DSF is recognized in ‘Best Lawyers’ for 2022! Devry Smith Frank LLP (‘DSF’) is proud to announce that we have been recognized by Best Lawyers in Canada 2022 with 8 of our lawyers ranked across multiple practice areas. The lawyers in the list are highlighted below: George Frank – Personal Injury Litigation Jennifer Howard – Family Law David Lavkulik – Personal Injury Litigation Todd Slonim – Family Law Diana Solomon – Family Law Marc Spivak – Personal Injury Litigation Ashley Doidge – Trusts and Estates Nicholas Reinkeluers – Corporate and Commercial Litigation DSF is pleased by the nominations and awards from our peers and we look forward to providing services by these nominable standards. Best Lawyers is a leading peer-review publication in the legal profession, recognizing the top attorneys in over 100 practice areas. These individuals have been selected for this distinction after receiving the highest overall peer-feedback within their geographic region and specialty practice area. Only a single lawyer in each practice area and designated metropolitan area is honoured as the “Lawyer of the Year,” making this accolade particularly significant. Please visit their website for more details: https://www.bestlawyers.com/ By Fauzan SiddiquiBlog, Commercial Litigation, Family Law, Personal InjurySeptember 20, 2021July 5, 2023
Why The CAS Shouldn’t Be Dictating The Terms Of Your Access Order In child protection matters, the Children’s Aid Society (“the Society”), as a litigant, may start a court application against a parent if they believe that a child is in need of protection. The Society then asks the Court to make an order with respect to what intervention is necessary to protect the child(ren). For example, should the child be placed in the care of the parent or another person, subject to the supervision of the Society, or should the child be placed in interim or extended Society care? There has been a divide in the case law on whether an access order can be at the discretion of a Society. However, in J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 the Ontario Divisional Court confirmed that the authority to make an order with respect to access rests solely with the judiciary and cannot be delegated to a third party, including the Society. In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (CanLII), the mother appealed the decision of the trial judge, who ordered that her two young children be placed in extended Society care, with her access to the children being at the Society’s discretion and in accordance with the best interests of the children. The appellant mother appealed this decision and asked that her children be placed in her custody with Society supervision. In the alternative, she asked for specific access to both children if they were to remain in the care of the Society. In determining whether the trial judge erred in ordering that access be at the Society’s discretion, the court considered Sections 104 and 105 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”), which mandates that it is the court that must determine what access is in a child’s best interests, not the Society. In order to determine the best interests of the child, the court analyzes the factors set out in Section 74(3) of the CYFSA which include considering the child’s views and wishes, relationship with parents, and physical, mental, and emotional needs. Having found that the access orders were made in favour of the appellant mother, the court turned to the question of whether a court could delegate all aspects of access, including all decisions about type, frequency, and duration to the Society. The court reviewed the arguments made in previous cases in support of and against delegating a child’s access at the discretion of a Society. In reviewing these cases, the court determined that discretion cannot simply be delegated solely to the Society or to anyone else. Case law relied on by the Society, such as H.(C.) v. Children’s Aid Society of Durham (County), 2003 CanLII 57951, was distinguished on the basis that it considered an appeal of a temporary order, whereas this case concerned a final decision. As Sections 104 and 105 of the CYFSA do not either explicitly or implicitly provide the court any powers to delegate its authority to make access orders, the court found that the trial judge erred in law by delegating the discretionary elements of access to being at the sole discretion of the Society. The appeal with respect to the terms of access was allowed and the matter was remitted to the trial judge to determine the appropriate process for finally determining the terms and conditions of access. Conclusion In making this finding, the court noted that it would be rare for legislation to authorize a court to delegate its judicial functions to any third party who is also a party to the litigation when neutrality and objectivity are essential to the decision-making process. The court’s decision is important in clarifying both the interpretation of Sections 104 and 105 of the CYFSA and the role of the court in making access orders. By distinguishing access orders made at temporary versus final hearings, different rules may apply for terms of access at the discretion of the Society depending on the type of order. For now, this decision helps to ensure that no party to the litigation, including the Society, will have sole discretion in defining access to children pursuant to a final order. If you have any questions related to your family law matter contact Collingwood lawyer Sarah Robus at sarah.robus@devrylaw.ca or 249-888-4642. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawAugust 3, 2021June 24, 2022
