Determining Summer Custody Schedules with Your Child(ren)’s Best Interests in Mind For many separated families with school-aged children, summer can be a challenge. A written agreement or court order that sets out summer access with the children makes the season a lot less challenging, but for many families, such formalities are not in place. With regards to those families without order or agreement in place, the summer access schedule may still be straightforward. Consider, for example, those families who follow the same summer schedule informally every year. However, arranging such a schedule may prove to be difficult for families who are newly separated, or those who negotiate a summer schedule each year to accommodate the varying schedules of the parents and the child(ren). When there is no existing access agreement in place, parents have a lot of freedom in arranging the summer access schedule. Parents are free to negotiate and compromise when planning the schedule, however, they must ensure that the schedule is in accordance with the child(ren)’s best interests. The reason being, if the issue were to ever proceed to court for settlement, the judge will decide what is fair based on the best interests of the child(ren). See CLRA 24. (2) Best interests of child It is important to mention that when a court is considering an access award, the focus is always on the best interests of the child(ren), and not on the interests and rights of the parents. Although parents’ wishes are often at the forefront of a summer access negotiation – as mom or dad may only be allotted a certain week off work for a vacation for instance – it’s important to remember that for the court, these wishes are irrelevant. Rather, the best interests of the children are what the court will examine. For example, will the child(ren)’s best interests be met if they were to travel to Disneyland? For more information on how a judge may go about determining who should be granted custody, please listen to our podcast on this matter. Although it may seem that a vacation is always in a child(ren)’s best interests (after all – who doesn’t love a vacation?) this is not the case for the courts. According to one Canadian Judge, “The best interests of a child are not to be confused with such things as the “benefits” of a vacation.” In this case, the father sought to take his child on a vacation outside the country, and the mother obtained an order which restrained the father from doing so. Ultimately, the court made the final determination in accordance with the child’s best interests, and the father was not permitted to travel with the child. For the court, the evidence did not establish that the children’s best interests would be served by removing them from their home jurisdiction. As a parent, if you are seeking to travel outside the country with your child(ren) for a vacation, it will be necessary for you to obtain a consent to travel from your ex-spouse. If such consent is denied, you may consult John Schuman’s blog post “My Ex Won’t Sign a Travel Consent” to determine how to proceed. In any case, it is best to consult with a family lawyer prior to taking any legal action. To avoid both the cost and uncertainty of court, parents ultimately need to be able to agree on how to divide their child(ren)’s time during the summer. They must do so in a way that is best for their child(ren). Mediation may also be an option for parents who would like to settle their dispute outside of court. To find out more about family mediation services, please see our mediation page. If you are experiencing difficulties with scheduling summer access arrangements with your child(ren), contact Devry Smith Frank LLP’s family lawyer John Schuman today for a consultation, or call our office directly at 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 LawJune 8, 2017June 24, 2020
New Fairness for Children of Unmarried Couples A new Constitutional challenge is currently unfolding at the Brampton courthouse. Robyn Coates is challenging the validity of Ontario’s Family Law Act on behalf of her 22-year-old son, Joshua Coates. Joshua has DiGeorge syndrome and suffers severe cognitive impairment. Robyn is arguing the law is discriminatory as it arbitrarily harms disabled children of non-married parents. Coates wants Joshua’s father, Wayne Winston, to continue paying child support payments for the rest of Wayne’s life. Watson, despite not seeing Joshua since he was six, has paid child support throughout the boy’s life. With a wife and two kids, and not enough money to even pay his own legal bills, Wayne thinks he has paid enough. Wayne believes Joshua should be covered by Ontario Disability Support Programs. Ontario Disability Support Programs assist people like Joshua, but his mother argues this is insufficient. Robyn believes Joshua requires day programs to live a more enriched life, which can cost between $3,500 – $17,000 per year. When a couple gets divorced, their disabled child is eligible to receive child support payments for the duration of their lives. However, if the couple is never married, Ontario’s Family Law Act states that child support only continues where a child is in full-time post-secondary education. Child support for divorced parents is governed by the federal Divorce Act. The Divorce Act allows disabled individuals to receive child support from their parents beyond their eighteenth birthdays. For non-married parents, child support payments are based on provincial Family Law Acts, which in Ontario, make clear that support will only continue to be paid in circumstances where a child is enrolled in full-time post-secondary education. Alberta has similar legislation to Ontario, while the rest of the provinces are aligned with the federal Divorce