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 drafting, negotiating, or resolving a dispute concerning a cohabitation agreement 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 a cohabitation agreement.

As a follow up to my recent blog on how Cohabitation Agreements in Ontario can be challenged, in this blog I’ll be discussing three interesting topics: (1) the requirement for independent legal advice, (2) what happens if a Cohabitation Agreement is set aside, and (3) how can a Cohabitation Agreement be terminated.

Is Independent Legal Advice Required?
Independent legal advice is not a formal requirement under the Family Law Act (or under the common law) to have a valid and enforceable Cohabitation Agreement. That said, its presence helps to eliminate (except in the most exceptional circumstances) the ability for one party to have a court set aside the Cohabitation Agreement on the basis that it did not understand “the nature or consequences of the [Cohabitation Agreement]” or to set it aside “otherwise in accordance with the law of contract”. Basically, having an independent lawyer gives the impression that the lawyer’s knowledge and understanding is transferred to the party (because of the solicitor-client relationship and because it makes common sense). If it didn’t mean that, then the idea of having independent legal advice would be meaningless. One other thing: it is best not to have a party or their lawyer recommend a lawyer for the purpose of obtaining independent legal advice.

What happens if a Cohabitation Agreement is set aside?
If a court sets aside a Cohabitation Agreement, then that agreement will not govern upon the termination of the parties’ relationship. So what could govern the ownership or division of property and support obligations? To begin, the Family Law Act could apply. Granted, that Act does not address the issue of ownership or division of property for cohabiting parties. That said, if the parties are not married and have cohabited continuously for a period of at least 3 years, then the spousal support obligations may be imposed. Those obligations could also arise if the parties to a Cohabitation Agreement are not married and have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child. With respect to ownership or division of property, one of the parties may be able to assert a right based on the doctrine of CONSTRUCTIVE TRUST. A constructive trust is essentially a trust created by a court to benefit a party that has been wrongfully deprived of its rights. Courts may look at the pre-existing proprietary rights of the parties prior to the dispute to determine whether a constructive trust is an appropriate remedy. Historically, courts have been reluctant to impose a constructive trust in the family law context absent clear evidence and strong arguments to the contrary. Finally, if the cohabitation ends because one of the parties dies, then the Succession Law Reform Act could impose support obligations on the deceased party’s estate. That Act could apply if the parties were spouses (as defined above under the Family Law Act) and the deceased spouse was providing support or was under a legal obligation to provide support immediately before his or her death. Here, if the deceased spouse has not made adequate provision for the proper support of the remaining spouse, the latter could apply to the court for proper support.

When does a Cohabitation Agreement terminate?
A Cohabitation Agreement generally provides for the circumstances under which it terminates. These circumstances could include, for example:

• the parties marrying each other;
• one or both of the parties die;
• the parties cease to cohabit with each other (as defined in the Cohabitation Agreement);
• the parties marry each other and enter into a separate written Marriage Contract; or
• after a set period of time or on a particular date.

Interestingly, the Ontario Family Law Act provides that if the parties to a Cohabitation Agreement marry each other, that Cohabitation Agreement (assuming it does not terminate on marriage) “shall be deemed to be a marriage contract”: s. 53(2). But remember: so long as a Cohabitation Agreement deals with a matter that is also dealt with under the Family Law Act, the Cohabitation Agreement will prevail (unless the Family Law Act says otherwise). What does this all mean? Well, unless the Cohabitation Agreement is silent or the parties agree otherwise, a Cohabitation Agreement is not automatically canceled when two cohabiting parties get legally married.

In case you’re looking for a cohabitation agreement  that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

Cohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Lawyers.

All of Dynamic Lawyers‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for?  Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

written by admin \\ tags: cohabit, cohabitation agreement, cohabitation agreement lawyer, ontario cohabitation agreement

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 drafting, negotiating, or resolving a dispute concerning a cohabitation agreement 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 a cohabitation agreement.

As a follow up to my other blog post about cohabitation agreements (an introduction), in this blog, I’ll be discussing how they can be challenged.

