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• When do child support payments in Ontario end?
• MP plans on private member’s motion to review Canada’s Divorce Act
• Facebook Privacy Issues and Ontario Family Courts
• Judges Interviewing Children during Ontario Family Court Divorce Cases
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When do child support payments in Ontario end?

In many divorce cases involving a minor child, the judge renders a decision on the issues of both custody and support and typically orders that the non-custodial parent pay child support to the custodial parent for the child until a termination date. In Canada, child support payments end once the child is no longer deemed a “dependent” under the law.

For most situations, a child will be entitled to child support until 18 years of age. However, in many cases the “until-18 rule” will not apply and the child may be entitled to support beyond the “age of majority”. For instance, a child over 18 years of age is still entitled to child support if the child is a full-time student in school, even if the child has a part-time job while attending school.  The child support obligations do not end because the law assumes that full-time students are still dependents and are unable to support themselves. Along with child support, the non-custodial parent may also have an obligation to contribute to the child’s special expenses, which would include the costs associated with attending school, such as tuition.

Child support is governed by federal law and does not change from province to province, although the amounts may differ based on the cost of living for the area. In cases when the child support termination date is not specified in the support order, the support payments may continue until the child has obtained a post-secondary degree or as long as the child is in school full-time. It is also not unheard of, albeit rare, for child support to be paid even while the child completes further schooling, including a graduate degree, particularly if the educational program is required in order for the child to pursue his or her desired occupation.

To terminate the payor’s child support obligations, the payor must file a motion to change a final order with the court and have the court issue a new order ending the support payments. For payments enforced by the Family Responsibility Office, the payor can contact the government agency to inform the office of the change in circumstances and obtain consent from the support recipient to terminate the payments. 

 

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Facebook Privacy Issues and Ontario Family Courts

The social networking website called Facebook is a tool to exchange information that has now made its way into the courtroom and is being used as evidence in litigation, particularly in family law disputes. In the United States, Facebook messages are commonly used in family law cases, as well as in civil and criminal cases and jury selection; while in Canada, the use of Facebook as documentary evidence is steadily on the rise.

Facebook has recently simplified its privacy settings and a user can now set his or her Facebook settings to enable only persons the user has manually added to their “friends list” with the ability to access and view the user’s on-line profile.

Another important feature within Facebook’s account privacy settings is the user’s ability to limit the information “friends” can view on the user’s profile. For instance, a user can prevent an ex-spouse or soon to be ex-spouse from viewing photos, relationship status, or wall postings.

Facebook users should be aware of a specific privacy setting that is available for ‘Applications’. Even though some users do not have the game FarmVille, or similar Facebook games uploaded to their profile, when a user’s “friend” has installed the game on their profile that game now has the capability of pulling personal Facebook information and photos from any listed “friends” of that individual. An adjustment to the privacy settings to prevent any sharing of information with an Application is recommended.

Due to the increase in the use of Facebook as documentary evidence in several recent Ontario family law court cases, Facebook users with pending court matters should not post information pertaining to the case and should also consider adjusting their privacy settings to avoid the possibility of having personal information used against them in court. 

 

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What is non-recurring income for the purposes of Spousal Support and Child Support?

In Ontario family law cases, spousal support and child support payments are calculated based on a person’s income. However, in a given year, one might generate income that they do not normally earn. This income is not from a regular paycheck, but is generated by other means. Ontario judges are able to use their own discretion when it comes to this non-recurring income, and it generally increases the child or spousal support payments. Support income is not necessarily always the same as tax income.

Some of these forms of non-recurring income include:

Capital Gains: Capital gains may be used to increase support payments, but capital losses are not generally used to lower the person’s overall income when it comes to paying child or spousal support. If any capital gains are immediately reinvested, such as small business revenue going back into the business, they’re not usually considered income.

Severance Packages: If one is laid off and receives a severance package they may find a job right away and report a much higher income for that year, which usually would be used for spousal or child support calculations.

RRSP Redemption

These types of income are included on income tax income but not necessarily spousal or child support income, unless it is repeated every year.

Awards from Lawsuits:

Awards for the loss on income are usually reported as income, but awards for personal suffering are not.

