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    • Category: Family Law

    Caught My Spouse Recording/Spying On Me!

    Toronto area family law attorney John P. Schuman was recently asked the following question: “I came home to notice my wife was recording/spying on me with her laptop though she wasn’t around. I was able to notice because the webcam light was on. Is this a crime?”

    Yes. Intercepting any form of conversation, to which you are not a party is a breach of section 184 of the Criminal Code of Canada and possibly other sections, depending on what your ex records.

    And, recording conversations usually will not help you in family court. While it may not be one of the top 10 biggest family court mistakes, breaking the law will not make a judge like your ex. In addition, except in extreme circumstances where the evidence is necessary to protect a child from harm, illegally obtained evidence is not admissible. Judges only pay attention to admissible evidence, so even if your ex does record something that she thinks helps her case, chances are the judge will not even look at (or listen to) it.

    Judges also really hate it when one parent tries to interfere with the other parent’s time with the children, or even worse, tries to prevent the children from having a relationship with the other parent. If your ex was trying to record your time with the kids, that will come off really badly – the only worse thing your ex could do would be to “interview” the kids about the child custody issues and record that conversation. No good comes from putting your kids in the middle in Family Court.

    Chances are, unless your are a lawyer, you will not know the Rules of Evidence, or the specifics of the Criminal Code. That is why it is good to get legal advice for your specific situation.

    If you are in a similar situation, please contact our family lawyers. If you would like to contact John Schuman directly or to find out more about his practice, click here.

    By Fauzan SiddiquiBlog, Family Law

    What marriage contracts or cohabitation agreements cannot do

    A previous blog discussed the many benefits to having a marriage contract or cohabitation agreement. That blog described how couples can have certainty in their lives, if they are married through a marriage contract, or if they are living together through a cohabitation agreement. There are many ways that they can set up their lives to be better than they would be if the couples stayed under the provisions of the Family Law Act, or went to court to resolve the matters between them.

    However, the law prohibits marriage contracts from doing eight important things:

    • Marriage contracts cannot set parenting terms (address issues regarding custody or access). Judges always have the right to make the custody or access order that they feel is in the “best interest of a child”, regardless of an agreement between the parties. While the Family Law Act specifically allows marriage contracts and cohabitation agreements to address the educational and moral training of children, the Act also says that judges can override the contract if doing so is in “best interest of the child”.
    • A marriage contract or cohabitation agreement cannot restrict either married spouse’s right to be in a possession of a matrimonial home. On separation, married spouses have an equal right to stay in any matrimonial home, and there can be more than one. Marriage contracts cannot require one spouse to leave a matrimonial home. They also cannot authorize one spouse to sell, mortgage or otherwise encumber or dispose of a matrimonial home before the spouses are divorced or they have a separation agreement or court order addressing the issue. Only married spouses can have matrimonial homes, so this restriction does not apply to cohabitation agreements unless the parties marry with the agreement still in effect. (Note: A cohabitation agreement could create rights to a property that are same as matrimonial home rights for parties who are married.)
    • A marriage contract cannot opt parties out of the Child Support Guidelines unless the provisions benefit the child as much or more than the Child Support Guidelines. In any event, the court always has the right to make an order that is in accordance with the Child Support Guidelines if the judge does not like the terms of the agreement.
    • A marriage contract cannot require that the parties go to mediation or arbitration instead of court after separation. The Family Law Act only allows parties to agree to mediation or arbitration after the dispute between them has already arisen. The parties can say that they would like to maintain a good relationship and use a more amicable process than court after they separate, but those terms in the marriage contract are not binding on the parties.
    • Marriage contracts are not recognized under the Income Tax Act with regard to the treatment of support. Periodic spousal support paid during or after the marriage pursuant to the terms of a marriage contract or cohabitation agreement will not be deductible to the payer and taxable in the hands of the recipient. Unless the parties sign a separation agreement, or obtain a court order, confirming those terms. People who are living together cannot agree that one will pay support to the other to shift the tax burdens to the person who pays tax at the lower rate.
    • Marriage contracts cannot waive a spouse’s entitlement to receive disclosure before signing the contract or signing a separation agreement. The Family Law Act gives judges the power to set aside any marriage contract, cohabitation agreement, or separation agreement that was negotiated without the parties receiving full financial disclosure.
    • A marriage contract or a cohabitation agreement also cannot waive a spouse’s right to obtain independent legal advice on either the marriage contract, cohabitation agreement, or a subsequent separation agreement. Again, judges always have the power to set aside an agreement that one or both spouses did not understand. The best evidence that the spouses understood an agreement is for them to have had independent legal advice.
    • A marriage contract or a cohabitation agreement is also not enforceable in relation to circumstances that the parties did not contemplate at the time that they signed it. If the couple wants their marriage contract or cohabitation agreement to be enforceable no matter what circumstances happen in the future, it is important that the agreement state that they have contemplated all possible future happenings and have still decided that, no matter what happens, they wish to be bound by the marriage contract or a cohabitation agreement. (Ensuring that a marriage contract meets this requirement is one of the trickier aspects of marriage contracts and it is another reason why lawyers need to be involved in the creation of a marriage contract.)

