Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to making a Will or what to do where a person dies without a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

So what happens if someone who lives in Ontario dies without a Will?

Please keep in mind that a Power of Attorney and a Living Will have no relevance or bearing at this point because the person is dead (they only apply when the person is alive).

Basically, in Ontario, an application is made in the court office for the area (e.g. county, district, region, or metropolitan municipality) in which the deceased resided at the date of death. In Toronto, the appropriate court is the Estates Court office located at 393 University Avenue, 10th floor, 416-326-4230 (otherwise, you make an application to the Ontario Superior Court of Justice).

Applications for Certificates of Appointment of Estate Trustee are processed by Ministry of the Attorney General court staff.   They perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Rules of Civil Procedure (the rules of court) and other applicable legislation.

Section 74.05 of those Rules require that an Application for a Certificate of Appointment of Estate Trustee (Form 74.14 or 74.15) be accompanied by:

1. An affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served on all persons entitled to share in the distribution of the estate (including special ways to serve minors under 18 years old and mentally incapable persons).
2. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application;
3. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
4. The security required by the Estates Act; and
5. Any other additional material which the court may direct.

You should definitely consult with a lawyer about getting these and other necessary documents properly drafted and filed.  These forms can be found here.

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application.

The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained.

If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20 (as per the Rules).

If you want to read more about priorities of beneficiaries in cases where a person dies in Ontario without a Will (thereby triggering the rules in the Succession Law Reform Act), check out my previous blog on that topic.

To avoid headache and delay, be sure to consult with a lawyer about applying for a certificate of appointment of estate trustee.

written by admin \\ tags: affidavit form, applicable legislation, certificate of appointment, certificate of appointment of estate trustee, incapable persons, legislation section, ministry of the attorney general, ontario lawyers, ontario superior court, ontario superior court of justice, professional assistance, rules of civil procedure, section 74, superior court of justice

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

Ok, so here it is: who is a “parent” for the purposes of paying child support in Ontario under the Family Law Act?  Does it only mean the biological parent?  How about a parent who formally adopts a child?  What about the boyfriend/girlfriend of a child’s biological or adoptive parent?…

Essentially, in Ontario, a “parent” for the purposes of child support obligations under the Family Law Act includes a  child’s biological father or mother and any other person “who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody”.  Lets take a look at a number of previous Ontario court cases that dealt with this latter issue, shall we?  Remember: the Ontario Family Law Act applies in cases where the parents are not or were not married; if they are or were married, then the Federal Divorce Act would apply, not the Ontario Family Law Act.  So please keep that in mind as you read on!

In Baldwin v. Timmermans, (sub nom. C.M.B.B. v. T.J.T.), 18 O.T.C. 174, the Ontario Court of Justice – General Division was faced with an interim child support request (the fact that it was an interim matter means that child support was being asked to be provided prior to the actual trial).  The facts are fairly straightforward.  A man was asked by a woman to provide support to her child.  The man and the child’s mother never married but had lived together.  The man argued that he was not responsible for supporting the child, saying that he never acted as a parent and that he actually had a rough relationship with the child.  The Court disagreed and ordered the man to pay child support on an interim basis.  Perkins J. reasoned that the child’s mother had pointed to “objective evidence establishing that a subjective intention existed” on the part of the man to treat her child as a child of his family.  The mother had pointed, through her affidavits, to objective evidence of direct financial support to or for the benefit of her child as well as to the mother for the benefit of the family unit generally.  In addition, the man had signed a written document called “My Personal Commitments” which committed the man to (among other things) love and support the child.  Perkins J. held that the mother had made out a prima facie (on its face) case for child support by pointing to credible evidence which would entitle her to succeed at trial.

In Lebeck v. Laurin, [2005] W.D.F.L. 680, the Ontario Superior Court of Justice commented that various factors set out in Chartier v. Chartier (1999) 43 R.F.L (4th) 1 (S.C.C.) were useful, though not determinative, in deciding whether a person had a settled intention to treat a child as a child of his or her family.  Those factors include, but are not limited to:

• whether the child participates in the extended family in the same way as would a biological child;
  
• whether the person provides financially for the child (depending upon ability to pay);
  
• whether the person disciplines the child as a parent;
  
• whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as apparent to the child;  and
  
• the nature or existence of the child’s relationship with the absent biological parent.

In that case, Wood J. found that a man was liable to child support to the children of his wife and another man on the basis that (among other things): he paid for many of the children’s expenses, transported them to games and activities, was an assistant coach of teams upon which the children played, and wrote letters indicating that he was interested in the children’s welfare.  It was interesting to note that, although there was evidence that man was scrupulous in protecting the role the children’s biological father played, the man had still exhibited a settled intention to treat the children as children of his family within the meaning of the Act.

Finally, in Land v. Aitchison, 2005 CarswellOnt 372, the Ontario Superior Court of Justice found that a man was liable to pay interim child support to children who were born out of a previous marriage from a woman with whom the man had  cohabited.  Pedlar J. pointed to “independent evidence” that demonstrated a prima facie case on the issue of child support such as:

• The man referred to the girls as “my daughters” or “my girls”;
• The man participated in the girls’ extra curricular activities, including coaching a baseball team;
• The man took the girls to their medical and dental appointments as well as school trips, etc.;
• The man paid for expenses, attended a graduation and provided a ring;
• Report cards showed that the man had completed and signed the “parent and guardian” section.
• The children referred to the man as “dad” in pictures in their journals and school drawings;
• The children referred to the man’s sister, brother-in-law, and mother as aunt, uncle, and “Nan”.
• The man attended the interviews at the school with the children;
• The man attended family gatherings regularly with the children and their mother and appeared to be playing a parental role;
• The man often took the initiative in disciplining the children.

