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”.

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.

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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

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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 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

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

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