    The above are some of the restrictions on the creation of marriage contracts or cohabitation agreements. As long as couples stay away from the above restrictions, they will likely have an agreement that the court will enforce that will give them some certainty with regard to their affairs after marriage breakdown.

    By Fauzan SiddiquiBlog, Family Law

    Tax Treatment of Family Law Matters

    Divorce and separation are understandably difficult periods in a person’s life. Often, they are focused on issues such as the parenting of children, dividing matrimonial property or ensuring that there is sufficient financial support for them or their children. Rarely do minds wander into the realm of wondering about the tax issues that can arise in the context of family law litigation. However, these issues are significant, live and should be diligently considered.

    In this article, I provide but a general overview of some of the tax issues that can frequently arise when spouses or parents separate. Each of these topics, by themselves, could warrant an article. The aim of this short piece is simply to highlight some of the more common tax issues that arise in the context of family law litigation so that parties can remain attuned to how any possible settlement or resolution can affect their tax liabilities.

    Tax Treatment of Spousal Support

    Provided that it meets the requirements in the Income Tax Act, spousal support is generally deductible from income for the payor spouse, and is included as income for the recipient spouse for tax purposes. However, there a number of different payments that could constitute ‘spousal support’ and it is important to examine them carefully to determine their tax treatment.

    What Qualifies As “Spousal Support”

    In many cases, it will be very clear what amount of money is being paid as spousal support pursuant to a written agreement or court order. However, in some cases, parties fail to apportion ‘support’ amounts as ‘child’ or ‘spousal’ and these designations (or lack thereof) can have some significant implications come tax time.

    In the case of orders made, or agreements entered into or altered after April 1997, only amounts that can be clearly identified as spousal support or payments for the benefit of the former spouse are considered spousal support. All other amounts are considered child support. In the case of these agreements or orders, only spousal support amounts are taxable/deductible. In case of orders made, or agreed to before May 1997, all payments for support are deductible to the payor and attributable to the recipient.

    As well, one must always remember that child support takes priority over spousal support. If a court order or agreement specifies that both spousal and child support, then any payments made by the payor will first be considered child support by the CRA. Once the full amount of child support has been paid, then the remainder of payments will be considered spousal support by the CRA. However, these rules do not apply when child support and spousal support are payable under different agreements or court orders.

    The Basic Rules

    In order to qualify for the support tax treatment under the Income Tax Act, payments must be:

    1. Subject to the recipient’s discretion (the payments must be with ‘no strings attached’)
    2. Made on a periodic basis (lump-sum payments do not qualify for these rules)
    3. Paid for the support of the recipient; and
    4. Paid pursuant to a written agreement or Court order.

    While most support payments made pursuant to Court order or marital agreement meet these requirements, it is nonetheless important to receive legal advice to ensure that you are not running afoul of the Act or the CRA policy.

    Lump-sum Payments

    Lump sum payments are not deductible by the payor or included in the income of the recipient. This isn’t common knowledge and, while it may play into the favour of support recipients, is certainly not the avenue to get preferable tax treatment as a payor. While the difference between ‘periodic’ and ‘lump-sum’ may seem clear, it (like most tax law formulae) is not. The following example should be illustrative.

    Parties A and B separate and enter into a separation agreement. If the agreement stipulated that the recipient would receive $12,000.00 in spousal support, payable in monthly installments of $1,000.00, this would most likely constitute a lump sum payment, and would not attract the special tax treatment. If the agreement stipulated that the recipient receive base spousal support in the amount of $1,000.00 per month, this would be a periodic payment. 

    While the foregoing example is overly simplistic, it highlights the need for careful drafting and characterization of payments to ensure that parties reap the benefits of the special tax treatment. In order to avoid the CRA deeming periodic payments as lump-sum payments, it is important to consult a family law lawyer to ensure that the amounts are properly characterized.

    Third Party Payments

    In most cases, spousal support will be paid directly to the recipient. However, there are situations where payments are made by the payor to a third party, which are in the nature of spousal support. In order for these payments to qualify, they must meet certain requirements under the Income Tax Act. To qualify, the payments must be:

    1. Made pursuant to a written agreement or Court order;
    2. The agreement or order must specifically refer to ss.56.1(2) and 60.1(2) of the Income Tax Act or contain sufficiently clear language confirming the parties’ understanding that the payments will be considered spousal support and will be taxable/deductible;
    3. Paid for the support of the recipient. If the payments are for specific living expenses, such as medical, rent or mortgage expenses, they may not be included in determining the amount of deduction available.
    4. Made in the current or immediately preceding taxation year.

