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 ending a common law relationship, 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. If you’re looking for a cohabitation agreement that avoids creating financial obligations on the parties and terminates when the parties get married, then check out our legal forms + video guides. You can contact me directly if you need a lawyer.

So this is the third blog in a series I’m writing about how property and other issues are dealt with on the breakdown of a common law relationship.  In my first blog, I mentioned how common law relationships end differently from married ones because the Family Law Act does not give a non-married spouse rights to the other spouse’s property.  Then I mentioned how non-married spouses use EQUITABLE doctrines such as UNJUST ENRICHMENT, CONSTRUCTIVE and RESULTING TRUST to try to create interests, rights and entitlements to the other spouse’s property.  I reviewed these equitable doctrines in my second blog.  In this blog, I’ll review some examples of how courts have applied these doctrines to actual real life cases.

Peter v. Beblow: CONSTRUCTIVE TRUST + 100% interest in FAMILY HOME
In Peter v. Beblow, [1993] 1 S.C.R. 980, the Supreme Court of Canada considered whether a partner in a long-term common-law relationship could claim restitution for contributions made to the family home during the period of cohabitation. The Supreme Court found that the common law wife had maintained the family home through work in cooking, cleaning and landscaping – which helped preserve  the property and saved the common law husband large sums of money which he used to pay off his mortgage and purchase a houseboat and a van.  The trial judge found that the common law husband had been enriched, that the common law spouse had not been compensated, and that there was no juristic reason (e.g. gift, contract) for the enrichment.  As such, the common law wife had a claim for UNJUST ENRICHMENT (see my previous blogs for more about this).  Now, since it was difficult to provide the common law wife a monetary award, the doctrine of CONSTRUCTIVE TRUST came into light.  This remedy was appropriate because the common law wife had established an UNJUST ENRICHMENT AND was also able to establish a link between the contribution that founds the action and the property in which the constructive trust is claimed.  On these grounds, the Supreme Court did not disturb the trial judge’s findings, stating that the house reflected a fair approximation of the value of the common law wife’s efforts in acquiring the family assets.

Gauci v. Malone: CONSTRUCTIVE TRUST + 20% interest in FAMILY HOME
In Gauci v. Malone, [2009] O.J. No. 2627, the Ontario Superior Court of Justice was dealing with a situation similar to that in Peter v. Beblow (discussed above).  The parties cohabited for 7 years before ending their relationship.  One of the issues that arose was the common law wife claiming a CONSTRUCTIVE TRUST over the family home.  The Court cited Peter v. Beblow and found that the common law wife had improved the backyard and garden areas of the home and was primarily responsible for childcare, meals, and housecare.  Through her efforts, despite not being compensated, the common law husband and the property had been enriched.  There was no juristic reason for the enrichment.  As such, the court found that the common law spouse had made out an UNJUST ENRICHMENT claim.  Now, given that the common law husband did not have discretionary funds available to pay, the Court concluded that a monetary award was not appropriate and therefore gave her a 20% ownership interest in the family law pursuant to the doctrine of CONSTRUCTIVE TRUST.  That amount would not be realized or paid to her until the home was sold or until her two children were no longer dependents.

Rendell v. Normore: UNJUST ENRICHMENT + $20K
In Rendell v. Normore, [2008] O.J. No. 3287, the Ontario Superior Court of Justice dealt with the issue of whether a women could assert claims against her former partner based on RESULTING or CONSTRUCTIVE TRUST or UNJUST ENRICHMENT.  The parties had been together for 4 years.  During that time, the man purchased a family home in his name and made all mortgage and other payments (e.g. utilities, taxes, etc.) related to the home.   The woman claimed an interest in the house and property purchased by the man during the time they lived together.  The Court first looked at whether the woman could claim a RESULTING TRUST.  Recall that, for a RESULTING TRUST to be established, there must be a common intention expressed or implied between the parties such that the woman would have had an interest in the property.  The Court could find no evidence of such an intention.  The parties conducted themselves in a manner that demonstrated that they had no intention of giving the woman any interest in the property.  It was purchased and maintained solely by the husband, and purposely structured this way by the parties.  SO NOT RESULTING TRUST CLAIM was found.  What about CONSTRUCTIVE TRUST?  Well, in this regard, the Court found that the woman had made some financial contribution to the relationship and property from her work and services (e.g. paying for household bills, food, gas, renovations, etc.).  But the Court concluded that CONSTRUCTIVE TRUST was not an appropriate remedy since the man had made a more significant contribution to the relationship and the property.  Thus, in the grand scheme of things, the Court ordered the man to simply compensate the woman $20,000 because he had been unjustly enriched by the woman’s work and services.