On the basis of that evidence, the court rules that the children’s mother had established a prima facie case for interim child support.

For more information about whether a person could be the father of a child under the Family Law Act or the Divorce Act, be sure to consult with a lawyer (by making a post on Dynamic Lawyers).

written by admin \\ tags: biological parent, boyfriend girlfriend, child support in ontario, child support obligations, family law act, family law lawyers, federal divorce act, ontario court cases, ontario court of justice, ontario family law, ontario family law act, professional assistance

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to setting up a dental, health, or legal professional corporation, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your professional corporation.  I should know – I’m one of them and you can contact me directly (michael@carabashlaw.com).

So you are a dentist and you want to have a professional corporation for tax purposes.  Here’s the general process:

1. Under the Regulated Health Professions Act, 1991, no corporation shall hold itself out as a health profession corporation unless it holds a valid certificate of authorization: s. 34.1(1).
2. Schedule 2 of that Act discusses Health Profession Corporations (ss. 85.8 through to 85.14).
3. Subject to the regulations made the Act and the by-laws, one or more members of the same health profession may establish a health profession corporation for the purposes of practising their health profession: s. 85.8(1).
4. The Certificates of Authorization (Ontario Regulation 39/02) are made under the Act.
5. You will need to have a corporation BEFORE you can have a health profession corporation.  In other words, a health profession corporation is simply a corporation holding a certificate of authorization. So the corporation will need to be registered under the Canada Business Corporations Act or the Ontario Business Corporations Act.  To register a corporation, you should have a lawyer prepare the articles of incorporation, the by-laws, director and shareholder resolution and meeting minutes, director and shareholder registry, etc.  A lawyer may also be needed to  create a special class of shares for certain family members (for income-splitting purposes).
6. If you would like a lawyer to fill out the Certificate of Authorization, lawyers would charge extra for their time and it would also cost $750 in fees to the Royal College of Dental Surgeons of Ontario.
7. Depending on the name you choose for your professional corporation, the normal time frame to incorporate is between 1-3 business days.  If there are issues with the name you’ve selected, it could take longer.

FYI, you might want to consider getting a memo from a lawyer on the tax advantages/potential traps of having a dental professional corporation.  There are many things that you should be aware of (e.g. income splitting, loans, attribution rules, etc.).  The way I see it, if you’re going so far as to spend $2,500 to $3,000 incorporating (which includes getting a certificate of authorization), you should spend a bit extra to find out what you can legally do with a corporation with respect to taxes.

written by admin \\ tags: articles of incorporation, business corporations act, business lawyers, canada business corporations act, dental health, health profession, health professions act, ontario business, ontario regulation, professional assistance, professional corporation, regulated health professions, regulated health professions act, shareholder resolution, valid certificate

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

As a follow up to my recent blog about child support obligations in Ontario and limitations on that obligation, in this blog, I’ll be discussing what the relevant time period is for determining a parent’s ” income” for the purpose of paying child support (note: this blog won’t deal with the timeline for determining income in respect of retroactive payments).

Remember: a parent’s child support obligations depends on whether they meet certain legal tests.  If they are obliged under law to pay, the next question becomes: how much do they need to pay?  Well, that depends on their income.  But it’s not just any “income” (e.g. income for tax purposes, etc.).  It’s actually a complicated legal analysis of what constitutes their income.  I’ll try to shed some light in the next few posts about relevant issues when trying to determine a payor’s income.

One such issue that comes to mind is:  what is the relevant time period for determining a parent’s “income” for child support purposes?

In a nutshell, the most current information must be used.

The Child Support Guidelines prescribe a method to determine child support. The starting point is the parent’s total income, as shown on his or her income tax return (latest T1 General form issued by the Canada Revenue Agency), and as adjusted in accordance with Schedule III of the Guidelines [s. 16]. The definitions section of the Guidelines provides that, where any amount is to be determined on the basis of specific information, the most current information must be used [s. 2(3)].

In Ward v. Ward, 44 R.F.L. (4th) 340, the Ontario Divisional Court stated the following with respect to the Federal Child Support Guidelines (which mirror the Ontario Child Support Guidelines):

23 In order to identify the table amount of child support the income of the petitioner must be ascertained. In the usual case the income of the payor-parent is identified by using the most current information available (pursuant to s. 2(3) of the Guidelines) and by referring to the “Total income” found in his or her T1 General form issued by Revenue Canada (pursuant to s. 16 of the Guidelines).

This view was reiterated in Muir v. Muir, 44 R.F.L. (4th) 340, where the Ontario Court of Justice observed:

23 I also note subsection 2(3) of the Guidelines which reads as follows:

Most current information – Where for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.

Worth mentioning, however, is that courts have recognized that the amount of income disclosed on the tax return need not necessarily be used: prior to the end of a taxation year and in certain circumstances, a parent can apply to vary child support based on an anticipated reduction in income.

