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Posts tagged ‘child support guidelines’

Is Summer Camp or Other Activities a “Necessity” for Kids? (Or Only for Parents’ Sanity?)

summer camp

Is Summer Camp or Other Activities a “Necessity” for Kids? (Or Only for Parents’ Sanity?)

The official start of summer is fast approaching. It’s a time when, as parents, we strive to keep children busy with various sports and activities, particularly through the long hot months of their summer vacation from school.

You might call these activities are “necessities” – at least from the point of view of parents who must juggle work and childcare responsibilities (and otherwise endure the frustration of having bored kids underfoot from June through early September!).

But – in the context of determining how and by whom they are paid for – are they really necessities in the legal sense?

The recent Ontario decision in Sutej v. Sutej tackles a scenario where the divorced parents of a boy disagreed on whether his soccer camp and other activities were something towards which the father should have to contribute financially. From a legal perspective the test was whether these activities fell under “section 7 expenses” under the Child Support Guidelines, which covers the payment of what are known as “extraordinary expenses” for extracurricular activities. Those expenses – which are above-and-beyond basic child support obligations – are to be shared by the parents in proportion to a number of variables, including their respective incomes. The Guidelines also clarify that a court must assess the appropriateness of any such “extraordinary expenses” by considering several factors, including the nature and number of extracurricular activities and their overall cost.

In Sutej, the mother had enrolled their couple’s son in a soccer camp in the summer, as well as in other summertime and year-round activities including both soccer and gymnastics. The father, however, resisted paying for these kinds of expenses for his son; he also objected to the fact that the mother was choosing what extracurricular activities the boy would be enrolled in, without checking with him first and obtaining his advance approval.

In this context, the court’s mandate was to determine whether such camp costs (and similar activities) met the test of being “extraordinary expenses” within the meaning of section 7 of the Guidelines.

Firstly, the court confirmed that the mother lacked the absolute right to enroll the child in a multitude of activities, and then ask the father for a contribution in paying for them. Quoting from another decision called Forrester v. Forrester the court confirmed that “the Guidelines do not grant a license to a custodial parent to inject a child into lavish additional activities and demand automatic payment.” Instead, the court emphasized, the expenses sought by the mother from the father to pay for the extracurricular activity must meet the threshold tests of “necessity” and “reasonableness”. Also, they must represent unusual costs that are not otherwise covered or subsumed in the ordinary payments that are paid by the parents.

Applying these principles to the present case, the court found that the costs to enroll the son in soccer camp and in his current roster of activities were not “extraordinary” in line with the Guidelines threshold. The court wrote:

“… as enjoyable and instructive as they may be, I do not consider them to be “reasonably necessary” to require [the father] to contribute to them. [The father] may wish to do so voluntarily, but that is between [the father and the mother], and ultimately, [the father and the son].”

Practically speaking, however, the court recognized that such extraordinary expenses may crop up from time to time as the child got older. To eliminate any future dispute between the parents, it ordered the father to pay a set amount each month to represent section 7 expenses for extracurricular activities. The court explained that part of its ruling this way:

In today’s changing world, [the mother] may find that [the son] would benefit from new and changing experiences to open the world up to him. Subject to any further order [the father] may seek as to what those experiences should or should not be, rather than give vent to either party and their respective personalities with respect to each activity as it comes up, I order [the father] to pay $50 a month for section 7 expenses to meet his responsibility for making contributions to [the son’s] extracurricular activities.

The court added that if other section 7 expenses arose in the future that required a greater contribution, then the parties could go back to court to increase the father’s share.

For the full text of the decision, see:

Sutej v. Sutej, 2015 ONSC 2064 (CanLII)

Forrester v. Forrester, 1997 CanLII 15466 (ON SC), [1997] O.J. No. 3437

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

Does The Age of The Child Affect Child Support in Ontario? – video

 
 

Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered.

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

Do Courts Adjust Support for Temporary Income Fluctuations?

 temp

Do Courts Adjust Support for Temporary Income Fluctuations?

The calculation of the amount of child support payable by one parent to the other has been made easier by the Child Support Guidelines, which provide a formula based on income. And, as I’ve written in a post recently Income for Child Support Purposes , “income” is a relatively static number, based primarily on income as reported to the Canada Revenue Agency.

However, unfairness can arise – either to the paying parent or the recipient – when income levels fluctuate unexpectedly throughout the tax year. For example a paying parent’s income may temporarily drop due to illness or other unforeseen cause, to the point where he or she will have markedly less actual income for a period, than the actual income figure on which the child support payments are based.