Robichaud v. Anderson: CONSTRUCTIVE TRUST +$43K
In Robichaud v. Anderson, [1989] O.J. No. 3031, the Ontario District Court deal with a situation involving a common law husband seeking an interest in the family home which the common law wife owned.  That husband also sought half the proceeds of an investment home which the parties had acquired together through an investment.  The parties had been together for over 11 years.  The court found NO common intention for the husband to have an interest in the home (so NO RESULTING TRUST); that said, the Court concluded that the husband had an interest in the home on the basis of CONSTRUCTIVE TRUST.  The Court reasoned that the husband had shared living expenses, contributed time and labour to improving the property, and claimed that the common law wife had promised him a 1/2 interest in the property.  The Court found that the husband had established an UNJUST ENRICHMENT CLAIM and that monetary damages in the amount of $43,300 was appropriate.  The Court ordered the family home to be sold to pay for this amount.   With respect to the investment property, the Court found no evidence supporting the husband’s  claim for unequal division of the proceeds. The investment agreement provided for equal division, and this was ordered.

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: common law breakdown, common law relationship, common law spouses, constructive trust, equitable doctrines, family law lawyer, ontario cohabitation, resulting trust, unjust enrichment

Lisa Gelman and Associates

Lisa Gelman is a Toronto family law lawyer.    She has her own practice: Gelman and Associates. At her firm, she leads a team of family law and divorce lawyers, but also other lawyers as well – such as criminal defence, wrongful dismissal and personal injury law.  These lawyers provide legal services in and around the GTA (i.e. Toronto, North York, Brampton, Oshawa, Mississauga, Newmarket, Markham, Richmond Hill and Thornhill, Ontario).  They can help you with your separation agreement, divorce, child support, spousal support, child custody / access and other family law matters.  TGelman and Associates’ law office is located at 4211 Yonge Street, Suite 210 Toronto, Ontario, M2P 2A9.

written by admin \\ tags: brampton, child support, criminal defence, divorce child, divorce lawyers, family law lawyer, gelman, lisa gelman, lisa gelman associates, lisa gelman law firm, markham, mississauga, newmarket, office address, oshawa, personal injury law, richmond hill, separation agreement, thornhill ontario, toronto north, wrongful dismissal, yonge street suite

Child Support: looking for answers?  Need a child support lawyer?

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 child support or determining child support payments, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your child support matters.

How much?
Often people don’t know how their child support obligations are determined.  Fortunately, if the Federal Child Support Guidelines apply to the particular situation, then you can go to this Department of Justice Canada website and plug in your income into a free child support calculator for it to spit out what your monthly obligations would be.  The key thing to keep in mind is trying to figure out what your income would be for the purposes of determining child support.  It’s not as easy or straightforward as one might think.  There are a number of steps that begin with looking at your last income tax return and making adjustments according to the Federal Child Support Guidelines.

The Federal Child Support Guidelines are regulations made under the Canada Divorce Act. The latter applies when parents are married and are now divorcing or formerly married and making a claim for child support.  If the parents are not divorcing or were not married at all, then child support would have to be calculated by the provincial jurisdiction’s relevant family law legislation.  In Ontario, for example, child suppport is determined according to the Family Law Act and the Ontario Child Support Guidelines.  The latter also has a table (as does the Federal Child Support Guidelines) that allows users to pinpoint what their child support obligations would be based on their income.