Finally, the court may consider the parent’s last 3 years of income and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years [s. 17(1)]. The objective is to determine the fairest indicator of the individual’s income. Once the parent’s annual income is ascertained, the Ontario Child Support Tables set out the amount of monthly child support payable.  For more on using the tables or a child support calculator to determine child support obligations, please refer to my other blogs.

written by admin \\ tags: canada revenue agency, child support guidelines, child support in ontario, child support obligations, child support purposes, family law lawyers, income tax return, legal advice, ontario family law, relevant time period, tax purposes

Thanks goes out to Marc Saltzman (tech guru; CFRB1010 host; guy who talks about new tech products before your movie starts in the theatre, etc.) for his great profile on Dynamic Lawyers.

Here’s the link on Marc’s Sync-Blog profile about Dynamic Lawyers.  Marc basically asked me the following 5 questions:

1. What is DynamicLawyers.com?
2. Please walk us through how the process works from start to finish.
3. How is this process better than traditional ways of seeking legal help?
4. If it’s free to the consumer, what’s the business model?
5. Finally, what’s your plans for expansion?

See my answers by checking out Marc’s blog.

written by admin \\ tags: business model, guru, lawyers, legal help, marc saltzman, new tech products, sync

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

Following up on my recent blog on child support obligations in Ontario, I thought I’d discuss an obvious limitation on those obligations: the exception in section 31(2) of the Family Law Act that says that a parent’s obligation to pay child support “does not extend to a child who is sixteen years of age or older and has withdrawn from parental control”.

So what exactly does it mean for a child to withdraw from parental control?  The legislation is silent, so it’s up to the courts to interpret that section.  Here are some of the principles which courts have previously come up with to decide cases…

• Whether a child has “withdrawn from parental control” is a question of fact.  Parental control is a concept, the interpretation of which depends upon an assessment of all relevant circumstances, including the age and maturity of the child.
• Section 31(1) of the Act has been given a narrow interpretation and applies only to those cases where the child has voluntarily and of his or her own free will removed herself or himself from a circumstance which cannot be classed as unreasonable. Where the child is forced out by unreasonable rules, restrictions or relationships within the family unit, s. 31(1) will not apply and support may be awarded. Where, however, the child is living away from home at university and is not subject to any parental control, it may be that she or he falls within the scope of the provision. If one or both of the parents purposefully terminates support obligations, thereby requiring the child out of necessity to live independently or obtain financial assistance from a third party, then the child could nevertheless be deemed to be dependent and child support may be ordered.
• Notwithstanding that a child may no longer be under the parental control of one parent, that parent will still be obliged to provide child support if the child is under the parental control of the other parent.
• The courts have generally terminated child support in cases where the child has established an independent life, residence, and source of income.
• Once the parent has established that the child has withdrawn from parental control, the onus then shifts to the child to prove that the departure occurred involuntarily by reason, for example, of eviction or a living situation with the parent that is viewed as unbearable or impossible.

The following Ontario cases illustrate how some courts have interpreted the defence of withdrawal from parental control under s. 31(2) of the Act:

In Fitzpatrick v. Karlein, (1994) 5 R.F.L. (4th) 290, a child brought a motion for interim financial support from her mother. For most of her life, the child was in her mother’s exclusive custody. Since her mother’s remarriage, the child had felt unloved in the cold and rejecting atmosphere created by her mother and stepfather, where she was criticized, taunted, and felt cut off from the other members of the family. With emotional support from her father and maternal grandparents, the child, at age 17, left her mother’s home to reside with the parents of a friend. The Ontario Court of Justice (Provincial Division) rejected the child’s motion for support on the basis that the child had voluntarily withdrawn from parental control. In reaching that conclusion, Nasmith Prov. J. wrote:

20 While I have sympathy for Carolyn [the child] and I understand her preference for living with the Bowens, she has not demonstrated that the living situation with her mother and Mr. Karlein was unbearable or impossible.  She has shown that she was unhappy there; that she felt unloved; that she was feeling cut off from other members of the family. Her choice to move out made good sense to her. But it was a relatively free choice as it has been presented. Carolyn has not satisfied me that her withdrawal from her mother’s control was involuntary.

21 Accordingly, the defence under subs. 31(2) of the Family Law Act is available to the mother and she cannot be ordered to contribute to her daughter’s support.

In Bertram v. Bertram, a child brought an application for support from her parents when she was 17 years old and living on student welfare in her own apartment and attending high school as a full-time student. Nasmith Prov. J. dismissed the application on the basis that the child had withdrawn from parental control. The evidence revealed that the child had experienced some difficulties with her mother (with whom she was previously residing) which led her to choose to live on her own. The situation was far from unbearable and the choice was a relatively free one. As such, s. 31(2) applied to block court-ordered support from her parents. Worth mentioning is that Nasmith Prov. J. emphasized the voluntary nature of the withdrawal as a requirement to the s. 31(2) defence:

7 …The case law confirms that the defence of withdrawal under section 31 is not available to a parent unless the withdrawal from parental control has been voluntary on the child’s part. If the child has been forced out of the home or has left because conditions are seen as intolerable, the withdrawal will be viewed as involuntary and the defence will fail.