This kind of income fluctuation was the focus of a recent case before the Ontario court called Simms v. Brown. The parents had joint and shared custody of their children. However, in the past few years and for several extended periods of time the father had been off work for medical reasons. As a result he claimed that his income tended to fluctuate, and when at their lowest he had difficulty meeting his ongoing monthly child support payments.

The father went to court to ask to have his $13,000 in support arrears reduced to zero.

The mother, in contrast, not only resisted the reduction of arrears, but wanted a retroactive adjustment as well as an upward adjustment to his going-forward obligations. She insisted that the father actually earned more than the income that had been used to calculate the Guidelines amounts.

To support this, she provided a chart showing the father’s actual income from 2010 through 2012, versus the income on which the father was ordered to pay support based on the Guidelines. It also showed the point at which the parents’ custody obligations changed to a shared-custody arrangement. For example, for 2010 the mother had sole custody, and the father was paying support based on reported income of $74,000 per year. However, it turned out his actual income for that year was $86,000. The mother was asking for retroactive support of $1,800 for that year, to make up the difference and reflect what he should have been paying. Similarly in 2011, the father paid support based on reported income of $76,000, but his actual income for that year was $106,000 because of a one-time severance retirement package he received.

The mother added that the Director of Family Responsibility Office had refused to enforce the prior support order because it was “too confusing”.

The court considered these figures in great detail. It observed that, generally speaking, it was not realistic that the father’s child support obligations should be re-adjusted anytime there is a short-term change in his income. Rather, for the purposes of calculating support “income” is the amount reflected on Line 150 of the father’s annual Notice of Assessment from Canada Revenue Agency. The court also acknowledged that this meant that any short-term changes in income would not be reflected on Line 150, and that realistically any child support order would often be several months behind any temporary changes in the father’s income in any event.

Nonetheless, in this case the court made some complex mathematical adjustments to support; this included an adjustment to account for the fact that, before the parties started their shared parenting arrangement, the mother had sole custody of the child and was legally entitled to receive appropriate child support from the father for that period. The court also streamlined the support amount to take into account various credits, setoffs, adjustments relating to child support and extraordinary expenses, and factored in retroactive support owed by the father as well.

In terms of going-forward, the father advised the court that he was back to earning a full salary of $80,000 per year – but he was planning to make a claim for disability which would once again reduce his income somewhat. The court pointed out that this would mean his final income for 2013 would again be difficult to predict in advance, but it set an amount based on his 2012 income, for the time being.

For the full text of the decision, see:

Simms v. Brown, 2013 ONSC 6854  http://canlii.ca/t/g1qtk

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 Ins and Outs of “Income”

 income

The Ins and Outs of “Income”

If you are the person obliged to pay child support, you likely know that one of the basic principles of Family Law is that the amount you are required to pay under the Canadian federal Child Support Guidelines is directly related to your income. It sounds simple enough; however there are some important points to know:

• For these purposes, your “income” means annual “total income” which is usually the amount found on the T1 General form as issued by the Canada Revenue Agency.1

• However – as discussed below – in some circumstances this amount may be adjusted by a court, or a different year’s tax return may be used.

• Also, the law recognizes that the amount disclosed on the tax return is not necessarily the same as the income that is calculated using the various listed “sources of income,” as those various categories are set out on the T1 tax return.2 (Usually they are the same, but not always – e.g. if you have not yet filed a return, or if the one you filed is not proper). So it is the latter amount that governs for Guidelines purposes.

There are some additional exceptions and qualifiers to this general rule:

• The Guidelines do not require that “income” is the figure on the last income tax return in every single case. Perhaps you have had an unusual year – your income may be higher or lower for that year due to some unique circumstances. In such cases, the court had the discretion to “consider more than a single number on a tax return”.3

• You and your spouse can also agree to some slight modifications to the general rule. For example:

o You may agree by way of separation agreement to use a prior year’s line 150, rather than the current one; the court may uphold this kind of adjustment if appropriate.4

o With some restrictions you may agree to use a different date from the one otherwise used for the taxation year. 5

• Finally, a court can itself make adjustments to the “income” amount in the right circumstances:

o For example, it can use an average of the past few years, if that is more representative determination of the amount.6

o Similarly, in unusual situations a court may add to your “income” – for example by adding back the amount of voluntary charitable donations you make in a year.7

Note that if for some reason you feel that the line 150 income amount is not the fairest determination of your income, then you have the burden of showing that this is the case.