Stocks:

As with RRSP redemptions, if stock options are exercised once in a blue moon they aren’t typically counted. However, if you do it frequently and can establish a pattern of exercising stock options, they may be counted as income.

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Adoption, Spousal and Child Support: What Family Law Rights do Unwed Fathers have?

Unmarried Father’s Rights to Children: Family Law Perspective

The legal obligations of fathers who aren’t married to their child’s mother are typically the same as if they were married, with only a few minor differences.

Adoption

Unlike pregnancies that result from a marriage, in these situations the child may be put up for adoption. If the man is aware of the child’s existence, he may have a decent chance of gaining custody of the child if the mother intends to give it up for adoption.

There are no current laws that force women to tell the father about a pregnancy.

Spousal Support

Spousal support for unmarried people doesn’t normally apply. However, it may if the couple falls under the definition of “spouses” as per the Family Law Act. For example, if a couple has lived together for three years or has lived in such a manner that it would appear to be marriage-like to a judge, there can be spousal support involved.

Child Support

The amount of child support paid by a father is not dependent on whether or not the couple is married. Whether or not the child was expected is also not factored into this decision, although an unmarried father may also be forced to pay for some of any prenatal expenses, according to the Family Law Act in Ontario.

Roe v. Wade for men

While in the United States and Canada women have the choice as to whether they want to go through with a pregnancy or not, men do not have such a choice. In 2006, a man in Michigan was ordered to pay almost $500 per month in child support to his ex-girlfriend, even though she was well aware he did not want to have a child and she had told him many times that she was physically unable to get pregnant. Some may argue that if the woman did not want to abort the child and refused to put it up for adoption she should have been able to pay for the child herself. The case was dubbed “Roe v. Wade for Men” and attempted to prove this very notion with a lawsuit, but the lawsuit was eventually dismissed.

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Divorced? Five Possibilities to Reduce Your Taxes

It’s tax season again, and divorce and child custody bring up several new situations that can be reported on your taxes. There are also a few new ways to reduce your income taxes and ensure everything is reported accurately.

1. Spousal Support and Taxes

The ex-spouse who pays spousal support can deduct it from their taxes, whereas the ex-spouse who receives the payments must pay tax on the amount they receive. Keep in mind that a lump sum payment of spousal support is not tax deductible.

2. Child Support and Taxes

Child support payments are not usually deductible. However, if the support order was given before May 1, 1997, then the support payments are deductible. Likewise, if a person is receiving support payments from an order given before May 1, 1997, taxes are paid on those payments. Otherwise, no taxes are paid on child support payments received.

3. Equivalent to Spouse Credit

If you receive child support you might be able to claim an equivalent-to-spouse credit for one of your children on your tax return.

4. Legal Fees and Taxes

In some cases, legal fees may be tax deductible. Normally legal fees incurred due to a divorce are not, but fees incurred to enforcing child support or to obtain an order for child and spousal support are.

5. Canadian Child Tax Benefit

The primary caregiver of a child is entitled to claim the Canada Child Tax Benefit. If the situation involves shared custody of the child, each parent is entitled to half of it under normal circumstances.

We are not accountants so for professional accounting advise seek a qualified accountant, but these guidelines can provide you with a basic idea of what to expect when filing your taxes as a divorced Canadian.

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Enforcing Child Support and Spousal Support Orders: The Family Responsibility Office

Pursuant to the Family Responsibility and Support Arrears Enforcement Act, the Family Responsibility Office (“FRO”) was established to ensure that support payments were made between the payor and the recipient.  FRO enforces both support orders issued by the Ontario courts and support obligations as set out in domestic contracts that are filed with the courts. FRO can also enforce support orders issued in another province or country with which it has a reciprocating agreement.

Once a case is registered with FRO, the agency then begins the process of both collecting support payments from the payor and then forwarding the payments to the support recipient.