8 In Haskell v. Letourneau (1979), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329, 1 F.L.R.A.C. 306 (Ont. Co. Ct.), for example, County Court Judge Clements stated at page 151 [O.R.]:

If the child is driven from parental control by the emotional or physical abuse in the home … the choice of leaving was not voluntary…

9 The need for a withdrawal that is voluntary was confirmed by Provincial Judge Weisman in Dolabaille v. Carrington (1981), 32 O.R. (2d) 442, 21 R.F.L. (2d) 207 (Ont. Prov. Ct., Fam. Div.); by Provincial Judge Thomson in Distefano v. Haroutunian and Haroutunian (1984), 41 R.F.L. (2d) 201 (Ont. Prov. Ct., Fam. Div.); by Provincial Judge King in Zedner v. Zedner and Jackson (1989) 22 R.F.L. (3d) 207; by Justice Fitzgerald in Figueiredo v. Figueiredo (1991), 33 R.F.L. (3d) 72 (Ont. Gen. Div.); and by Provincial Judge Pedlar in Lyttle v. Lyttle (1992), 41 R.F.L. (3d) 422 (Ont. Prov. Div.). To be disentitled to support by reason of withdrawal from parental control, the withdrawal must be viewed as voluntary.

In Giess v. Upper, a mother applied for child support for her then 19 year old daughter.  The Ontario Court of Justice – General Division found that the child was enrolled in a full time program of education; as such, the father had an obligation to provide child support – subject to whether the child had withdrawn from parental control. Mendes da Costa J. held that, while the child had withdrawn from the parental control of her father, she had not withdrawn from the parental control of her mother; as such, her father was still obliged to pay child support. Mendes da Costa J.’s reasoning is worth mentioning here:

30 Whether Elizabeth [i.e. the child] has “withdrawn from parental control”, within the meaning of the legislation, raises a question of fact. Parental control is a concept, the interpretation of which depends upon an assessment of all relevant circumstances, including the age and maturity of the child.

31 I find that Elizabeth remains under the parental control of her mother, but that she is no longer under the parental control of her father.

32 I have sketched the little evidence that was adduced surrounding Elizabeth’s departure from her father’s home. The evidence is meagre. On the present state of the evidence, I find that the parent/child relationship between Elizabeth and her father was terminated by Elizabeth, without, so far as I can tell, any good reason: at least, and perhaps I should put the matter this way, no evidence of good reason was adduced before me.

33 Section 31(2) provides, in part, that the support obligation does not extend to a child who has “withdrawn from parental control”. The legislation contemplates that child support issues may arise where parents have separated, and where a child resides with only one parent. The Act does not require, for the support obligation to exist, that the child must continue to be under the parental control of both parents. To construe the legislation in this fashion would require reading into the section words that are not there, and would, I believe, frustrate, in a substantial manner, the objectives and spirit of the Act.

34 On this reasoning, I find that Elizabeth has not “withdrawn from parental control” within the meaning of section 31(2).

In Bunnell v. Bunnell, [1996] W.D.F.L. 2213, the mother of a 19 year old child (who was attending community college away from his parents) sought to terminate child support payments on the basis that there was a complete breakdown of the mother/child relationship. The Ontario General Division disagreed and found that the child had not withdrawn from parental control despite their lack of contact and the fact that the child lived with his father during only part of the year. Perkins J. commented that no authority had been cited by the mother to support the proposition that withdrawal from the mother’s authority alone constituted withdrawal from parental control within the meaning of s. 31(2) of the Act. Perkins J. held that, since the child had not withdrawn from his father’s control, s. 31(2) of the Act did not preclude the mother from paying child support.

In Power v. Power, 1997 CarswellOnt 4492, an application was brought by the mother for child support from the father. By the time the application was heard, the daughter lived with neither of her parents, was employed, and received no financial support from either of them. Ferguson J. found that the daughter had “withdrawn at least temporarily from parental control and is not entitled to support. She may be entitled to support in the future if she returns to live with either parent or attends school.”

In Simpson v. Hart, 1998 CarswellOnt 5163, the father of a 21 year old daughter brought an application to terminate child support. The 21 year old daughter had a daughter of her own, had been receiving a full Mother’s Allowance, and had continued to live in her mother’s home (which had been renovated into two apartments and she receives $500 per month as a rent allowance in addition to the balance of the government stipend). The Ontario Court of Justice – General Division found that the daughter had been “living independently from her mother including, more recently, in totally separate accommodation in the mother’s house and for which the mother receives $500 a month rent.” Dunbar J. held that, given the financial and physical independence of the daughter from her mother, it was not appropriate for support to be continued to be paid by the father to the mother on the daughter’s behalf.

In Belanger v. Belanger, [2005] W.D.F.L. 3583, the grandparents of two children (both over the age of 16 and residing with them) brought an application for the father to pay child support. The Ontario Superior Court of Justice disagreed and dismissed the application on the basis that the children had withdrawn from parental control voluntarily. Cavarzan J. held that there was “no evidence of physical or psychological abuse which would make [the children] withdraw from parental control involuntarily”. Rather, Cavarzan J. wrote, the children had chosen to live with their grandparents to avoid submitting to the reasonable discipline imposed by their custodial parents and because of material benefits that the grandparents could afford them which their parents could not.

Finally, in Cox v. Gummer, [2007] W.D.F.L. 689, the father of a 19 and a half year old child brought a motion to terminate support payments. The motion was based on the child’s age, the fact that the child no longer resided with the mother, the fact that the child was not in school, and the child’s poor history of school attendance. The Ontario Court of Justice agreed with the father and terminated support payments under the Act. Specifically, Baldock J. held that the child ceased to be under the control of her parents when she left her mother’s home at age seventeen and established a separate residence: “She has established an independent life, residence and source of income. Whatever moral obligation the parents may have to assist her financially thereafter, there is no legal requirement to do so”. Baldock J. further held that the issue of whether the child was in school was irrelevant. The father was entitled to recover any overpayment and any money held by the Family Responsibility Office was to be refunded to the father immediately.

written by admin \\ tags: child support in ontario, child support obligations, family law act, family law lawyer, family law lawyers, ontario family law, sixteen years

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

This is the first of a series of blog posts I’ll be writing about family law in Ontario.  In this blog, I’ll be discussing something vary basic: child support obligations in Ontario.