For the full text of the decisions, see:

1. Bak v. Dobell, 2007 ONCA 304

2. Henry v. Henry (1997), 1997 CarswellOnt 4399 (Ont. Gen. Div.)

3. Clark v. Clark, 2012 ONSC 1026; additional reasons 2012 ONSC 1965

4. Hodge v. Jones, 2011 CarswellOnt 2582, 2011 ONSC 2363 (S.C.J.)

5. Crabtree v. Crabtree, 70 R.F.L. (6th) 371, 2009 CarswellOnt 1918 (S.C.J.)

6. Toon v. Toon, 2011 CarswellSask 511, 2011 SKQB 281 (Q.B.)

7. Zubek v. Nizol, 2011 CarswellBC 1481, 2011 BCSC 776 (S.C.)

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.

What Are The Child Support Guidelines?

Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this video we discuss the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

How is Shared Custody Calculated? Daily? Hourly?

calculation

How is Shared Custody Calculated? Daily? Hourly?

Under the federal Child Support Guidelines, there are certain rules that apply specifically to calculating child support in cases where a “shared custody” arrangement is in place. The Guidelines define this as being those situations where a parent has access or physical custody of a child for “not less than 40 percent of the time over the course of the year”. (And note that the fact that parent with access newly hits that 40 percent mark does not mean that he or she automatically pays less child support; it means only that a court is required to take certain specified factors into account in setting support amounts in such cases).

But how is that 40 percent threshold properly determined? By counting days? Hours? Minutes?

A recent case called L. (L.) v. C. (M.) adds clarity to this precise question. The court described the problem it was being asked to consider this way:

The mother and father have both provided calendars that apply their interpretation of the access and custody order. The father, who calculates his time in days (overnights), concludes that his access time is over 40 per cent. The mother, who calculates in hours, concludes that the father’s access falls well below 40 per cent. Both parties are very aware that this 40 per cent threshold is significant. I have now calculated based on their assertions and my conclusions and clarification.

The court then turned to reviewing the process by which the 40 percent custody is to be evaluated. For one thing, it noted that the Guidelines are not clear on precisely how the calculation is to be realized, and there is no court-endorsed universal method. On the other hand, it is clear that the threshold is strict, and that a court is not entitled to “round up” in cases that are on the border.

Next, the court observed that if a “days”-based approach is used, then a parent with access must have the child in his or her care for 146 days per year. If the calculation is based on “hours”, then the 40 percent threshold lies at 3504 hours per year. The method used can make a big difference. The court wrote:

With the changes in support that can stem from proceeding under s. 9 [the Guideline’s “shared parenting” provision] and the strict setting of the 40 per cent threshold, this calculation can be extremely significant. At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access …. For this reason, applying the appropriate method of calculation is crucial.
The answer as to which approach to take, according to the court, may have to be determined case-by-case. The Guidelines do advocate for a flexible and robust consideration of the parents’ individual circumstances; in some (though not all) circumstances, units smaller than days may be the fairest method of determining whether the 40 percent threshold has been reached. This can include an hourly accounting of time in the right circumstances.

(And as an aside, it is important to note that the calculation is based on the time the child is in the care and control of the parent, including time spent with nannies, or at school or day care, and time that the child spends sleeping at the parent’s house, etc. It does not count that the parent is merely physically present with the child).

Here, the court used the hourly approach and determined that the child was in the mother’s custody 67.4 percent of the time, and was with the father 32.6 percent of the time. The “shared parenting” threshold of 40 percent was not met in this case.

For the full text of the decision, see:

L. (L.) v. C. (M.), 2013 ONSC 1801 http://canlii.ca/t/fwslt

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.

How Do You Arrange For Child Support To Be Paid in Ontario?

Wednesday’s Video Clip: How Do You Arrange For Child Support To Be Paid in Ontario?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, family lawyer Russell Alexander talks about how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

Child Support for Special Needs Kids

special

Child Support for Special Needs Kids

As I have written in previous articles, under Ontario law every parent has an obligation to financially support his or her child. The extent and duration of this child support obligation will depend on various factors, primary among being the needs and best interests of the child.

Where a child has special needs, it is particularly important that parents fulfill that duty, and situations of separation or divorce can bring the question of the proper allocation of responsibility to the forefront.

Under Ontario’s Family Law Act and Child Support Guidelines, specific provisions exist to cover “special or extraordinary expenses”. The Guidelines state that a court, on the request of either parent, may provide for an amount to cover any or all of certain specific expenses, namely:

Health-related expenses. Expenses under this heading must exceed any insurance reimbursement by at least $100 per year. By legislation, these expenses specifically include:

• orthodontic treatment

• professional counseling provided by a psychologist, social worker, psychiatrist or any other person

• physiotherapy

• occupational therapy

• speech therapy

• prescription drugs

• hearing aids

• glasses and contact lenses.

