Wednesday, October 7, 2015

Christmas Access Tips......

(re-posting a previous Blog post, on a subject about which we receive many questions...)

With the holidays approaching, many parents are thinking of and planning for Christmas access. Here are some basic tips:

1. Plan and prepare early. Give yourself and the other parent a reasonable opportunity to propose a schedule to each other, discuss it and confirm it. Leave room and time for some negotiation.

2. Always think of your child/children first. This may sound like the most basic of concepts but, surprisingly, it gets lost in so many fights about access over the holidays. This is a special time for kids - yes, it's a special time for you as well but they, and not you, are waiting for presents and the smell of gingerbread. Make the holidays as stress-free for kids as possible - this includes not having to watch parents fight or to hear one parent making disparaging comments about the other.

3. If you plan on travelling with your child/children, advise the other parent as much in advance as possible. Draft, sign and have notarized a detailed Travel Consent so that you are less likely to be turned away at the border when travelling for your holiday. Give the other parent (and include in the Travel Consent) detailed information about your destination, method of travel and contact information.

4. If you and the other parent cannot agree on holiday access, one of you may have to ask the Court to assist. Family Courts are very, very busy before the holidays, precisely because of numerous requests for assistance with access. Try and not be the parent sitting in Court for hours, waiting to be heard by a stranger to your family, a Judge, to make a decision about your children over the holidays. Work with the other parent.

5. There are many different ways of handling the holiday access schedule. For example, you can divide the school holidays in half and alternate those two halves, year to year. Or, you can alternate just Christmas Eve and Christmas morning. Other alternatives are available. Speak to a family law lawyer to assist you and tell you about other choices.

Above all, have a safe and restful holiday season....

Monday, October 5, 2015

My child does not attend school or work - Child Support

We are frequently asked questions related to the widely held misconception that child support is not payable for children/young persons over the age of 18

Unlike many other jurisdictions, Canada does not automatically cut off child support when a young person reaches "the age of majority". There are a number of important circumstances in which child support for such a young person would continue, and that includes cases in which the young person is medically disabled or attending school with a reasonable plan to complete their education.

There is also a corresponding, widely held misconception that child support is always payable for young persons under the age of 18, no matter what they do with their time. In other words, many parents believe that they are entitled to receive child support from the non-residential parent even if a 16-year-old young man stops attending school, does not have a job and continues to live with the other parent. In these instances, child support is no longer payable unless there are provable medical reasons why the 16-year-old is neither attending school nor working (unable to support himself or herself financially).

While both provincial and federal legislation in Canada provides us with guidelines as to who is eligible to receive child support and how that child support is to be calculated, it is important to consider the specific facts of each case (and the relevant judicial decisions) to determine child support (if any) for each child. There are many cases in which child support is payable for young persons over the age of 18 and conversely, there are many other cases in which child support is no longer payable for young persons under the age of 18

Our strong suggestion is that you contact a family law lawyer and discuss your specific case with him or her while it is natural for parents  (both recipients and payors of child support) to look for "one size fits all" formulas, and there is a danger to applying such formulas to every case, as one size does not fit all.

Tuesday, September 29, 2015

Can I pay child support directly to my child?

We are asked this question frequently: - the answer depends on a number of factors, including the type of child support you are paying (is it the "table" amount, it is tuition for university, is it the cost of books for college?), and the age of the child.

Child support cannot be paid directly to a 7-year-old child.  There are no exceptions to this rule. While child support is technically the right of the child and not either parent, it is the parents who incur costs related to the child and require contribution from the other parent to those costs.

Table child support (the monthly, recurring amount) is generally paid to the other parent and not to the child (and in this "to the other parent" we are including payment through the Family Responsibility Office).

Child support in the form of contribution to special or extraordinary expenses (section 7 expenses) is also generally paid to the parent incurring the expense but there are situations involving older children (eg: those attending university) where payments may be made directly to the child so that he/she can meet the required expenses (eg: for tuition, books or apartment). These situations need to be addressed on a case-by-case basis - the default should not be payment to the child.