What if separating parents disagree over vaccinating their children? Children in Ontario between the ages of 12 – 17 became eligible for the first dose of the Pfizer vaccine on May 23, 2021. This raises a new question for separating parents: what happens when one parent wants their child vaccinated against COVID-19, but the other refuses? The legal test for family law matters involving parenting issues remains the best interests of the child. Decisions involving children are always considered on a case-by-case basis, while considering the prevailing social or medical evidence available at the time. For example, court decisions involving virtual vs. in-person schooling during the pandemic such as Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 largely deferred to public health guidelines in deciding whether children should be enrolled in virtual school. The short answer is this: where the government endorses in-person schooling, the court is likely to accept this conclusion unless one parent is able to advance evidence showing why it would be contrary to that specific child’s best interests. Court decisions dealing with children’s pre-pandemic vaccines have adopted similar reasoning. For example, in the earlier case of C.M.G. v. D.W.S. 2015 ONSC 2201, the father sought to have the child vaccinated before travelling overseas, while the mother refused. The court ultimately concluded that vaccinating the child would be in her best interests and relied on Canada’s public policy in favour of vaccinations of children generally, in addition to the expert evidence presented by the father in favour of the child’s vaccination. In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother’s lack of trust in Western medicine generally, and her history of refusing or delaying the child’s routine vaccinations to date. The court further acknowledged that children and young people in general do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine, and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population. The court’s reasoning was similar to how pre-pandemic vaccines and the issue of virtual vs. in-person schooling were treated. In short, the courts are likely to defer to the accepted public health guidelines on the issue, unless one parent is able to advance evidence showing that the vaccine would not be in their child’s best interests. This would likely need to be accomplished by way of a credible expert’s opinion with respect to the specific child’s needs. A parent might succeed in making this kind of argument where, for example, the child has a history of adverse reactions to previous vaccines. If you have any questions related to your family law matter contact Mason Morningstar at mason.morningstar@devrylaw.ca or 416-446-3336. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawJune 8, 2021June 8, 2021
Can My New Spouse or Partner Adopt My Biological Children? Integrating a new partner into your existing family can be an exciting step, but it is not always without challenges. Depending on whether the children’s other biological parent is still in the picture, your children’s age, and their opinion, the process of adoption could be difficult and you may face additional legal challenges. Is the other biological parent still in the picture? Unless the other biological parent is deceased or has abandoned the child, their consent to the adoption is required, because the adoption severely affects that parent’s rights with respect to the child. The step-parent, upon adoption, will obtain full parental rights. They will have increased rights to make decisions regarding your child’s medical treatment, education, their residence, and so on. The other biological parent will cease to be the child’s parent upon the order for adoption, (s. 217 (2)(b) of the Child, Youth and Family Services Act, 2017, [the “Act”]). The other biological parent’s ability to obtain an order for access to the child once the adoption order is issued, becomes much more difficult. Given these significant implications, and of course depending on each unique situation, it is likely that it will be difficult for you to obtain the other biological parent’s consent. The Test to Dispense with Consent of the Biological Parent: One possibility to circumvent this onerous requirement is to apply to the court for permission to adopt without the consent of the other biological parent. The permission to adopt without the other biological parent’s consent will only be granted in a very narrow set of circumstances, and only if the court is convinced that it would be in the best interest of the child to do so. The factors the court will consider in determining the best interest of the child are listed at s. 136 of the Act: The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; The child’s physical, mental and emotional level of development; The child’s cultural background; The religious faith, if any, in which the child is being raised; The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; The child’s relationships by blood or through an adoption order; The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; The child’s views and wishes, if they can be reasonably ascertained; The effects on the child of delay in the disposition of the case; and Any other relevant circumstance. In a motion brought to the Ontario Superior Court in 2016, a mother sought to dispense with the biological father’s consent to her new spouse adopting her ten year old biological son. However, the biological mother never informed the biological father of his son’s birth. After discovering he had a ten year old son, the biological father wished to establish a relationship with the child (S.D.K. v M.G.C., 2016 ONSC 4586). In this case, even though the child had provided consent to the adoption, the court dismissed the motion after considering the above-mentioned factors. The court explained that an adoption is final and irrevocable and would cut “any possibility of ties” between the child and the biological paternal side of the family. Furthermore, the child’s maturity level and understanding of the adoption process was not established clearly to the court through evidence. The court was also not convinced that denying the adoption order would destabilize the existing family unit. For these reasons, the child’s consent did not convince the court that the adoption – and dispensing with the biological father’s consent – would be in the best interest of the child. Is the biological parent unknown or unreachable? If, on the other hand, the other biological parent is unknown, or cannot be reached, the adoption will become somewhat easier. However, an application to court to obtain permission to proceed without consent is still necessary. The court must be convinced that the other biological parent cannot be located, despite reasonable efforts, and that it is in the child’s best interest to dispense with the consent requirement. Does my child need to consent? The answer to this question depends on the child’s age. A child who is under 7 years of age is not legally required to consent to being adopted. However, if the child is between 7 and 18 years old, their written consent is a necessary condition for the adoption under s. 180 (6) of the Act. In this case, the child is entitled to an opportunity to receive counselling and independent legal advice to determine their wishes. For a child under the age of 18, the Children’s Lawyer must be satisfied that the consent is fully informed and reflects the child’s true wishes. The Children’s Lawyer represents children under the age of 18, and is provided by the provincial government to ensure independent advice and assessment. The court itself will also take into account the child’s wishes and may assess the child’s capacity to understand what it means to become adopted. Once a child has turned 7 years old, the child’s consent can be dispensed only under narrow circumstances. Again, an application to court is necessary. The court must be convinced that obtaining the consent of the child would cause emotional harm to the child, or that the child is not able to consent because of a developmental disability. If you have more questions about your family law matter contact our Family Law department by calling 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJanuary 25, 2021February 16, 2024
Why You Might Want A Cohabitation Agreement Granted, it is not a particularly romantic gesture to ask your common-law partner for a cohabitation agreement. If you are busy building a happy life together, bringing up the possibility of separation and legal consequences that may result can be uncomfortable. Here are several reasons why that discomfort should be faced, overcome, and how your relationship can enter a stage of increased certainty and security with the protection of a cohabitation agreement. Protect your Property Many people think that common-law partners are treated just like married spouses in family law when they separate. Right? Wrong. When a marriage breaks down, both spouses are equally entitled to the property accumulated over the time of the marriage, subject to some exceptions. You start by calculating your Net Family Property, and the resulting transfer of money is called an “equalization payment”. This statutory scheme does not apply to unmarried cohabitants. When a common-law partnership breaks down, you are not automatically entitled to one-half the Family Law Value of your partner’s assets, including their pension, property to which you are not on title, or their savings or investments. The default rule is that each common-law spouse keeps the property that they own at the end of the relationship. This is determined by legal ownership or title. If one partner feels like they deserve a share in the other partner’s property, they must seek recourse through general equitable legal principles, such as resulting and constructive trusts, or on the basis of a “joint family venture”. In many cases, this means that the partner claiming a share of the property or a monetary payment must prove that the other partner has been “unjustly enriched”. The court may then endeavor to repay or reverse the unjust enrichment only if the claim meets several legal thresholds determined by case law. Therefore, making these claims in court is much more difficult without a contract. In a cohabitation agreement, common-law partners can contractually agree to a property arrangement that suits them. They can agree to share equally in the accumulated property during the relationship upon separation, or specify the property they will have a share in, or even specify a ratio if they wish. Alternatively, they can agree that there will be no entitlement to share in the other partner’s property at all, not even pursuant to the equitable principles described above. Such an agreement can prevent time-consuming and expensive litigation and evidence gathering that may otherwise be necessary if the parties cannot agree on a settlement. In many cases, it is much easier to part ways if there was a clear agreement setting out the property consequences the partners have agreed upon in advance of a separation. Specifying Any Spousal Support Obligations On the other hand, spousal support legislation does provide a framework for unmarried cohabitants. In other words, your entitlement to spousal support is not dependant on whether or not you were married. However, in order to be eligible to claim spousal support under the Family Law Act (“FLA”), common-law partners must either: 1. have cohabitated for at least three years, or 2. have a child together (including through adoption) and be in a relationship of some permanence. However, the issue of spousal support at the end of a common-law relationship still gives rise to a great deal of litigation. Once an unmarried cohabitant meets that first threshold, their entitlement to spousal support is generally determined having regard to the Spousal Support Advisory Guidelines, and case law in Ontario. Their claim may be compensatory or non-compensatory (needs-based). To avoid costly litigation upon separation, it is prudent to enter into a cohabitation agreement that can stipulate exactly at what point one party will be entitled to spousal support. Alternatively, the agreement can provide for a complete spousal support waiver. In any case, a cohabitation agreement can be a useful tool to reduce litigation of the issue later. Care must be taken that these provisions are not “unconscionable”, because if the court finds that they are, they may be set aside. Mere unfairness, however, does not suffice (Miglin v Miglin). For this reason, it is also prudent to update the cohabitation agreement from time to time to indicate that the terms still reflect the parties’ intentions. For instance, after only one year of cohabitation, a complete spousal support waiver may be equitable, but after a significant passage of time, that same waiver may be determined to be unconscionable and set aside by a court. Custody/Access and Child Support For custody, access, and child support issues, however, cohabitation agreements are not as helpful and are not often included in the contract. Custody and access arrangements in a cohabitation agreement are not enforceable. In this regard, the legislative provisions are mandatory and apply to married spouses and unmarried cohabitants equally. A cohabitation agreement can merely provide an understanding regarding the upbringing of the child, for example, religious education. However, these provisions are still subject to the court’s overriding jurisdiction to determine the best interests of the child, such that courts will set aside