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Family Law Now | Episode 3: OCL Office of the Children’s Lawyer

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On this episode, children's lawyer, Jarret Johnston defines his role, explains the legal process, and clarifies common misconceptions. 

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

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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”

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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

 

Top 10 Things to Know About Children and Passports

Top 10 Things to Know About Children and Passports

With Spring Break coming soon, and summer holidays being just around the corner, it’s a good time to revisit the law in connection with passports for children of parents who are separated or divorced.

1.  All children need their own passports to travel.

Since June 1, 2009 all Canadians, including children travelling to the U.S., must present a document that is compliant with the Western Hemisphere Travel Initiative (WHTI). For entry into the U.S., this includes a Canadian passport or a NEXUS card when available.

2.  A parent or specified adult must make the application.

Children over age 16 can apply for their own passports. For children under that age, a Canadian federal regulation titled the “Canadian Passport Order” outlines who can apply on the child’s behalf. The list includes:

• One of the child’s parents;

• The custodial parent, in the case of separation or divorce; and

• The child’s legal guardian.

3.  A photo of the child, plus proof of Canadian citizenship is needed for the passport application.

This includes a birth certificate or a certificate of Canadian citizenship. Also, the child should be involved in making the passport application if at all possible; while there is no strict requirement for the child’s presence or participation when a parent or legal guardian applies, the child should ideally be involved and should sign the application form if entitled to do so.

4.  Where the parents are separated or divorced, there are special rules.

In such cases the following stipulations govern:

• The parent with custodial rights may apply on the child’s behalf.

• If joint custody provisions exist, then either parent may apply, but both parents must provide their consent by signing the application.

• In cases where one parent has sole custody, the custodial parent should apply; the consent of the non-custodial is not mandatory if he or she has “reasonable access”.

• If one parent has sole custody but the non-custodial parent has specific access, then his or her signature must appear on the application (although in some specific scenarios, a passport may still issue without it).

5.  All documents relating to child custody, access or mobility should accompany the passport application.

This is to satisfy Passport Canada that the terms of a court order or separation agreement will not be breached if a passport is issued. Therefore, in cases where a divorce has been granted, a copy of the divorce judgment should be provided; similarly, a copy of any separation agreement should be supplied by the parent or parents who make the application.

6.  Mobility restrictions may have to be accounted for.

If, as part of a separation agreement or divorce judgment, there are mobility restrictions in place which place limits on the ability of the child to travel or move residences, then a passport will not be issued, unless:

• the restriction has been removed by a court order;

• the court has issued an authorization to travel; or

• both parents have consented.

7.  If the other parent cannot be located, a court order may be needed.

In cases where the parent making the application cannot locate the other parent, then a court order may be sought, confirming that the custodial parent can apply for a passport without the other parent’s involvement. Alternatively, a statutory declaration attesting to the location of the other parent may be acceptable in some circumstances.

8.  A court order may be necessary if the other parent refuses to co-operate.

If there is joint custody but the other parent refuses to consent to the application, then the parent making the application must obtain a court order allowing for the application to proceed without the needed consent. Also, in cases of high conflict where the parent making the application is fearful of contacting the other parent, or where there is a restraining order in place, the court can make an order allowing the application to proceed without the other parent’s participation. In some cases, Passport Canada may also send a consent form directly to the non-custodial parent for his or her signature.

9.  Separation after-the-fact is irrelevant.

Even if the parents have separated after the child’s passport was issued, the parents remain free to use it. Passport Canada will not ask a parent to return a validly-issued passport in these circumstances, even if custody, access or mobility has changed since the passport was issued.

10.  A Letter of Consent should still accompany the valid passport for travel.

 Even if a valid passport has been issued for the child, any time they are scheduled to travel outside of Canada – whether alone or with one parent or other relative – a Letter of Consent should be obtained from the other parent. This serves as evidence that the child has the consent of both parents to embark on the trip.

The rules surrounding passport applications for children in cases involving separation and divorce will differ according to the facts of each situation. Consultations to explore the issue with Mr. Alexander and or his staff can be arranged by contacting 905.655.6335.

Also, further information other family law and related issues is also available on our main website www.russellalexander.com

Prenupt May Not Shield Against Temporary Support Order

Court orders husband to wife support despite the existence of a prenuptual agreement.

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