Act. What is at issue in this decision is not whether the law is bad or immoral, but whether it is unconstitutional, which requires the law to be discriminatory. Robyn Coates is a resource worker helping students with disabilities and is hoping to send a message with this action. Robyn has given quotes that indicate this case is about more than Joshua, but about all children with disabilities from unmarried parents, receiving care. Robyn said: “Many women are raising these kids alone and they are living in poverty. And nobody seems to give a damn,” and “I don’t want any other mother to go through this.” However, even if the court is unpersuaded by Robyn’s argument, the media attention this case is generating might be sufficient to motivate the legislature to act. This challenge raises some important questions about family law legislation in Ontario. Should non-married parents be treated differently than married parents? Presently, the law dictates the act of creating a child only mandates 18 (plus any additional school years) years of legal responsibility, while the act of marriage (and divorce), makes the parents responsible (by law) to the child for their entire life. The court will have to assess if the is law trying to distinguish between divorced parents and non-married parents. If the law is not trying to achieve this purpose, it would be arbitrary for the law to in effect, treat disabled children of non-married parents differently than disabled children of divorced parents. Given Ontario’s Family Law Act does not distinguish between divorced and non-married parents in other capacities, it is likely that the law in question is arbitrary and therefore, discriminatory. If you need assistance navigating your family dispute, Devry Smith Frank LLP’s family law group can provide you with the guidance and support that you require. “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 LawMay 26, 2017June 24, 2020
Grandparents’ Custody and Access Claims Enhanced by Amendments to Ontario’s Children’s Law Reform Act Parents’ separations can mean difficult transitions for children. Grandparents very often play a special role in these circumstances, providing their grandchildren with stability and unconditional love when they need it most. These times of transition, however, can also lead to parents and grandparents becoming estranged from one another, such that grandparents’ access to their grandchildren can be abruptly reduced or terminated. In Ontario alone, an estimated 75,000 grandparents have been denied access to their grandchildren (as reported here). Recent amendments to the Children’s Law Reform Act (the Act), in force since January 1 of this year, may help such grandparents. Section 21 of the Act has been amended to make specific reference to grandparents as among the parties who can bring an application for custody or access. Subsection 24(2) , which lists factors used to determine the best interests of the child, has been amended to specifically refer to “a parent or grandparent” as among those whose “love, affection and emotional ties” to the child must be considered. In context, the amendments are as follows: Application for custody or access (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21; 2016, c. 23, s. 3; 2016, c. 28, s. 1. Merits of application for custody or access (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1). Best interests of the child (2) The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; What’s Changed? The amendments consist of only eight added words – fewer characters than your average tweet. While hardly revolutionary, some things certainly have changed. Grandparents were always able to bring applications for custody of, or access to, their grandchildren – they were simply included as “any other person” under section 21. Likewise, considering the “love, affection and emotional ties between the child” and others, including a grandparent, was always required of judges in determining what custody or access arrangement was in the best interests of the child (section 24). Now, however, judges must specifically consider these ties between child and parent, and child and grandparent, rather than simply between the child “and those entitled to or claiming custody or access.” In other words, the grandparent-grandchild relationship is now expressly considered as a component of the best interests of the child. While it is too early to tell whether and how the courts might seize on this amendment, one might expect that all else being equal, the courts would be more likely to make an order granting access to one’s grandchild. After all, to the extent the grandparents play a positive role in a child’s life, it will be difficult to argue that their role should be reduced or halted in the child’s best interests. Parental Autonomy Undermined? Some of you may be thinking, “Wait, what if the parent has a good reason to keep their kid(s) from their grandparent(s)? Aren’t parents better placed than courts to decide what’s best for their kid(s)?” These and other issues were raised during a parliamentary debate. To be clear, the amendments do not require that grandparents be given access or custody, just that their unique relationship with grandchildren be considered in making those determinations. Of course, a parent may have a sound, child-focussed rationale for denying grandparents access to the child. In such a case, it is the best interest of the child (or grandchild) which will determine the outcome. These amendments, appear to be aimed at cases where grandparents’ access is unreasonably withheld. Consider, for example, loving maternal grandparents, previously heavily involved in a child’s life, who are now denied access because the father, who was just awarded sole