We advise that all payments be made to the other parent or directly to the service provider. For example, parents can agree that their respective contributions to tuition be made by them directly to the university. All effort should be made not to involve children in financial issues, including those older than 16. Parents should make financial arrangements for their support with each other and without burdening the children with payments for any of their expenses, where at all possible.

For more information, speak to a family law lawyer.

Wednesday, September 23, 2015

The Emotional Impact of Separation and Divorce

The emotional impact of separation and divorce (in the event the relationship was a marriage), on the parties, the children and various others (extended family, for example) has been the subject of much research and publication.

No blog post can do justice to the subject - it is vast and varied, also depending on whose emotional state is being considered, their role in the separation (if any), and what stage of the separation process is being addressed.

In this post, we would like to share some thoughts and observations about tools which might assist a separating spouse through the process:

1.  Identify and lean on your support network:  - whether you initiated the separation or your spouse did, there will be important issues to tackle, for both of you, and that generally brings with it some emotional upheaval. Even if the separation was "amicable", our experience is that organizing all of the issues which come at the end of a relationship can be emotionally trying. The end of a long-term relationship, in particular, brings with it a grieving period. Grab the hands reaching out to you in support and lean on your family and friends.

2. Try not to shut down: - news of a separation, finding out that your spouse has been unfaithful or untruthful, feeling the inevitability of a separation - all these can bring on intense emotional responses. You may instinctively shut down, push off the emotions flooding in from so many directions, in an effort to lessen if not eliminate their heavy weight. Shutting down and not participating at all in what is happening to you, around you, is likely not the best for you, even though it may feel like it is. A court case, for example, can carry on without your participation and decisions can be made by the court even if you are not there, impacting on your future. The more productive approach is to identify you are feeling overwhelmed and communicate that to someone who can deal with the information appropriately on your behalf: your doctor, priest, rabbi, imam.....tell a close relative so they can help you get the assistance you need to cope.

3. Be kind to yourself: - overwhelming sadness, disappointment, frustration and even anger are common emotions in these circumstances. Coming to terms with the end of a relationship is difficult and a number of stages are involved. It may be particularly difficult for you to handle if you are facing the prospect of dealing with your spouse and possibly their new partner for some time to come because there are children involved. Be kind to yourself. Look for medical and counselling support if you find you are having difficulty coping. Proper nutrition and exercise are key to a healthy mind - a healthy, alert mind, on the other hand, will help you handle what is ahead.

4. Above all, your children's needs come first, ahead of yours or your spouse's: - separating spouses often confuse what is best for them with what is best for their children. Remember that your child or children are not part of the dispute between you and your spouse. They should not participate in the dispute and where at all possible, they should not be burdened with the consequences of the breakup. Before you pass a message to your ex-spouse through your child, realize what impact this will have on him or her. Before you voice criticism of your ex-spouse in front of your child, consider you are talking about your child's other parent - you may not like your spouse and you are entitled to that but what is the impact of your statement on the child? - it's about his mother or father.

There is a myriad of resources available to assist you with the emotional impact of separation and divorce - many are free of change. Make use of them and work on getting through this difficult period with a balanced and informed view of the situation.

3 Excellent Reasons to Try Mediation

Sometimes, the circumstances of a family law case require the involvement of a Judge. For example, the parties cannot agree on an important point of law and their deadlock can only be resolved by a Judge who makes a decision on the legal point. Or, by way of another example, parents disagree on what is best for their child and a decision has to be made quickly to address the child's best interests.

There are many family law cases, however, in which mediation is a viable option to address the many issues which result from relationship/marriage breakdown.

Here are our 3 Excellent Reasons to try mediation in a family law case:

1. You and your spouse get an opportunity to discuss difficult and sometimes uncomfortable topics in a safe, moderated setting - a skilled mediator will assist in organizing, pacing and moderating the discussion of the outstanding issues. Often, spouses approach a breakdown of a marriage or relationship at a different pace - a skilled mediator will factor that into how the sessions are organized and ensure that no one is pushed into discussions for which they are not ready;

2. You get a chance at designing your future - Mediation is a process in which both parties have a chance to participate actively in crafting their settlement. They can do so on their own with only the mediator present or they can attend mediation with their respective lawyers. One way or another, they can and should engage in active discussions, with the mediator and with each other (as moderated by the mediator). This active engagement, through actual discussions, is not something that the court process generally accommodates.