If support payments are not made, FRO has the legal authority to take enforcement action to recover any monies owed.  Enforcement action can include garnishment of bank accounts, suspension of the payor’s driver’s licence, garnishment of any monies received from the Federal Government (such as income tax refunds, GST rebates, employment insurance, CPP benefits), suspension of the payor’s Canadian passport, and seizing of lottery winnings.  If the support payor has failed to make a support payment for at least six months and FRO has exhausted all efforts to locate the payor, FRO may post personal information and a photograph of the payor on a related website in order to receive assistance from the public in locating the payor.

To avoid such enforcement action, it is in the payor’s best interest to meet his or her support obligations in a timely manner.  If a payor’s financial situation changes, the payor should contact FRO to discuss a possible payment plan.  The payor should also contact a lawyer to find out what his or her options are, including filing a motion with the court to change the amount of support the payor is required to pay as set out in the support order or domestic contract.

For more information about the enforcement of child and spousal support payments, please contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca.

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Finding Adopted Child or Birth Parents after Adoption

Are you a parent looking to connect with your child that you gave to be adopted, or an adopted child looking to connect with your biological parents and family? Ontario’s adoption records are open for adult adoptees and birth relatives to obtain more information about their past.

Pursuant to The Access to Adoption Records Act, adult adoptees, birth parents (and other birth relatives), and former adoptive parents, are able to search for each other using the names that are disclosed in the birth registration and adoption order.  Adoptees who are 18 years and older may apply for “Post-adoption Birth Information” and receive documents that include the name of their birth parents, the date and place of their birth, and their birth name, as well as other information about the surrounding circumstances related to their adoption. Birth parents (as well as former adoptive parents) who want to protect their privacy may file a “Disclosure Veto” that would prevent their identifying information from being disclosed.

Once an adopted child reaches the age of 19, the birth parents (as well as former adoptive parents) may also apply for “Post-adoption Birth Information” and request documents that include the adoptive name of their child as well as other information related to the adoption. Similar to birth parents, should the adopted child wish to prevent any identifying information from being disclosed to the birth parents, the adopted child may file a “Disclosure Veto”.

Adoptees and birth parents can also specify how they would like to be contacted by the other by filing a “Notice of Contact Preference”. Once specified, contact between the parties can occur via e-mail, mailing address, or telephone.  If an adoptee or birth parent does not wish to be contacted by the other, but is willing to have his or her identifying information disclosed, they can file a “No Contact Notice”, which would allow their name to be disclosed, but would also impose a fine should the other party make an attempt at contact.

Under The Access to Adoption Records Act, adoptive parents may apply to be removed from the adopted child’s profile and can apply for non-disclosure of “Non-Identifying Information” regarding the surrounding circumstances of the adoption.  “Non-Identifying Information” permits disclosure of some information about the birth parents and the adopted child prior to placement with the adoptive parents, however any identifying information specifically about the adoptive parents would remain confidential.

The Access to Adoption Records Act assists adoptees and birth parents to obtain information from their birth and adoption records, it does not assist with locating family members. To get in touch with one another, adoptees, birth parents, former adoptive parents, as well as other birth relatives, can add their names to the “Adoption Disclosure Register” which matches adoptees with their birth relatives and also permits the exchange of contact information.

If you would like to contact a birth or adopted relative, call Niren and Associates Family Law Practice at 416 222 4555 or e-mail info@divorcesupport.ca for a confidential consultation.

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2010 Brings Major Changes to Family Law in Ontario

Commencing March 1, 2010, the McGuinty government will be implementing major reforms to a variety of Family Law matters in Ontario.  The reforms have been introduced with the objective of improving the public’s access to justice in family courts.

The following are some highlights of the changes that will take effect under the new legislation:

• Family law litigants will have greater access to legal advice and the opportunity to resolve issues through the use of mediation, arbitration, and collaborative family law
• Steps to family law litigation will be streamlined and simplified
• Steps to obtaining a restraining order have been modified
• Child support amounts pursuant to either a court order or a domestic contract filed with the court may be recalculated by a child support service to reflect updated income information
• Additional evidentiary requirements must now be met when filing an application for custody or access to a child, including an accompanying affidavit containing a proposed plan for the child’s care and upbringing and information regarding the person’s current or previous involvement in any family law and criminal proceedings
• Every person applying for child custody or access who is not a parent must complete and provide to the court the results of a police records check and a children’s aid society report
• Where a person is declared to be the parent of a child, his or her written consent is required to change the child’s surname, if consent cannot be obtained or is refused an application can be made to the court
• Where a person is declared to be the parent of a child, an application can be made to the court to request that the child’s surname  be changed to any surname that the child could have been given at birth
• The definition of “Net Family Property” has been amended to include any contingent tax liabilities when calculating a spouse’s debts and liabilities on the date of  separation
• “Property” is to include the imputed value of a spouse’s interest in a pension plan