custody, has decided that it is no longer necessary for them to continue seeing their grandchildren. In this all too common scenario, the decision to deny access is not based on the child’s best interests. Indeed, it may well be harmful to the child. This is where the courts have been instructed by Parliament to intervene. Parental autonomy is important, but the law is clear: the best interests of the child are the courts’ predominant concern. Given these amendments, the grandparents in question may now have a better chance of asking a court to grant them access in the face of the parent’s objections. What happens next? These amendments will be welcomed by the thousands of grandparents who might find in them some hope of reuniting with their grandchildren. Some parents may instinctively object to the courts second-guessing their choices, but, as a society, we’ve long restricted parents’ behaviour where it is seen to harm their children. Thanks to these amendments, a judge must now specifically consider a grandparent’s important role in a child’s life. Are you a grandparent seeking access to, or custody of, your grandchild? The experienced family lawyers at Devry Smith Frank LLP can help. For any family law concern, please do not hesitate to contact us at 416-449-1400 in Toronto, 705-812-2100 in Barrie, or 289-638-3171 in Whitby, or send us an email at info@devrylaw.ca. “This article is intended to inform and entertain. 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 LawMay 23, 2017June 23, 2020
How to Change Existing Child Support Payments and Visitation Agreements Family lawyer John Schuman was recently asked the following question: I want to change my child support amount and the visitation agreement. How do I go about doing that and what forms do I need? Answer By John Schuman: There are three ways to change child support: 1. If you and the other parent agree on the change – either because your income has changed or the children’s living arrangements have changed, you can do one of the following: Draft up an “amending agreement” to your separation agreement File a motion to change support on consent at the court, if you have a court order It can be dangerous to reduce your child support, even if your ex agrees. Without a formal agreement or court order, the other parent can go back and enforce the last formal agreement or court order, and you could end up owing a lot of money. 2. If the other parent does not object and you do not fall into one of the exclusions, you can use Ontario’s Online Child Support Calculation Service to adjust support. You cannot use the service if: You have shared custody Do not earn most of your income from a salary, or earn more than $150,000.00 per year. If a child is 17.5 years old or older and is still entitled to support. In these situations, child support may be more than a simple calculation. But, if your child support will be a simple calculation, for an $80 fee, the Ministry of Finance will get both parents’ tax returns and do the support adjustment for you. 3. If neither of the above options works for you, then you will have to bring a Motion to Change Support in Family Court. The procedure to change support is usually simpler than an initial divorce of Family Court Application. It may involve 2 appearances or less. Either parent can also use this process to change the support paid under a separation agreement if the other parent does not agree. To learn more about how to do this, listen to this podcast and watch this video. If you are not sure whether you should ask to change child support, listen to this podcast or watch this video on how to calculate your child support obligation. In any case, it is best to speak to a family lawyer about your situation and figure out which option works best for you. You may be able to save on legal fees by using unbundled services. Changing “visitation” or the “parenting schedule” may not be as straightforward. If you cannot agree on changes to visitation or the parenting schedule, then you should consider using a parenting mediator, or one of the other lower-conflict ways of resolving parenting issues. Finding non-confrontational ways to resolve parenting issues, including the parenting schedule, is much better for the kids. If you find that the other parent is being unreasonable or not acting in the children’s best interests, then you may have to go to Family Court. If the children might be harmed, or if you are not seeing them at all, you may be able to get an Emergency Custody Order. Otherwise, you would use the same “Motion to Change” procedure that applies for support. In making any decision about children, judges only do what is in the child’s best interest and have factors to consider in making that determination. Since those factors are what a judge will use, you should take them into consideration when deciding what kind of visitation or parenting plan to seek. There are many different types of parenting arrangements after separation and what works best depends on the child. If you are not sure or have concerns, then it is important to talk about your specific situation with a family law lawyer. In doing so, you will ensure the best result for your children. You can get a lot more information about Ontario Family Law issues, including a further explanation of child support, family court, child custody, and parenting legal issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. However, it is always best to seek experienced legal support by meeting with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact John P. Schuman, C.S., or search the Lawyer Directory. By Fauzan SiddiquiBlog, Family LawApril 24, 2017September 9, 2022