provisions of a contract if it is contrary to the best interests of the child. Similarly, if a cohabitation agreement specifies a child support obligation, provisions of the contract may be set aside if they are found to be contrary to the Child Support Guidelines. Preparing a Cohabitation Agreement As you can see, the law in this area is complex. In most cases, it will be best to retain a family lawyer to draft a cohabitation agreement on your behalf to ensure it has the same legal effect that you intend it to have, and to ensure it complies with the formal validity requirements of domestic contracts. It is generally best for both parties to have independent legal advice before signing the agreement. Also, if you do decide to get married, the cohabitation agreement automatically becomes a marriage contract and remains valid. However, at that point, it is wise to update your agreement, because, as we have seen, the law lays out different rules for common-law partners and married spouses. If you have more questions about your family law matter contact our Family Law department by calling 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJanuary 25, 2021February 16, 2024
Sharing The Holidays After Separation Holidays can be difficult for separated families. It may be impossible for the children to celebrate with both parents and their families or to have the most important time, that is, Christmas morning, with both parents. So how can separated parents divide up those special times? Doing so can be one of the biggest challenges after separation or divorce. When it comes to holidays, the first and most important consideration is that these are special times for the children too. Often they are even more special for the children than for the adults. The children do not want to spend these special times marked by fights among their parents. Especially fights where the child must take the side of one loved parent against another loved parent. That can ruin the entire special day or the entire holiday season for the child. Parents who love and want to protect their children must avoid fights over their children at these special times. It is always more important for the children to be happy than for a parent to be right. Of course, finding a fair plan for the children over the holidays can be hard. There are a few general principles that parents can use to help them make their plans. The Golden Rule for Parenting After Separation Where a judge has to decide what time the child gets to spend with each parent over the holidays, the main consideration is what is in the children’s best interest.What is in the best interest of the child always trumps what is in the best interest of the parent. What is best for the child can vary from family to family and can be affected by what is usual for the family. What is best for the children during these holidays and lockdown remains the focus of the Courts and should be the focus of every separated parent. Every Family Court Judge who has faced making a decision about parenting has commented about how the pandemic represents extraordinary times. It is an event that is having a profound impact on children, even children who are not in the midst of parenting conflict. Justice McGee noted that even young children will carry the residual emotions into adulthood, at which time those children will reflect back on whether their parents eased their fear and disruption, or whether their parents were focused on their own needs. How parents act during this difficult time not only sets an example for their children, but can affect their children’s development. It has never been more important to put children’s needs first and do whatever is necessary to avoid conflict – especially during the holidays. The Impact of the Pandemic Family Court Judges have also made it clear that it is essential for children to have relationships with both parents during the pandemic. Judges have repeatedly quoted Justice Pazaratz’s decision early in the pandemic in which his Honour said “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.” Judges have specifically held that parents are expected to find ways for children to move between homes and spend time with both parents in a safe way. Only actual EVIDENCE, not speculation, that a parent is putting children at actual risk of harm will cause a judge to restrict parenting. As public health officials are saying everyone must limit contact with other people, it seems like it might be in the children’s best interest to stay in one spot and have contact with as few people as possible. Obviously, it would not be in the children’s best interest to engage in any activity that could put them at risk of infection. That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis. However, the current view of parenting professionals and judges is that having contact with both parents is important to a child’s sense of well-being and healthy development. This means that seeing both parents is also in the child’s best interest. Children suffer when deprived of contact with their one of their parents. They suffer even more when there is conflict between their parents over things like the schedule. So, disturbing the current arrangements without your ex’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road. To summarize, the decision that parents have to make is: is it in the children’s best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children’s best interest to spend time with both parents even if that means they will come into contact with other people? Again, a lot depends on the new specifics of the situation. If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all. What Judges Think is Fair During the Holidays Specifically with respect to the holidays, there are an abundance of decisions from Family Court Judges about what is fair. The following are what most Family Court judges expect: First, children should rotate where they wake up on Christmas morning or with whom they spend special events. Christmas is often the most problematic, but this can apply to any holiday or special event that is of particular importance to the family. Children should get the opportunity to spend this time with each parent. But keep in mind that for really young children, the fight may not be worth it. They may not know what day it is, so it may be possible to create a special time on any day. Second, where possible, traditions should continue for