A common question people sometimes ask: if I never get married but have a child with someone, do I still owe them child support?  Well, the Ontario Family Law Act doesn’t care if you, as the child’s father or mother, is married.  Nor does the Act care if you’re common law.  All that matters is that the payor is the child’s parent.

Basic Obligation of Parent to Pay Child Support
O.k., so when does a parent have to pay child support in Ontario?  Basically, there are two situations under s. 31(1) of the Act which require a parent to pay child support.  Here’s what that section says:

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

So by reading this section, it becomes clear: every parent has an obligation to provide support for his or her unmarried child who is (1) a minor or (2) enrolled in a full time program of education.  There is an exception to these two tests and that is set out in section 31(2), which states that the obligation under s. 31(1) does not extend to a child who is 16 years old (or older) and who has withdrawn from parental control.  What exactly is meant by “parental control” will be discussed in the next blog.

First Branch: Minor
Under the first branch, the first question to ask is: who is considered a “minor” in Ontario?  The Age of Majority and Accountability Act states that: “Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years” [s. 1].  Remember: this liability is limited by the parent’s capability of paying child support [s. 31(1)].  This liability is further restricted if child, assuming he or she is over 16 years old, has withdrawn from parental control [s. 31(2)].

Second Branch: Attending School Full Time
Even if a parent’s child is over the age of 16 (indeed, there doesn’t appear to be any upward limit here), a parent may still be liable to pay child support if the child is “an unmarried child who…is enrolled in a full time program of education”.  This is the second branch.  Once again: this liability is limited by the parent’s capability of paying child support [s. 31(1)].  This liability is further restricted if child, assuming he or she is over 16 years old, has withdrawn from parental control [s. 31(2)].

Caselaw
So how have Ontario courts interpreted these sections of the Act dealing with the obligation of a parent to support a child?

In Giess v. Upper (1996), 28 R.F.L. (4th) 46, Mendes da Costa J. of the Ontario Court of Justice – General Division wrote the following about the support obligation created by s. 31(1) of the Act in the context of that case:

16 The support obligation created by section 31(1) is two-fold. First, it applies to an “unmarried child who is a minor”. While the child, Elizabeth, is unmarried, she was born on October 22nd, 1977, and is now 19 years of age. As she is no longer a “minor”, she does not qualify for support under this limb of the subsection. Secondly, the support obligation extends to a child who is “enrolled in a full time program of education”. With regard to this extension of the support obligation, the word “child” is used as a term of relationship, and does not imply any limitation as to age.

In that case, the 19 year old child was found to be enrolled in a full time program of education. Mendes da Costa J. explained that the word “enrolled” meant that the child’s participation had to be meaningful: “it must be of such a nature and equality as to be consistent with the program’s purposes and objectives”. The father was found to have an obligation to provide child support under the second branch of s. 31(1) of the Act – subject to whether the child had “withdrawn from parental control”.

In McCann v McCann, the Ontario Court of Justice – General Division rejected the argument that if a child stopped being enrolled in a full-time program of education and ceased to be eligible for any child support, then their eligibility forever ceased and could not be resurrected by a subsequent enrollment in school in a full-time program of education. As per Aston J.:

24 Christopher McCann is now an “unmarried child” who is enrolled in a full-time program of education. I cannot conceive of any reason in logic or equity why it should matter that he has not been continuously enrolled in a full-time program of education since attaining the age of 18. The word “continuously” does not appear in the wording of subsection 31(1) of the Family Law Act.

25 There is a discretion in the court to deny support to an adult child who has left a full-time program of education and then resumed such a program but a gap in an ongoing program of education does not, in my view, automatically disqualify an applicant child from seeking support.

In McNulty v. McNulty, [2006] W.D.F.L. 434, Howden J. of the Ontario Superior Court of Justice observed:

10 The obligation to pay support for a child has not been applied by the court on a standard of perfection (or near-perfection) in attendance or in achievement by marks. The requirement of section 31(1), for the child who has reached 18 years of age and is no longer a minor, is that that “child” be enrolled in a full-time program. That has been applied to mean participation in the educational program in which he/she is enrolled in a meaningful way.  Giess v. Upper, (1996) 28 R.F.L. (4th) 460 (Ont. Gen Div).  In Copeland v. Copeland, (Ont. Gen. Div. (unreported Dec. 9/92, noted in Ontario Family Law Practice 2006, by C. Perkins, D. Steinberg and E. Lonkingly (sp?), p. 696), it was determined that a court should not impose a standard of devotion, priority and effort on a child as a condition of continuing a claim for support. In another case, that of a daughter over 18 years of age who completed high school but did not attend school for a year, the court held that the parent’s support obligation had not ended. Huneault J. held:

11 The purpose of the obligation to provide support extending into a child’s adult years is to reinforce parental responsibility for the education of their children beyond the age of majority. Reading this section as a whole, the legislative intent of parental support is to provide and continue to provide support for a child who is pursuing an educational program and remains dependant on the parent while he/she has not completed their education…

…

13 …The requirement of enrolment in a full-time course of education does not contemplate mere enrolment of the student to operate as a continuing trigger for support payments without some participation by the “child” in the program. Barring special circumstances (such as Tiara’s pregnancy, giving birth and maternal duties in her newborn’s first year), the “child” of 18 years or more owes a duty of due diligence to participate meaningfully in the educational program (interpreted in a contextual understanding, and purposive way) under section 31 of the Act.  Figueiredo v. Figueiredo (1991), 33 R.F.L. (3d) 72 (Ont. Gen. Div.), following Giess v. Upper.