Certain educational programs. This heading covers those “extraordinary” expenses that relate to primary or secondary school education, or are in relation to any other educational programs that meet the child’s particular needs.
Extracurricular activities. This heading covers extraordinary expenses for extracurricular activities in which the child is involved.

Note that in this context, the question of what are “extraordinary expenses” is not necessarily left to the parents’ discretion – rather, these are amounts that are considered by the court to be appropriate, taking into account various factors which expressly include “any special needs … of the child” and other similar factors that the court considers relevant.

In all cases, the amount a court can order in this manner will depend on the child’s best interests, and the reasonableness of the expense in relation to the parents’ ability to pay, plus the parents spending patterns during the time they lived together.

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.  To learn more visit us at Russell Alexander.com

So what are thoughts and comments about child support for special needs kids?  Please post them here.

Ontario Child Support: Wednesday’s Video Clip

 

 

Ontario Child Support: Wednesday’s 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.

To learn more about child support or our other videos visit us at http://www.russellalexander.com/videos/  or join us on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

How Far Back Should Retroactive Support Go?

 retro

How Far Back Should Retroactive Support Go?

In Giroux v. Mueller the main question was whether there should be a retroactive adjustment to the child support owed by the father, and if so, how far back it should go. In making this determination, the court confirmed the general tests and considerations that must be applied under Ontario law whenever retroactive support is being claimed.

As background: Originally, the father had been ordered to pay $520 per month in child support for the couple’s two daughters, based on the Child Support Guidelines. He was up-to-date in his payments.

However, since the initial order was made, one of the daughters had graduated from high school in 2007 and had gone on to college, but by law had ceased to be eligible for support in 2010. The other daughter had also graduated high school in 2011, and commenced university that same year.

In light of these changes, the mother brought a motion for an adjustment to the Guidelines support amount, making it retroactive to January 2006. The basis for her request was somewhat novel: she asserted that the father had an obligation to disclose any increases in his income, and that his failure to make such disclosure after the mother’s request in 2011 is “blameworthy conduct” which entitles her to back-dated support for the children.

The father opposed the mother’s motion, claiming that if support should be retroactive, it should go back only to 2009, which was three years back from the date on which the motion was brought in 2012.

The court considered the applicable law. The issue of retroactive of support was dealt with by the Supreme Court of Canada in a case called S. (D.B.) v. G. (S.R.), where the court confirmed that every parent has the obligation to support his or her child, and that retroactive support is not “exceptional”. Rather, both parents have the responsibility of ensuring that the child receives appropriate support and any obligation is enforceable only once the recipient parent applies for it.

Next, the test for whether retroactive support should be granted involves a court considering: 1) the reasons for delay, 2) any blameworthy conduct by the paying parent; 3) the circumstances of the children; and 4) any hardship experienced by the paying parent. And while it is the “blameworthy conduct” factor that often attracts the most attention, in law all four of these factors must be considered “holistically”, with no single factor being paramount to the others.

There are also two general rules that apply to such scenarios: 1) retroactive child support extends back three years from the date the paying spouse is given notice (for example by the fact that an application for an adjustment to support is launched with the court), unless there has been blameworthy conduct; and 2) the child must be a “child of the marriage” – and therefore eligible to receive support – at the time the application is made.

The court then applied these tests to the facts at hand. Here, it was clear that by imposing the “child of the marriage” criterion at the outset, one of the daughters no long qualified for support at the time the mother’s application was brought.

As for the reasons for the delay, the mother gave no palpable reason for her failure to pursue an adjustment to support until 2011. She knew the father’s whereabouts, had no fear of him retaliating, and did not lack the financial or emotional means to pursue the claim earlier.

The court also considered the other enunciated factors: in law, “blameworthy conduct” could include failure to pay child support (which was not the case here), but the refusal to disclose income had to be viewed against the fact that the mother did not request disclosure until 2011, which was almost 13 years after the initial child support order had been made. The “financial hardship” criterion related to the paying parent; it could not include consideration of sacrifices made by the parent in receipt of the support.

In the end – and because the effective notice to the father was given only in 2011 when the mother launched the motion to vary – retroactive support was to be limited to the three-years previous to that date, and was to relate to the second child only.

For the full text of the decisions, see:

Giroux v. Mueller, 2013 ONSC 246 

http://canlii.ca/t/fvkk0

S. (D.B.) v. G. (S.R.), 2006 SCC 37

http://canlii.ca/t/1p0tv

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.