Podcast for First Responders
This is the Ontario Family Law podcast, featuring issues related to marriage, separation, divorce, child welfare, and also some children’s rights issues. It is a companion to the book, A Guide to the Basics of Ontario Family Law, which is available on Amazon, or by calling 416-446-5847. My name is John Schuman, I am a certified specialist in family law and I am a family lawyer, mediator, arbitrator and collaborative lawyer and I am the partner leading the family law group at Devry Smith Frank LLP. I have also been an Ontario paramedic for 23 years. In this twenty-fifth edition of the podcast, we will discuss how family law works for emergency responders.
Police officers, paramedics and firefighters and other emergency first responders help people every day. They go into difficult situations when so-called normal people are running away. They work in difficult situations, at difficult hours, and the work often has lasting effects on them. All of this creates unique issues that first responders must address if they separate or divorce (an event that, unfortunately, can be the product of a first responder’s job). As a special support to first responders, this podcast will give some guidance to first responders on the unique issues they face in family law.
The first area of concern for many first responders, going through a family law situation is parenting, custody and access of the kids. First responders have a unique lifestyle and that can cause them to be worried about whether being a first responder means no longer being a parent after separation or divorce. There are two areas of concern: the shift schedule and the mental health component.
First Responders provide assistance around the clock, 24/7, 365 days a year. For many emergency personnel, this means shifts that are often long, and rotate through days and nights according to what can be a very complicated pattern. Do working days, evenings, nights and weekends mean that you cannot be a parent after separation? The courts have seen that many different careers have working hours that are a long way from 9 to 5.
While rotating shifts may mean that the first responder parent is not always available after school, it also means that parent is often available to take children to doctors and dentist appointments, be available for school meetings or to care for a child during the day. Longer shifts mean working fewer days each week and so being around more. What the courts care about is not the shift rotation, but whether the first responder is an involved caring parent with a close relationship with the kids. If that was the case, then it is likely that the family found a way to work with the schedule during the marriage or relationship and so there is not reason why the schedule should be a problem after the relationship. Court, and family arbitrators, look what is in the child’s best interests and having a good relationship with both parents, around a schedule that has worked in the past, and that allows things to be as stable as possible for the children is usually in their best interests.
Where the difficulties arise, is that the courts are under resourced with judges and most family court judges have thousands of cases before them. That means that the judge never gets to learn the family well and has to make a decision about parenting based on a very brief meeting in which communication may be limited by the formalities of court. In that situation, it can be difficult for a family court judge to get his or her head around a rotating shift schedule, especially a complex one. Judges may not have the time to figure out a parenting schedule that works around a changing or rotating work schedule. For that reason, first responders, and their separated spouses, should give serious thought to hiring a parenting mediator - a social worker or child psychologist, who can work through the intricacies of work (and activity) schedules and come up with a parenting schedule that works for everyone, especially the kids.
First responders face difficult and traumatic situations, sometimes one after the other, and sometimes shift after shift. There is growing awareness of the effect of what first responders experience on their jobs can have on their mental health. PTSD, anxiety, depression, and insomnia are just a few of the mental health concerns that first responders frequently experience. Unfortunately, they are also conditions that can cause the breakdown of a marriage or common law relationship
The mental health of parents can be a concern in custody cases. It can also be a concern of children’s aid societies that can lead them to start child protection proceedings or apprehend children if the concerns are serious enough. However, mental health is only a factor in custody and access case if it affects parenting. An anxiety disorder or PTSD, for example, should not be a factor in setting parenting terms if they do not impact a first responder’s ability to parent and if they do not impact the child. These mental health concerns can interfere with the ability of a first responder to be emotionally available to a child – and that can be concern in custody cases if the child and first responder are no longer close. If a parent is suicidal, self-harming, or prone to acting violently toward others, that can obviously be a big concern in custody cases although it is still important to determine whether the child’s physical or emotional safety is at risk.
Fortunately, mental health concerns that arise from a first responder’s job are situational – not organic. That means they are usually temporary and usually respond to treatment. Ontario’s custody laws recognize that situations for parents and children change over time and what is best for a child today may not be what is best for them tomorrow. As a first responder’s mental health gets betters, so should the parenting situation. If mental health is a concern then it is very important that a first responder hire a family lawyer who understands these issues and can help arrange for resources and develop a plan that prevents mental health from leading to court orders that permanently impair the first responder’s ability to parent.
Another area where first responders face unique challenges in family law is with regard to support. Many first responders have a shift rotation that gives them the time and opportunity to have a second job or to work overtime. During the relationship, a first responder’s spouse can be very willing to be flexible to allow for that extra work. When goodwill evaporates at the end of a relationship, sometimes that willingness to be flexible does as well, which can make the extra job more difficult.
Spousal support is based on many factors, which I explained in a previous podcast episode. One of those factors is total income. For child support, total income is pretty much all that matters, except in some shared parenting situations. Many first responders think that child support, and spousal support, should be based on only the salaries from their main jobs. The extra work for extra income is just that… extra. However, under child support law, child support is based on total income – including the income from those extra jobs. Child support usually works out to being only around 12-14 percent of income, so there is still plenty of income left over from that extra work. So, it may still make economic sense to work more.