    While the above list may make third-party payments seem straightforward, they are, in reality, complicated. And because of their susceptibility in being employed in tax evasion schemes, these arrangements are subject to special scrutiny by the CRA. If you are planning on incorporating a third-party payment arrangement into your separation, it is advisable that you consult a lawyer prior to entering into the agreement or order to avoid any issues come tax time.

    Tax Treatment of Child Support

    Like spousal support, there is a divergence in the tax treatment of child support payments depending on the date on which the order or agreement was made. If the order or agreement arose after April 1997, then the child support is not deductible by the payor and is not included in the income of the recipient.

    For agreements or orders made before May 1997, child support is deductible by the payor and included in the income of the recipient, unless one of the following exemptions apply:

    1. Changes to the Quantum of Support – If the amount of support payable is changed after April 1997, then the child support will not be deductible/included in income.
    2. A New Court Order of Agreement – If 1) a new order or agreement is made after April 1997; 2) the previous order or agreement remains in effect; and 3) the effect of the new order or agreement is to change the overall amount of child support payable, the post-April 1997 tax rules apply to both orders or agreements.
    3. Express Terms – An order or written agreement may specify that child support payments made after a certain date (not earlier than May 1, 1997) will no longer be taxable and deductible
    4. Election – If there is an order or agreement prior to May 1997 and a person wishes, they can make an election with the CRA that the post-April 1997 rules will apply to the payments.

    Tax Treatment of Family Law Legal Fees

    In certain circumstances, legal fees incurred in the context of family law litigation are tax-deductible. Under Lines 221and 232 of your tax return, the following legal fee expenses can be deducted by a support recipient from their income:

    • Legal fees incurred to establish entitlement to spousal or child support;
    • Legal fees incurred to increase the amount of spousal or child support payable;
    • Legal fees incurred to claim retroactive spousal or child support or to enforce arrears of support;
    • Legal fees incurred to try and make child support non-taxable.

    However, a recipient cannot claim a deduction for the following legal fees:

    • Legal fees incurred to get a divorce or separation;
    • Legal fees incurred to obtain an equalization of family property, or any other division of property;
    • Legal fees incurred in relation to custody and access;

    For a payor spouse, there is no income deduction for legal fees associated with contesting or negotiating the amount of support payable.

    How to Take Advantage of the Tax Benefits

    The best way to ensure that any support arrangements are taxed in a preferential way is to speak with a lawyer, preferably one well-versed in both family law and tax law. They will review any marriage, cohabitation or separation agreement to ensure that it is structured to maximize any tax benefits. They can help you file your income tax return to make sure it is in compliance with the Income Tax Act, its regulations and CRA policy.

    If you are engaged in family litigation, an experienced family lawyer can help you put your best foot forward in court to increase the likelihood that any orders will be in a form that allows you to minimize the tax payable on any support you receive. A good lawyer will take the necessary steps to ensure that the order or agreement is registered with the CRA, and is in compliance with their rules.

    By Fauzan SiddiquiBlog, Family Law

    Does Child Support Affect Child Custody or Access?

    Every family law professional, and every family court judge, will tell you that child custody and access are completely separate issues from child support. How child support is determined is completely different from how judges decide who gets custody.  However, there are at least two ways in which child support can influence parenting issues in family court cases:

    1. Failing to pay appropriate child support immediately gives the impression that a parent does not care about the child.  That can affect how a Family Court Judge or Family Arbitrator views that parent’s fitness as a parent.
    2.  Shared Custody/Shared Parenting changes the way Child Support is Calculated. Sometimes people view shared custody as much as a financial arrangement as a parenting arrangement in the children’s best interests. However, things can work out differently than they expect.

    The Importance of Paying Child Support Right From Separation

    Child support is the right of the child.  The right of children to share in their parents’ wealth exists from the moment of separation.  It is a big mistake for a parent to withhold child support to the parent with whom the children primarily reside.  It costs a lot of money to raise children.  They have on-going needs.  When one parent leaves the children with the other parent, that parent must recognize that the children’s needs continue.  That means paying appropriate child support right from separation.  You can use online tools to figure out your base child support obligation.

    When parents do not recognize that their children still have financial needs after separation, by immediately paying appropriate child support, Family Court Judges interpret that as a parent not caring about the children’s needs.  Judges view parents who do not care, or understand, their children’s needs as poor parents – parents who cannot make good decisions for their kids, and therefore should not have custody.  That leads Family Court Judges to believe that parents who do not immediately start paying appropriate child support as parents who should not have custody.

    That, of course, can be an incorrect assumption by the Family Court Judge.  But a parent who starts off giving the Family Court a bad impression of him or her as a parent will have a much harder time in their case.  That parent has barriers to overcome to get the parenting arrangements that he or she wants – barriers that he or she would not have had if she or he had shown devotion to the kids right from the start by paying child support.

