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which states that the obligation under s. 31(1) does not extend to a child who is 16 years old (or older) and who has withdrawn from parental control.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”.

written by admin \\ tags: child support in ontario, child support obligations, common law, educational purposes, family law act, family law in ontario, family law lawyers, full time, information advice, legal advice, obligation, ontario family law, ontario family law act, ottawa, professional assistance, section 31, unmarried child

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 getting a separation 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 separation agreements.

The Ontario Family Law Act governs separation agreements and their validity. Separation agreements must be in writing, signed and witnessed [s. 55(1) of that Act]. Independent legal advice is not a formal requirement, but highly advisable to prevent challenges to the contract on other grounds.

Separation agreements or certain provisions therein can be contested and declared invalid if:

1. a party failed to disclose to the other party significant assets or significant debts or other liabilities which existed when the separation agreement was made;
2. a party did not understand the nature or consequences of the separation agreement; or
3. the agreement or a provision therein was not made in accordance with the law of contract (i.e. there was fraud, duress, undue influence, the contract is unconscionable, etc.).

Remember: while separation agreements resolve family matters when you separate, they do not legally end your marriage. The only way to do this is to get a divorce. Only a court can give you a divorce. To proceed with an uncontested divorce, a party will need to complete and submit the divorce forms, pay the required court fees, and follow the court rules and procedures. It is always advisable to retain legal counsel to avoid potential pitfalls in obtaining a divorce that will not later be contested.  To know more about getting an uncontested divorce in Ontario, read my previous blog.

written by admin \\ tags: divorce forms, duress, family law act, family law lawyers, family matters, independent legal advice, information advice, legal counsel, liabilities, ontario family law, ottawa family law lawyers, potential pitfalls, separation agreement, toronto family law lawyers, uncontested divorce, undue influence, validity

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

The following question often arises in the family law context: how, if at all, will my child or spousal support obligations be impacted or affected by me going bankrupt?    I would go about shedding some light on the issue in the following manner:

• “Bankruptcy” is a formal legal status under the Federal Bankruptcy and Insolvency Act ["BIA"].
• A debtor remains in bankruptcy until his or her discharge.
• The BIA contains numerous provisions which deal with the bankrupt’s child and spousal support obligations.
• Immediately upon the bankruptcy of the debtor, all proceedings by unsecured creditors against the bankrupt are halted (to prevent some creditors from having an advantage over others and to prevent multiple court proceedings and depletion of the bankrupt estate assets).
• Except with the permission of the bankruptcy court, no creditor may commence or continue any law suit, execution, garnishment, or other proceeding against the debtor [ss. 69.3 and 69.4 of the BIA]. This is referred to as a “stay of proceedings”.
• This stay applies only to “provable” claims [defined in s. 121 of the BIA] which arose before the date of the bankruptcy. “Non provable” claims may proceed outside of the bankruptcy proceedings.
• This stay does not apply to “provable” claims for child or spousal support [s. 69.41 of the BIA]. This means that child and spousal support claims may be prosecuted in a matrimonial court against the bankrupt, without permission from a bankruptcy court, while the debtor spouse is an un-discharged bankrupt and even afterwards.
• Child and spousal support claims may proceed only against assets which have not vested in the trustee and which are not amounts payable to the trustee [ss. 69.41(2), 121(4), and 68].
• Bankruptcy does not prevent the matrimonial court from dealing with support arrears and ongoing payments.
• Bankruptcy may have an impact on both the amount and enforcement of support orders.

So child or spousal support obligations are not released or extinguished during or after coming out of bankruptcy.  Going bankrupt will, however, have an impact on issues of enforcement, quantum, and availability of assets to pay for those child or spousal support obligations.

For more information about the relationship of bankruptcy and child/spousal support obligations, go to Dynamic Lawyers and make a post.  We have family law lawyers in Toronto and Ottawa registered who can help answer your questions and concerns and represent you in resolving such family law matters.

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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 Canada Income Tax, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have tax lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your Canadian income tax issues, questions, and concerns.

So you’ve probably already read about one of the Canada Revenue Agency’s best kept secrets in my previous blog – namely, Taxation Operation Manuals or TOMs for short.  As previously discussed, the CRA prints TOMs for its employees’ use. TOMs cover all aspects of the operation of the Department, from purely internal matters such as Management Information Systems and Personnel Procedures, to maters that have an impact on taxpayers, such as Audit Techniques and Assessing Procedures.

Well, while I was cleaning up, I came across a couple of the TOMs which I had photocopied last spring and thought it would be worthwhile to scan one and make it available to the public.  Please keep in mind that this document, while up-to-date at the time I photocopied it (last spring) may be out of date.  As such, you are cautioned to attend your District Taxation Office and request to inspect and photocopy the latest and most applicable versions of the TOMs you’re looking into.  Also note that the line throughout the photocopy was a result of my scanner acting up and I apologize for the eyesore.

With this warning in mind, the following TOM (Section 7038) deals with Ministerial Discretion with respect to requests to cancel or waive interest and/or penalties.  While many TOMs have sections or entire pages missing (left blank) under privacy legislation, this particular TOM seems to be intact (although I could be wrong).

No doubt, knowing what the CRA and its employees have learned and been instructed/guided to follow through a TOM sheds valuable insight into how a party might go about trying to resolve a dispute.  It’s unclear the degree, if any, to which the CRA and its employees are bound by TOMs, but it seems safe to suggest that having the TOM in your hand when your negotiating or litigating a tax dispute with the CRA could add some degree of leverage.

written by admin \\ tags: audit techniques, best kept secrets, Canada Income Tax, canada revenue agency, canadian income tax, cra, CRA ministerial discretion income tax act, income tax issues, information advice, internal matters, ministerial discretion under the ITA, operation manuals, personnel procedures, privacy legislation, professional assistance, tax lawyers, taxation office, taxation operation manuals, TOMs