Friday, November 13, 2015

Dividing contents....

There are, believe it or not, couples who manage to divide the contents of their residence together, whether a home, a cottage or apartment, in a civilized, calm and organized way. It's not as uncommon as you think and it IS entirely possible.

For situations where that has not happened, contents can become a true battleground, with each party "staking" what they want and sometimes even saying they want "that" simply because the other spouse wants it as well. In those situations, you need a game plan, a method for addressing the problem.

Simply removing the items you want, without the other spouse knowing you will do so in advance, is never a good idea. It will cast a shadow over your actions and motivations, and if the matter ends up before a Judge, your spouse will surely advise him or her of what you have done, asking that unfavorable inferences be drawn from your actions.

Firs of all, what are contents? - they are "stuff" you and your spouse used together as part of your relationship. Stuff in your home, your cottage, your apartment. It is not the same as personal possessions. Your stamp collection is not part of contents and neither is her clothing or his shoes. The contents of your spouse's home-office desk are not part of contents - they belong to your spouse.

Also, contents are not necessarily things which only both spouses paid for. There are many situations in which only one spouse paid for all of the stuff in the house and this stuff is still "contents". If you are unsure, speak to a lawyer about this issue.

We believe that if you and your spouse cannot agree on how to divide contents, as a first step, each of you needs to make a list of ALL the contents of your residence. Then, on each list will be identified personal possessions and other items, such as gifts and inheritances, which do not form part of contents either (this is a very important point and if you have such items, it is vital that you speak to a lawyer for advice on how these items are dealt with and why). On your list, you can then identify which of the contents you are interested in having. You then exchange your lists. The items on which you and the other spouse agree are no longer contentious. Only those items which you both appear to want are.

For the items on which you cannot agree, there are a variety of approaches. Get legal advice on this point as one may be particularly suited to your case. There are also alternatives to creating lists, including marking contents with multi-colored stickies, valuing them all professionally and then dividing by value, or one spouse keeping all and the other spouse getting credit for one-half of the value.

We can say one thing with confidence - Courts do not like to get involved on the issue of contents and prefer that spouses deal with them themselves. If you are before a Judge dealing with contents, be prepared for a long and detailed consideration of the issue, which can be drawn-out and expensive. Try to avoid it if you can.

Wednesday, November 4, 2015

Why Court is not always the solution.....

We are re-posting here an updated version of a post from 2012. 

This is the age of mass media - TV, video, Facebook, Twitter, Netlix. An average person's view of the world is greatly affected by what media portrays and pushes on the consumer. This includes the public's perception of court and the legal system in general.

For example, TV shows and movies teach that legal battles are waged in the court room, with fist-pounding lawyers and finger-wagging judges. In fact, some of the battle is fought in front of the court, in press skirmishes where reporters (and the viewers) have a chance to see lawyers expound on the merits of their clients' cases, sometimes with a "we will show you" attitude.

Reality is not what you see on TV. There are no surprise witnesses (our justice system does not allow for them) and polygraph tests have very serious limitations, particularly in family law.

What you also do not see in the media-packaged versions of court and the legal system are the tremendous costs involved in conducting a court case, from start to finish.

A family court proceeding in Ontario can be an expensive, drawn-out process, for a variety of complex reasons over some of which you will have control and many of which you won't.

Going to court is not the panaceum, be-all-end-all solution you may think it is.

There are cases/situations where the involvement of a Judge is necessary to move the case forward. When parties are stuck on a legal issue/principle and cannot reach a compromise, a Judge's view of the legal issue may be necessary to break the log-jam. Sometimes, the intervention of a Judge is required to address an emergency situation like the abduction of a child or non-payment of support.

Overall, however, settlement is always the preferable solution. Despite a commonly-held perception, negotiation and settlement is not a sign of weakness. It is a sign of strength and maturity on the part of both parties that continued conflict and entrenchment is emotionally draining and expensive.

Settlement is usually the best outcome for all concerned, assuming the parties both understand their legal rights, are making the bargain freely and without pressure or duress, understand the basis of the bargain through solid disclosure and have had an opportunity to get legal advice.

In the end, settlement polarizes the parties less than does a court case, where there is sometimes a clear winner and a clear loser (perhaps not of the entire case but issue by issue).

