Skip to content

Posts from the ‘Post Secondary Expenses’ Category

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

Handing holding a globe in front of mountains and blue sky

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

In a recent case called Stoughton v. O’Ney, the court faced a unique problem that it described this way:

Sarah and Jessica are the parents of Rory who is a 4 year old boy. Currently, they share parenting time with him on an equal basis … Sarah lives in Niagara Falls, Ontario and Jessica lives in Niagara Falls, New York.  Rory is a dual citizen of Canada and the United States.  Because of the international border, it is not practical for Rory to continue this schedule once he attends school full-time. He must have primary residency with one parent and attend school either in the United States or Canada.  As he should begin school in September 2019, this issue must be resolved.

The court also prefaced its ruling with a comment on the difficulty of the task:

From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him.   Both mothers acknowledge that the other mother only wants what is best for Rory.

This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.

The court explained that Rory was born in 2014 in Buffalo, New York after Jessica was impregnated with an anonymous sperm donor. The couple then lived in Ontario immediately after they were married in Canada that same years.

The court started with the observation that joint custody was not an option in this scenario;  it would have to make a sole custody determination, which would in turn dictate both Rory’s primary residence, and the school he would attend.

After emphasizing that the best interests of the child always govern such determinations, the court noted in passing that even for same-sex parents, Rory’s best interests are also the sole governing test.  The law also states that for children conceived through assisted reproduction, each of the spouse are considered to be parents for these purposes, and both have an equal right to custody.  Finally, the goal of maximum contact with each parent is a mandatory consideration, but if the parents are to have joint custody, then there must be a high level of cooperation and communication.

Both mothers gave evidence, as did various extended family members on both sides.  The court heard a litany of testimony around various issues, including the details of their same-sex marriage ceremony in both New York and Canada, how each parent characterized the parenting skills of the other, allegations of dishonesty and abusive conduct, issues and conflict with extended family members, and numerous aspects pertaining to the relationship with the child.

The court also heard the respective plan that each parent had for Rory, in the event that sole custody was granted to them, including the plans relating to schooling.

Sarah’s plan involved having him attend a small U.S. private school close to her work.  It had very small class sizes and the capacity to deal with Rory’s special needs, and could accommodate his weekly speech therapy sessions.

Jessica, in contrast, had done little research on Ontario schools, other than to look into what schools were in her neighbourhood.  She had not explored what services might be available to Rory in Ontario schools.  The court heard the unbiased evidence of the private school principal, over that of Jessica whose evidence appeared to be self-serving.

While noting that both proposed plans had advantages for Rory, the court found the plan proposed by Sarah was overall stronger, and in Rory’s best interests.  It also noted differences in the cooperation levels between the two parents.  In an almost 300-paragraph ruling, the court summarized its conclusion this way:

Because of Jessica’s actions in the past, I have grave concerns that if she were granted sole custody and primary residence of Rory, she would effectively cut Sarah out of Rory’s life.  Because of the inclusive way that Sarah has acted in the past, I have no such concerns if she were granted sole custody and primary residence of Rory. …

I find that Sarah is clearly able to meet, and has been meeting, Rory’s needs, both emotional and physical.  Very importantly she has been doing this in a way that is very inclusive of Jessica, ensuring that Jessica is a part of that journey.

I find that after a gap of over one year, Jessica has taken steps in New York to provide for Rory’s needs, but has done it in a way that totally excludes Sarah from that process.

The court ordered Sarah to have sole custody of Rory, and he would attend school in the Niagara Region of Ontario. Jessica was allowed stipulated access (including overnights), and was ordered to pay a set level of child support, and was entitled to participate in parent/teacher interviews, and to be given copies of his report cards, among other things.

For the full text of the decision, see:

Stoughton v. O’Ney, 2019 

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

 

GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matter. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

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.

24-Year-Olds Twin Embark on Second Degree: Must Dad Still Pay Child Support?

con hall

24-Year-Olds Twin Embark on Second Degree: Must Dad Still Pay Child Support?

We have written in the past about how parents can no longer assume that they have done their duty once adult children have obtained one degree from an institute of higher education.

In a case called Holman v. Holman, one of the issues was whether the father, who had split from the mother, was still obliged to pay child support for his two twin daughters, who were now 24 years old. Under the terms of their settlement and subsequent divorce order, the father was obliged to pay $10,000 annual towards the children’s education as long as they were enrolled in a program of post-secondary education.

Both girls had obtained their first university degrees in 2011. One of them continued to take part-time classes in 2012; the other took a two-year diploma course that ended in 2013. Both girls earned about $24,000 at part-time jobs, and still lived rent-free with their mother. (And in the case of one of the girls, she had told the father that she did not wish to work full-time since it would reduce the amount of time that she spends at the gym.)