A Cohabitation Agreement can be challenged in various ways relating to the substance (i.e. terms and conditions) of the Agreement or the process in which it was entered into. For more general information about this topic, please refer to the DL Guide entitled “Is My Legal Form Valid and Enforceable?” That said, the Ontario Family Law Act outlines various ways in which these Agreements can be challenged by a party. Specifically, a party can make makes an application to a court to have a Cohabitation Agreement – in whole or in part – set aside on the basis that:

1. if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
2. if a party did not understand the nature or consequences of the domestic contract; or
3. otherwise in accordance with the law of contract.

Furthermore, with respect to support obligations, section 33(4) of the Family Law Act states that a court may set aside a provision for support or a waiver of the right to support in a Cohabitation Agreement and may set support:

1. if the provision for support or the waiver of the right to support results in unconscionable circumstances;
2. if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or
3. if there is default in the payment of support under the contract at the time the application is made.

Some factors which may become relevant when a party challenges a Cohabitation Agreements include:

• the parties did not have enough time to review financial disclosure or negotiate the Cohabitation Agreement before it needed to be signed;
• one of the parties was pressured or threatened into signing before the period of cohabitation began;
• one of the parties referred the other party to a lawyer;
• the final agreement did not reflect the negotiated agreement between the parties;
• a party failed to make full and accurate financial disclosure; and
• the Cohabitation Agreement contains unclear and complicated terms and conditions.

In case you’re looking for a cohabitation agreement that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

Cohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Lawyers.

All of Dynamic Lawyers‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

written by admin \\ tags: cohabit agreement, cohabitation agreement, cohabitation lawyer toronto, ontario cohabitation agreement

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 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

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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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 getting a child custody order 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 child custody.

It’s a tough situation: you want to split up from your common law or married spouse and take your child with you.  But you don’t have the permission of your spouse.  Now they’re saying that they’ll call the police and report an abduction if you suddenly leave with your child.  Is that true?  What are your options?

Starting Position: Parents have equal rights
Well, you need to start off by looking at the Children’s Law Reform Act.  Section 20(1) says:

Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

So if a spouse is planning to just get up and leave with their child, they will be infringing on the other spouse’s equal entitlement to custody.  Here, “custody” means having legal care and control of the child.   The spouse that take their child could face family law and criminal sanctions (e.g. charged with abduction).  There are defences which they could raise, however, which are outlined in the Criminal Code provisions repeated below.

Court Order or Separation Agreement
So how do you get around the “equal rights” starting position?  Well, s. 20(7) of that Act says:

Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.

So, if there is a valid separation agreement or court order dealing with custody and access, then a spouse would be entitled to take their child as per the terms of that agreement or order.

Separation Agreement
The terms of a valid separation agreement can deal with custody and access issues of children.  For example, a term could say that the husband will have custody of the children and the wife will have access to include overnight, weekend, and extended holiday visits.  Alternatively, a term could say that the husband and wife will have joint custody of the children (e.g. the children will reside with the husband but will be in the custody of the wife as follows….).  The terms of your separation agreement to satisfy both parties’ interests in light of the best interests of the children.

Court Order
If you don’t have or can’t get a separation agreement with your spouse that addresses custody and access issues, you will need to apply to the court (using Form 8).  The person making the application is called the “Applicant” and your spouse will be the “Respondent”.  As per the Superior Court of Justice – Family Court – Fees Regulation, there is no filing fee on an application seeking custody, access, or support made under the Children’s Law Reform Act.  There also doesn’t appear to be any fees payable if the proceeding is in the Ontario Court of Justice.  For more information about family law procedures in the Ontario Court of Justice, check out this Guide by the Ministry of the Attorney General.  For more information about family law procedures in the Superior Court of Justice, check out this Guide by the Ministry of the Attorney General.

Criminal Sanctions
Without a separation agreement or court order to the contrary, a spouse can be charged with abduction by simply taking their children and leaving the other spouse.  Here are the relevant sections of the Criminal Code dealing with the offence of abduction (very serious stuff) and the possible defences.  Remember: if you are contemplating getting a separation agreement or applying to the court for custody and access, you can make a post on Dynamic Lawyers (100% free and anonymous) where family law lawyers can advise and represent you:

Abduction

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.