Help! Will My Foreign Divorce Be Recognized in Canada? DSF’s family lawyer was recently asked the following question: If someone gets divorced in Tennessee, is the divorce legal in Ontario if they haven’t registered their divorce in Canada? I am planning on getting married again in Ontario. In the 21st century, it is important that the law keeps pace with the realities of an increasingly globalized world, one of which is the increasing flow of people between countries. In the context of family law, the shifting of families, children and individuals across borders has created a host of challenges for family lawyers, judges and legislators alike. One of the areas that continue to be the subject of focus is the recognition of foreign marriages and divorce. While the traditions, ceremonies and requirements for marriage and divorce vary from country to country, when it comes to recognizing them in Canada, there is only one set of rules. Whether you are divorced in New York or New Delhi, the test is the same. If you want to get remarried in Ontario after obtaining a divorce in a foreign jurisdiction, you have to establish that the foreign divorce is recognizable in Canada. Under s.22(1) of the Divorce Act, a foreign divorce will be recognized where one of the spouses was ‘ordinarily resident’ in that country for at least a year immediately before obtaining the divorce. However, that is only the first step to being able to remarry in Ontario. Before the Ontario government will issue you a marriage license, you have to obtain an authorization from the Registrar-General. To do this, you have to provide the following documents to the Office of the Registrar-General, Marriage Office: A marriage license application completed by you and your new spouse; The original divorce order or notarized copy of the divorce order. If the divorce judgment was written in a language other than English or French, you will have to obtain a court-certified translation of the document; A completed Statement of Sole Responsibility, which is a document that attests that you and your new spouse understand that the granting of a new marriage license does not necessarily mean that the foreign divorce would be recognized by an Ontario Court. A legal opinion letter from a lawyer, addressed to you and your new spouse, giving an opinion that the foreign divorce would be recognized as valid in Ontario and giving the reasons for their opinion. Once you have submitted these documents, the Registrar General will provide an authorization allowing you to obtain a marriage license. Only then will you be free to remarry in Ontario. It is important that you speak to a lawyer before embarking on remarriage. There are a number of legal hurdles to get over, and you will need a lawyer to draft an opinion letter in any event. If you are planning to get remarried in Ontario and need some advice, assistance or an opinion letter, contact a member of our Family Law Team. “This article is intended to inform and entertain. 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 LawMarch 9, 2017June 18, 2020
Is My Acceptance of a Separation Agreement over E-Mail Valid, Even Without My Signature? DSF’s Family Lawyer John Schuman was recently asked the following question: My soon to be ex-wife proposed an agreement between us concerning business, property, child access etc. She sent me a draft via email for negotiation purposes and I agreed for the most part and sent along with the changes I wanted. She then went to her lawyer and had an agreement drawn up, with the changes I wanted to be omitted of course. She now says my acceptance via email is binding, without my signature! Please tell me this is not true. Domestic contracts of any type (marriage contract, cohabitation agreements and separation agreements) are subject to the same rules about the process that must be adhered to, to have a valid contract and the subject matter that the contracts are legally allowed to cover. While the question as to what subject matter a contract can cover is best left to another day, your question raises important points about executing domestic contracts. Do I Need One at All? A domestic contract is, in my view, the most time-efficient, cost-effective and civil means of addressing the issues arising from a breakdown in a relationship. It is the preferred way to bring predictability, certainty and finality into a situation that, most likely, has been lacking those for some time. The only other means to resolve family law issues is by going to court, which can cost tens of thousands of dollars and take years to resolve. If there is even a remote chance that spouses, with the assistance of competent counsel, can resolve matters without going to court, it is always preferable to work towards a domestic contract. Can’t My Spouse and I Just Write Up an Agreement or Use One We Find on a Website Like Law Depot? Spouses are free to write a domestic contract in any form- they can even use a quill and parchment to do so. As long as it says “Separation Agreement” and is signed and witnessed by both parties, it is technically a valid contract. However, the difference between a valid contract and a contract that will be enforced by a court is stark and, in reality, it is the latter one that matters. I have noticed an increase in the number of people approaching me regarding contracts they plan to make or have made on lawdepot.ca or other contract generators. Every one of these contracts has had provisions or lack of provisions that I (and a number of lawyers consulted) would never consider using. For instance, the provision for waiver of spousal support in a law depot contract is six lines long. Every spousal support waiver clause I have seen drafted by competent counsel has been upwards of a page and a half. Lawdepot agreements do not contain any of the standard references to