Again, it is encouraged to consult with a family law lawyer (e.g. by making a post on Dynamic Lawyers) before simply assuming that you know what your income would be under the applicable child support guidelines (and possibly relying on a free child support calculator to your detriment).

Who is a Parent?
So 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).

Determining Income
So what is the relevant time period 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 website, child support calculator, child support guidelines, child support lawyer, child support obligations, child support payments, child suppport, department of justice canada, divorce act, family law act, family law lawyer, family law lawyers, family law legislation, federal child support guidelines, free child support calculator, income tax return, ontario child support, ontario child support guidelines, provincial jurisdiction, relevant family

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 a marriage contract or prenuptial agreement in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto and Ottawa family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your marriage contracts and prenuptial agreements.

In this blog, I thought I’d talk about marriage contracts, which are often referred to as prenuptial agreements (but this is only the case if the marriage has not been entered into yet).

What are they?
Marriage contracts help parties who are going to get married or who are married arrange their financial affairs in case of a separation.  Marriage contracts are made by parties in the following typical situations:

• the parties intend to marry each other;
• the parties have been married before, have children from previous marriages and want to ensure that their financial affairs will not be affected by the marriage;
• the parties are married but one of whom is about to receive an inheritance;
• the parties are married but want to exclude one of the party’s property from net family property in the event of death, separation, or termination of the marriage.

What are the benefits of having one?
Without a marriage contract in place, if spouses separate, then the applicable federal and provincial legislation will apply to divide their finances.  In Ontario, this is done by dividing a pool of funds called “net family property”.  It’s called “net” because you subtract the worth of each spouse on or at the date of marriage.  Hence, the net family property is the increase of net worth of the spouses since the marriage.  After this figure is determined, it is equalized and each spouse is entitled to half.

Having a marriage contract gives the parties certainty, predictability, and control over their financial arrangements in the case of a separation.  While things like spousal support, assets and properties can be dealt with in a marriage contract, anything to do with children of the marriage or possession of the matrimonial home cannot be contracted for.  Overall, a clear and fair marriage contract can make separation and divorce much cleaner and cheaper (by avoiding acrimonious litigation!).

What are the legal requirements to have one?
There are three basic requirements for a marriage contract or prenuptial agreement to be validly binding:

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 marriage contracts 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 marriage contract, entered into under duress, did not understand it, and did not receive independent legal advice concerning it!

written by admin \\ tags: family law lawyer, marriage contracts, prenuptials

I thought it would be worthwhile to put together a list of 10 FREE and useful resources for individuals involved in family law matters in Ontario.  These resources include relevant laws, forms, and websites.  Please keep in mind that, if you need a Toronto or Ottawa family law lawyer to advise or represent you, you should go to Dynamic Lawyers and make a post.  Toronto and Ottawa family law lawyers will respond to you by e-mail with free information and quotes on your particular matter.  You’ll notice that the general trend in family law matters has been to offer self-represented litigants guides, kits, workshops, seminars, forms, etc. to cut down their legal costs and provide them with better access to justice.  So, without further adieu, here’s my list of family law resources in Ontario:

1. Family Law Court Forms
2. Family Law Guides, courtesy of the Ministry of the Attorney General
3. Ontario and Federal Family Law Legislation, courtesy of the Ministry of the Attorney General
4. Divorce Advice Ontario
5. My Ontario Divorce
6. Community Legal Education Ontario (CLEO)
   
7. CLEO Family Law Resources in Ontario
8. Legal Aid Ontario
9. Joel Miller’s Family Law Centre at Ricketts, Harris LLP
   
10. Law Society of Upper Canada’s Practice Portal for Family Law

written by admin \\ tags: attorney general ontario, community legal education, divorce advice, family law lawyer, family law legislation, family law matters, family law ontario, family law resources, law society of upper canada, legal aid ontario, ministry of the attorney general, ontario, ontario divorce, ontario family law, ontario legal aid