3. Mediation can be an empowering process - you get a chance to "say your piece" - you can get across your point of view on the issues and provide explanations for the positions you are taking. A mediated discussion can be much more dynamic, much more of a dialogue, than the litigation process, for example, where generally speaking, each side presents their position and a judge makes a decision.

Mediation is not suitable for every case: - it is definitely not an option where there is a power imbalance between the parties. Appropriate (mandatory) screening will determine whether a particular case can proceed to mediation.

If you are interested in mediation and would like names of skilled mediators in your geographical area, please contact the office and Carolyn will be happy to provide you with referrals. We have experience with many mediators throughout the GTA and surrounding areas.

Monday, September 21, 2015

Shared Custody - Ontario

"Shared custody" is a term used in the Child Support Guidelines (both federal, meaning applying across Canada, and provincial, meaning applying in Ontario) which refers to a scenario in which a child or children live with both parents.

If the parents are not sharing the residential time on a 50/50 basis, for the scenario to be a true shared custody scenario, the child or children must reside with the parent, who has them for less of the time, for at least 40% of the overall time.

It is important to note that this term does not address the issue of decision-making. In other words, shared custody is not joint custody. Shared custody, ie: a description of a child's or children's residential arrangements, relates to the issue of child support. That is because the child support obligations of  parents who are in a shared custody situation are unique and different from those of a parent, for example, whose child or children live primarily with the other parent (and to whom that parent has access, for example). Here, depending on the actual facts of a particular case, the classic "table" amount of child support may not be payable.

Calculating whether a parent actually has the children 40% of the time is not a simple exercise and a number of factors come into play. Courts have, on many occasions now, grappled with whether we count time spent at daycare, school or even sleeping, and to which parent we credit that time. A lawyer practicing in the area of family law will be able to tell you about court decisions which are relevant to your particular facts.

The Child Support Guidelines also do not provide us with a clean formula for the calculation of or for determining the amounts owing, if any, by one parent to the other. Here, too, the incomes of the parents come into play and so do the expenses incurred by each parent in their home in connection with the children.

For a specific reference to shared custody in the Federal Child Support Guidelines, please click here and look up section 9:  Federal Child Support Guidelines

Wednesday, August 19, 2015

The trouble with Ashley Madison....what next?

The last two months or so have been a stressful time for many users of Ashley Madison. Once hackers claimed they had accessed the personal information of many users and threatened to expose that information on the World Wide Web, many wondered what that would mean for their marriages and other long-term relationships.

As of last night, the level of stress rose for many - the hackers claim they have actually posted the information on the web, for public access and consumption. What now, you may ask?

There are many misconceptions out there about the impact of infidelity on claims in a divorce or a cohabitation, common-law relationship (in Canada).

Canada has a no-fault divorce system. That being said, there remain three basis on which a spouse can claim an actual divorce - a one-year separation, infidelity and cruelty. The last two are pleaded very infrequently these days, largely for technical reasons and given most divorces are not granted until a year after the separation in any event.  The impact of your conduct (if you have been unfaithful) or your spouse's conduct (if they have been unfaithful) varies from case to case. It also depends on the nature of the claim being made and the nature of the conduct.

* If your marriage or relationship has or is about to end because of information the hackers may have posted or if you are concerned that the information may come out (but has not yet come out), we strongly encourage you to get legal advice on the impact of this information on your case.

* If you are a spouse who has been confronted with information flowing out of the Ashley Madison hack, we encourage you to seek legal advice as well.

Friday, May 15, 2015

Should I negotiate with my spouse, without a lawyer?

Separation is often a very emotional journey - whether you are the one who triggered it or whether you are at the receiving end of the news, there are so many issues to consider, so many new concepts to understand (including in the area of family law) that the circumstances can quickly become overwhelming.