the governing statutes, which is quite important. These are basic facets of drafting an enforceable agreement – It is clear that a practicing Ontario family lawyer did not write the law depot template. If you need an agreement drafted, retain competent counsel to do so. Investing a bit at the outset in a solid agreement may save you tens of thousands down the road if the agreement is ever challenged. Think of it as an insurance policy against a future disaster – you will want to be well protected. So How Is A Valid, Enforceable Agreement Concluded? For a domestic contract to be valid and enforceable, it must first comply with the general law of contract. This means: Both parties must agree as to the subject matter of the contract; The contract must be in writing; The contract must be signed and witnessed; The contract must not contain any illegal bargains or promises The contract must be made without undue influence or duress. In addition to these terms, s.56(4) of the Family Law Act lays out additional grounds on which a judge can set aside a domestic contract, such as if one party did not make full financial disclosure or if a party did not understand the nature or consequences of the agreement. To ensure that there has been proper financial disclosure, you need to speak to a lawyer. Only a lawyer will be able to accurately tell you what assets need to be disclosed and what is the best way to ensure that the financial information you provide is sufficient. The sufficiency of financial disclosure is a common reason why agreements are set aside, years after they are concluded. Most judges feel that for a party to understand the nature and consequences of an agreement, a layperson needs to hire a lawyer. It is not simply enough that they understand the meaning of the words and have a simple appreciation of the consequences. The case law is clear that the person must understand all the legal repercussions of their agreement, in a variety of circumstances. Once represented parties agree to the terms of the agreement, and each has made full disclosure of their debts and liabilities, they are in a position to execute the contract. At this stage, each party will meet with their lawyer who will explain the nature and consequences of the contract through a process known as Independent Legal Advice. Once ILA has been given, a party will sign the agreement and the lawyer will attest that they have explained the nature and consequences of the agreement to the party. Once all interested parties have signed off, there is a valid and enforceable agreement. If you are moving in together, getting married, separated or just have a question about domestic contracts, please contact one of our Family Law Team. “This article is intended to inform and entertain. 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 LawMarch 8, 2017July 5, 2023
Can I Kick My Abusive Husband Out of the Family Home? One of our Family Lawyers was recently asked the following question: Is it legal to kick my abusive husband out of our house until our divorce is settled? The house is in my name and I am the only one paying the mortgage. Unfortunately, domestic violence and spousal abuse is an all-to-common occurrence and one that often factors into the breakdown of a marriage. While many would think that the answer to this question is a resounding “Yes!”, the answer is actually “No”. Or perhaps more accurately “Not really.” While many of the same laws apply to married and non-married spouses (such as obligations for spousal support, child support and the ability to enter into domestic contracts), the law regarding possession of the family (or ‘matrimonial’) home is very different for common-law and married spouses. While married spouses have an equal right to possess the home (even if only one spouse owns it), common-law spouses do not have any right to possession of the home. A common-law spouse who owns their home can kick their partner out at any time, for any reason (although it’s always recommended you speak with a lawyer before doing so!). Married spouses cannot. Until a divorce is granted or a court orders otherwise, both spouses have a right to live in the matrimonial home. While paying the mortgage may have an effect on the division of property, paying the mortgage or utilities does not affect the rights of spouses to occupy the home. If a spouse takes any steps to kick their spouse out of the home, they can find themselves in deep legal trouble. In some circumstances, a judge may order the offending spouse to leave the home. Judges are very skeptical of those who engage in self-help regarding their home. The case law is clear – you need to ask the court’s permission to kick your spouse out of the home (or the police if it’s an emergency). If a married spouse is abusive or makes you fear for your safety, you can ask the Court to kick your husband out – in legal parlance, you can ask the Court for ‘exclusive possession.’ Under the Family Law Act, judges are directed to consider a number of factors in determining exclusive possession, such as how it would affect any children, the ability of either spouse to find alternate accommodations and any violence committed against the spouse or any children. Orders for exclusive possession are not common, even in cases where violence is alleged. Litigants face an uphill battle when asking judges to order exclusive possession – judges are hesitant to kick people out of their home for a variety of reasons – they may not have elsewhere to go; if they have to rent, the added cost may put them at a disadvantage in pursuing other rights (such as hiring a lawyer to contest custody); and a general belief that people should only be removed from their home in the clearest of circumstances. If you think you need to pursue exclusive possession of your home, or are facing a claim for exclusive possession, it is important to talk to a family lawyer right away. These are not simple claims, and ones that should not be addressed without legal advice. The consequences of these claims can be huge – you can be removed from your house. It is important to get good advice and counsel from the outset. If you have any questions about exclusive possession, contact a Toronto Family Lawyer. By Fauzan SiddiquiBlog, Family LawMarch 1, 2017November 14, 2020