A few months ago, I had the pleasure of meeting up with the founders (Steven Bookman and Jeremy Loeb) of Divorce-Advice-Ontario, a newish website that offers unbundled legal services for Ontario divorces.  Experienced family law lawyer Steven Bookman (who has over 30 years practicing family law in Ontario) leads a team of law clerks, lawyers, psychologists and family counsellors at the The Hope Centre for Family Law in Toronto, Ontario.  The Centre strives to help self represented divorce and family law litigants gain reasonable access to the legal system.  Last year, the Centre’s team launched Divorce-Advice-Ontario under the direction of Jeremy Loeb.  The website and the team offer members and website users with kits, seminars, workshops, useful links, videos, divorce forms, divorce laws, and ask a lawyer services.  All in all, a very good resource that do-it-yourselfers going through a divorce should consider.

written by admin \\ tags: divorce advice, divorces, family counsellors, family law in ontario, family law in toronto, family law lawyer, hope centre, lawyer services, psychologists, reasonable access, toronto ontario

Although I’m not a family law lawyer per se, I often get asked the question: “How does emancipation work in the context of child support obligations?”.  I think the better way of asking this question is: “How can I end my child support obligations?”.  You see, I’ve researched Ontario and Federal laws and court cases and the term “emancipation” just doesn’t seem to appear anywhere.  The term ‘emancipation’ is more of an American term and one which Ontario family law lawyers may not be familiar with it.

If you’d like to know more about ending child support, you should basically be asking for two things on Dynamic Lawyers: (1) what does the law say about how to end child support and (2) what procedural steps need to be taken to go about ending child support?

With respect to the first question, the answer is based on which laws (i.e. statutes, regulations, and cases, etc.) apply to your situation and those depend on where you live.  If you live in Toronto or Ottawa, for example, you should go to Dynamic Lawyers and make a post (it’s 100% FREE and Anonymous) and have local family law lawyers respond to your inquiry.  Once the Toronto or Ottawa family law lawyer has been retained and understand your situation, he or she can explain to you what the law says about ending child support (a.k.a. being emancipated from child support).

In terms of answering the second question, the proper procedure (although I haven’t done it myself) in Ontario appears to be to bring a motion to ask the court to vary a court order previously made requiring you to pay child support. This assumes that there was a court order requiring you to pay child support.  You or your lawyer would do things like prepare the motion materials, serve them on the other parties, and file them with the court; thereafter, the parties would attend a case conference, then a settlement conference, then a trial scheduling conference, and then finally go to trial to argue the motion. For each of the conferences, you’ll need to prepare, serve, and file briefs and financial statements. Before trial, you’ll also need to prepare a trial brief. All of this procedural stuff and documentation takes a lot of time to prepare, review, serve, and file. While you can save money by doing it yourself (the court forms are online and so too are the Family Law Rules and the Family Law Act), it’ll take up a lot of your time and you might end up being penalized finally in costs for failing to do something.

Finally, this whole process could take many months, if not years.  I know it sounds discouraging, but that’s the reality of bringing a motion to vary a court order requiring child support payments.

The bottom line is that you should definitely know if you have a good substantive case in law before you set out procedurally to bring the motion (and spend thousands on lawyers and put yourself at risk of losing thousands in legal costs for the other side if you lose!).  Go to Dynamic Lawyers and make a post to get free quotes from Toronto and Ottawa lawyers!

written by admin \\ tags: case conference, child support obligations, court cases, emancipation, family law lawyer, family law lawyers, ontario family law, ottawa, ottawa family law, ottawa family law lawyers, toronto, toronto family law

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 child support or determining child support payments, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto and Ottawa family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your child support matters.

As a follow up to my recent child support calculator blog (which dealt with Ontario and federal child support), I thought I’d discuss calculating child support in British Columbia.  Interestingly, the province of British Columbia has adopted the Federal Child Support Guidelines to determine child support obligations in that province.  It says so here: s. 1(2) of the B.C. Child Support Guidelines Regulation made under the Family Relations Act.   So here it is:

• British Columbia – this is a calculator provided by the British Columbia Family Maintenance Enforcement Program.  Please keep in mind that this websites may not be up-to-date and that you are always cautioned to consult with a family law lawyer who is apprised of the present law in British Columbia.