    You can make sure you are doing the right things after separation by speaking to a top family law lawyer, and by watching the video below that sets out some of the other mistakes that you need to avoid:https://www.youtube.com/embed/bgIewOxGDlw?rel=0

    Under section 9 of the Child Support Guidelines, child support changes when the children spend close to an equal amount of time with each parent.  The magic number is 40%.  When a child spends 40% of his or her time with a parent, that parent no longer has to pay the table amount of child support, but pays another amount that reflects a fair sharing of the costs of raising that child. The principles for how parents should financially support their children in shared parenting situations were set out by the Supreme Court of Canada in the case of Contino v. Leonelli-Contino. To summarize, when children share their time close to equally between parents, the starting point is that the parents each pay the table child support to the other. However, the way that works out, is that the parent with the higher income pays his or her table amount of child support minus the other parent’s child support obligation.

    For some parents, they want to have the children for forty percent or more of the time so that they can get a “break” in child support.  Several family court judges are suspicious when a parent seeks to move to shared parenting because they want the break in child support.  if the judge believes that a parent is more interested in the break in child support, than in the child’s best interests, that judge will not order shared parenting.  If a parent wants shared parenting out of a since interest in being very involved in the children’s lives and protecting their interest, that parent may actually want to offer to pay full child support so that the judge has no doubt about that parent’s motives and feels safe ordering shared parenting.  In addition, a parent who wants a shared parenting regime should watch the video below, which sets out when shared parenting, and other parenting arraignments, work best for the children, to make sure that the plan is best for the children and the judge will see that too:https://www.youtube.com/embed/i8y37J0ipzU

    There are some additional consideration regarding child support in shared parenting situation.  First, in Contino, the Supreme Court said that the ‘set off” of child support was only the starting point.  If that approach did not result in the parents sharing the costs of raising the children in proportion to their respective incomes, then the Family Court should make a different child support order that does.  For example, a Family Court Judge will not order “set-off” or reduced child support, where one parent continues to bear the bulk of the cost for raising the children.  Set-off only works where both parents are not only sharing parenting time, but also sharing the costs of raising the children.

    A second consideration regarding child support in shared parenting situations is that it does not always save money.  Kids can be expensive.  When the children are being raised in two homes instead of one, the children’s expenses are often not divided in two, but multiplied by two.  Each child may need two beds, two sets of clothes, two TVs, two gaming systems, two bicycles, two sets of toys, and the list goes on.  In shared parenting, a parent may find that child support goes down, but the extra expenses that parent pays are much more than the decrease in chid support.  Many parents in shared parenting think it would be “cheaper” to have the children live with the other parent and just pay child support, but cannot do that because of how involved they are with their children.

    A third consideration is that in several shared parenting scenarios the support paying parent may pay more support than when the children have one primary residence.  This is particularly true when one parent makes a lot more than the other.  In that situation, the “set off” of support may not result in much of a decrease in child support.  However, because to the adjustments to tax benefits and deductions, and other cash flow considerations, when the Spousal Support Advisory Guidelines are applied, the decrease in child support is more than made up fore by an increase in spousal support – and spousal support may not necessarily end when a child reaches 18 or finishes school as is the case for child support.  It is important to have a good family lawyer do the support calculations for you to figure out the most prudent way to arrange support in light of your family’s circumstances.

    Child Support and Child Custody Are Still Separate Issues

    Despite the above, child support and child custody are not legally linked.  So, except for the circumstances described above, parents should not try to link them.  For example, a parent cannot deny access because the other parent is not paying child support. Similarly, a parent is not “entitled” to see the children just because he or she is paying child support.  How much time a parent spends with the children and when is determined based on what is in the child’s best interests, not based on how much child support that parent is paying,  And telling the children how much support you are paying is never a good idea.  That is involving the children in adult issues, which can only be harmful (and judges do not let parents see children if it is going to cause harm.)

    Judges will not order that the wealthier parent get the children because he or she will be able to give the children a better lifestyle.  Child support is supposed to permit children to share in the wealth of both their parents.  Saying the other parent is “too poor” to raise the children properly is a pretty good way to anger a judge and lose your case.

    Finally, paying child support does not mean that a parent gets to dictate how the other parent raises the children, or even how the receiving parent uses the child support.  Unless a court or arbitrator decides otherwise, what a parent does during his or her “parenting time” is not the business of the other parent.  After separation, parents do not get to control how each other uses their money, including child support.  If a parent is using child support money to buy drugs or alcohol, or gambling it away, then the support paying parent may have a case to say that the receiving parent is a bad parent because of addiction issues.   But, that determination is based on each parent’s parenting ability and the best interests of the children – not on a consideration of child support.

    There are a lot of things to consider in each of child support and child custody.  There are more things to consider, and things get more complicated, when the two issues interact.  In addition, a lot can change depending on the specifics of your situation.  In these situations, you really need to set up a consultation with a good family lawyer to learn your rights and obligations in your specific circumstances.  Make an appointment to meet with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847 or emailing him.  We respond to all inquiries promptly.