My Boyfriend Has Been Denied Access to His Son. Can He Fight for More Rights to Him? My boyfriend’s ex-girlfriend had his son in late November 2016. He is unable to see his son often and she won’t allow him to have him alone as she doesn’t think he can care for him. There is no paperwork in place yet but he’s worried she will ruin his life if he does not comply with everything she wants and says. Is there any advice for this situation on how he could get more rights to his son or how he should go about this? Answer by John P. Schuman, C.S. Unfortunately, young mothers refusing to allow their child’s father to be involved in their young child’s life is a very common situation. Young mothers often feel that they need to protect the child and only a mother can provide appropriate care for an infant or young child. That approach is not consistent with the current research in social science and child development. Even at a very young age, children benefit from having both parents actively involved in their lives. Most family court judges recognize this. One parent refusing to allow the other parent to have any contact with a young child is a situation where it is possible to get an emergency family court order. It is very important for children to have frequent, meaningful contact with both parents. That means both parents should be involved in feeding, bathing, and other parenting tasks (not just playing), at a minimum, several times a week. Due to young children’s short memories and perception of time, the frequency of contact is very important – more important than long periods of time. Although young age is not necessarily a reason why a child should not be spending overnights with both parents. What is often best for a young child is to allow that child to develop a secure attachment to both parents through having both parents actively and frequently involved in the child’s care. Denying a child contact with one parent, or exposing the child to a lot of conflicts, especially at a young age, can lead to long term problems. In order to keep tensions and conflict down between parents, because conflict between parents is very harmful to the child, and to provide the best hope for a joint custody situation, it is best for parents to try parenting mediation, with a parenting professional, before going to court. The parenting professional can help the parents understand the children’s needs and help them work out a parenting plan that best suits the child’s needs at each stage of development. If the other parent will never agree to mediation, it is still important to propose it because judges get angry at parents who refuse to try to work out things for the kids without a fight. Before a parent goes to court, it is important for that parent to understand that judges base decisions on what is in the child’s best interest. There are several factors that judges consider when deciding what is in a child’s best interest. Before going to court, it is important for a parent to have evidence that what they want is in the child’s best interest. It is also important for separated parents to understand the difference between different types of parenting arrangements and when each will work best for the child. That will help them come up with the best parenting plan for the child or, if they have to go to court, to know what types of orders the judge will be inclined to make. But, if a parent is not seeing a child at all, or is not having meaningful contact with a child, then that parent should see a family lawyer right away to know your options and how best to ensure the child has the best possible relationship with both parents. You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody and parenting legal issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For legal advice contact one of our family law lawyers. “This article is intended to inform and entertain. 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 LawFebruary 28, 2017June 18, 2020
Important Tax Information for Parents with Shared Custody A recent Canadian Tax Court Case has important implications for parents with shared custody and the way child support is paid and collected. The decision in Harder v. The Queen changes the way parents with shared custody must deal with child support. It is likely that most parents with shared custody will have to change their child support arrangements and the Family Responsibility Office will have to change its procedures to prevent running into tax problems. How Shared Custody, Child Support and Taxes Used to Work The Supreme Courts set the rules for child support in shared custody in it decision in Contino v. Leonelli- Contino. At paragraph 49 of that decision, the Supreme Court said that the starting point for calculating child support in shared custody, which persists unless it results in an unfair sharing of the costs of raising the children, is that the parents calculate what each of them would owe under the Child Support Guidelines Tables and set those amounts off against each other. In the majority of shared parenting situations, consistent with the Supreme Court’s decision, parents agreed to use set-off the child support amount such that the parent with the higher income