The key thing to keep in mind is trying to figure out what your income would be for the purposes of determining child support.  It’s not as easy or straightforward as one might think.  There are a number of steps that begin with looking at your last income tax return and making adjustments according to the Federal Child Support Guidelines.

The Federal Child Support Guidelines are regulations made under the Canada Divorce Act. The latter applies when parents are married and are now divorcing or formerly married and making a claim for child support.  If the parents are not divorcing or were not married at all, then child support would have to be calculated by the provincial jurisdiction’s relevant family law legislation.

In Ontario, for example, child support is determined according to the Family Law Act and the Ontario Child Support Guidelines.  The latter also has a table (as does the Federal Child Support Guidelines) that allows users to pinpoint what their child support obligations would be based on their income.

Again, it is encouraged to consult with a family law lawyer (e.g. by making a post on Dynamic Lawyers) before simply assuming that you know what your income would be under the applicable child support guidelines (and possibly relying on a free child support calculator to your detriment).

written by admin \\ tags: blog, british maintenance enforcement program, child support calculator, child support guidelines, child support obligations, child support payments, divorce act, family, family law lawyer, family law legislation, family maintenance enforcement, federal child support guidelines, law, lawyer, lawyers, maintenance enforcement program, ontario

There are a number of lawyers and law firms in Ottawa that strictly practice family law.  FYI, family law in Ottawa is not really that different from family law elsewhere in Ontario.  The Ontario Child Support Guidelines, Ontario Family Law Act, and the Ontario Family Law Rules all apply – irrespective of the Ontario city in which you reside.  If you need an Ottawa family law lawyer, you should go to Dynamic Lawyers and make a post.  It’s 100% FREE and ANONYMOUS and family law lawyers in Ottawa will respond to you via e-mail with information and quotes.

Please note that the following is being provided for informative and educational purposes only.  If you require an Ottawa family law lawyer to discuss your concerns and particular case, you are once again encouraged to go to Dynamic Lawyers and make a post.

Notably, because family law deals with high tension, stress, and emotional issues involving couples, children, and property, the justice system (i.e. the government which makes the laws and the courts which enforce them) has taken the approach that alternative dispute resolution is generally better suited to deal with these issues than litigation.

Case in point, under s. 9 of the Federal Divorce Act, a lawyer has a duty in divorce proceedings to draw his or her client’s attention to those provisions of that Act that have as their object the reconciliation of spouses and to discuss with them the possibility of the reconciliation (e.g. through counseling, guidance facilities, etc.).  The lawyer must also provide a certificate (i.e. a written statement) to the court upon commencing divorce proceedings that he or she has complied with said duty.

Under s. 10 of that Act, the court itself has a duty – before considering the evidence – to satisfy itself that there is no possibility of the reconciliation of the spouses (unless it would be clearly inappropriate to do so).  The court may even adjourn at any stage in a divorce proceeding if it appears from the nature of the case, the evidence, or the attitude of the spouses that there is a possibility of reconciliation.

Finally, even throughout litigation under the Ontario Family Law Act (e.g. dealing with non-married couples), before trial, there are mandatory case conferences and settlement conferences wherein the parties must attend to try to settle the case before it gets to trial.

These days, collaboration, mediation, and alternative dispute resolution are all buzzwords that Ottawa family law lawyers use to help their clients resolve contentious family law issues.  Family law centres, seminars, counseling, articles, and other alternative outlets are being used to spread the message: divorce doesn’t have to be so ugly and there is a life after it for all of the parties involved!

written by admin \\ tags: alternative dispute resolution, child support guidelines, child support guidelines ontario, divorce proceedings, family law act, family law lawyer, lawyers in ottawa, ontario, ontario child support, ontario family law, ottawa, ottawa family law, ottawa family lawyer