The answer to the question posted in the title of this post should really be considered in light of the opening paragraph. Ask yourself this:

1. are you emotionally strong enough to sit across from your spouse and negotiate the terms of your separation? Is your spouse emotionally strong enough so that any "deal" you strike would be viewed by an outsider as a fair one?

2. do you understand the law as it applies to your separation? If you think that to deal with property rights on separation, "we divide everything in half", then you do not understand this area of the law. Do you understand the difference between the law as it applies to married/separating spouses as opposed to common-law/separating spouses? For example, are you aware of the concept of "joint family enterprise"? Do you know what possessory rights are? Do you understand the concept of mobility? Does your spouse?

3.  are you sure that "all the chips are on the table" for the purposes of your proposed negotiations, meaning, that you are truly aware of your spouse's earnings, assets and debts? Do you truly know what they "have"? Did you and your spouse exchange full disclosure?

THE POINT: there is nothing preventing you from negotiating directly with your spouse. Whether that is a good idea is another issue altogether and depends on the circumstances of your case. Likely not the clean, direct answer you were looking for but there it is - would you consider asking your friend to remove your appendix? Well, the answer depends on the circumstances. If they are a doctor, you might. If they are a retired doctor who last practiced 15 years ago, you might not. If they are a gardener, you might not. If you are exceedingly stressed, you might not be in any shape to make a reasoned decision about any alternative treatment for your acute appendix so an emergency doctor should be your medical provider of choice. I think you "get our point".

Seek legal advice about legal issues, at least by way of consultation. Do not bargain your legal rights and obligations until you know what they are. It is important to negotiate on a level playing field, making sure there is no imbalance of power in discussions of any settlement. A solid, fair and lasting deal depends on it.

Thursday, May 14, 2015

Child Support Over 18 (2)

We continue to receive many, many questions relating to support for children over 18 years of age. This is understandable given there continue to be many misconceptions out there about this area of the law.

As we posted in the first post in this series, child support does not automatically end when a child is 18. That is not the law in Ontario and in fact, Canada. While society may view 18-year-olds as adults, family law does not necessarily take that approach when it comes to child support.

There are a variety of circumstances in which a young person over the age of 18 could remain eligible for child support. These vary depending on the circumstances of each particular case so you should present your unique facts to a lawyer and have him or her assess your particular situation.

A young person with special medical needs may remain eligible for child support well after the age of 18, even if they are not attending school but here, whether the claim is made under the Divorce Act or the Family Law Act makes a difference. In this respect, whether the parents of the child were married or not may impact on either parent's ability to make a claim for child support in these circumstances. Again, this area of the law is somewhat technical so you should consult a lawyer to find out how the legislation applies to you.

We have also come across a number of inquiries suggesting the following, common misconception: that mothers always continue to receive child support for a young person over 18 if he/she continues to reside with the mother. That is not always the case. Again, the particular circumstances of the case dictate whether that is true or not. Why is the child continuing to live with the mother? What is this young person doing while continuing to live with the mother? Is he/she attending school? Is he/she working full-time, for example, and living with Mom because it is just cheaper and more convenient? Whether child support continues to be payable depends on the answers to these (and additional) questions.

Very soon, we will be posting some thoughts in response to the following, common question: "can I pay child support directly to my child?".....

Saturday, April 18, 2015

Travel Consent Letter

We receive many questions about Travel Consent Letters and based on them, we understand there are many misconceptions out there about what this document is and who needs it for travel with whom.

Travel Consent Letters are generally prepared when a child or children travel with one parent and without the other. Such situations are not limited to separated or divorced spouses but we will focus on them in this post.

Travel Consent Letters are not a requirement but they do make these travel situations simpler. When an Immigration officer sees a single parent travelling with a child or children alone, a travel letter, signed by the other parent, will go a long way in addressing any concerns about the children's potential safety. While many parents find the preparation of the Travel Letters cumbersome, we ask: "is this not preferable to having to deal with situations where children travel without the other parent's knowledge or may even be abducted?"

What is important to realize is that a Travel Consent letter will not guarantee your leaving the country with your child or children without further questions. Immigration Canada retains the right to investigate the legitimacy of the proposed trip, even if you have a Letter in hand.  That being said, Travel Letters do help and we highly recommend them.