the children. This may conflict with the first point. But that is usually rather an opportunity to resolve the conflict than to create it. If for example, one side of the family has traditionally celebrated Christmas on Christmas Eve, and the other side on Christmas Day, it can be possible for the children to attend both family celebrations every year rather than miss one. Dinner on Christmas Day is not a prize to be won. Especially if it means ruining your family’s traditional Christmas Eve celebration. Be sensible and practical about how the children can maximize their celebrations. Third, holiday time is usually shared equally. As with the first point, the children are getting a good opportunity to experience the holidays with each parent and their families. There are some obvious exceptions to this, such as when such an arrangement is not safe for the children or where one parent has to work and cannot take advantage of the extra time with their children. Again, this division of time has to be what is best for the children. Fourth, for Christmas, parents often share the time from Christmas Eve to Boxing Day equally and then share the rest of the school break equally. For this special period, it makes sense for the special day to be divided and it can make no sense for one parent to get the entire week around Christmas and the other parent being shut out of Christmas entirely. Fifth, travel with the children is okay during the holidays as long as it does not interfere with the other parent’s holiday. There are steps to be taken when the other parent refuses to let you travel without good reason. Sixth, trying to give bigger or better presents than the other parents teaches the children to be manipulative. The children will play one parent against the other for the better gift when they know that their parent will fall for it. Seventh, just because you are angry or emotional about the holidays after your separation does not mean your children are feeling the same way. Although it can be hard, parents should try to make holidays a happy time for their children. The separation was not the child’s fault, so they have no reason to feel angry or guilty. Trashing the other parent around the holiday table or at any other time the children are present is never okay. Family court judges say that is bad parenting and even a reason to change custody or the parenting schedule. During the pandemic, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials. Or, when a parent insists on engaging in other risky behavior at this unusual time. Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account. If the arrangements do take that type of behavior into account, then no change may be necessary. However, if a parent is insisting on engaging with the children in activities that are clearly not in the children’s best interest in light of the advice and information from our public health officials, then changes may be necessary. The Ontario Courts have supported the directions from Public Health Officials. If a parent is going to disregard those directions, thereby putting a child at risk, the Family Court will intervene. But what most kids of separated parents want during the holidays is to be free from experiencing their parents fighting. Parents must put the children first, realizing that children need both parents and that COVID19 means that everyone has to be careful about making that happen. Taking the High Route Nothing ruins holidays for children like fights between their parents. It is one of the most psychologically harmful things parents can do to their children. As unfair as the other parent may be to you over organizing the holiday, exposing your children to conflicts over or about the holidays is more unfair to the children. If you cannot get matters sorted out before the holidays in or out of family courts, then it is much better to take the high route and save your children from the fight. Then take this to the judge or an arbitrator to fix it for the next holidays. The judge will appreciate that you put your child’s well-being ahead of your own and they will be displeased with any parent that uses their children as pawns over the holidays. Taking the high route can only lead to things working out better for you and your children in the long run. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawDecember 24, 2020July 29, 2021
Can I be summoned to pay my fiance’s child support in Ontario? Question: I am engaged to someone who already has kids from a previous marriage: 6, 13 and 14 years. If he defaults on his child support payment, will I be asked to pay his support? Will my income be factored in? How can I protect myself? – Advice Scene Child support is the right of the child and the obligation of the parent. So, the quick answer is no. But, like most things in the law, things can be more complicated than that.Child support is always payable by a biological or adoptive parent that has a child for 50% of the time or less (where there is “shared parenting”, the amount of child support can vary from the child support tables, but usually both parents paytable child support to each other). For more about how child support works watch this video and listen to this podcast.In Ontario, getting married does not mean you “own” your spouse’s assets nor does it mean you are responsible for their debts – including any debts for child support. Part 1 of Ontario’s Family Law Act covers property division on separation. For a full explanation of how that works, watch this video, and listen to this podcast. But to summarize, separated married spouses share in the increase in each other’s net worths, but not in the actual assets themselves. Common-law couple have even fewer property rights. So, if your fiancé is in debt to his ex for child support, that is not your debt.However, unfortunately, that may not be where it ends. Your fiancé’s child support debt could end up being your problem too.First, with regard to property division, if you separate, you share in the increase in your spouse’s net worth. If you are married to your spouse, and he builds up a child support debt, that debt decreases his net worth. So, on separation, his net worth is lessened by the amount of that child support debt. Since, on separation, you essentially get half of his increase in net worth (and he gets half yours), any debt he reduces is how much you will get by half of the value of that debt. So, you end up