In a settlement, the parties are the authors of the terms of their agreement. They have "ownership" in the outcome. This is the opposite of what happens in Court (other than in the context of a case which settles through Case Management) ~ a stranger to your family (the Judge) makes decisions for you and your family.  These outsider-decisions may very well affect you and your children for the rest of your lives.

For the reasons above (and many other reasons which a family law lawyer can provide you) choose settlement if you can.

WE are ABLE to help. We are great proponents of mediation, for example, and have worked with many mediators in Ontario. 

Saturday, October 31, 2015

"I am confused about child support...."

Child support is an area of Family Law on which were receive most questions. There is much confusion on what child support is, who gets it, why and for how long?

Why is there so much confusion? We cannot come up with a definitive answer but we suspect that "popular culture" and "urban legend" have contributed to the formulation of a number of myths and misconceptions about this issue.

This post is designed to give you only the basics of child support in Ontario - this information is NOT sufficient to enable you to deal with child support on your own as "one-size-does-not-fit-all" - the specific facts of your case may lead to a specific result, not addressed here - see a Family Law lawyer for advice on how the law of child support applies to your case.

We have seen many cases in which some element of child support was misunderstood by either the payor or the recipient for years at a time - this misunderstanding led to unfair results.....do not let that happen to you.

Question 1: what is child support?

Answer: at the most basic level, child support is financial assistance with a child's expenses.

Question 2: what kind of "expenses"?

Answer: it means all expenses, as long as the child remains eligible to receive child support.

Question 3: you mean food, clothing AND even college?

Answer: yes - the cost of college/university does fit into the definition of "child support"

Question 4: what forms can child support take?

Answer: many forms. For example:

(a) the table amount of child support, paid monthly to the other parent;
(b) contribution to special or extraordinary expenses, like ballet, camp or braces - payment directly to the other parent;
(c) contributions to the cost of college, with tuition payments for example being paid directly to the college;
(d) monthly payments to a university student to assist with his or her "room and board" while at school;

-the list goes on.

Question 5: when does child support end? - is it then a child turns 18?

Answer: no - child support continues after the age of 18 in situations where the young person is unable to become financially independent, generally for the following reasons:

(a) they are attending school OR
(b) they have health issues which prevent them from completing schooling and/or becoming financially self-sufficient.

Question 6: does the child over 18 have to attend school full-time in order to qualify?

Answer: not necessarily - you need to get advice from a lawyer on the specifics of your case to have a specific answer to this question.

Question 7: who pays child support to whom?

Answer: generally speaking, the parent with who a child or children live most of the time receives child support from the other parent. The calculation of child support becomes more complex when a child or children live with one parent at least 40% of the time - you need to see a family law lawyer to assist you with this situation.

If you need further answers to child support-related questions, we have them. Again, it is not wise to deal with your family law case simply by relying on information you find on a internet - we provide free consults. Many other lawyers do as well. Get legal advice. It's important.

Wednesday, October 28, 2015

Support and related income considerations

When support (either child or spousal) is an issue in a family law case, there are a number of questions which need to be addressed before the actual support calculation is made.  

For example, in the case of child support, is a young person over the age of 18 still eligible to receive child support?  If so, in what form is that support to be paid? To whom? 

On the issue of spousal support, is the potential support recipient making best efforts to contribute to his or her own support based on their current ability to do so?

The income of the potential payor is a key question to address in any consideration of support obligations.  “Income for tax purposes" is not necessarily “income for support purposes” in family law.  In other words, simply because Canada Revenue Agency accepts a potential payor’s representations of his or her income for tax purposes does not mean that a family law Judge will do the same. 

Family law spreads a much wider sweep over a potential payor’s income sources to determine the true extent of his or her ability to pay support.  

The Child Support Guidelines, which technically apply to the calculation of child support but have now been wildly accepted as applying to spousal support calculations as well, permit the inclusion in income for support purposes of a wide variety of income sources.  The intent of the legislation is to ensure that financial dependants receive support based on all sources of the payor's actual income but also on sources which are available to the payor, even if he or she chooses not to tap into them. 

By way of one example only, income earned by a business which is not paid out to a shareholder but could be is vulnerable to being included in his or her income for support purposes.  Personal expenses run through the business are also vulnerable to being added back to the payor’s income for support purposes.