284. No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.

285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.

written by admin \\ tags: alteration, common law, criminal sanctions, educational purposes, family law lawyers, information advice, ontario family law, professional assistance, separation agreement

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 your common law relationship (e.g. cohabitation agreement, separation agreement, getting married, etc.) 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 your common law relationship.

Did you know that the definition of “common law” relationship changes in Ontario depending on the context in which it is used?  I’ll be discussing “common-law” relationships in this blog in 3 different contexts: (1) family law, (2) tax law, and (3) employee benefit plans.

Family Law Context
I have previously blogged about “common law” relationships in the family law context. As discussed in that blog, under s. 29 of the Ontario Family Law Act, support issues (for spouses and children) may arise where two people have been living together in a conjugal relationship for three continuous years (s. 29(a))or where they have a relationship of “some permanence” and “are the natural or adoptive parents of a child” (s. 29(b)).  Common law coupled, do not, however, have the same rights to property (i.e. equalization of net family property) as married couples are generally entitled to.  For more information about common law relationships in the family context, be sure to check out CLEONet’s Fact Sheet.

Tax Law Context
Under Canadian Tax law, a “common law” relationship arises where two people have lived together in a conjugal relationship for a continuous period of at least 1 year or when two people have a child together: see s. 248(1) of the Income Tax Act.  There are a number of tax law rules that apply to create rights and obligations on “common law” partners when they file their tax returns.  We won’t be getting into any of those here as there are many rules and they can get complicated.

Employee Benefit Plan Context
If you are an employee, you should check your employer’s benefit plans (e.g. dental, medical, bereavement, life insurance, etc.) to see how they define “common-law” relationship.  These kinds of employer obligations are based on private, contractual laws (i.e. their particular policies and plans) which can differ from one employer to the next.

written by admin \\ tags: common law relationship, definition of common law relationship

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 your common law relationship or a cohabitation agreement 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 a cohabitation agreement.

In this blog, I’ll be discussing cohabitation agreements in Ontario, what they are, what their benefits are, etc.

What is a cohabitation agreement?
A Cohabitation Agreement is a written contract between two people who are cohabiting or intend to cohabit and who are not married. The Cohabitation Agreement deals with the parties’ respective rights and obligations during and after their cohabitation (or on death) and can deal with things like: ownership or division of property, support obligations, the right to direct the education and moral training of children, and any other matter in the settlement of their affairs (s. 53 of the Ontario Family Law Act). Importantly, a Cohabitation Agreement cannot say who will have custody of, or access to, children if the relationship ends. Finally worth mentioning is that a Cohabitation Agreement does not need to deal with all rights and obligations concerning the relationship: it can only be concerned with one asset (e.g. a house) or one obligation (e.g. support to one party upon termination).

Benefits
Cohabitation Agreements are used by cohabiting persons and common law spouses when they are or intend to cohabit with each other and want certainty, predictability and control their financial affairs in case the relationship breaks down.

What is required for a legally binding cohabitation agreement?
As with marriage contracts, the requirements for a cohabitation agreement in Ontario to be valid and enforceable are:

1. The parties must make full disclosure of their financial assets, liabilities, income and expenses.
2. The contract must be in writing and signed by each party before a witness.
3. The contract must be entered into voluntarily and not under any duress, undue influence, etc.

It is advisable that each party retain separate counsel to protect their rights and promote their interests.  Family law lawyers can help draft, negotiate, and explain cohabitation agreements to you.  The last thing you want is for the marriage to breakdown and a spouse to claim that he or she did not understand the cohabitation agreement, entered into under duress, did not understand it, and did not receive independent legal advice concerning it!

Worth mentioning is that, if the parties decide to get married, the cohabitation automatically becomes a marriage contract unless it is expressly voided.  It is not automatically canceled upon marriage.

In case you’re looking for a cohabitation agreement that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

Cohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Lawyers.

All of Dynamic Lawyers‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

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