Telephone: 416-535-4242 Fax: 416-535-4774

The Peires Law Blog:

The following is a list of our most-recent blog entries. Feel free to contact us if you would like to request a future blog entry subject.

Travelling With Children When Separated or Divorced
August 3, 2016

For separated or divorced parents, travelling outside of the country with their children rarely becomes a contentious issue. Both parents usually recognize the benefits to the children of being able to travel abroad.

To ensure that everyone has all the information they need about the intended trip, there is usually an order or provision in a Separation Agreement which requires the travelling parent to provide the other parent with a detailed itinerary a certain number of days before the trip. That itinerary would usually include the name of any flight carrier and flight times, accommodation particulars, including address and telephone numbers and details as to how to contact the children during the trip. The non-travelling parent is usually also required to sign a travel consent authorizing the children to travel.

However, there are occasions where one parent refuses to allow the other parent to travel abroad with the children. In such cases, it may be necessary to seek assistance from the court. The court will then consider a number of different factors in determining whether children should be allowed to travel outside of the country with a parent to go on vacation.  In general, the court effectively attempts to weigh the benefits of travelling against the possible risks. 

Some of the factors the court will consider include the risk of non-return, the location of the trip, the length of the trip, prior planning that has already taken place, and the potential benefits to the children. However, there is no clearly defined list of factors. Decisions of the court are made on a case-by-case basis and are very fact specific.

Risk of Non-Return

The issue of travel most often finds itself before the court because the non-traveling parent claims that that the traveling parent will not return the children to Canada. However, there must be some plausible evidence to show that the risk of not returning is a real possibility. For example, where the travelling parent has travelled abroad with the children in the past and has always returned with them, the court is unlikely to deny the travel.  Also, where the evidence indicates that the travelling parent has a real and substantial connection to Ontario, including things such as long-term employment, land ownership, enrolment in school, and family living in the province, then the court is likely going to be less concerned about the possibility of the children not being returned. Where a court permits the travel, an order can also be made dispensing with the need to obtain a travel consent letter or to get consent from the other parent for the issuance of passports for the children.

In contrast, when the travelling parent has previously made threats that he or she intends to take the children away and not come back, or has not followed earlier court orders restricting travel with the children, the court will often not permit the travel. To ensure that the parent abides by the order, the court could also make an order requiring the parent who intended to travel to be supervised when he or she is with the children.

Location of the Trip

Another concern that commonly results in the issue of travel going before the court is the location of the trip itself. When this is raised as the primary concern, the court will often need to review whether or not the country to which the parent intends to travel is a signatory to the Hague Convention, and also the political stability and overall safety of the intended destination country.

The Hague Convention is an agreement that provides a relatively efficient means of returning children who have been internationally abducted by a parent from one member country to another. There are currently 94 countries that are signatories to the Hague Convention and so the chances are relatively good that the Hague Convention will be applicable to the country to which the parent intends to travel. The court is, not surprisingly, more likely to be prepared to allow the travel if the intended destination country is a signatory.

In the past, courts have noted the many challenges and frustrations that would be faced by a parent attempting to secure his or her children’s return if the children were abducted to a country that was not a signatory to the Hague Convention. However, even when the foreign country is not a signatory to the Hague Convention, that fact, in and of itself, may not be sufficient to prevent travel to that country, particularly where the travelling parent and children are well-established in Ontario and there have been no previous issues with respect to travel.

Where the foreign country is in an area of the world that is politically unstable, this may affect a decision to allow travel to that country. The primary concern of the court would be the possibility of exposing the children to unnecessary harm. To determine the safety of a particular country, among other evidence, the court may review travel advisories from the Canadian government, which warns of dangers such as terrorism, civil unrest and violent crime. In short, the court must weigh the benefits to the children of going on the trip versus any risks.

Length of the Trip

Sometimes it is the length of the trip that becomes contentious. Generally, this will only be a decisive factor if the children are still young or they do not have a very good or strong relationship with the travelling parent. The length of the travelling itself, versus the time actually spent on vacation, especially for a young child, may also be a factor considered. Again, these concerns would need to be weighed against the possible benefits to the children from the proposed trip.

Thankfully, it is still the exception to the rule that parents end up in court arguing over travel plans for their children. This is one issue that in most instances parents are able to agree upon. However, if you do find yourself in a situation where travel becomes a contentious issue then it is important to speak with a lawyer to determine the best course of action.

Holding a Spouse Responsible for Joint Debt Incurred Post Separation
June 6, 2016

Can a spouse be reimbursed for funds removed by the other spouse after the date of separation from joint accounts, joint lines of credit or joint credit cards?

The court will usually consider the removal of funds appropriate if the spouse who removed the funds can show that the money was used for the spouses’ joint benefit, such as paying necessary expenses to continue carrying the matrimonial home. If the funds were used solely for that spouse’s own purposes (e.g. for travelling or dining), he or she will be held responsible for the debt.