made a child support payment that reflected the set off amount. Part of the basis of this set-off approach is that each parent gets some of the tax benefits associated with caring for the children in a shared custody situation. The amount of child support under the tables takes into account the tax deductions/benefits available to parents for having children. The CRA’s policy on tax credits and benefits for parents in shared custody situations states that when parents share custody of their children, they must rotate the benefits/credits for the children such that each parent gets the tax benefits for the children for six months of the year. That policy was last updated in July 2015. As a result of this policy, parents with shared parenting set off support against each other and each claimed half the tax benefits for the children for whom they had shared custody. The Significant Changes to Child Support to Avoid Tax Problems According to Justice Block in his tax court decision in Harder v. The Queen, the Courts, Family Arbitrators, Family Mediators, Family Lawyers and separated parents did not properly consider the Section 118(5) of the Income Tax Act in making the above-described child support arrangements. That section of the Income Tax Act states that a person who has to pay support for a dependent cannot claim tax deductions or benefits with respect to that dependent. Children are dependents. So, that means that, notwithstanding the Canada Revenue Agency saying that benefits must be rotated in shared custody situations, a parent paying child support may not claim those benefits. Based on the Supreme Court’s decision in Contino about setting off support in shared parenting, and the CRA’s policy that benefits be rotated in shared parenting, it seemed logical to interpret the “set-off support” paid in shared custody situation as parents notionally paying each other, but simplifying the logistics of that by having the payments flow only one way – from the higher-income parent to the lower-income parent. This is how child support orders and agreements were written and how the FRO processed support. However, in Harder v. the Queen, Justice Block stated that interpretation was wrong under tax law. Where parents set-of child support amounts, this resulted in only one parent receiving support and one parent paying support. Under the wording of section 118(5) of the Income Tax Act, the parent paying support could not claim the benefits and credits in relation to the child or children for whom that parent was paying child support. According to the decision in Harder v. the Queen, the correct thing to do is for each shared custody parent to actually pay the full table child support amount to the other parent so that the full table support is flowing both ways. The Family Responsibility Office should collect the full child support amount payable by each parent and pay it to the other parent, essentially having the support between the parents cross paths as doing a “set off” will have negative tax consequences for at least one of the parents. There are some obvious practical problems with the approach set out in Harder v. the Queen. For example, a lower-income parent may not have the funds available to make the support payment until receiving the support from the higher income parent. That would cause one of the support payments to “bounce” and one parent to “overpay” by not getting the support back to which he or she is entitled. It will also dramatically increase the cost for the Family Responsibility Office, and the support collection agencies in other provinces, to enforce child support in shared parenting arrangements. However, as Justice Block points out, this complicated and tedious approach to child support in shared parenting is required by section 118(5) of the Income Tax Act and it is the way things must be done until Parliament changes the law. 32 – How to Change a Support Order Justice Block’s decision in Harder v. the Queen means that most parents with shared custody will have to change what they are doing for child support. It may also mean that they have to change their child support order or separation agreement to reflect how the Income Tax Act requires child support to be paid so that both parents can get the tax benefits related to raising the children. The Ontario Family Law Podcast and this video give some general advice about how to change a support order or agreement. However, the rules for separation agreements require that separated parents and spouses consult with a family lawyer, and they will probably speak to a lawyer who understands both family law and tax law to make sure the agreement or court order does what they expect. Obviously, parents who have just separated and who are planning on sharing custody of their children will want to make sure that their child support order or separation agreement complies with the requirements to maximize the tax relief for them. Again, they should contact an excellent family lawyer to make sure that happens. To learn even more about child support, get a copy of this easy to understand book on the basics of Ontario Family Law as a paperback, or download it immediately as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce. Obviously, there can be a lot of money involved in child support cases and only could really help a child with his or her needs (or not). You need to get the help of a lawyer immediately to avoid financial hardship. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him or by calling 416-446-5847. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). By Fauzan SiddiquiBlog, Family Law, TaxJanuary 30, 2017June 16, 2020