2 other points:

1. we have heard the following before, post-trip: "don't know why I bothered, they did not even ask for the letter" - you may not be asked but our policy is - better safe than sorry - see 2. below

2. we have also heard the following before the trip: "I will just take a risk, they did not ask the last time so I am not going to fuss with this now" - we say again, better safe than sorry - we know of actual instances when parents were turned away at the border because they did not have a Travel Letter and the other parent could not be contacted immediately to verify that the trip was authorized.

Here is a link to some further useful, official information about Travel Consent Letters:

Government of Canada Travel Consent Letter information

Tuesday, April 14, 2015

The child support "grid"...

I recently heard a radio talk show host refer to a "child support grid". I have heard this phrase used in other contexts as well. What does it mean?

The "grid", otherwise known as a "table", is a tool which assists us in calculating the first of the two components of child support, commonly known as the "table amount".

Child support in Canada is generally calculated using both federal and provincial legislation (depending on whether the parents of the child were married or not) called the Child Support Guidelines. This legislation includes a series of tables which set out monthly amounts payable by the parent with whom the child or children in question do not live primarily, in different Provinces and based on different income levels

These tables are sometimes referred to as "grids" because they actually look like grids. On the left hand side of each table, there is a column with incremental income amounts and to the right are corresponding table child support amounts, depending on the number of children involved.

There is a separate table for each Province because the cost of raising children varies from location to location

The child support amounts set out in the grid represent the monthly amount to be paid by the non-residential parent to the primary residential parent, on a monthly and repeating basis - the tables do not provide for an automatic terminating event or date - that is a question which depends on the facts of each particular case.

The amounts provided for in the tables are "net" to the recipient parent. This means that no tax is paid by that parent on the table amount received. Correspondingly, the payor parent does not have an opportunity to deduct these amounts for tax purposes (this is different than the tax treatment of periodic spousal support).

Wednesday, April 8, 2015

Do I need a lawyer to go to Court?

More and more people ask this question, particularly as the costs of living increase and financial pressures on average Ontario families mount.

The simple answer is "no, you do not".  There is no rule which says that only lawyers can present or defend cases in Court.

Courts in Ontario are equipped to deal with people who come before a Judge without a lawyer. Such individuals are referred to as "unrepresented" or "self-represented".

Now let's consider the question from a different perspective and use the following analogy to illustrate the point. What is the answer to the following question: "do I need a doctor to treat my red eye?" The simple answer is you do not - you can certainly treat the problem yourself and you may be able to cure the problem too, after trial-and-error with different remedies at your disposal. On the other hand, if you see a doctor about your red eye, he/she may diagnose the problem with more precision and zero in a lot faster on the treatment, including prescription medication, all leading to a speedy recovery.

Back to our lawyer question: an average person on the street is not trained on what family law legislation says and means, and what case law has provided by way of precedent. Nor is he/she familiar with court administration and the rules related to the conduct of a family law case (and all unrepresented litigants are expected to "play by the same rules" as those who attend with lawyers).

The right lawyer CAN help your case move forward faster and in a more organized way. Most importantly, a lawyer is able to advise you all issues relevant to your circumstances - you may not even be aware of such issues because you lack the legal training.

If you cannot retain a lawyer to act for you then at least invest in a consultation as to your legal rights. It's important. 

Tuesday, April 7, 2015

Telephone and other types of access....

Access between a parent and a child does not have to be limited to physical access, ie: based on a schedule, the child spends time with the parent, during the day, overnight or for a couple of days at a time. Other forms of access are acceptable and in fact, quite common. The goal is meaningful "contact" between a parent and a child - and that may take a variety of forms.

Telephone access is quite common and has been for a long time. Such access can be ad hoc, meaning the child (usually) calls the parent whenever he/she wants. The more usual arrangement is for set times during the week when the parent speaks to the child by phone (time and frequency often depend on the child's age)  - this gives the child structure, certainty and a reasonable expectation when contact with that parent will take place. The other parent's cooperation is required to make this happen - the child has to be close to a phone for the scheduled telephone access. Provisions and schedules for such access are common these days in Court Orders and Separation Agreements.