Monday, October 26, 2015

Tips for completing a Financial Statement (4) - Ontario

This is one in a series of our posts on this topic.

A Financial Statement is likely the most important document you will complete in a family law case.

We have never heard a client say "oh boy, I am looking forward to filling out this form" on receiving the blank draft but do not let the document scare you into inertia.

You will need to set aside quiet time to complete the document in draft, as best you can. If you get stuck, the trick is not to put the exercise aside and forget about it - the trick is to get motivated and get help, if necessary. This help may come from your lawyer and/or their Law Clerk (at a lower rate, we might add).

The key is to identify that you need help and to ask for it. All questions are reasonable - do not be afraid to ask. Remember that if you get stuck on an area of the form, that likely means the information is not straightforward - all the more reason your legal team should know about it and assist you in identifying it properly on the Financial Statement.

Financial Statement are fundamental to all family law cases. You and your spouse will each have to complete this document whether you are negotiating the outstanding issues, whether you are mediating them, arbitrating them or having them resolved with the assistance of the Court.

Financial Statements tell the reader a lot about you and your financial circumstances, at various points in time. This information, in turn, may be vital to your ability to pursue certain claims before the Court. What does this mean? For example, if you are asking for spousal support, you need to establish on your Financial Statement that you have need (you do that in your budget/Expenses) and also that your income is not sufficient to meet that need (this is not the only basis on which spousal support may be ordered but we are using "need" here to illustrate our point). By way of another example, if you are making a claim of equalization and you had significant assets at date of marriage for which you wish to take date-of-marriage deductions, then these assets need to be properly reflected in the assets portion of your Financial Statement.

TIP #4 re: completing a Financial Statement - the better you understand the reason you are expected to complete a particular section of the document, the more on-point and accurate your entries will be. Ask questions if answers to them will help you understand the form. You will be helping yourself and your legal team.

Friday, October 23, 2015

Why you should never be "afraid" of your lawyer.....

I was recently thinking about a client who, when she initially retained us, told us that she was "afraid" of her previous lawyer.

I must admit I was very disturbed by what I heard. It bothered me for some time, on a number of levels - personal, professional, human....I tried to imagine what it would be like to go to someone for professional assistance and not feel comfortable asking them questions, requesting clarification of professional terms I was not grasping, and seeking reassurance on any points which bothered me. Being the extrovert I am, I have never experienced this type of relationship before but this client's experience gave me pause and it now prompts me to blog about it.

Here are points I would like you to consider:

1. We, lawyers (and many other professionals, in fact) speak a language which is very specific to what we do - it's the daily bread-and-butter of our professional life. These are terms which we use every day, many times a day, with other lawyers, with Judges, mediators, arbitrators. You are not a lawyer - you are not expected to know these terms in the first place - we are trained to understand them and use them - you are not.

2. It is your lawyer's job to familiarize you with the legal terms which are relevant to your case. You are not expected to grasp them immediately - some are quite complex. It is your lawyer's job to explain the legal terms in a way which you will understand, bearing in mind that you may be very stressed and upset by your separation and also taking into account that you may not want to hear "bad news", ie: that you may be hoping for an unlikely result.

3. If you hear a legal term or concept, it initially makes sense but then no longer does, you MUST ask your lawyer for a further explanation. You do not need to speak the legal jargon but it is vitally important that you understand the issues in your case, how your lawyer plans on addressing them and for what reason. If you do not understand the basic concepts, you cannot truly participate in your case and that is not in your best interests.

4. You should never be "afraid" of your lawyer. You should never feel your lawyer is too busy to talk to you or worry that things he or she might say will not be easy to understand. Again, it's your lawyer's job to ensure you understand what is at issue, in language which is not mysterious, complicated or fancy. You pay them for that service.

Remember that your relationship with your lawyer is one in which you hire a professional to provide you with a service but it's YOUR CASE. You need to be comfortable in that relationship. 

Thursday, October 15, 2015

Our Family Wizard - how to "speak" to the other parent.....

Separation and divorce strain communication - that is because high emotions of disappointment, hurt and even anger are involved. And yet, in many cases, parents must continue to communicate about their children - this involves setting aside their own emotions for one another and focusing on the children's needs. 

