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which states that the obligation under s. 31(1) does not extend to a child who is 16 years old (or older) and who has withdrawn from parental control.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 a mistake in a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

A Will is only valid if the Testator knew and approved its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include that offending residuary clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

written by admin \\ tags: brampton, court of justice, educational purposes, legal advice, mississauga, needy students, ontario court of justice, ontario lawyers, ottawa, passages, professional assistance, residuary clause, solicitor, testator, true copy, ukrainian origin, Wills and Estates

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

Cassandra Drudi wrote an article entitled “Lawyer told to pay back $250,000 in fees to developers ” (Ottawa Citizen, 4 March 2009) that is worth discussing in some detail here.

In that article, Ms. Drudi talked about a situation involving Ottawa lawyer D. Kenneth Gibson (Gibson & Associates LLP), who had been ordered to repay some clients just over $250K in legal fees billed in respect of a condo development project.  The clients had originally been given an estimate of about $50K by the Ottawa Lawyer, but the retainer letter had some special provisions in it saying that the total could change if extra work required special attention.  As per the retainer agreement:

“We have provided you, in the paragraph above, an approximate estimate of legal fees.  Should any matter arise on your file which requires special attention, our fee will vary according to the amount of time required to attend to these matters.”

The total bill ended up being just over $450K.

It’s unclear from the article whether those fees had already been paid.  In any event, the clients sought an assessment and the assessment officer reduced the Ottawa lawyer’s fees to just under $180K.

The Ottawa lawyer brought a motion to challenge the assessment officer’s estimate.  On appeal, the Ontario Court of Appeal reassessed the legal fees and held that the client owed about $223K.

Overall, this public episode involving legal fees highlights some of the issues and difficulties both lawyers and clients have in estimating and swallowing the bill.  As a lawyer, I can understand the incentive lawyers generally have to provide reasonable estimates of fees up front.  By providing certainty and predictability to their clients, lawyers can help their clients to plan and budget.  Doing so also makes lawyers accountable by forcing them to try their best to stick with their estimates (which could be based on past experiences) in order to save face and their future reputation.   However, lawyers have been known to get their estimates wrong (for factors outside of their control) and, as such, are advised to include provisions in their retainer agreements explaining that initial estimates may be completely wrong if there are complications, additional issues, etc. that arise in the course of providing legal services.

I guess, at the end of the day, the battle between trying to predict the unknown (i.e. how long and how many people will be involved on the law firm’s part in providing legal services) can be won by constant and effective two-way communication so that there are little or no surprises when the bill finally arrives.  Also, more intermittent billing may be needed so that the final bill isn’t as large as it could have been.

written by admin \\ tags: lawyers, legal fees, ottawa, ottawa lawyer, retainer

Average people in Ottawa have various avenues to pursue in trying to find the right lawyer for their particular case.  Regrettably, most of these avenues are inconvenient and sometimes very costly (e.g. an initial meeting with a lawyer could run you a few hundred bucks!).

More often than not, people find a lawyer through word of mouth referrals from friend and family, colleagues at work, or through professional organizations of which they are a part of or have access to (e.g. other lawyers, bankers, accountants, consultants, realtors, insurance agents, paralegals, etc.).  This, in fact, is how most lawyers find their clients.

Turning to the Law Society of Upper Canada’s Lawyer Referral Service will cost you $6 for a 30-minute conversation with one lawyer.

Finally, people may turn to the Yellow Pages and simply pick an advertisement and make a phone call.  I’ve been told that people tend to pick the biggest advertisement because they somehow believe that the bigger the ad, the more successful the lawyer or law firm.

The point here is that finding the right Ottawa lawyer for you is an important undertaking.  You don’t want to have the lawyer who drafted your will or acted on your house deal to represent you in a criminal case: they may not be up-to-date on court room procedure or have experience cross-examining adverse parties.

People in Ottawa generally need a lawyer only for a limited time and have a limited budget for such engagements. Yet it is hard for these people to distinguish lawyers and law firms from each other, especially given that many small and medium law firms have a general practice. It may also be intimidating for them to approach lawyers with their legal issues, given that doing so may cost money (e.g. $500 for the initial hour visit) and ultimately retaining a lawyer could be very expensive given the uncertainty of hourly billings.

Taken together, these factors likely make people in Ottawa tend to shy away from seeking out or hiring lawyers (sometimes to their own detriment!).  Those sophisticated people who surf the Web looking for a lawyer are hungry for more information than what is provided in the YellowPages or a newspaper advertisement. They are doing a Google or Yahoo search to seek out a particular type of Ottawa attorney in a particular field in a particular area. They are also looking for testimonials and looking for the experience of an Ottawa lawyer.