Full details of the upcoming reforms are still to be released by the government.

Check back to our blog for further details once the family law changes come into effect on March 1, 2010.

For further information on family law and divorce contact us at info@divorcesupport.ca or call us at 416 222 4555

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Your Child’s Religious Upbringing during Divorce

Religious beliefs or the lack thereof can be at the core of a family’s entire value system. Religion is a passionately debated topic and can be extremely important to each parent. It could create a hefty argument if conflicting beliefs are being pushed on a child that do not mesh with what the other parent wants.

Child Custody is the responsibility and right to make decisions in the important elements involved in a child’s upbringing, such as their schooling, medial treatment and their religion. Custody is not to be confused with access, which is typically what the non-custody parent has. While the parent with custody is obligated to tell the parent with access about certain matters, and the person with access has the right to ask. However, the person with access does not have the right to make these large decisions. Because disagreements with regards to larger issues like these will ultimately be able to be decided by the parent who has custody, a marriage contract might be an option that can mitigate the outcome of a less than desirable plan for the children in the future

In a cohabitation agreement, marriage contract or prenuptial agreement, parents can agree on the religious upbringing of their children, as well as a other important decisions. These types of agreements don’t only lay out the groundwork for financial agreements in the case of a divorce, they can also protect your interests with regards to more important things like religion, which can be very helpful for planning ahead due to the increasing frequency and prevalence of interfaith marriages.

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Determining Child Support Obligations. Who Pays and How Much?

Parents have a legal responsibility to financially support their dependent children and dependent children have a right to receive financial support from their parents. A “dependent” child is a child under the age of majority who is neither married nor living independently.  “Dependent” children can also include those over the age of majority who are either full-time students or are unable to become self-sufficient due to illness or a disability.

Obligation to Pay Child Support

Typically, when one parent has the primary responsibility for the day-to-day care and expenses of raising a child, the other parent must assist with those expenses by paying money to the parent with whom the child primarily resides.

Relevant Legislation

The amount of child support payable for a dependent child is established pursuant to the Child Support Guidelines. The Child Support Guidelines were established in 1997 by the federal government and have been adopted by the Ontario government.  The Child Support Guidelines set out a parent’s monthly child support obligations based on the support paying parent’s gross annual income and the number of children entitled to support.  The Child Support Guidelines were created to establish a fair standard of support for children and to reduce conflict and tension between parents by making the calculation of child support more objective.

Imputing Income

A court may impute income to a parent who either fails to file responding materials to an application for support, including an Answer and/or financial disclosure, necessary to determine income, pursuant to section 19 of the Child Support Guidelines. A court may also impute income to a parent who is intentionally underemployed or unemployed and has not made reasonable efforts to seek employment.  When imputing income the court takes into consideration several factors including the age, education, work experience, skills, and capability of the paying parent, as well as that parent’s work and earning history.

Exception to the General Rule

Under section 10 of the Child Support Guidelines there is an exception to the application of the Guideline amount of child support payable referred to as “undue hardship”, where a parent may request a judge to order a different amount of child support due to financial constraints.  A number of circumstances are eligible for a claim of “undue hardship” including a paying parent’s high level of debt incurred to support the child and a paying parent’s unusually high expenses in relation to exercising access to the child.

To meet the burden of proof of “undue hardship” in any case is challenging. Even if a judge concedes that the child support amount payable would cause the paying parent hardship, a finding of “undue hardship” and, as a result, varying the amount of child support payable, is an uncommon occurrence.

For More Information

For more information about Child Support, please contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca.

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