indirectly paying half of that child support debt because of the decrease in what he shares with you. If you have a greater increase in net worth during the marriage, you would owe him an “equalization payment”. So, if his net worth is decreased by child support debt, how much you owe would be increased by half the amount of that debt. In that case, you are, indirectly, paying half of that child support debt. These types of debt problems, which can have very unfair results, can be fixed with a marriage contract. Click the link to see a video on how to use a marriage contract to avoid sharing your spouse’s debts. You could have a contract that says your spouse’s child support debts will not affect the property. Equalization if you’re separate.There is another way child support for your spouse’s kids can become your problem. I noted that child support is the obligation of parents. That can mean more than just biological or adoptive parents. While biological and adoptive parents always pay full table child support, other people who have acted as a parent to a child can be on the hook for child support too. That means that, as a step-parent, you could end up owing child support to your spouse’s ex. Listen to this podcast that explains more. This does not mean you share in your spouse’s child support obligation, but it means you have your child support obligation for the kids. As explored in this video from a high-profile new story, acting as a parent to someone else’s kids can create a child support obligation – especially where you do it with the best motivations.So, while you are not directly responsible for your fiancé’s child support, you could end up sharing in that debt if you separate from him after getting married if he owes back child support. You could also end up owing child support yourself if you act like a parent to his kids. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawDecember 17, 2020June 24, 2021
Determining the Child Support Obligations of a Step Parent A spouse who stands in the place of a parent to a child can be obligated to pay child support, according to s. 5 of the Ontario Child Support Guidelines (“Guidelines”). The amount a step-parent will be ordered to pay is at the discretion of courts. When exercising this discretion, the court will look to the other provisions of the Guidelines, and to any other parent’s obligation to support the child (including biological parents). The approach courts take to calculate the amount of child support owing by a step-parent can vary. They range from apportionment to percentages and top-ups. However, the case law has carved out several principles that courts generally follow in their determination of a step-parents’ child support obligations. These principles are described below. Primary Child Support Obligation of the Biological Parent The Ontario Court of Appeal in Wright v. Zaver, 59 OR (3d) 26 [2002] interpreted s. 3 of the Guidelines as placing a primary obligation on the biological parent to pay child support in the amount that is determined by the Guidelines (sometimes referred to as the table amount). The Guidelines determine the quantum of child support based on the income of the payor parent and the number of children to whom support is owed. For the biological parent, this amount is automatically calculated, and cannot ordinarily be negotiated lower due to the presence of a step-parent. On the other hand, the step-parent can argue for a reduction in the quantum of child support payable if a court finds that it is appropriate to do so. The full Guideline amount may be the starting point for the court’s determination, but the step-parent can rebut the supposition that they owe the full table Guideline amount with compelling evidence that the Guideline amount would be inappropriate (Kobe v Kobe, [2002] OTC 186 [ONSC]). Regardless of the approach taken, the Guideline table amount will likely still serve as an upper limit for the step-parent’s support obligation. Step-parent’s Child Support Obligation is in Addition to Biological Parent’s Obligation If a court orders a step-parent to pay child support in accordance with the Guidelines, the biological parent’s support obligations are still not displaced. It is at the discretion of the court to determine what additional amount would be appropriate for the step-parent to pay. In most cases, it is unlikely that courts will find it appropriate to award a “windfall” to the support recipient resulting from collecting the full amount of child support twice: from the biological parent and from the step-parent. It is also unlikely that the court will grant this accumulated child support obligation from all parents when this would lead to a standard of living beyond one the child has previously enjoyed. However, if the child support payable by the biological parent is not enough to provide the child with the standard of living enjoyed previous to their parent’s separation, the step-parent may be obliged to top up the amount paid by the biological parent or pay the full Guideline amount, where the biological parent is unable to pay at all, or cannot be located. Children First Objective It is important to keep the objectives found in section 1 of the Guidelines in mind. These include that a “fair standard of support” and “reduction of conflict between parents” are relevant to the determination of appropriate support by a step-parent. The legislation and courts set out to provide a degree of certainty for parents sorting out their affairs after a separation. However, primacy is given to the standard of living the child enjoyed when the parents were still living together, and the best interests of the child, in accordance with the “children first” perspective of the Guidelines. If you have more questions about your family law matter contact our family law department at 416-449-1400 or emailing info@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawSeptember 25, 2020April 15, 2024