    By Fauzan SiddiquiBlog, Family Law

    Legal advice needed about child custody

    John Schuman, Toronto Family Law lawyer at Devry Smith Frank LLP, was asked this question just recently: “My ex is trying to get custody of my six year old and I have been the sole support to my child her whole life. Her father has been in and out of the jail and is a drug addict. He claims that he changed but I am not buying it. He is abusive and I have police reports to prove it. I also have papers from children’s aid society saying that he is unfit parent. What should I do?”

    Based on what you said, it sounds like your ex has an uphill battle to get custody of your child.  Judges have specific factors that they have to consider before making an order for custody of a child.  Those factors help the judge decide what order is in the “child’s best interest.”   You may also want to listen to this podcast that goes over not only how judges decide custody cases, but also what “custody” actually means.

    However, as the decision comes down to what is best for the child, it is difficult for people who are abusive, or have substance abuse problems, or have who have concerned a children’s aid society to get custody of a child.

    Access is a different matter.  This is for two reasons.  First, access can take many forms, occur in different places, can be supervised, or occur in a therapeutic setting, or for limited times.  All of these considerations may make it possible for access to be “safe” for the child.  Judges won’t order access if doing so may put the child at risk of harm.  However, there are only very limited circumstances where the risk of harm cannot be addressed by supervised access.

    Second, from a psychological and developmental perspective, there is a great benefit to children in knowing who their parents are.  Children form a sense of identity by knowing who their parents are – even if they form a sense of identity by deciding that they are not like their parents because they don’t like who their parents are.   Children who don’t know their parents do less well psychological because a piece of their identity is missing.  So, for the child’s sake, courts do like to try order some access.

    What children want, or what they think they want, is not determinative of anything in custody and access cases in family court. 

    There can be difficulty where a parent wanders in and out of the child’s life on the parent’s whim.  That can be a bad situation because the child does not get to really know the parent, but suffers a loss, or perhaps feels rejected every time the parent disappears.   In those cases access may not be a good idea.

    A child psychologist or social worker may be able to help you and your ex sort out what is best for your child.  However, that option is only possible if both parties agree on the professional and agree to participate in good faith to work for the benefit of the children.  If the parents can do that, they can come up with much better solutions than a court may order because they can focus on the specifics of the child’s life and needs that a judge may not hear about if the parents do not present their cases carefully and effectively.

    Child custody cases can be very difficult and there can be a lot at stake for the children.  For difficult parenting cases, it is extremely important to speak to a good family lawyer who knows how the law could apply to a specific situation and can help you explore all the options for dealing with the problems.   You may also want to pick up a copy of this $20, easy-to-understand book on Ontario Family Law.

    It explains custody-access law, how judges make custody and access decisions, the court process and other options for working out parenting matters – there are a lot of better options for working out parenting conflicts that result in tailor made solutions that benefit the children more than a court imposed custody order, but court may be necessary in some cases.

    For more information regarding child custody, access or any other family law related topic, please contact Toronto family lawyer John Schuman at 416-446-5080

    By Fauzan SiddiquiBlog, Family Law

    How Do You Give Money To Your Child, But Not Their Spouse?

    It is very common for parents to want to give money, or property, to their adult children, but want to keep it from their child’s spouse (their son-in-law or daughter-in-law).  So common is this question, that both this podcast and this podcast address the issue.  There are ways to to do this, but you need to be very careful.

    The law does do a little to protect these gifts.  Common-law couples do not share in each other’s property.  Gifts that parents give to a married child, while their child is married, are usually “excluded” from the property division scheme for married spouses in Ontario.  However, there are three easy ways in which a child can lose the exclusion for that gift and have to share it with his or her spouse.  These are:

    •  If the child puts the money into a “matrimonial home” because, without a marriage contract, spouses always share the full value of the matrimonial home or homes that they have on the date of separation.   Keep in mind that spouses can have more than one matrimonial home.  A cottage, even a partial interest in a cottage, can be a matrimonial home and so a spouse can become entitled to some of the value of his or her spouse’s family’s traditional family cottage.
    •  If the child puts the gift into an asset that is shared with his or her spouse, such as a joint bank account.  The value of the gift may still be taken out of the property division calculations if the gift can be “traced.”  However, three is controversy on how such tracing should be done, and there is no guarantee that any of the gift can be protected using tracing.  Also, it is possible that a spouse can get an interest in an asset, even if his or her name is not on title, if he or she also contributes a lot to the asset.  In that case, the attempts to protect the gift can be very difficult.
    •  There is not proof that the gift was a gift instead of payment for services or repayment of a loan or similar.  However, this is easily remedied by the parents making the gift doing a formal written “deed of gift.” (The parents may need to see a lawyer to draft that document, but if a lot of money is involved, it is worth it.)

    Another way that a gift may be shared with a spouse is through support.  Any income (such as interest) that the gift earns is income for child support purposes.  That cannot be changed.   The gift itself doe snot matter for child support – unless it is a related gift that looks like income or “pay” from the parents.