As technology advances, new forms of access have been introduced and are becoming part of our everyday family law "parlance". Access by Skype and Facetime are two examples. More and more Separation Agreements and Court Order include such access. Both parent and child much have access to the right hardware and software but that is becoming less of an issue these days given the availability of technology in virtually every household.

When considering access for your child, think out of the box of physical access. There are other options as well.

Saturday, April 4, 2015

Parenting Plan

When family law lawyers use this term in Ontario, they are usually talking about a multi-page document which creates a "road-map" for parents on how to deal with their child(ren) and each other after a separation.

A Parenting Plan may be authored by a variety of people. Many Parenting Plans are the result of negotiations between Mom and Dad, with the assistance of lawyers. Other Parenting Plan result from the recommendations by professionals involved, for example, in a custody/access dispute. An assessor under section 30 of the Children's Law Reform Act can be one such person. Mom and Dad might also have met with a mediator to work out the terms of a Parenting Plan and if successful, that document would contain all the agreed-to terms.

Parenting Plans in Ontario can address a whole host of issues relating to children. Here are some examples:

1. who will make decisions about major issues in the children's lives (custody).
2. where the children will live (residence).
3. if the children will live mainly with one parent, much often and when specifically the other parent will spend time with the children (access).
4. whether the parents can move with or without the children (mobility).
5. what the protocol will be if a child requires emergency care when in the care of one parent.
6. what happens when access is missed.
7. what happens if one parent cannot care for the children on their time.
8. who, other than the parents, can look after the children.
9. how holidays and special occasions will be shared.

This is not a complete list of issues covered by Parenting Plans - they differ from family to family depending on the particular needs of the children and their parents.

Some Parenting Plans, particularly in high-conflict cases, include the appointment of a Parenting Coordinator (commonly known as a "PC") - usually, this person assists the parents in resolving their disputes and depending on the parties' agreement, may have arbitral powers, meaning, they can actually be empowered to break any deadlocks and made final decisions.

A thorough, thought-through Parenting Plan is an invaluable tool for separated parents. It can help immensely on the road ahead, particularly during periods, as there are in life in general, when the separated parents are not getting along very well.

Thursday, September 4, 2014

"My spouse won't leave the house"......(Ontario)

In Ontario, if you are married to your spouse, you have the same rights as he/she does to "possess" the house, condo or apartment in which you reside during marriage, meaning, to live there.

These are called "possessory rights" and they are entirely separate from who actually owns the property (has title to it).

Common-law spouses do not have the same rights to possession.

On separation, who stays and who moves out often becomes a live issue. Separation often involves tears, disappointment, anger and sometimes, even a power struggle. When separated spouses continue to live together in the matrimonial home (which may include a condo, an apartment, a farm, etc.), the atmosphere is rarely pleasant. In some cases, it may become more than unpleasant: - arguments, efforts at control, invasion of privacy and power-struggle over possessions or even time with children are some examples of what separated spouses face. At the height of such difficulties we hear about domestic violence, abuse and intimidation.

We are often asked: "Can we not make her/him move?", "kick them out?",  "make them go elsewhere?"

There are two circumstances under which a spouse vacates a matrimonial home after separation:

1. they do so voluntarily OR

2. they move because they are ordered to so by Court Order - here, the Order amounts to depriving the moving spouse of their "possessory rights" and Courts are generally reluctant to make such "exclusive possession" Orders without very good reasons.

Here are some examples of what will not result in an Order for exclusive possession (and this list is not exhaustive):

a) it's not pleasant in the home
b) your spouse stares at you
c) your spouse reads your emails
d) your spouse has told the children of the separation without telling you in advance
e) you and your spouse argue from time to time
f) your spouse speaks loudly
g) your spouse hogs the TV and has not bought groceries in weeks (depending on the actual financial circumstances, this may have to be addressed by a request for support);
h) your spouse is out at all hours and barely home.