Denied Access To Your Child? Here’s What You Need To Know Breaking up, as they say, is hard to do. Where there are children in the equation, the question of a parent’s access to the child(ren) can add substantially to the hardship. All too often, the animosity associated with separation leads one parent to frustrate the other’s access to the child(ren). In the following, we discuss what a parent who is denied access to their child(ren) can do, and provide some context to help make sense of this situation. In a perfect world, parents would put aside their differences and cooperate to ensure both parties play an active role in their children’s lives. One way of doing this involves the parents executing a contract as to custody and access – namely, a “parenting agreement” or “separation agreement.” Such agreements are valid and enforceable when in writing, signed, witnessed and where both parties have received independent legal advice. One helpful resource that can work with families toward reaching an agreement, is a parenting mediator. A mediator acts as a neutral third party who works to facilitate productive communication between parties, with a view to settling issues including access. Mediated resolutions must be voluntarily accepted by both sides. While both come at a price, failing to agree and escalating the conflict can often prove much more costly. If parents cannot come to an agreement without assistance, or if the agreement is not being observed, they often turn to the courts and to legal professionals. This is where the experienced family law practitioners at Devry Smith Frank LLP enter the fray. To be clear, there are circumstances where a parent is justified in denying the other parent access. This will be the case where a parent presents a protection risk to the child(ren) – for example, where an access parent is abusive, does not maintain a safe accommodation for the child(ren), or is intoxicated. However, where access is denied without justification, a parent can seek remedies from the court. In applying any remedy, the courts’ paramount consideration is the “best interests of the child.” The courts will not enforce or approve a parenting agreement, in terms of access or otherwise, unless it accords with that principle. While the “best interests of the child” are not precisely defined, courts must consider specific factors – these include facilitating the child’s access to the other parent.[1] Generally, the courts frown upon parents who obstruct the other parent’s access to their children. They have even taken away custody from such parents. Where a parent is not able to exercise access with their child, and where another parent is preventing the access from taking place, a parent can bring a motion seeking that the court Order the access. In Ontario, the courts have awarded a parent who was denied access the costs incurred in attempting to exercise access. The courts may also award compensatory access, so that the access time denied to a parent will be made up. Alongside a court Order dictating that they will have access, the court will award the party who succeeds at the motion their costs – that is, the losing party will have to pay for a portion or all of the other side’s legal costs. In more severe cases, a parent may disregard even a court order. When a court order for access is not obeyed – “deliberately or willfully or knowingly” – the offending party can be found in contempt under the Family Law Rules (O. Reg. 114/99). A contempt order is sought by motion, and can result in fines, other penalties, or even imprisonment. Again, because the best interests of the child are the primary consideration, the courts are reluctant to criminally charge or even fine a parent. This is an exceptional remedy, meant to convey clearly the importance of obeying court orders. In exceptionally rare circumstances, a parent denied access may also seek an apprehension order. The parent, or the police, are thereby empowered by the court to apprehend the child. It must be emphasized that, given the immense psychological harm a child could be exposed to, a court is extremely unlikely to consider this to be in the best interests of the child(ren). Indeed, such orders are all but unheard of. Instead, a court asked to make this order may give the parent denying access another chance to comply, perhaps under threat of consequences for remaining in contempt of an order. Ultimately, Courts must balance the desire to ensure parents’ access and respect for court orders, with the desire to avoid exacerbating tension and financial trouble within families. Overlaying all other considerations, are the best interests of the child. They therefore tend to gradually raise the stakes, escalating from warnings and compensatory cost awards to the more severe contempt orders where all else fails. When faced with a denial of access, it is important to remain composed and resist taking matters into one’s own hands. Emergency motions are available in certain circumstances. If there is a genuine risk of harm, the police are also available in the immediate term. Longer term solutions, however, will require engaging with the courts. Navigating court processes without assistance can be complex and stressful. If you are facing a denial of access, or any other family law issue, please feel free to contact Devry Smith Frank LLP. ______________________________________________________________________________________________________________________________ [1] Among other factors, the courts consider the ability of those seeking access to the child to act as a parent. An integral part of acting as a parent is the ability to facilitate access to those for whom the child has “love, affection and emotional ties”. In the vast majority of cases, this includes both parents. By Fauzan SiddiquiBlog, Family LawDecember 12, 2016November 14, 2020