    Spousal support can also erode a gift.  The gift can get caught up in spousal support in two ways.  First, a large gift can either increase a spouse’s ability to pay support, or decrease his or her “need” for money.  That can affect the amount of support.  Second, income from the gift may be included in the recipient child’s income for the calculation of spousal support.  This second consideration is also more easily remedied because a proper deed of gift can say that the gift, and income from it, are not to be considered income for spousal support purposes.

    There are some ways for parents to give a gift to a child and protect.

    The best way to protect a gift is to get the child and his or her spouse to sign a marriage contract.  A marriage contract can specifically state that an asset is not going to be included in property division calculations, whether it is a matrimonial home or not.  A marriage contract can even provide that a matrimonial home will not be included in the property division calculations.  Alternatively, it can give one spouse a set credit in those calculations.  A marriage contract can also limited spousal support, which means it can say that a gift from parents will not be included in the spousal support calculations.  Marriage contracts cannot change the rules for child support.

    Marriage contracts work well because the child’s spouse knows about the gift and specifically gives up the right to share in it.  The whole transaction will seem fair to a judge as long as the parties follow the rules for marriage contracts.  To learn more about those, listen to this podcast, or watch this video.  Your child and his or her spouse will both need lawyers – but that will be a worthwhile investment if there is a lot at stake.   Marriage contracts can be very unromantic. Many people have difficulty asking their spouse for a marriage contract.  It is often much easier for a spouse’s parents to insist on the marriage contract, and even make the giving of a substantial gift contingent on it.

    Another way to keep assets out of the hands of a son-in-law or daughter-in-law is to put them in a trust.  The child can have use of the assets throughout he trust, but not actually own them.   There are ways to attack trusts, and judges may be willing to consider those if a person thinks his or her spouse actually owns the assets.  It is best not to keep a son-in-law or daughter-in-law in the dark about the trust.   Also, the rules for trusts can be complex.  Additionally, they have to be set up in a particular way that takes into account the particular circumstances of the family, in order for the trust to accomplish the gifting parent’s particular objectives.  There can also be tax implications.  It is important to hire a good lawyer to set up the trust.

    The rules that apply to gifts from parents to their married children, the considerations about how to protect those gifts, and many other family law issues are covered in this $20, easy-to-understand book on Ontario Family Law.  However, it is a very good idea for parents who want to make any sort of substantial gift to their married children to speak to a good lawyer about the best way to do that, and to protect the gift.

    For more information on areas of family law, please contact Toronto family lawyer John Schuman at (416)-446-5080

    By Fauzan SiddiquiBlog, Family Law

    Do You Need An Emergency Temporary Custody Order?

    Question: How do I go about getting an emergency temporary custody order for my son?

    Answer: Provided by our Toronto Family Lawyer John Schuman

    The first question you have to ask is whether you need an emergency temporary custody order. Judges do not like making custody orders, especially on incomplete evidence and on rushed basis unless the order is necessary to protect the health and welfare of the child. If the order is not necessary to do that, then the judge will want you to have a case conference first. Of course, that is if you really need to be in court. There are alternatives to court that are often better able to address children’s issues than court, unless there are issues of abuse, mental health, substance abuse or a very difficult parent. You can learn more about the alternatives to court in this video: Do I have To Go To Court For A Divorce.


    If you do have to go to court, there a large number of things you must do, and correctly. Your best chance to get this right, and avoid having a judge refuse your request, is to get a lawyer to help you. (For more reasons why you should hire a lawyer, see this webpage Why Do You Need A Family Law Lawyer. If you cannot hire a lawyer, you should get a copy of this $20 book on the basics of Family Law, which describes the Family Court Process and custody access issue, to help you: Devry Basics Ontario Family Edition. However, if that is not possible, here is the information about how to get the Order:

    • First you should understand the legal meaning of the term “custody.” It may be different than you think. Read this webpage for more info: What Does The Term Custody Of A Child Mean?
    • You must file a Form 8 Application General that sets out all the orders you want the court to make and the facts that give the court the legal authority to make those orders. There are certain facts that are important when judges decide any parenting issue, including custody, and many facts that judges do not care about. It is important to put the right facts in your Application, and in your affidavits, so read this webpage: How Do Judges Decide Which Parent Gets Custody of a Child?. They both explain how judges decide who gets custody.
    • Since you are claiming custody, you must also complete, and swear or affirm before a commissioner of oaths (these are in law offices and at the court), a Form 35.1 Affidavit which sets out several facts that judges want to know regarding parenting.
    • If you are asking for any form of support you must also complete a Form 13 Financial statement (again this has to be sworn or affirmed). If you are asking for support and making property claims, you have to fill out a form 13.1 Financial Statement. (Note that only the Superior Court of Justice has jurisdiction to deal with property claims.) Your financial statement must attach 3 years of Notices of Assessment from the Canada Revenue Agency. If you do not have them, you must get them through the CRA’s website: My Account.
    • You have to take all of the above documents to the court to have them “issued.” The court will not allow you to issue the documents if there are errors or they are incomplete.
    • You must create a continuing record volume for the court. For information about doing that, see this link: Formal Requirements.
    • At the time that you are issuing your Application, you should ask the court for when you can have a case conference. You should book the first date. The court will give you a Conference Notice, that you must add to all the other documents.
    • After issuing the documents, you must have someone, other than you, serve the documents on your spouse and anyone else who can claim to have been an active parent of the child. Service usually means identifying the person being served and a handing them the documents to be served. The person must complete a affidavit of service, attesting that he or she served the documents properly (another commissioned document). Then you must file the documents with the court.
    • After all of that, you must bring a motion for temporary custody. Unless there is a compelling reason why the other parent(s) should not be served with your motion material (because they would do something bad to the child before the court had an opportunity to hear the motion) you must give them at least 4 business days notice. To get a court date, you have to go to the family court service counter and ask what dates the court has available to hear your motion.
    • You must first complete a Form 14 Notice of Motion that sets out the precise order you are asking the court to make.
    • You must also write, and swear, a Form 14A affidavit that sets out your version of the facts. (Refer to the podcast and website listed above to know what facts are important.) As you have to swear or affirm that the document is true, it is very important that the facts be accurate. It is also important that the affidavit is written in a way that is clear and compelling to a judge. To hear about what judges consider good parenting, listen to this podcast: The Voice Of A Child. The affidavit must also make it clear why you cannot wait to until the court can have a case conference to discuss the issues on your motion. One thing you must include is when the first case conference date is available from the court and also The affidavit is your “evidence” on the motion. You do not get to tell the judge any additional facts on the hearing of the motion. The motion is not a trial, so no one testifies in court. All the facts that the judge needs must be in the affidavits.
    • If you want other people to give their evidence on your motion, they have to swear their own affidavits.
    • You must serve the Notice of Motion and all of the other affidavits on the other parties that you have named in your Application. Unless you are trying to bring your motion without notice to the other parties, you must serve them at least 4 days before.
    • The other parties in your court proceeding have the right to file their own affidavit in response to yours. After they do that, you have the right to file an affidavit that responds to the new facts or issues in the other party’s affidavits. However, you cannot raise any new issues in your “reply affidavit.”
    • Two days before the set motion date, before 2:00 p.m., you must file a form 14C to tell the court and the judge whether your motion is going ahead as scheduled or not. Most courts let you file your 14C by faxing it to a special fax number, but the 14C is the ONLY document you can file that way.
    • Then you show up on the day of the motion and you explain to the judge why the law says you should get your emergency temporary custody order (and why you could not wait for the case conference). The judge usually will have had the opportunity to read all the affidavits, so you will only want to mention the most important facts and tell the judge where to read about them in all the materials that were filed (using specific tab and page numbers if possible). Keep in mind that motions are supposed to be argued in less than an hour total. So, you should plan on speaking to the judge for no more than 20 minutes at first. That includes the time that the judge asks you questions. The other party will get about the same amount of time. Then you will get to speak to the judge about any new facts or issues that the other party spoke about that you did not mention in your first twenty minutes. However, this is not a time to repeat your points. The judge’s time is precious and there are a likely other cases waiting. So you do not want to be repetitive, or do anything else to upset the judge.
    • The judge will then either decide your case on the spot, or “reserve” which means the judge will decide the case later and send a written decision to you. The decision is different from a formal court order. If you need a formal court order, that is another process… which can the topic of another post. Or you read about it in the book that I mentioned above.
    • If the judge decides against you, or decides the motion could have waited until after a case conference, then the judge will likely order you to pay the legal fees and other costs of the other party. This is where not using a lawyer can really cost you. If you do not get your own lawyer, you can end up paying the cost of your ex-spouse’s lawyer if you lose.

    All the court forms are found here: Ontario Court Forms. Also, I did not quote the precise rules that set out all of the above, but you can find the Family Law Rules here English Elaws.

    Again, the process for bringing an urgent motion is a complicated one, and you have to tell the judge the right things. So, you should consult a good family lawyer and get a copy of this $20 book Devry Basics Ontario Family Edition on family law that covers all of this in more detail. . For further information or assistance with a legal matter regarding Family Law & Emergency Temporary Custody Orders, contact one of the Toronto Family Law Lawyers listed below of the page.

    By Fauzan SiddiquiBlog, Family Law

    Very distressed child asked for advice in upcoming child custody case

    My friend’s child asked for advice on a upcoming child custody case. His parents are in family court and have trial in 2 months on child custody and access. He has a children’s lawyer, but afraid to tell her what he wants as he doesn’t want this information to be shared with parents – he is very afraid of their reaction. The lawyer does not keep things in private as promised. The child is in a much distress and wants to talk to a judge, but OCL is against it. The child is turning 13 in few months. I don’t know how to help him, I am very concerned about his state of mind. He is vey stressed and turns it against himself by having a very low view of his worth and his life worth. His OCL unfortunately does not see it and is convinced the child is OK. What would you advise to this child and is there any way I can help? If I talk to his parents he will loose trust in me as well.