Back To School Amid Covid-19? The Ontario Superior Court of Justice (ONSC) has recently, and in numerous instances, been called upon to decide the question as to whether children should be sent back to school amid the current Covid-19 pandemic. According to the Guide to reopening Ontario’s schools issued by the Ministry of Education, parents can choose between online schooling from home or in-person schooling for the next semester. However, when separated or divorced parents cannot agree on this, the courts are, often perhaps unnecessarily, asked to get involved. This Blog reports on four Endorsements released on this issue by the ONSC over the course of the last few weeks and comments on alternative strategies to resolve the back to school question in the best interest of the child and everyone involved. Home-schooling may only be ordered when a medical condition or the safety of a child’s inner circle requires it The two cases Chase v Chase and Wilson v Wilson come to different outcomes that can nevertheless be reconciled. In Chase, the ONSC ordered for the child to be registered for in-person schooling, whereas the court came to the opposite conclusion in Wilson. Factually, the two cases differ, because only in Wilson did the court find that there were underlying health concerns, namely asthma, that would put one of the Wilson children at disproportionate risk if they had to return to school in September. This important health factor is was weighted by the court and balanced against the child’s mental health, psychological, academic and social interests, as well as many parents’ need for childcare which usually speak in favour of attending school in-person. The ONSC’s approach to expert evidence on the safety of in-person schooling Notably, the ONSC in Chase pays deference to the government’s decision to reopen schools. The court holds that the government is better placed to decide upon the reopening than the courts are because the government is benefitting from extensive expert evidence and is conducting consultations with relevant stakeholders on this matter. As a consequence, the ONSC rejects to consider a recently released report by the Toronto Hospital for Sick Children that the parties, in this case, made reference to in the proceeding. Stating that there is evidence on both sides, the ONSC declines to be the adjudicator between differing expert opinions, leaving it to the government to evaluate the conflicting evidence. The court does, however, look to the particular facts of each case to determine whether there are individual risk factors that weigh in favour of making an exception from the general in-person attendance requirement set out in the respective provincial Education Act, i.e. in s. 21(1) of the Ontario Education Act, R.S.O. 1990, c. E.2 In its finding in Chase, the ONSC draws upon non-binding, yet persuasive arguments from two Quebec Superior Court decisions delivered on May 7, 2020: Droit de la famille – 20641, 2020 QCCS 1462 (CanLII) and Droit de la famille – 20682, 2020 QCCS 1547 (CanLII). The two decisions, too, come to different conclusions due to the fact that in only one of the two cases a family member suffers from a medical condition that puts the family at disproportionate risk, outweighing the child’s interest to return back to school. The approach by the ONSC taken in Chase following the Quebec decisions falls neatly in line with the principled division of powers between the executive branch and the judiciary. It is the responsibility of the government to establish general policies with broad application, whereas the judiciary has to focus on individual cases in order to ensure that the government’s policies in their application to actual people do not lead to unintended hardships. In Wilson, however, the ONSC takes a slightly different approach. Here, the court in fact considers the report of the Toronto Hospital for Sick Children, which recommends a return to in-person schooling. The court determines that it is unclear whether the in-person plan actually conforms with expert reports and that it appears to lack some of the recommended safeguards. The court concludes that it did not have any evidence to the contrary that returning to school was safe. To some degree, the ONSC in this case did evaluate the evidence and made a finding on its reliability in order to justify a decision that diverges from the recommendation of the Sick Children report. For this reason, it remains somewhat unclear whether reliance on expert reports will help a parent’s case to achieve the desired order. Conclusion from current case law In a third decision, Manabat v. Smith decided on September 2nd and involving one of DSF’s family lawyers, Katelyn Bell, the court affirmed a test previously set out in another very recent case, Zinati v. Spence, 2020 ONSC 5231. This test summarizes the factors determined in the (sparse) case law on the question of whether it is in the child’s best interest to be schooled at home or in person during the current pandemic: The risk of exposure to COVID-19 that the child will face if she or he is in school or not in school; Whether the child or a member of their family is at increased risk from COVID- 19 as a result of health conditions or other risk factors; The risk a child faces to their mental health, social development, academic development or psychological well being from learning online; Any proposed or planned measure to alleviate any of the risks noted above; The child’s wishes if they can be reasonably ascertained; and The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent’s work or caregiving responsibilities or other demands. Overall, the outcome of every case will really depend on the children and the family involved. Alternatives to an Application to Court A further comment made by the ONSC in Wilson deserves mentioning. The Honorable Justice Himel points out that bringing the issue of whether the child should return to school or not before a judge is not the most recommendable course of action. For one, the decision is likely going to be made on the written evidentiary record due to a lack of time and resources and a large number of emergency applications that need to be decided upon before school starts. This means that a judge who has never met the parties, let alone the child, will decide on what is in the best interest of the child and the family. A course of action that would empower the parties to make the decision and yet provide the benefit of professional advice and opinion is court-based mediation. This service is readily available and often free or subsidized. It has the further benefit of mitigating the tremendous burden on the family justice system that has arisen from the Covid-19 pandemic. If you have more questions about your education law matter for both private or public schools contact John Schuman at 416-446-5080 and john.schuman@devrylaw.ca or Katelyn Bell at 416-446-5837 and katelyn.bell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Education Law, Family LawSeptember 17, 2020January 12, 2021
