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Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

In a recent Blog we talked about an Ontario Court of Appeal case called M. v. F.,  where Justice Benotto made some observations about the “win/lose” mentality of provincial child custody laws.  Specifically, she noted that:

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.”

That call-to-arms by Justice Benotto has finally been heeded by the federal government, in the form of upcoming changes to the Divorce Act. Those amendments, which are found in Bill C-78 but are not yet in force, have an unwieldy title:  “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”.

Although these Bill C-78 amendments implement a broad and ambitious range of changes to existing Family legislation, one of the more important ones is to replace the terms “custody” and “access” in the Divorce Act with more neutral terms like “parenting orders” and “contact orders”, respectively.  These newer concepts also give courts an embedded opportunity to give specific directions as to the care of children.

That revised Divorce Act wording also acknowledges the fact that family law academics – and judges like Justice Benotto in the M. v. F. case – have long encouraged this tweak to the terminology.  It eliminates the “winner/loser syndrome” she spoke of, as well as the unproductive mindset that the current custody regime fosters.  By allowing courts to grant orders for “parenting” and “contact” instead, the level of parental conflict will be reduced, and by extension the best interests of children will be promoted.

As yet, there is no specific date announced for the implementation of the Divorce Act changes, but they are expected to be rolled out at some point in 2019.

Is this a promising development in the legislation around custody? Will it work in helping to reduce parental conflict, as hoped?  What are your thoughts?

For a copy of the legislative amendments to the Divorce Act, see here.

M v. F., 2015 

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

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.

What Constitutes “Hardship” When You Are Well-to-Do?

What Constitutes “Hardship” When You are Well-to-Do?

In determining the proper amount of spousal support that should be awarded after a married couple divorces, the court is guided by various established legal and policy-based principles. One of them is that the support should seek to alleviate economic “hardship” on the part of the spouse who is entitled to receive it.

As with many of the other factors, the concept of “hardship” is relative:  What amounts to hardship in one family setting will be vastly different to what is considered hardship in another.

This dichotomy was well-illustrated in Plese v. Herjavec, which involved the high-profile divorce between Canadian television personality Robert Herjavec (most recently seen on the reality shows Shark Tank and Dragon’s Den) and his wife of 24 years, Diane Plese.

In the context of determining the appropriate amount of spousal support to which the wife should be entitled, the court wrote:

Spousal support is also designed to relieve economic hardship.  What is “hardship” in the context of this family?  I need to look at the pre-separation lifestyle of the family to understand this context.

At the date of separation, the parties lived in a 22,000 square foot home (not counting the basement) with an indoor pool, ballroom, tennis court, tea house, and ten-car garage housing numerous luxury vehicles. The home was located on more than 2 acres in one of the most exclusive areas of Toronto.  The parties owned a ski chalet in Caledon, a luxurious vacation property in Florida, boats and other water craft and a Muskoka cottage.

The former couple’s lifestyle was commensurately extravagant, as the court described:

The family travelled extensively.  Family holidays were often taken using THG’s private jet, which Ms. Plese described as one that can fly “over the ocean”.  Holidays included European destinations.  On a holiday in Greece, the parties rented a yacht and staff to sail the family around the Greek Isles.  Ms. Plese testified that if the aircraft was being used for THG business, and she wished to take a trip, Mr. Herjavec would charter a private plane for her.   Mr. Herjavec did not refute this evidence.

Ms. Plese’s financial statement shows she owns considerable expensive jewellery from Cartier.  At valuation day it was worth over $428,000.  Ms. Plese says this figure reflect roughly half of what it cost.  Again, I heard no evidence to the contrary.

Mr. Herjavec testified he spent $100,000 on a piano for High Point, but, since no one in the family could play, invested a further $25,000 on a device that would play the piano.  Mr. Herjavec owned and operated numerous luxury cars. The middle child, Skye, received a car for her 16th birthday.  The children were educated at exclusive private schools.  The two girls attended elite American universities.  Both older children have pursued post-graduate studies, at no personal financial cost to them.  The family lived a rarified existence of privilege and luxury.

It is telling that [their daughter] Skye, when asked whether it was true she enjoyed luxurious holidays with her family, simply answered:

I mean they were just vacations to me, I don’t – it depends on how you see them.

Skye was then asked how she saw them. She answered:

I was going on vacation with my family … it depends what you – like that’s how I grew up, that’s – it was a vacation with my family is how I saw it.

In awarding support, the court had to examine the post-split downgraded lifestyle that the wife was now living, in light of the divorce after a longstanding marriage.  The court explained:

Ms. Plese testified that her lifestyle has suffered since the breakdown of the marriage.  For example, instead of travelling by private jet, she flies with commercial airlines.  Instead of staying in a suite of rooms at luxurious hotels, she now stays in a single hotel room.   I have no evidence that Mr. Herjavec has experienced any similar reduction in his lifestyle.

I conclude that without spousal support, Ms. Plese will have suffered economic hardship as a result of the end of the marriage.

For the full text of the decision, see:

Plese v. Herjavec, 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

We Are Now Seeking an Associate Family Lawyer

Russell Alexander Collaborative Family Lawyers is growing and we are seeking an Associate Family Lawyer to join our team! We practice exclusively in all areas of family law at multiple office locations in Ontario. We provide the opportunity to work remotely up to three days a week.

Job Type: Full-time

Salary: $150,000.00 – $200,000.00

Required skills and knowledge:
• Qualified to practice law in Ontario;
• Minimum of 3 years experience in Family Law and litigation;
• Interest and/or Certification in Collaborative Practice;
• Ability to work independently and in a team-environment;
• Strong and effective analytical and problem-solving skills, and excellent writing skills;
• Ability to engage in effective oral advocacy;
• Excellent organizational and time management skills, including attention to detail, and an ability to multi-task;
• High level of professionalism and initiative.

Responsibilities:
• Drafting legal documents, including but not limited to, pleadings, motions, affidavits, financial statements and conference briefs;
• Upkeep on all current client files, as well as bringing in new clients
• Delegating work to law clerks, and working closely with law clerks on files;
• Attending court.

Applications will be kept confidential. Please submit resume and cover letter to reception@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.

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.

10 Things You Should Know About Collaborative Practice & Family Law

In a regular divorce case, parties often rely upon the court system and judges to resolve their disputes. Unfortunately, many people often come to view each other as adversaries, and court cases may become a battleground. The resulting conflicts take an immense toll on emotions—especially the children’s.

Collaborative Practice is by definition a non-adversarial approach. Collaborative Practice lawyers pledge in writing not to go to court. They negotiate in good faith, and work together to achieve mutual settlement outside the courts. Collaborative Practice is designed to ease the emotional strains of a breakup, and foster the well-being of children.

Read more

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