woman asserted that both the man and his parents deceived her and her father.  She asked the court to concluded that these facts were tantamount to fraud, which could form the basis  for annulling the marriage entirely.

The court noted that fraud does not usually vitiate a marriage, unless it induces an “operative” mistake,  for example one relating to a party’s identity, or a mistake in understanding that the ceremony that is taking place is a legal marriage.

The mistaken identity factor that could justify an annulment might arise if, for example, party A is induced to marry B, believing that she is marrying C.  Here, there was no such deception as to the man’s identity per se; the misrepresentations as to his character or personality traits did not fall within the traditional category of fraud.

The court accordingly rejected the woman’s annulment argument on this ground (although it did agree annul the marriage on one of the other grounds she raised, namely non-consummation, and failure to comply with certain religious requirements).

For the full text of the decision, see:

Sahibalzubaidi v. Bahjat, 2011 ONSC 4075 (CanLII)

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

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

As readers of my Blog will know, “domestic contracts” (which include separation agreements and marriage contracts) are essentially signed, written legal contracts that embody the negotiated agreement between spouses in the event of their separation or divorce.  Among other things, they typically include provisions relating to how much post-split spousal support is to be paid, and by whom.

A well-drafted domestic contract will withstand a court’s scrutiny, and its terms may even be incorporated into an eventual divorce order made by the court.  But not all domestic contracts pass this test – one or both spouses may decide to challenge the validity of the agreement they negotiated, and may go to court for a temporary ruling on whether its provisions should be enforced pending a fuller trial, when all their issues relating to the separation or divorce can be finally addressed.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

These kinds of contract-challenge scenarios give rise to two interesting legal questions:

Question 1:  Do the support-related provisions of a domestic contract remain effective pending a court’s later determination of whether they are legally valid?

Yes.  In a case called Balsmeier v. Balsmeier, the court stated that there is a legal presumption that the marriage contract executed between a couple is valid.  So if one of them asks the court to set it aside, and requests interim support until the rest of their issues can be determined later at trial, then the court should normally order that support in keeping with what the parties agreed to in the contract.  In other words, the court should be reluctant to order interim relief that contradicts what the parties themselves agreed to in the signed contract.

Question 2:  Can a couple add a provision to domestic contract that effectively ousts a court’s authority to change or set aside other provisions that relate to support?

No. If a domestic contract includes a provision for support, or a waiver of a right to support, then the court can freely set it aside and make its own support determination – even though the contract itself contains an express provision trying to preclude the court’s power to do so under the Family Law Act (FLA). There are three situations in which a court can do this:

  • Where the provision for support, or the waiver of the support right, results in unconscionable circumstances,
  • The support provision is in favour of a dependent who qualifies for an allowance for support out of public money, or the waiver is by or on behalf of this kind of dependant, or
  • There is default in the payment of support under the contract at the time the application is made.

In an upcoming Blog, we will take a look at how this power can be wielded by a court, and applied practically in the face of rather onerous domestic provisions that are being challenged at an interim stage pending trial.

For the full text of the decision, see:

Balsmeier v. Balsmeier, 2014 ONSC 5305(CanLII)

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

 

Wednesday’s Video Clip: What to Expect at an Initial Consultation

Wednesday’s Video Clip: What to Expect at an Initial Consultation

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

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