Separation Calculation of a Defined Benefit Plan A pension can be a great way to plan for retirement. However, they can cause difficulties in separation and divorce. Deciding how much a pension is worth, how it should be divided and what discounts may apply can all be complex issues. Before a spouse retires and starts collecting a pension, the pension is “property” (like a house or RRPS or other assets) that is divided as part of property equalization pursuant to Part 1 of Ontario’s Family Law Act. (Note common-law couples do not equalize their assets on separation and so they have no claims to each other’s pensions under the Family Law Act). Pensions are very valuable assets. Their value is not what the spouse paid into the pension, but the total present value of what the spouse will receive on retirement from the part pension that accrued during the marriage. A spouse will be getting payments of just $2000 per month could have a pension worth half a million dollars! So, prior to changes to the Family Law Act in 2009, where one spouse earned his or her pension during the marriage, it was common for that spouse to get the pension and the other to get the house, which could make life financially difficult for the spouse with the pension. Since 2009, the most common way that people have dealt with pensions is to divide them “at source.” That means the portion of the pension that has to be transferred to the other spouse’s pension or LIRA (locked-in retirement account). That decreased the pension payments for one spouse while increasing the money paid to the other spouse on retirement. However, no payments are immediately necessary to deal with the pensions when equalizing property on divorce. To divide a pension at source after separation, spouses with a provincially regulated pension go to their HR departments, fill out some paperwork, pay a fee (usually $600 per pension) and the pension board calculates how much should be transferred to “equalize” the part of the pension or pensions that accrued during the marriage. Federally regulated pensions can also be divided at source, but the process is a little different. This takes the pensions out of the equalization calculation and all the other property is divided as if there was no pension. That avoids one spouse getting the pension and the other spouse getting everything else. But sometimes the best long-term financial decision is not to divide the pension at source. Financial advisors helping a separating spouse may advise that the spouse with the pension will be better off in the end if they keep the full pension and get all the full pension payments on retirement. So, one or both spouses may prefer that the pension be included in the equalization calculation and be reflected in the cash that changes hands immediately. If the parties cannot agree on which way to divide the pension, sections 10.1(4) and (5) of the Family Law Act have the effect of making division at the source the preferred way to divide a pension and only allow a judge to order the cash payment in limited circumstances. Where spouses are going to include the pension in the equalization calculation so as to leave the pension intact, the spouses use the calculations that they got back from the pension board after filing the forms through HR. The pension board gives the value of pension accrued during the marriage, so that is the number to plug into the equalization calculation for the value of the pension. However, that calculation contemplates that the pension will be transferred to another pension or to a LIRA, which means the person who receives the transfer will pay the tax when receiving the payments after retirement. When the pension is not being divided at source, the spouse who is keeping the pension will have to pay all the taxes on the pension benefit payments. So, the tax debt associated with the pension also has to be included in the property equalization calculations. Essentially that means that the total value of the pension is reduced by the liability. So instead of sharing 100% of the calculated total value of the pension in equalization calculations, only 85%, 75%, 60% or some other amount is shared between the spouses. The reduction takes into account the taxes that have to be paid on the pension benefits payments. The amount of tax that a person will ultimately have to pay on pension benefit payments is influenced by several factors, such as: the size of the pension benefits payments what other income the person will be declaring and what impact that has on the marginal tax rate applied to the pension earnings what credits or deductions can be applied to reduce the tax on the pension benefit payments when the pension benefit payments will start what other assets the person may be using during retirement There is no way to know what the tax liability will be without consulting an accountant or other tax professional. Even then, the liability can change with other changes in a person’s life. For that reason, the value of the liability is often “discounted” to take into account uncertainty and the fact that liability will not be incurred for some time. Rather than hire an accountant to do more precise calculations, many people just want to use an educated guess as to what the tax liability will be. For most pensions, the benefit payments will pay the recipient between $44,000 and $50,000 per year, which puts there tax rate at a little over 24%. For income over $48,353 but less than $78,783, the marginal tax rate is just under 30%. So many people just assume that the tax liability will be around 25% of the pension payments. The 25% reduction is not set out in the law. It is an assumption. The factors above could make it too high or too low. For a person with a modest pension and no other retirement income, or who is a long way from retirement, 25% will too much of a reduction. For people with good pensions, or who have other money for retirement, 25% may be too low. Getting the number right is something that you should really speak to a lawyer about to make sure the pension is shared at the correct value. Since pensions can be worth a lot of money, the discount can also be worth a lot of money. Speaking to a lawyer to get the numbers right can save you money. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJuly 6, 2020September 29, 2020