The onus is on the spouse who used the funds to provide evidence establishing how the funds were spent.  In the Ontario case of Szymanski v. Szymanski, the husband claimed that he had used the joint line of credit, after separating from his spouse, to maintain the parties’ matrimonial home pending its sale. However, he provided no documents to show how the money was spent and the court therefore reimbursed the wife for those funds.

In another Ontario case, Stetco v. Stetco, the husband withdrew $60,000 from the joint line of credit shortly before separation and more than $75,000 after separation. The evidence established that the husband had used the funds for a new home, a car, dining out and for investments. In accounting for proceeds from the sale of the matrimonial home, the court ensured that the husband alone was held responsible for his spending.  

Finally, in the Ontario case of Grassie v. Grassie, the parties’ joint line of credit increased after the date of separation but the court found that there was insufficient evidence to determine which spouse was responsible for that increase. It was therefore held that they would both be responsible for the increase in that post separation debt.

After you separate, you should carefully note any joint lines of credit or other debt you hold with your spouse.  You may want to close it or freeze it before your spouse can draw money from it. Even if you eventually receive credit for those funds, in the interim it is likely that the bank or lender will hold you and your spouse equally responsible for it. 

Unfortunately, banks are often unwilling to freeze an account if both parties to the account do not agree. However, even if you are able to freeze or close an account, in some situations that may not be entirely appropriate. For example, it may not be appropriate to do so if it means that your spouse would be left with no means to support themselves or pay their monthly expenses.   If you have a joint debt with your spouse, and are concerned about him or her continuing to use it after separation, it is therefore important to speak with a lawyer to determine the options available to you and the best course of action.

Doggy in the Middle - Pet Custody
February 8, 2016

Many people think of their dog as their furry child, treating them, spoiling them, and taking care of them as they would an actual child. It’s not surprising then to see separating and divorcing couples fighting over an animal's “custody” as bitterly as they would over children. Despite the emotional attachment, in a divorce under Canadian law, pets are not children, nor are they family. As cold as it may seem, pets are instead considered property and treated as such by the courts.

However, determining ownership is not always straight-forward and sometimes creative methods have been employed. There are reports of U.S. divorce cases where they have had a ‘calling contest’. The parties meet at a neutral location (or sometimes in the actual court itself), stand in opposite directions from the dog, and call the animal to see who it goes to first. The dog has to stay with a third party for a couple of days beforehand. Apparently, competing owners have been known to use tactics such as rubbing their hands with sausage to give them the edge, so a vet has to be present to check for such deceptions.

Although the Canadian courts have not gone to such lengths, there have been instances where the court has made a decision based upon more than just ownership. In one such case, the court acknowledged that there was evidence supporting the wife's ownership of only one of the two dogs. However, it ordered the husband to return both dogs on the basis that this was in the best interests of the child, who had suffered significant trauma following the parties' separation.

In another case, there was no clear evidence as to whether the dog was owned by the wife or the husband. The court therefore chose to make an order that “title” to the dog be equally vested in both parties. The husband and wife were also ordered to share possession of the dog on a week-about basis for the duration of the dog's life.

Between food, veterinary fees, grooming and toys, pets can be very expensive.  If you are forced to share your pet or if it is determined that your spouse owns the pet, how those expenses are to be paid may also need to be considered. Although there is no “dog support” a spouse with lower income may not be able to fully afford costs associated with the pet. However, the financial need of a spouse and their ability to meet their monthly expenses is an issue that would likely be addressed as part of any spousal support claim.

It’s best to try and make decisions about your pets by way of an agreement and without involving a judge. However, if you do find yourself unable to reach an amicable resolution then it would be wise to learn more about property division upon separation and divorce.

Can You Change the Locks to the Home After Separating?
January 19, 2016

After the decision has been made to separate from your spouse, there is often the temptation to take matters into your own hands and change the locks of the home you share to prevent him or her from returning or removing household items without your knowledge. Is this something that a spouse is legally permitted to do?

The answer is generally no, but may depend upon whether you are legally married or are in a common law relationship. If you are married, you should not unilaterally change the locks. Instead, you should seek an order for exclusive possession of the home pursuant to the provisions of the Family Law Act. Even if your spouse is not on title to the home, he or she has a right to equal possession pursuant to the Family Law Act.  That right is personal against you and ceases only when you cease to be spouses (i.e. when you obtain your divorce), unless a separation agreement or court order provides otherwise.

If you and your spouse are not legally married but own the home jointly (either as joint tenants or as tenants-in-common), then you both have an equal right to possession of the property, pursuant to the Family Law Act and the common law. In the absence of an order or an agreement for exclusive possession, it may be necessary to commence an application for partition and sale of the home if you wish to eject your spouse.

It can be more challenging if you are a common law spouse, not on title to the home, and want exclusive possession. A common law spouse cannot rely on the same provisions of the Family Law Act, to seek exclusive possession, as a spouse who is married. Although there is conflicting case law as to whether or not it is even possible, a spouse in this position may be able to seek exclusive possession pursuant to the support provisions of the Family Law Act.