Here are some example of what will likely result in an Order for exclusive possession (again, the list is not exhaustive):

a) your spouse is extremely verbally abusive and there are independent witnesses to corroborate this;
b) your spouse is physically abusive;
c) your spouse stalks you and bullies you;
d) your spouse has thrown objects at you;
e) your spouse acts in a way which causes you to fear for your safety and/or the safety of your child/children.

If you want more information about this very important issue, please speak to a lawyer. Do not rely on the internet alone for legal advice. Seeking information is helpful but ultimately, you should have assistance from someone who is well-versed in the area and can provide real help.

Wednesday, September 3, 2014

Same Sex Law in Ontario - UK civil partnership like a marriage

In June, 2014, the Ontario Court of Appeal upheld the decision of The Honourable Madam Justice Mesbur, sitting as a motions judge, that a civil partnership entered into by two parties (men) in the UK, at a time same-sex marriage was not available in the jurisdiction, was like a marriage, according them the rights and obligations of married spouses in Ontario.

You will find the decision of the Court of Appeal, Hincks v. Gallardo, here:


On behalf of the panel, Justice Hourigan held as follows:

"[28] The interpretation by the motion judge of the terms "spouses" and "marriage" is entirely consistent with the modern approach mandated by the Supreme Court of Canada: Her interpretation achieves one of the fundamental purposes of the DA [Divorce Act] and the FLA [Family Law Act]: it provides the parties with an equitable and certain process for resolving their economic issue arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims."

Upward and onward, Ontario...definitely a step in the right direction, one of many still ahead of us....

Tuesday, February 11, 2014

What you tell your lawyer is confidential.....

A friend of mine recently told me that on an episode of Breaking Bad, someone mentioned that what you tell your lawyer is confidential - is this true? - she asked..


All communications between a solicitor and their client are privileged (confidential) - there are only rare circumstances in which the information can be revealed - likely as a result of a Court Order.

Here is another thing you may be interested to hear: this privilege applies to that lawyer forever. This means that even if a particular lawyer is no longer your lawyer (ie: you parted ways for some reason), that lawyer can never reveal the information you told him or her in confidence.

BUT here is a scenario you might consider: you bring your best friend into a meeting with your lawyer and she/he hears what you and your lawyer talk about. Two months later, that "best friend" is no longer a friend of yours.....the lawyer is still bound by privilege but he/she will have no control at all over what your former best friend may tell the world about your case - you "diluted" the privilege when you brought your friend into the meeting in the first place.....


Friday, September 13, 2013

"When do my child support payments end?" (2)

We have previously posted in response to this question, here:


The post generated many comments and questions so we decided to provide more guidance in the form of the following "flash cards" on this topic:

1. Contrary to a wide-held view, in Ontario child support does not end automatically when a young person turns 18. It also does not continue automatically until a young person is 18, without regard to what the young person is doing. For example, if a 16-year-old leaves school, begins working and moves in with friends, child support will end then and not continue for another two years until he/she turns 18.

2. A young person may continue to be considered "a child" for the purposes of child support even when they are 23-24.  Whether or not they remain eligible to receive support depends on the specific circumstances of each case but generally speaking, if a young person cannot become financially independent because they are still at school or unable to attend school or work for medical reasons, child support may continue to be payable.

3. Child support is the right of the child and not the right of the recipient parent. Parents do not have the right to bargain away, between themselves, the child's right to support.

4. There are different forms of child support contemplated by the Child Support Guidelines. The form and the amount of child support is likely to change when a young person enrolls in post-secondary education and in particular, if they live away from home for part of the year to attend school.

5. The overall means (ie: what is available in funds) of the parents and the child are always relevant to the issue of child support - particularly when post-secondary education is involved. This means, for example, that a parent earning $40,000 a year will not be expected to participate in covering any significant portion of a child's attendance at an Ivy League university in the US, at considerable cost. That parent will only be expected to contribute proportionately to their actual income.

6. The Courts do not simply accept line 150 of a payor's income tax return as an indication of their actual income for child support purposes. Self-employed individuals, in particular, will be subject to much closer scrutiny as to income and benefits available to them, pursuant to the Child Support Guidelines.