Finally, in Simpson v. Hart, 1998 CarswellOnt 5163, Dunbar J. of the Ontario Court of Justice – General Division noted that: “The law is clear that a child who is independent may re-qualify for support from a parent by recommencing school and thus becoming dependent once more on the parents”.

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Dynamic Lawyers just just released a new report on social media and the law.  You can read up on how I use social media to achieve various goals for myself, other lawyers, and the public.  You can also find out why social media is important and how it is a great leveler for solo and small firm lawyers:

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting an Ontario marriage license, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Barrie, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice and assistance with respect to helping you get an Ontario marriage license.

So lets say you got a divorce outside of Canada.  Perhaps in the U.K., the Middle East, or East Asia, etc.  You’re now living in Ontario and you want to re-marry.  What’s the process of doing so?

Well, s. 8(3) of the Ontario Marriage Act says that, in these situations, you will generally need an authorization in writing from the Ministry of Consumer and Business Services in order to get a new license.  Here’s what that section says: “…no issuer shall issue a licence to a person whose previous marriage has been dissolved or annulled elsewhere than in Canada, unless the authorization in writing of the Minister is obtained upon the deposit of such material as the Minister may require.”

If an issuer refuses to issue a license or the Ministry refuses to issue an authorization, then you can make an application to the Ontario Divisional Court for judicial review.  Here, you’ll ask for an order directing that a license be issued, which the court may provide if you are entitled to it: s. 8(4).

So what does the Ministry require in order to issue an authorization?

1. A marriage license application completed and signed by both applicants.
2. A statement of sole responsibility for each foreign divorce completed by both applicants.
3. The original decree of divorce or annulment certificate.  Alternatively, you can provide a copy of the decree of the divorce or annulment certificate if it is sealed or certified by the administrative officer of the court in the jurisdiction which granted it.  Note: if this document is not in English or French, you will need to submit a certified translation and this cannot be done by one of the applicants!
4. A legal opinion from an Ontario lawyer that is addressed to both applicants and which gives reasons as to why the divorce would be recognized as valid in Ontario.   Reasons should be specific to the applicants.  Such reasons could include: the applicant was ordinarily resident in the jurisdiction which granted the divorce at the time it was granted, there was no evidence of fraud, procedural irregularity or of the denial of natural justice in the granting of the divorce, the court granting the divorce had the jurisdiction to do so according to its own laws, etc.

All of these things must be forwarded to:

Office of the Registrar General
P.O. Box 4600
189 Red River Road
Thunder Bay, Ontario
P7B 6L8

Attention: Marriage Office

Once processed, you can receive back all of your documentation (be sure to include a self-addressed and stamped envelope to ensure this happens). It may take a number of weeks for the Ministry to respond.  Assuming you receive an authorization, you must submit it to your marriage licensing issuer, along with the requisite fee and other documentation they may require.

Once again, if you need a lawyer’s opinion to be sent to the Office of the Registrar, you can make a post on Dynamic Lawyers (100% free and anonymous) to have local Ontario lawyers compete for your work.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to Ontario Not-For-Profit Corporations, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto and Ontario not-for-profit lawyers registered on the website who can answer your questions, represent you in litigation, or help resolve a dispute.  I would know – I’m one of them and you can contact me directly - michael@carabashlaw.com.

Follow up on other blogs I’ve written about Ontario not for profit corporations, I thought it would be worth discussing what happens if there is an internal dispute concerning an Ontario Not-For-Profit Corporation. Take the following example.  The By-Laws (power-giving documents)  say something or fail to say something about a specific procedure – for example, procedural requirements that must be followed for holding a member meeting or having members vote for a board of directors.  At the end of the day, someone (e.g. a director, officer, or member) cries foul for procedural irregularity and are contemplating court action.  The question comes up: how have Ontario courts responded previously when faced with these types of matters?

Basically, Ontario Courts dealing with disputes about procedural irregularities involving not-for-profit corporations have observed that:

• Courts will be loathe to interfere in the internal working of not-for-profit corporations absent some demonstrated evidence that any procedural irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority.
• Courts will not intervene with determinations made by a non-share capital corporation in accordance with its by-laws provided the corporation does not demonstrate bad faith or act contrary to the rules of natural justice.
• The relationship between a not-for-profit corporation and its members is contractual: only in certain circumstances, or where there are contractual rights created by the not-for-profit corporation’s by-laws, will the member be able to enforce their rights under the law.
• It is only for a not-for-profit corporation (and not a court) to determine its corporate governance documents. Courts should not get generally get involved in the internal governance matters of a not-for-profit corporation.

What follows is a brief summary of the past cases where Ontario courts have made decisions concerning internal governance disputes of not-for-profit corporations.  You are cautioned again not to rely on these cases (as they may no longer be good law and may not apply to your particular situation) and to seek professional help by making a post on Dynamic Lawyers (or contact me directly - michael@carabashlaw.com).