All in all, it makes perfect sense for people in Ottawa facing these challenges to turn to Dynamic Lawyers as a way of finding the right lawyer for the right price.  Making a post is free and anonymous, posts remain on the website for up to 45 days, and users have the opportunity to receive information and multiple quotes from local lawyers specializing in the area of law requested.  Comparing answers and then following up with the lawyer of your choice is just plain smart – particularly in a field where it is hard to compare one service provider from the next.  All in all, a very good deal…

So now that you have found the right avenue to find a lawyer in a convenient and cost-effective manner: what next?  Well, let’s talk about legal fees.  Many lawyers will charge you a fixed fee for the first consultation.  At this meeting, they’ll ask you questions about yourself and your situation.  The lawyer is trying to understand the legal issues so that he can offer you some type of recommendation on how to proceed.  If the meeting goes well, you may end up signing the lawyer’s retainer agreement, which stipulates the services that are going to be offered and the fees that are going to be charged.  The fees are typically hourly fees ranging from $200 to upwards of $1000 / hour, depending on the size of the law firm, where it’s located (and it’s physical appearance and amenities), and the particular lawyer’s expertise and reputation.

At the first meeting with the lawyer, you should ask some basic questions related to:

1. What services will the lawyer specifically provide;
2. Billing, costs and budget;
3. Time line;
4. Communication (e.g. by phone, e-mail, etc. and how regularly);
5. Past Experience in a particular field;
6. Strategy;
7. Style (e.g. aggressive trial lawyer or alternative dispute resolution lawyer); and
8. Terminating the retainer (e.g. failure to pay, failure to act, breakdown in the relationship, loss of confidence, etc.).

written by admin \\ tags: attorneys, dynamic lawyers in ottawa, law society of upper canada, lawyer, lawyers, lawyers in ottawa, ottawa, referral service

I happened across the Ottawa Chamber of Commerce on the Internet and wanted to take some time to explain how this (and typically other)  “Chambers of Commerce” operate.

Essentially, in Ontario, “Chambers of Commerce” are typically organized as not-for-profit corporations.  I’ve previously blogged about how to create an Ontario not-for-profit corporation and things that Ontario not-for-profit corporation members should know.  In this blog, I’ll explain how Chambers of Commerce like the Ottawa Chamber of Commerce is organized.

According to its website, the Ottawa Chamber “is a voluntary, member-driven organization with over 750 members.”  Elsewhere, they state: “The Ottawa Chamber of Commerce is the oldest and largest independent, most influential, not-for-profit business organization in the region”.  So basically what they’re saying is that the Ottawa Chamber of Commerce was incorporated as a not-for-profit corporation with members instead of shareholders.  Importantly, a not-for-profit corporation cannot distribute income in the form of dividends to its members.

The Chamber is only accountable to its members through the Board of Directors, who are elected by the members.   The Directors themselves appoint an executive committee to manage the day-to-day affairs of the corporation.  The corporation offers many perks to its members, including: lobbying on behalf of their members to promote their interests and protect their rights, networking and advertising opportunities within and to the membership,  discounts from third parties, access to the Ottawa Chamber of Commerce facilities and amenities, etc.

Specifically, the Ottawa Chamber of commerce even offers discount services with respect to ESSO gasoline, TD Merchant Services, Group Insurance, Grand and Toy, TD insurance, etc.

Finally, the Ottawa Chamber of Commerce offers eLearning courses, which strive to address basic business skills such as desktop computing and management and IT specific programs.

The Ottawa Chamber of Commerce is just one way in which a group of individuals with common interests have, outside of the government, formed an organization to protect and promote self-interests and rights.  The sharing of collective resources – done with an eye to accountability based on elections, appointments, and abiding by the Ontario Corporations Act – is all done through a legal structure known as an Ontario not-for-profit corporation.

written by admin \\ tags: chamber of commerce, chambers of commerce, corporation members, not for profit corporation ottawa, ontario not for profit corporation, ottawa, ottawa lawyers

Of the roughly 35,000 lawyers in Ontario, more than three quarters of them are located in major cities such as London, Mississauga, Ottawa, and Toronto.  Here’s a quick breakdown (note: I’ve rounded the numbers to nearest hundred for simplicity) based on my research:

written by admin \\ tags: lawyers in ontario, lawyers in Toronto, london, major cities, mississauga, number of lawyers, Number of lawyers in Ontario, ottawa, research ontario, toronto