Here is one suggestion of how they might do so effectively: 

Imagine: Parent 1 and Parent 2 recently separated. Parent 1 is supposed to pick up Child from school but is caught in a meeting that seems like it will never end. Parent 1 sends an email to Parent 2 (underneath the table so as to not draw any attention) asking Parent 2 to pick-up Child. Email goes to Parent 2’s junk folder and Child is left at school wondering...

When a relationship breaks down and there are children involved, effective communication between parents is essential to any successful co-parenting arrangement.

Our Family Wizard is an affordable software tool that is designed to streamline communications between parents. Some of the features include:
  • Calendar: This allows parents to clearly delineate parenting time or post when a child has an activity scheduled.
  • Message Board: Parents can communicate freely about any child-related issue using the Message Board. Along with all of the other features of traditional email, Our Family Wizard indicates when a message has been viewed by the receiving Parent (avoiding the hypothetical situation described above). Parents also have optional access to the “ToneMeter”, which checks the tone of a message against 8 levels of connotative feeling to ensure that what you type is what you mean – no more 24 hour rule!
  • Expense Log: When one parent incurs an expense on behalf of the child, and is seeking reimbursement from the other parent, s/he can post the expense and attach receipt/proof of payment on Our Family Wizard. This feature also allows you to keep a live record of payments on account of children’s expenses.
Because Our Family Wizard is a centralized and comprehensive hub of communications between parents, third party professionals can view the exchanges to offer insight in to how parents can better communicate with each other in light of the children’s best interests. Our Family Wizard is also a useful tool for Courts in understanding children’s issues in a particular family law case.

For more information, please go to: Our Family Wizard

Tuesday, October 13, 2015

Separation and the Social Media (1)

The New York Times recently reported on the results of a study of teenagers and their texting habits/reactions to being interrupted. Unfortunately, the results are not that surprising, are they? You will find the article here: New York Times article about texting teenagers

Your teenagers are affected by today's widespread use of electronic media and so are you pre-teens, other family members, friends, co-workers, employers, service-providers and leaders.

Every aspect of North American lives is affected by social media today.  Separation and divorce are no different.

Many a separation has been precipitated by someone's discovery of a Facebook post, a text, a tweet or some other form of electronic communication suggesting that that their partner/spouse is part of an extra-marital relationship.

It is surprising to learn how many adults continue to believe their social media posts are private or at least limited to the audience they think they are picking for them. In many instances, that is not the case.

Several years ago we were involved in a case in which a separation agreement allowed for a reduction of spousal support payments in the event the other spouse cohabited with another person. In resisting our client's request for a reduction in support payments, the former wife insisted she was not cohabiting and not even dating. Her entirely unprotected Facebook page suggested otherwise. She marked herself as being "In a Relationship" and she posted numerous photos of her new home with her new spouse. The Court took this evidence into account in reducing the amount of spousal support payable by our client.

Beware of careless posting. Social media communications ARE vulnerable to becoming evidence before the Court.

A lovely, warm October day in Ontario.....

Friday, October 9, 2015

Grandparent Rights - Ontario

In family law, grandparents have rights too!

They can apply to the Court for both custodial and access rights, both on a temporary and final basis.

The Court decides whether the grandparents' request will be granted based on the overriding test of what is in the child's or children's best interests. Also taken into careful consideration by the Court will be a series of factors listed in section 24 of the Children's Law Reform Act.

Ontario Courts strive to give children stable, structured, nourishing environments, filled with love, care, and opportunities to thrive. This includes maintaining meaningful relationships with their extended families, including grandparents.

Grandparents' requests to maintain ongoing relationships with their grandchildren will be seriously entertained by the Courts but these requests are always subject to what is best for the particular child or children at hand. In other words, the inquiry is not theoretical, ie: would access between A child and A grandparent be a good thing. The question to be answered by the Court is will access between THESE grandparents and THIS child be a good thing, given the needs to this particular child and the rest of the specific circumstances of this case.

These issues come up in Court not just in the case of separating parents: - there are cases, for example, in which the Court has to determine whether children should have ongoing contact with grandparents against the opposition of both parents (as part of an intact relationship). There are also cases in which grandparents' involvement is an issue considered as part of a proceeding involving a Children's Aid Society.

Fall in Ontario...

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).


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