In Lee v. Lee’s Benevolent Assn. of Ontario, [2004] O.J. No. 6232, members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Specifically, the applicants primarily claimed that some ballots were cast in advance of the election date. There was nothing in the corporation’s by-laws permitting the advance voting. While Nordheimer J. admitted that this caused an irregularity in the election, he did not accept this irregularity as invalidating the election. Indeed, he held that, notwithstanding this technical failure, there was no evidence or suggestion that the votes so cast did not reflect the wishes of the voters. He went on to state:

12 Non-profit organizations such as the Association should not be required to adhere rigorously to all of the technical requirements of corporate procedure for their meetings as long as the basic process is fair. Nor should the court be too quick to grant relief in such circumstances that may only serve to encourage a disgruntled member of such an organization to seek such relief. Absent some demonstrated evidence that any irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority, the court should be loathe to interfere in the internal workings of such groups.

The last sentence of this passage has been adopted by subsequent Ontario courts.

In Warriors of the Cross Asian Church v. Masih, (2007) 87 O.R. (3d) 169, members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Specifically, the applicants claimed that no written notice of the meeting had been provided and no ballots had been used at the meeting to take the vote. Lederer J. found that the election of the board members did not comply with the Corporations Act and was therefore not valid. Citing the ruling in Lee v. Lee’s Benevolent Assn. of Ontario, Lederer J. held that the error in the instant case “goes to the very heart of an election” and ultimately ordered that the not-for-profit corporation be would up for its failure to adhere to the requirements of the Corporations Act.

In Rakowski v. Malagerio, [2007] O.J. No. 369, the member of an Ontario not-for-profit corporation (the Humber Students’ Federation) brought an application to challenge the validity of a policy which prevented directors from being members of non-sanctioned student associations or advocacy groups. Perell J. dismissed the application, finding that the not-for-profit corporation’s policy was reasonable, non-discriminatory and not contrary to public policy and the public interest, and that the policy had been enacted in good faith. Although the Humber Students’ Federation is a corporate entity, Perell J. commented that it was similar to an association or club and offered the following observations about why the court’s jurisdiction in the affairs of associations and clubs is problematic:

29 Traditionally, courts have expressed reluctance and sometimes a refusal to interfere with the internal affairs of associations and clubs. There are a variety of reasons for this attitude. One reason is that the nature of the relationship of the members of an association is intentionally designed by the members of the association to be informal and non-legal. Just as some promises are intended to be contractual and some are not, persons may decide to associate in informal ways that are not meant to call for judicial supervision. The courts tend to respect these choices. Another reason is that the legal classification of these associations does not fit neatly into the recognized categories of legal entities. Yet another reason is that there may be little the court could do if it assumed jurisdiction and the only solutions or remedies might rest with the members of the club or association.

30 The case law, however, reveals that courts do get involved in the affairs of associations and clubs. Sometimes, the court will decide a matter involving an association because the jurisdictional issue was simply not raised by the parties, who wished an answer from the court or did not appreciate that perhaps the matter of the dispute was non-juridical. Sometimes, the court will become involved if a principle of natural justice is breached. Here, one classic class of examples is the situation where a member of a club or association is expelled from the club or association or is temporarily or permanently disqualified from participating in its activities or is disciplined for breach of the club or association rules and the process of expulsion, disqualification, or discipline is fundamentally unfair. The courts will exercise a limited jurisdiction to ensure that an association or club does not violate the principles of natural justice. Sometimes, the court will become involved because the nature of the unincorporated association has evolved to be a legal entity that may be regulated by the courts at least for some purposes. This evolution appears to have occurred for trade unions; see: Berry v. Pulley, [2002] 2 S.C.R. 493 and registered political parties; see: Ahenakew v. MacKay (2004), 71 O.R. (3d) 130 (C.A.). Sometimes, the courts will become involved because, upon analysis, the court finds that the relationship between the members that constitute the association or club is contractual in nature and that the law of contract affords a basis for the court’s common law jurisdiction. Sometimes, there are special statutory provisions that empower the court with jurisdiction, and sometimes the members of the association or club circumvent the problem by relying on rules of civil procedure or legislation that authorizes the court to interpret documents or statutes and to make declarations.

In Alaimo v. Di Maio, 2008 CarswellOnt 3729 (Ont. S.C.J.), members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Boswell J. dismissed that claim in light of the test set down by Nordheimer J. in Lee v. Lee’s Benevolent Assn. of Ontario and followed by Lederer J. in Warriors of the Cross Asian Church v. Masih. Boswell J. reviewed the evidence and held:

128 From a procedural point of view, therefore, there were no irregularities identified by the Applicants in their evidence that appear to me to be of a significant nature, and certainly none that could be described as going to the heart of the election.

In Polish Alliance of Canada, Branch 43 v. Polish Alliance of Canada, 2008 CarswellOnt 3729 (Ont. S.C.J.), members of an Ontario not-for-profit corporation alleged procedural irregularities in respect of a mortgage being registered against the corporation (among other things). Specifically, the members complained that they had not received notice of such mortgage and no resolution had been passed at the general convention prior to the mortgage being registered. The members wanted the corporation’s board to be suspended, a new annual general meeting convened, and full financial disclosure provided. Referencing Lee v. Lee’s Benevolent Assn. of Ontario and Warriors of the Cross Asian Church v. Masih, J.A. Thorburn J. held that:

21 The Court may resolve disputes regarding the affairs of a not-for-profit corporation where the process followed by the corporation is not a mere technical irregularity but is unfair and the results go to the heart of the process.