Where extra jobs may not make sense is when it comes to seeing the children. During a relationship, parents often allow flexibility in their schedule to allow for each of them to work and parent the kids. After separation, parents often do not want to work their schedules around the schedules of their exes. If an emergency responder has to choose between working extra shifts and seeing his or her kids, then there should be no expectation that the responder will continue to work those extra shifts, bring in the extra income and pay the extra support. However, if the parents are in court, then that may involve having a lawyer who understands the situation explain it so that the judge understands the decrease in income. It just is not fair to require a parent to give up seeing the kids to do extra work – above working full time – to be able to pay additional support.
A first responder’s shift schedule (and sometimes lack thereof) can impact child support in another way. In addition to base child support, parents share the cost of certain expenses. One of the expenses that is always shared is the cost of child care for a parent to go to work. However, most first responders do not work 9 to 5 and so they cannot rely on traditional daycare. They may need a nanny, or babysitters to cover afternoon and night shifts. Those options are more expensive than daycare, but they are necessary for first responders to work and so the cost must be shared between the parents because these are necessities not luxuries. Even paying family members to help with child care may be necessary for first responders – but to get a separated spouse to pay his or her former in-laws to look after the kids – the expense must be reasonable and competitive and the family member must be declaring the payments for taxes and issuing a tax receipt to the parents. Otherwise, it will just look like a scam.
Podcast for First Responders
Another area where first responders run into special issues in divorce is with pensions. Almost all first responders work for government – and most of them for municipal governments, so they have defined benefit pensions through their work. Married first responders share the value in their pensions accumulated during their marriage with their married spouses on separation. Note that common law couples do not share in the value in their pensions with their common law partner on separation. It is only the part of the pension that accumulated during a marriage that first responders have to share.
Defined benefit pensions are almost always worth more than people think. It used to be that, in order to equalize the assets from a marriage, one spouse kept the house and the other kept the pension. Pensions have no changed in value. But, now there are options. So, instead of including the pension when equalizing the value of assets, most pensions can be divided at source – into two pensions or into a pension and a retirement account. That can be a good option, because it avoids immediate financial hardship.
However, many pensions, including OMERS, have a disability pension. If a first responder does not make it to retirement, and instead has to live off a disability pension, he or she may really wish that the pension had not been divided on separation.
An important consideration, that pertains more to first responders than other people, is that once separated spouses have divided a pension to equalize their property, the income from that pension is no longer available for spousal support, although it is available for child support. The idea is that once a spouse had received half of your pension, he or she can’t get half again as support. But the kids did not get half the pension already. This is of more importance to first responders than other people because first responders are less likely to make it all the way to retirement age. Many of them become unable to work because of a physical or mental disability related to work, which means they may access their pension earlier and are more likely to access it before their kids are finished school and before either the first responder, or their separated spouse, has other retirement savings.
There is one more thing to remember about disability payments and support. This is important to first responders because the disability that entitles them to the payments, particularly PTSD, depression or other mental health concerns, may also be the cause for the breakdown of the relationship. So, support may come into play when a first responder is receiving disability payments. The part of those payments that are to replace lost income, which is everything except the part specifically directed for care costs (and for mental health that can be nothing), is income for support purposes. But if the benefits are tax free, then child support will be based on a higher, perhaps much higher, than the amount of the disability payments. This is because support is based on salary income. Since disability benefits may not be taxed like salary, the “missing tax” may have to be added to the benefits payments to come up with the income for child support. Spousal support is more complicated because the tax issues with spousal support are more complicated.
Podcast for First Responders
Due to the nature of first responder’s work, the difficulties they face in it, and that many of them have to leave the work early because of some form of disability, first responders may want to consider a marriage contract or cohabitation agreement before embarking on a relationship to ensure they have what they need to look after themselves if their career and relationship run into trouble.
Finally, there is another important aspect of divorce – the emotional divorce. Divorce and separation are not just about custody, or about money. There are a lot of emotions wrapped up in a separation. That can be even more so –and even more of a problem - where the separation was precipitated by a work related mental health crisis. Having the family break apart may be the last thing the first responder needs. Lawyers are excelled with custody issues, and with money issues. But they are not trained on the emotional and mental health issues. However, a good family lawyer will direct you to a good counsellor, coach, psychologist or other professional specializing in the emotional side of divorce, and perhaps mental health issues too. If you find, as a first responder, that you cannot get access to those services, then you may want to see what is available at www.tema.ca or www.ivegotyourback911.com.
First Responders face a number of unique challenges in family law cases – which are cases that can come about because of the unique challenges faced by first responders. This podcast has gone over many of the most common ones. There can be others. It is important to speak to a good family lawyer who knows about the special challenges faced by first responders in every aspect of their lives.
This has been a special addition of the Ontario Family Law Podcast. My name is John Schuman. I am an Ontario Paramedic and Lawyer. You can reach me by calling 416-446-5847 or at our website, which is 126.96.36.199/~temporaryurl. Look on our website, or on iTunes for many other podcasts in these series. We will talk again soon about other family law and children’s rights issues.
Podcast for First Responders
Thanks for listening.