After their first degree, the father told them both in writing that he was only prepared to cover the cost of their first degree; both responded that they did not have an issue with their father’s position. The parents therefore went to court to have the father’s support contributions adjusted to accommodate for the facts.

The court examined the situation. In Ontario, the law is clear that parents cannot automatically assume that their child support obligations end once they have put their children through one college or university degree. Instead, whether or not the support obligation continues past an initial degree will depend on a number of factors, including the means, needs and circumstances of the children, as well as each parent’s ability to contribute to child support in light of the personal circumstances of their own.

More importantly, the father could not unilaterally decide that his educational support obligations to his daughters ended once they had completed their first degree. Instead, as the court put it, “an undergraduate degree in these increasingly competitive times may merely be the first step in the journey to become sufficiently educated for the workplace.”

The court examined each of the girls’ overall educational goals, together with their respective efforts in obtaining them. For example, one of the daughters had taken a 4-year degree and then entered a veterinarian technician program; the father pointed out that she didn’t need the degree and could have entered that same program right out of high school. In assessing the daughter’s educational path, the court wrote:

I disagree that [the second daughter’s] decision to pursue an undergraduate degree before enrolling in the Veterinarian Technician’s program disqualifies her from parental support in the post-May 11, 2011 period. [The mother] provided credible evidence that [the daughter] initially aspired to be a Veterinarian. Enrolment in the Bachelor of Science program was the prelude for her to achieve this goal. She subsequently realized that her academic goals were beyond her grasp. She then decided, upon graduation, to pursue a more realistic goal within the discipline that she had chosen for a career.
In my view, [the daughter] should not be punished by being deprived of parental support because of the professional goal she initially set for herself but settled for something else. Indeed, it is to her credit that she did not turn her back on her aspirations after completing her undergraduate degree but chose to pursue a diploma within her chosen field. [The father] should not be relieved of the responsibility to support her because of the educational choices which she reasonably made.

With that said, the court also pointed out that although the law does not require her to foot the bill on her own entirely, the daughter should have been asked to contribute part of her $24,000 in annual earnings to put herself through school. As a result, the father’s support obligations toward that daughter were reduced for the year.

The court made further adjustments in light of the parties various obligations, as well as their current and past contributions to the girls’ support and education.

For the full text of the decision, see:

Holman v. Holman, 2013 ONSC 6988

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.

How Many University Degrees Should Parents Pay For?

How Many University Degrees Should Parents Pay For?

In Ontario, the general obligation of all parents to fund their child’s education is found in the Family Law Act, which provides that parents must support children who minors and who are “enrolled in a full-time program of education”.

But the corresponding obligation on parents who are separated or divorced is a little more complicated. Furthermore, the question of how long such parents must provide support, and whether they should have to foot the bill for a child to attain multiple degrees, complicates the matter even further.

For one thing, there is no defined age-limit after which a child is no longer entitled to receive support for education. For the purposes of the federal Child Support Guidelines, “child” simply means a “child of the marriage”, and that term is further defined by the Divorce Act to mean a child who may be unable to withdraw from parental control because of an “other cause”. When read together, these provisions dictate that an adult well over the age of majority can still qualify as being a “child of the marriage” and in theory be entitled to receive support.

The monetary amount of educational support can also vary. Section 7 of the federal Child Support Guidelines provides that a court may order a parent to pay an amount for child support that covers any or all of the expenses related to post-secondary education, after considering both the child’s best interests and the reasonableness of the expense in relation to the parents’ and child’s overall financial means, and the family’s pre-separation spending habits.

Numerous factors go into the court’s decision on this point. These include the child’s age, academic performance, educational and career plans, and preparedness for self-sufficiency; they also include the parents’ financial circumstances, educational expectations, and involvement in the decision-making.

Finally, there are no automatic limits as to how many post-secondary degrees a child can pursue; once a child has achieved his or her first university degree, the question often arises whether support should be paid for second and third degrees. The court considered this issue in a decision called Haist v. Haist, where the 27-year old daughter had already obtained one degree but wanted to pursue a second degree at teacher’s college. Her father had previously been ordered to pay child support as part of a divorce order, so the question arose whether he should also fund her second degree as well.

The court found that he did: it considered numerous factors including the fact that the daughter had been living at home during her university studies, was enrolled full-time, and was responsible and focused on her studies. She had started the second degree immediately after achieving the first one, and had held various part-time jobs as a means of contributing to her own education. However, she required support because she was unable to get a student loan due to the relatively high combined incomes of her parents. This being the case, and in light of her parents’ respective financial situations, the court found it reasonable for the daughter to embark on attaining a second degree on her way towards a prudent plan for financial independence.

The Court’s decision in Haist v. Haist can be found at http://bit.ly/gg0hJM

Additional information on how child support entitlements are calculated can and further information on family law issues can be found on our web site  www.russellalexander.com

%d bloggers like this: