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Posts tagged ‘child support’

Can Alienated Dad Stop Paying Support for 29-Year-Old Daughter?

man wearing jeans holding out cash money

Can Alienated Dad Stop Paying Support for 29-Year-Old Daughter?

The father applied to the court to eliminate his monthly $583 child support obligation for his now 29-year-old daughter.  He also asked the court to find he had been overpaying support for the past decade, since she graduated high-school, and that he should be reimbursed for those overpayments.

The daughter lived with her mother, and essentially had no relationship with her father.  He had been making support payments since 2006, and continued to do so until 2017.  At that point, after receiving long-requested information from the mother about their daughter’s activities as they pertained to her support entitlement, he brought a motion to change the 2006 eliminating his support duty.

As the court explains:

As a result of obtaining disclosure, the father amended his position for trial and asks the Court to terminate child support retroactively as of June 26, 2008, the date that [the daughter] J.K.N. graduated high school. The disclosure the father obtained reveals that J.K.N. enrolled in 6 different college programs in 3 different schools over the years since high school. In fact, in the year that the father launched this proceeding to terminate support, J.K.N., at age 28, enrolled in her 6th college program, after having been out of school for at least 4 years. Her transcripts reveal that she has earned only 1 credit, ever, in these various programs.

Even though the daughter was technically enrolled in various college programs, the father argued that her support entitlement should have ended after high school, and that the mother should now owe him for the overpayment.    The court described his position:

He argues that J.K.N. did not apply herself at college when she was enrolled, and at times, she was enrolled part-time or not at all. He argues that she switched programs multiple times, she earned very low grades or no grades at all, she failed to attend classes, she withdrew from courses, and she never obtained a degree or diploma.

The father says that his proposed termination date results in the mother owing him $66,233.66.

Eventually, the mother agreed that child support should end, but disagreed with the father on the end-date, and whether she owed him for any overpayment.  Thus the dispute as it was presented to the court was pared down to that narrow issue.

The court started by observing that the mother bore the burden of establishing that the daughter was still entitled to support.  Under the Child Support Guidelines, a child support order can be terminated if there a “change in circumstances”, which threshold was met when the daughter became an adult. However, that was not the sole criterion:  The court had to look at other factors as well.

The court heard evidence that the daughter was both financially and emotionally reliant on the mother, who also paid for any needed food, clothing, and bus tickets and also provided gas money.  The daughter was not currently working and indeed had never worked full-time in the 10 years since graduating high school, although she periodically held various part-time jobs.

Under the law, even if the court found it arguable that the adult daughter was engaged in a full-time program of education, this did not automatically mean she was still entitled to support.  Rather, the court also had to find that she was unable to withdraw from parental control.  This will occur if in her overall circumstances, she remained both financially and emotionally dependent on one or both parents.  The court said,

The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.

After considering a number of specific factors, including the reasonableness of the daughter’s education plan and her level of success in it, the court ruled that the father’s obligation to pay support ended retroactively as of April 2010.   At that date, the court reasoned, the evidence (in the form of school transcripts) showed that the daughter had passed only one of her courses, and “just barely”.

With that date in mind, the court calculated the father’s overpayment at almost $41,000, and ordered the mother to repay that amount.  Although the mother’s financial ability to do so was a relevant factor to consider, the court had only an incomplete picture of her finances, or how she was supporting herself.  It concluded that she was evasive when testifying about her income and financial circumstances.  With that said, the $41,000 was to be reduced by certain amounts that the father had not paid under two costs orders made in 2004 and 2006 respectively.

For the full text of the decision, see:

M.P.A.N. v. J.N., 2018


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

 

Father’s Income Cut By Half – Can Support Arrears of More Than $70,000 Be Wiped Out?

man with two children at lake and mountain

Father’s Income Cut By Half – Can Support Arrears of More Than $70,000 Be Wiped Out?

Under the terms of a settlement agreement that had been confirmed in a court order, the father had been dutifully paying about $1450 a month in child support, and $450 in monthly spousal support, based on his income at the time of about $100,000 per year.

However, within a few years he had amassed arrears to the tune of $47,000 in spousal support, and $25,000 in child support.  The court explained the reason:

In 2015, [the father] lost his job.  He was not able to find similar work.  His current income at his new employment is substantially less.  He has also taken on the responsibility of a new family.  He has two step children from the new marriage.  Since 2015, given the change in his employment, he has been having problems making the support payments.

The court heard that the father’s current income was considerably reduced from his former six-figure mark: he was now earning around $45,000 per year.

In light of those changed financial circumstances, the father asked the court to eliminate his outstanding arrears entirely.  In response, the mother claimed he actually owed another $40,000 more, over and above the arrears, to cover his unpaid share of one of their children’s university expenses.

The court confirmed that under the provincial Family Law legislation, it had the power to retroactively discharge or rescind child support arrears – but only if there has been a “change in circumstances” as that term is defined in the Child Support Guidelines.   That threshold is met if the amount of child support, calculated using the current circumstances and the Guidelines, would result in a different mathematical figure than the one arrived at initially.

But as the court explained:

The accumulation of arrears without evidence of a past inability to pay is not a change in circumstances.  As well, the present inability to pay does not by itself justify a change order.  Such an order should only be granted if the payor can also prove a future inability to pay. 

There remains a conceptual difference between situations where:

  • The father was asking for relief from paying arrears due to his current inability to pay; and
  • His arrears accumulated due to a change in circumstances that affected his ability to make the child support payments when they came due.

Although that distinction may seem esoteric, the court’s decision on whether to reduce or eliminate arrears was also to be influenced by various factors, including:

  • Whether the father’s support obligations arise under contract, by statute, or by court order;
  • The child’s ongoing support needs;
  • The father’s ongoing financial capacity to pay, including his ability to reduce the arrears; and
  • The father’s conduct, including any voluntary payments towards the arrears.

The court must also consider both the hardship endured by the father if he is ordered to pay the arrears, as well as the hardship to the mother if he is allowed not to.

In all cases, the paramount governing principles are firstly that the best interests of the couple’s children must be taken account, and secondly that the court should not provide either parent with incentive not to meet his or her child support obligations.

Here, the father was requesting a retroactive change to his support obligations based on his current income level.  That being the case, the court would not typically agree to rescind or reduce his arrears unless he could establish, on the balance of probabilities, that he cannot and will not ever be able to pay them. The father failed to fully satisfy the court on that fundamental point.

In the end, the court decided not to vary the $24,000 in outstanding child support, since the payments were properly owed by the father throughout, in light of his duty to help with their child’s educational expenses.  However, the court did agree to reduce some of the spousal support arrears, but only for only that period that the father was earning less than the mother. This still left him with $32,800 in outstanding arrears for spousal support and a total of almost $58,000 in arrears all-told.

For the full text of the decision, see:

Jackson v. Jackson, 2019

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

 

 

10 Things You Should Know About Ontario Child Support in 2019

One of our most popular articles 10 Things You Should Know About Child Support was published nearly ten years ago in 2010. We challenged ourselves to provide deeper information for each topic. Family law can be a very tricky terrain to navigate. Understanding one’s responsibilities with respect to child support raises a lot of questions for parents and guardians, which we hope to outline and answer here.

father and child hands

  1. What is Child Support?

All dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child.

This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

Learn more about Child Support:

Common Questions About Child Support in Ontario

Child Support in Ontario: An Introduction to Child Custody

Introduction to Ontario Child Custody: How do Decisions Get Made

Child Support 101: The Details of Ontario Child Support

 

  1. Parents and Guardians

Parent or guardian can be the birth mother or father, an adoptive parent, or step-parent, who has been married to someone with children, or who has lived as a couple with someone with children, and who has shown an intention to treat those children as members of his or her own family.

Learn more about Parents and Family Law:

Ontario Custody and Access: Who is Entitled to the Child?

Ontario Child Custody: Who is Considered a Parent?

When a Non-Parent Wants Custody of a Child

 

  1. Who Pays Child Support

Child Support is the legal responsibility of parents or guardians to provide financial support for all dependent children. When there is an arrangement in which a child lives primarily with one of the parents or guardians they are assumed to have “custody” of that child and bear the day-to-day expenses of raising them; however, they may be entitled to receive child support from the other parent. This entitlement to child support may continue even if the custodial parent remarries or starts to live with someone else.

The amount of child support is usually set according to the Child Support Guidelines. More than one parent can have a legal duty to pay child support for the same child. For example, if a parent with custody of a child separates from their marriage or common-law spouse who is not the child’s birth parent, both the child’s other birth parent and the step-parent may have a legal duty to pay child support.

Learn more about the legal responsibility to pay child support:

Who Pays Child Support in Ontario?

Top Four Questions About the Children of Common-Law Relationships

Can an Ontario Support Agreement or Order be changed?

Business Owners Beware: Court Can Force Your Hand to Compel Appropriate Child Support

Can a Parent Replace Child Support…with Gifts?

 

  1. When to Apply for Child Support

Applying for child support is usually done right after separation or when applying for a divorce but can be applied for at any time thereafter. It is usually best to deal with these matters as early as possible and when sorting out the custody of the children. In the beginning, parents and guardians may feel they don’t want or need the support but as time goes on and the expense of raising children increases the need may arise at which time they can apply, even after divorce or settlement of matters arising from the separation have been dealt with. Under some circumstances the court has awarded custody and support while the parents or guardians are living separately under one roof but the court usually doesn’t make an order until one of the parents or guardians have physically moved out.

If the social and emotional relationship between the step-parent and child have disbanded for a lengthy period of time, it is less likely that the court would order the step-parent to pay child support.

Learn more about application:

• Video: When Can a Parent Apply for Child Support?

• Video: When do the Child Support Guidelines Apply?

 

  1. When Does Child Support End?

Child support must be paid if a child is still a dependant and they are under 18 years of age.  However, the following circumstances and criteria can terminate responsibility of child support:

  • the child has married;
  • they are 16 or older and have voluntarily left parental control;

There are situations where even if the child has turned 18 years of age they are still considered a dependant. For instance, any situation where the child is unable to support themselves due to any of the following:

  • they have a disability or illness;
  • they are attending school full-time;

In a situation where the child is 18 years of age or older and is living away from home because they are attending school, child support may have to be paid if the child’s primary residence is with the parent with custody. This circumstance usually requires child support to be paid until the child is 22 or receives a post-secondary degree or diploma.

In some of these situations, a judge can order the child support to continue past this point. If the judge decides child support must be paid past the age of 18, they will take into consideration how much the child has in earnings or income before determining the amount of child support to be paid.

Learn more about criteria for child support:

Does the Age of the Child Affect Child Support in Ontario?

What Happens if Kids Skip School?

How Long Does Child Support Continue in Ontario?

 

  1. What is a Child Support Agreement?

How the child support is paid and how much is paid, is determined with a Support Agreement. There are three different ways parents can obtain a Support Agreement such as:

  • In a situation where the parents can work together to form a Support Agreement, it is encouraged that they look at the Child Support Guidelines to find out the amount a judge would likely order. The paying parent will have to give complete and true information about their income. It is suggested that one parent should have a lawyer put the agreement in writing and that the other parent get a different lawyer to review it, before signing it. This way, both parents will know the agreement says what they intended it to say, while also protecting their rights and their children’s rights.
  • If the parents need help working out a Support Agreement then they can see a mediator who will help them come to an agreement they both can accept. The mediator is an unbiased party that does not offer legal advice. In this situation it is still recommended that the agreement is reviewed by both parent’s independent lawyers before signing, and filing with the court.
  • If the parents cannot agree on a Support Agreement then both parents should hire their own lawyer. The lawyers can then attempt to negotiate support terms that both parents can agree upon. If no agreement can be reached then they will go to court and ask a judge to determine support. The judge will then make a court order that states how much child support is required to be paid.

Learn more about paying for child support:

• Video: Ontario Child Support: How do you arrange for Support to be paid?

• Video: How Base Child Support is calculated

• Video: How are Child Payments Taxed?

 

  1. Access When Child Support is Not Paid

Even if child support is not paid, a parent should not keep the child from seeing their other parent. It is assumed that it is generally good for a child to have a relationship with both parents. Keeping the child from seeing their other parent is considered punishing the child and the law will not punish the child due to their parent failing to pay child support.

Parents who do not have custody are usually given “access” to the children so that they can spend time together and maintain their relationship. The only way access can be refused or limited, is if the parent’s behaviour is likely to cause harm to the child, or harm the child in anyway. The courts will not refuse access because the parent fails to pay child support, and the parent with custody should not refuse access for this reason either. There are ways to obtain child support from a non-paying parent without refusing access.

Learn more about Child Support and Access:

Can parents be kept from seeing their children if they do not pay their child support?

Child Support and Access Rights in Ontario

 

  1. Enforcement of Child Support in Ontario

Enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

Learn more about child support enforcement:

• Video: Enforcement of Child Support in Ontario

The Role and Power of FRO

 

  1. How Can FRO Collect Child Support?

The FRO (Family Responsibility Office) uses different ways to get the payments that are owed. It can:

  • get the payments directly from the parent who is supposed to pay support
  • have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)
  • register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes
  • garnish (take money from) the bank account of a parent who fails to pay support
  • garnish up to 50% of a joint bank account that he or she has with someone else, or
  • make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

  • suspending their driver’s licences
  • reporting them to the credit bureau so that it will be difficult for them to get loans, or
  • cancelling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.

Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Learn more about the FRO:

Top 5 Facts About the FRO

Top 5 Tips for Dealing with the Family Responsibility Office

 

  1. How to Reduce Child Support

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

FRO can be contacted by calling 1-800-267-7263 or you can also visit their website.

Learn more about reducing child support:

Varying Child Support – How long is Too Long to Wait

Could Trucker Dad Avoid Child Support Due to Dizziness?


Russell Alexander Collaborative Family Lawyers has been providing answers and solutions to child support questions for over twenty years. If you need assistance determining whether you should be receiving child support for your child or collecting your support from the other parent, or if you believe that you should no longer be paying child support, we are here to help.

Can You Get Child Support from Your Ex After 50 Years in Ontario?

us money bills

Can You Get Child Support from Your Ex After 50 Years in Ontario?

Multiple reports of a 74-year-old California mother getting $150,000 in child support owed to her from 50 years ago are hitting the headlines.

CNN reports:

“Toni Anderson married Don Lenhert in 1966, but the couple split two years later.

During the divorce proceeding in mid-1970, the judge ordered Lenhert to pay child support for their 3-year-old daughter Lane, consisting of monthly payments of $210 for the first 2½ years, and then dropping down to $160 per month until Lane turned 18.

The order commenced January 1, 1971.

But Lenhert never paid.

Those monthly payments comprise a principal of about $30,000, Anderson said, and with a 10% interest rate, he owes her $150,000.

“The first check bounced and then he went off to Canada with his girlfriend and had two more kids. He completely disappeared,” Anderson said.

Last year, Anderson realized there’s no statute of limitations for child support payments in California.

She Googled her ex-husband’s name and, she said, found photos of him living what appeared to be a financially sound life in Oregon, with a big house and a boat.

She filed a motion to ask for unpaid child support. Last month, she made her case in court. The judge granted her request.”

Does this sound fair to you?

Some would argue that the mother should have taken steps earlier to enforce support order and it is too prejudicial to require the father to pay now after 50 years. The child is an adult now so the $150,000 amounts to a windfall for the mother.

Others could properly point out that an Order is an Order, not a suggestion and the father should have complied 50 years ago, and any prejudice now is the result of his own misconduct.

Could this happen in Ontario?

As we have written previously the leading case in Canada for child support and retractive support awards is the Supreme Court of Canada’s decision in D.B.S.

If the claim for child support is made for the first time when the “child” is an independent adult, then the short answer is no. Child support is for children of the marriage, not adults who used to have that status.

If the basis of the retroactive claim is valid separation agreement or court order, then the answer would likely be yes. But each case is unique, and the court sets out several factors to consider in determining retroactive awards including, proper and timely financial disclosure, delay in seeking enforcement by the recipient and blameworthy conduct of the support payor.

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

Family Judge Says:   “The Guidelines are Not a Price List”

Image result for legal costs

Family Judge Says: “The Guidelines are Not a Price List”

Many of or previous Blog posts have illustrated how the provincial Child Support Guidelines, and its federal counterpart, the federal Child Support Guidelines work in various factual contexts, to guide parents and judges in determining how much child support each separated or divorcing parent should pay.

In the past year alone, we have given examples of  how special expenses such as a child’s sports or extracurricular activities are dealt with; how self-employment income is accounted for in the calculations, and even how the Guidelines are to be used to calculate child support for adult children..

What should be abundantly clear from those many illustrations, is that when the matter of child support is placed before a judge, the Guidelines are merely a starting-point for what becomes a complex mathematical calculation that takes numerous factors into account.   This is why it’s often perplexing for separating parents to try to determine what support amounts are fair, when they don’t have the help of a lawyer to guide them.

The recent case called Vidal v. Dunn is an excellent example of the complexity and number of different that this exercise entails.  As we chronicled in prior Blogs on this case, the parents had a raft of child support-related disputes between them, including the question of whether their troubled teenaged daughter’s criminal defence bills – totalling over $10,000 – were considered “special or extraordinary expenses” to be shared by the parents, and whether their 20-year-old daughter was still considered to be a “child” for the purposes of being eligible for support.

In the context of making a ruling on this last issue, the court noted that both the federal Divorce Act and the Ontario Family Law Act apply the Guidelines, and both have comparable child support objectives.

But the court went on to make an interesting observation about the nature of the Guidelines themselves:  For one thing, they are more complex than a fixed-price menu, but also not amenable to “short cuts” even by a court.  As the court wrote:

The authority to order further child support is found in legislation. The Child Support Guidelines were intended to help separated families set child support in a fair and predictable way. The Guidelines are not a price list.  It can be very complicated, especially for adult children. Entitlement to child support is a prerequisite before determining quantum under the Child Support Guidelines. The statutory path is mapped out. The court cannot customize legislation with short cuts. 

In a very recent case called Henry v. Boyer, the court emphasized the point made in Vidal v. Dunn that the Guidelines are aimed specifically at helping “separated families” to set child support both fairly and predictably.  But there are many variables in that calculation, a point that newly-separated parents should keep in mind when trying to forge the path forward towards a divorce.  It’s always a good idea to seek the advice of an experienced Family lawyer.

For the full text of the decisions, see:

Vidal v. Dunn, 2018 

Henry v. Boyer, 2018

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 the Resolution Evolution – the Path to Peace?

What is the Resolution Evolution – the Path to Peace?

The Resolution Evolution – the Path to Peace is an OCLF/OAFM Conference and your opportunity to take advantage of world-class training close to home, to meet and network with other collaborative professionals, and to socialize with our professional colleagues.

The conference will run May 2, 3 & 4, 2019 at the Brookstreet Hotel, Ottawa, Ontario.

To register or learn more, click here.

Are Some People Genetically Destined for Divorce?

Are Some People Genetically Destined for Divorce?

Some surmise that children of divorce may experience a greater chance of divorce when they grow up because of their environment. Recent studies and news reports suggest that when it comes to divorce history may indeed repeat itself but not for the reasons you may think.

Studies and prior literature emphasized that divorce was transmitted across generations psychologically and as a result of environmental factors.

However, recent studies  “contradict that, suggesting that genetic factors are more important.”

Jessica Salvatore, Ph.D. reports that:

The study’s findings are notable because they diverge from the predominant narrative in divorce literature, which suggests that the offspring of divorced parents are more likely to get divorced themselves because they see their parents struggling to manage conflict or lacking the necessary commitment, and they grow up to internalize that behavior and replicate it in their own relationships.

[The study] analyzed Swedish population registries and found that people who were adopted resembled their biological — but not adoptive — parents and siblings in their histories of divorce.

By recognizing the role that genetics plays in the intergenerational transmission of divorce, therapists may be able to better identify more appropriate targets when helping distressed couples, Salvatore states:

“At present, the bulk of evidence on why divorce runs in families points to the idea that growing up with divorced parents weakens your commitment to and the interpersonal skills needed for marriage. So, if a distressed couple shows up in a therapist’s office and finds, as part of learning about the partners’ family histories, that one partner comes from a divorced family, then the therapist may make boosting commitment or strengthening interpersonal skills a focus of their clinical efforts.”

So how does free will and fault play into divorce in light of these findings?

In Ontario, we operate a no-fault divorce process:

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.
However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

As a result, someone’s genetic disposition, as it relates divorce, will not shape the outcome of the divorce proceeding. But as Dr Salvatore’s study suggest, this information would be helpful in therapy and focusing clinical efforts on boosting commitment or strengthening interpersonal skills.

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.

Untangling Financial Information – By Guesswork and Extrapolation

Untangling Financial Information – By Guesswork and Extrapolation

Although it’s a relatively short little ruling, the decision in Yahya v. Omar gives a glimpse of the type of judicial guesswork that goes into determining a separated couple’s income and earning capacity for the purposes of determining their respective spousal and child support obligations to each other.

The parents lived together common-law for over 15 years, and had three children together.  The judge who ruled on an earlier motion for interim financial relief had held that the father’s income was about $56,000, even though this was a higher figure than he reported on Line 150 of his income tax return.  The judge made a temporary order for the father to pay child and spousal support accordingly.

The parents appeared in succession before four more judges who made orders dealing with various issues, including how the proceeds of the sale of their condominium were to be dealt with, how payment of child support was to be made out of those proceeds, and various other orders. In each case the financial disclosure provided by the parties was less than fulsome.

The father then brought a new motion for an order that the initial child support order was improperly made, because it should be based on his actual income, rather than what the original judge had declared. He claimed that at the time of separation he operated a taxi cab business, and for the past few years his income had been in the range of about $40,000 gross, and under $15,000 net per year.  The father said that although that information had been available to the initial motion judge – and the judge acknowledged that the support might change depending on further disclosure – the judge had improperly relied on the income on his financial statement, which showed about $51,500.

Moreover, the father stated that he had actually been unwell and unable to work for a few months, and that he had surrendered his taxi and was now driving for UBER.   Based on pro rata extrapolation, the father said his income would about $30,000 per year.  He asked that his child support be reduced accordingly.

In contrast, the mother claimed that the father’s income should be set at least $43,000, but ideally it should be set at $90,000 based on both the lifestyle he was apparently living.

In addition to refuting the mother’s figures, the father claimed that she should be looking for work in order to contribute to her own support. But the mother refuted this, claiming that she had a health condition that prevented her from working.  Her only backing for this diagnosis was a one-line letter from a doctor.

The court considered these submissions by both parties.  Starting with the father’s income, it found that the family’s lifestyle certainly showed they were living well beyond the amounts shown in his recent income tax returns, but this did not mean his income should be set at $90,000.  In fact, the court noted the father was “living with various family members and friends”, although he gave no additional financial details around those arrangements.

With no further clarity as to his income, the court concluded that the initial temporary order would have to stand until trial, unless the father could provide further disclosure that warranted a change to it.

As for the mother’s claim to be unable to work:  The court firstly returned the doctor’s letter to the mother, because it had not been properly tendered in evidence, then added that she needed to provide proper disclosure if she wanted to support her claim and settle the outstanding financial issues.  Respecting the level of proof needed for her ostensible medical diagnosis, the court diplomatically added:

If it consists of a single sentence from a family doctor, it will not suffice in which case she should consider investigating employment.

To the extent that it could with the information available, the court made several orders to resolve some of the issues relating to the treatment of the proceeds of sale, and certain arrangements respecting the payment of support.  It added that the next step “must be an informed and productive settlement conference,” which the court emphasized would require each party to file financial statements, as well as net family property statements.

For the full text of the decision, see:

Yahya v. Omar

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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