Making an important point once again - there are some general guidelines from the law on the issue of child support - there is no doubt about that  - BUT, each case also turns on its own facts and you should consider those specific facts with an actual lawyer to make sure that your particular circumstances are properly addressed.

Friday, June 28, 2013

Divorce in Canada

The word "divorce" is often used to describe the end of a marriage (separation) and all of the issues which result from that event.

In this post, however, we are addressing divorce as a separate claim in a court case - the official termination of the marriage by a divorce order.

Here are some facts about which you may not yet know:

1. in Canada, only a judge can grant a divorce. While a marriage can be performed by a variety of individuals, only judges are empowered to officially declare a marriage to be over (in Ontario, that would be a judge of the Superior Court of Justice). For this reason, if you want a divorce, sooner or later you will have to start a court case to address that issue (although, depending on the facts of your case, that may be your only claim before the court);

2. Canada is a "no fault" jurisdiction. This means that the spouse requesting the divorce does not have to prove uncomfortable facts as a basis for the divorce. For example, that spouse does not have to either allege or prove an affair by the other spouse, to allege or prove abuse or to cite "irreconcilable differences", which is a claim often heard from our neighbors to the south.  Many successful divorce applications do not even cite a reason for the separation. One can alleged adultery or cruelty but these are very rare claims these days, involving complex issues related to evidence. In my many years of practice, I can count on the fingers of one hand cases in which either adultery or cruelty were pleaded as the basis for a divorce request.

3. 99% of couples in Canada divorce on the basis of a one-year separation.

4. you CAN file with the Court your materials for a divorce before the first anniversary of your separation - the point is that unless there are very special circumstances to your case, the divorce is not going to be granted until the one-year is up;

5. most divorces in Ontario proceed "over-the-counter" - this means that no one appears to actually "argue" the divorce and there is no live hearing on the issue - the divorce is completed through paperwork filed with the court. The required materials are submitted at the court office and then reviewed by a judge who, if satisfied that all issues are in order, grants the divorce.

6. the divorce, once granted, becomes "effective" 30 days from the date of the divorce order itself - this "cooling period" can be set aside by the court in unique circumstances (on request) but generally speaking, you will not be able to apply for your marriage license until this period is over.

7. divorces are not automatic. The court has the right to decline a request for a divorce if the court is not satisfied, based on the materials filed, that reasonable arrangements are made for the support of children. This is a very important area to consider when filing your divorce materials, particularly your affidavit in support of your divorce request.

8. a divorce can be torn away ("severed") from the rest of the issues between the parties and proceed while those issues wait to be completed. Again, the considerations in 7. above apply. In other words, a separated couple can be divorced even before they are able to finalize property issues, for example, or issues related to spousal support.

Divorces in Canada are governed by technical procedure and the courts' expectations for materials filed are high. If in doubt while completing the paperwork, consult a lawyer......

Thursday, June 27, 2013

Child Support over 18

Many support payors and recipients in Canada think that child support is payable only until a child turns 18. In fact, that is not correct.

In Canada, child support is payable to young persons, even over the age of 18, who for good reason are not able to withdraw from their parents' financial assistance. What are such "good reasons"? There can be two (or a combination of them):

1. a child attends school (for example, university or college, but there may be other schools which would qualify) - depending on the financial resources of the parents, support may continue even after one degree is completed; or

2. for medical reasons, a young person over 18 cannot become financially independent (for example, the child has a long term disability or was involved in an accident and is recovering).

One very common scenario we get questions about is the following:

Fictional Chloe attends Fictional University and is in her 3rd year. Early in the second term, she is in a car accident and is unable to finish the year. By the beginning of the 4th year, she is not able to return to school full-time and can only take a half-course load, for medical reasons. We get asked: is she still entitled to child support? - the answer is "yes" - that is because she is still "a child of the marriage", which is a phrase used to describe a young person who either for medical reasons or because she remains at school cannot become financially independent. In this scenario, it's a bit of both - she is not in school for medical reasons but would otherwise be - child support remains payable even when she is taking less than a full course load.


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