J.A. Thorburn J. ultimately ruled that the request for relief was premature as internal mechanisms provided by the corporation’s Constitution had not been exhausted. As such, he adjourned the proceedings pending the members’ exhaustion of the internal dispute resolution procedures.

In Sahaydakivski v. YMCA of Greater Toronto, [2006] O.. No. 1368 (Ont. S.C.J.), the YMCA of Greater Toronto expelled a member for breach of its by-law caused by his unbecoming conduct. The member brought an application for an order setting aside his expulsion, restoring his membership, and requiring the YMCA of Greater Toronto to disclose the name of the complainant. The member’s application was dismissed on the basis that the officers of the YMCA of Greater Toronto had exercised their authority to expel the member in accordance with their by-laws and in good faith. Belleghem J. wrote:

30 The court will not intervene on any finding of fact made by the [YMCA of Greater Toronto], provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association.

In McGee v. Beaver Valley Ski Club, 2006 CarswellOnt 2537 (Ont. S.C.J.), a member of a not-for-profit social club sued the club after being suspended for a period of one year following disciplinary hearings concerning his participation in certain municipal planning matters. Tulloch J. dismissed the member’s claim on the basis that the club had acted properly and in accordance with its by-law. In reaching that conclusion, Tulloch J. commented that:

39 In Conacher v. Rosedale Golf Assn., 2002 CarswellOnt 527 (Ont. S.C.J.), the court held that the relationship between a private club and a member is a contractual relationship. Only in certain circumstances, or when there are contractual rights created by the club’s by-laws, will the member be able to enforce rights under the law.

…

44 The Conacher decision was followed by a recent decision of this court, Sahaydakivski v. YMCA of Greater Toronto, 2006 CarswellOnt 2205 (Ont. S.C.J.). In this case, Justice Belleghem dismissed the applicant’s request to set aside his expulsion from the respondent organization. Justice Belleghem noted the following:

…

30 The court will not intervene on any finding of fact made by the respondent, provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association…

…

47 I find that the disciplinary proceedings were conducted properly, and in accordance with the BVSC by-law…

49 In a matter such as this, where the plaintiff is a voluntary member of an organization governed by a contractual relationship between the parties, my review of internal decisions made by the organization is limited.

In Chu v. Scarborough Hospital Corp.,[2007] 35 B.L.R. (4th) 254 (Ont. Div. Ct.), members of a not-for-profit corporation requisitioned a special meeting under the Corporations Act and the corporation’s By Law 1. The corporation’s board refused to call the meeting on the basis that those individuals’ memberships had expired. The members brought an application to have their memberships recognized. They were initially successful and Brown J. of the Ontario Superior Court of Justice ordered the board to forthwith call the special meeting. The board appealed Brown J.’s decision. Linhares de Sousa JJ. of the Divisional Court upheld Brown J.’s decision and dismissed the appeal. In coming to that conclusion, Linhares de Sousa JJ. stated:

20 …the jurisprudence clearly establishes that the by-laws of non-share capital corporations incorporated pursuant to the Corporations Act, like the case at bar, constitute contractual obligations as between the members and the corporation (see Senez c. Montreal Real Estate Board, [1980] 2 S.C.R. 555 (S.C.C.), p. 7 and Sahaydakivski v. YMCA of Greater Toronto, [2006] O.J. No. 1368 (Ont. S.C.J.), paras. 28-30). Both the corporation and individuals who become members of the corporation undertake to comply with the constating documents and the by-laws, which are duly adopted by a majority of members entitled to vote, even if they disagree with those by-laws.

…

22 …the jurisprudence mentioned earlier also establishes that the Court will not intervene with determinations made by a non-share capital corporation in accordance with its by-laws provided the corporation does not demonstrate bad faith or act contrary to the rules of natural justice.

In Seong v. Korean Canadian Cultural Assn. of Metropolitan Toronto, [2007] O.J. No. 893 (Ont. S.C.J.), members of an Ontario not-for-profit corporation were split into factions regarding whether the corporation’s headquarters should be sold and new premises acquired. The situation became very confusing due in part to uncertainty and conflicts between the corporation’s Constitution, official by-laws, and proposed amendments to those by-laws. On these issues, Perell J. held that there was no reason for the court to intervene in the corporation’s internal affairs. He stated that the corporation does not need the court’s assistance to determine the authority of its own governance documents and that the court should not involve itself in the various internal governance affairs of the corporation (e.g. concerning amendments to the official by-laws, conflicts between governing documents, etc.). Some of Perell J.’s statements are noteworthy here:

44 …the Association does not need the court’s assistance to determine what legal status to give to the Constitution. All the Association need do is decide this matter itself in accordance with the provisions of the Corporations Act.

45 While the court may have a jurisdiction to interpret the corporate documents, it is not for the court to write the governance documents of the Association.

46 Moreover, it appears that the Association is attempting to write its own rules of governance by the enactment of amendments to the official by-laws. These amendments are to be put to the membership at the upcoming annual general meeting. The court should not get in the way of this effort and involve itself in the internal affairs of the Association.

…

49 In any event, this matter is an internal matter for the Association, and, standing alone, this matter would not justify the court ordering a special meeting of the members.

…

55 …ultimately these matters have to be resolved by the Board passing by-laws, which is already happening, and I do not see any reason for the court to get involved in these internal governance matters at this time.

58 …the matter of properly constituting a single board of directors will be resolved by the upcoming elections and annual general meeting of the members of the Association.

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