    This is an upsetting situation. However, the perspective on hearing from children is changing in Ontario Family Law. Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides.

    Technically, a child does not have to be represented by the Office of the Children’s Lawyer. A child can retain a private lawyer to assist him or her. Judges views this with some scepticism unless it is clear the child was not “put up to it” by a parent. This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer. That lawyer can than advice the court and the OCL that he or she is representing the child and the OCL is no longer doing so. The court (and the OCL) will likely want to explore the situation to ensure this was not a parent influencing the child. At some point, the child may have to say that he lost confidence in the OCL lawyer. That may take some fortitude, but so will putting a position before the court on his parent’s divorce. However, a child who does all of that to ensure he is heard by the court, will convince most judges to at least listen.

    It sounds like you are being “neutral” in this situation, so it would likely be OK for you to assist the child in finding a lawyer.

    Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue. Even if a judge listens, the child will only be a witness, not the decision-maker. After listening, the judge may make a decision that is different from what the child wanted. However, often just knowing that the judge has heard his point of view is enough to get a child “on board” for any decision.

    If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law. There is a long chapter on this issue. The book itself is several hundred dollars to purchase. So, you will need to find a good library to get a copy.

    There is more about children in the family court process, how to navigate family court, and many other family law issues in this $20 easy-to-understand book on Family Law: Devry Basics Ontario Family Edition.

    For further information or assistance in regards to child custody, child access or family law, please contact Toronto family lawyer John Schuman.

    By Fauzan SiddiquiBlog, Family Law

    Tips for completing your Family Law 13.1 Financial Statement

    Many people faced with having to complete a 13.1 Financial Statement find it a daunting task.  Here are a few tips to simplify the process.

    The idea of completing an accurate monthly budget has some people collecting bank statements and credit card statements for the past year, and averaging out their expenses over that period, and then breaking them down to a monthly figure.  Although it is important to be realistic in your budget, this exercise is not necessary.  It is ok to “ballpark” how much you spend on groceries in any given month.  Although it used to be that spousal support would be loosely based on the “Budget” section of your Financial Statement, now that the SSAGs have become widely accepted in Court, the “Budget” has become less important.  It is still important to ensure that your budget makes sense in a global way.  Your budget should not be wildly off base, or your spouse will ask to see all the bank statements and receipts. If your budget indicates that you are running a deficit every month, but you do not have any corresponding increase in your debt, the accuracy of your Financial Statement may be called into question.

    With respect to the property section of the 13.1 Financial Statement, it is designed to capture three specific dates: the date of marriage, valuation date (which is the date you separated) and today.  Any property that you owned between your date of marriage and valuation date, but did not own on either of those pertinent dates, is not entered on your Financial Statement.  The exception to this rule is if it is property that you have disposed of within the past two years.   Part 8 deals exclusively with property that has been disposed of during the past two years.  Perhaps the easiest way to understand how to complete the property section of your Financial Statement is this:  If you took a photograph of your financial situation on the date you were married, the date you separated, and the day you are completing your Financial Statement, these are the figures that you put into the respective columns.  Finally, the Financial Statement that each party completes addresses only the property that they have an ownership interest in.  For example, if your matrimonial home is in your spouse’s name, you do not put it on your Financial Statement because you do not “own” it.  Similarly, if you lease your vehicle, it does not get entered on your Financial Statement because you do not “own” it.

    When you are completing your Financial Statement, you should keep all of the documents that you relied on to prepare the Financial Statement, so that you can give them to your lawyer together with your draft Financial Statement.  This step will save you a lot of time and hassle in the future, as your lawyer will most certainly ask for these documents.  If you are involved in a Court proceeding, it is important for you to know that a Court will not accept your Financial Statement if you have not attached your last three years’ Notices of Assessment (the form you receive from the CRA that has your income tax refund cheque attached to it).  You can order copies of these documents by calling 1-800-959-8281.  You should always do this as soon as you are asked to fill out a Financial Statement because the process of receiving them takes about six weeks.

    Financial Statements are important no matter what path you have chosen to resolve your matrimonial matters – litigation, collaborative practice, negotiation of a Separation Agreement, or mediation/arbitration.  The most common reason that resolution of matrimonial matters is set aside by a Court at a later date is for lack of financial disclosure.  The thinking is this:  if you did not know what you were giving up because you did not have all of the information you needed, how could you have made an informed decision about whether or not it was the right choice for you?  This is true when entering into a Marriage Contract as well.  Think of it this way – if you are releasing your future right to receive spousal support, but you do not know how much your spouse earns, you may have made a different decision if you had all of the information available about your spouse’s income and income potential.

    By Fauzan SiddiquiBlog, Family Law