Certified Specialist in Family Law and Toronto Area Family Mediator and Arbitrator John Schuman was recently asked the following question:
I am in the process of responding to a claim for child support from my ex husband, who currently has sole custody of our son. He is refusing me access to my child unless I pay him child support. I have the response documents and need some guidance in completing them. I also wish to respond with a motion for access to my child, who I have seen 3 times in the past year and a half.
Becoming engaged in family law litigation is a stressful occurrence for anyone. Family Court is a complicated and unfamiliar process. You should listen to my podcast (Part I, II, III) about what to expect when involved in the family court process. You can also watch this interview I gave about how to present a winning strategy in court. If you are responding to a claim for support or making a claim for custody or access, it is important to talk to an experienced family lawyer sooner than later. A good family law lawyer will help you draft your pleadings in a manner that puts your best foot forward, and will greatly increase your chances of being successful with your claims.
In Ontario, custody and access, and child support are two discrete issues. One does not follow the other and a spouse cannot deny access because support is not being paid or because that spouse wanst increased support. To do so would essentially allow one parent to hold the child hostage for ransom. Judges do not like to see parents taking such self-help measures. As well, the right to access between you and your child is your child’s right and is not one that your spouse can unilaterally terminate or curtail. The fact that you have seen your child so infrequently is troubling and needs to be addressed. You should speak to a family lawyer right away about steps to ,are sure your child can spend time with you. Unless there are pressing reasons why you should not have access to your child, the current level of contact that you have with your child is wholly insufficient.
If you have been consistently trying to have access with your child and your spouse is preventing you from doing so, a judge can order that the child be returned to your care. The applicable section is s.36(1) of the Children’s Law Reform Act. Under that section, if there are reasonable and probable grounds to believe that a child is being unlawfully withheld from a custodial or access parent, the Court can order your spouse to deliver the child to you. In such cases, it may also be appropriate to ask the court to vary the current custodial and parenting arrangements so that you play a larger role in your son’s life and your ex-husband can not continue to minimize this. You should watch this video that explains the different custodial arrangements in Ontario and the situations where judges order each.
With regards to child support, it seems apparent that there needs to be an adjustment or reapportionment of child support. You should watch this video and listen to this podcast where I explain the general framework for child support in Ontario, including who pays to whom, how much and for how long. If your spouse owes you child support arrears and you owe him ongoing support, there may be a set-off, where any amount you owe him for child support will be deducted from amounts that he owes you. Watch this video on how to change a support order
To learn even more about how to deal with the consequences of the breakdown of a relationship, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 eBook for Kindle or Kobo or as an iBook for iPad, iPhone or 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.