In deciding whether to make an order for exclusive possession, the court is required to consider the following (although this is not an exhaustive list):

•           The best interests of any children affected;

•           The financial position of both spouses;

•           The availability of other suitable and affordable accommodation; and

•           Any violence committed by a spouse against the other spouse or the children.

If the court chooses to make an order for exclusive possession, or there is an agreement reached, the term "exclusive possession” supports the proposition that that person granted exclusive possession is free to change the locks on the home if he or she so desires.

As can be seen, the steps required to be taken before changing the locks of the home you share with your spouse depends upon your particular situation, and even then may not be perfectly clear. It is therefore always best to speak with a family law lawyer before addressing the situation on your own.

Child Support - Not Always Easy to Calculate
February 2, 2015

When parents separate, the parent with whom the child does not live with most of the time must pay money to the other parent to help cover the expenses associated with taking care of the child. This payment is referred to as child support.

In Ontario, the amount of child support to be paid is set out in the Child Support Guidelines. It is based upon the income of the parent paying child support and the number of children that need support. Although the income of the parent receiving child support is usually not a factor when calculating child support, it will be considered in at least two situations and may result in a departure from the Child Support Guideline amount.

The first situation occurs where each parent has primary care of one or more children. Section 8 of the Child Support Guidelines addresses this situation and states that child support should be calculated by taking the difference between the amounts that each parent would otherwise pay if they were to pay child support to the other parent. For example, if Parent “A” has an annual income of $60,000.00 and has primary care of one child, and parent “B” has an annual income of $40,000.00 and primary care of the other child, section 8 of the Guidelines would be applied as follows:

  • Parent “A”’s support obligation would be $546.00 a month for the child in Parent “B”’s care.
  • Parent “B”’s support obligation would be $360.00 a month for the child in Parent “A”’s care.
  • The Child Support Guideline amounts payable by each parent would then be offset and result in Parent “A” paying $186.00 per month in child support to Parent “B” ($546.00 - $360.00).

The second situation occurs where a parent has access to their child for 40% or more of the time over the course of the year. Although access is generally completely unrelated to child support, access and child support can become interrelated when this 40% threshold is met. Section 9 of the Child Support Guidelines addresses this situation and requires child support to be determined by taking into account the following three factors:

  1. The amounts set out in the Child Support Guidelines for each of the spouses;

  2. The increased costs of the arrangement; and

  3. The conditions, means, need, and other circumstances of each parent or spouse and of the child for whom support is sought.

Although one may think that calculating this 40% threshold should be straightforward, there is no universally accepted method for doing so. Some courts have taken a strictly mathematical approach and other courts have taken a more holistic approach, focusing more on the quality of the time spent with the child rather than quantity. What is clear however is that the courts have put the onus of establishing the 40% threshold on the parent claiming that they are with the child for more than 40% of the time.

Even if section 9 of the Child Support Guidelines is interpreted in its strictest sense and a mathematical approach is applied, there is not one standard approach for calculating time for purposes of a section 9 analysis. Some courts will try to avoid complicated arithmetic calculations and simply consider the number of days a child spends with a parent in a year, taking into consideration whether or not the access includes overnights. Other courts will calculate the number of hours a child spends with a parent in a year. Although this approach might seem straight forward, the courts have struggled when deciding who to assign school and sleep time to. For example, should the time a child spends in school be “credited” to the parent who drops off the child or picks them up? The answer is not always so clear.

Although the Child Support Guidelines provides great assistance in creating certainty and predictability in the majority of cases when it comes to the issue of child support, there are a number of situations where the Child Support Guidelines do not provide a decisive answer. These situations will require a careful assessment of the facts and a determination as to what is appropriate when it comes to child support.

Supervised Access - When Is It Appropriate?
November 28, 2014

When a child lives mainly with one parent, the child and the other parent usually have the right to spend time together. This is commonly referred to as “access”. When parents separate an access schedule is usually created, either by agreement or by way of a court order. This schedule would usually set out the ordinary access times and may also cover things like holidays, long weekends and children's birthdays. In some situations however, access visits with children may be problematic and they may need to be supervised by another person.

The Divorce Act and the Children’s Law Reform Act both provide that the court making an order for access may impose such terms, conditions, or restrictions as it considers necessary and appropriate in the circumstances. However, an order requiring the access to be supervised will usually only be imposed in exceptional circumstances. Highlighting the caution with which supervised access is ordered, some cases have held that the best interests of a child are better served by making an order for no access rather than supervised access. As a general rule, supervised access is not ordered as a long term arrangement however there are cases where longer term supervised access may be in the child’s best interests.

If a parent is seeking supervised access, the onus is on the parent seeking supervised access to prove that it is in the child's best interests and this will require evidence of unusual or exceptional circumstances.  If the primary parent is asking for supervised access largely to provide them with comfort alone and there is nothing more shown, then they are unlikely to succeed.

In general, supervised access will only be considered necessary where there are very real concerns about the child’s physical, psychological or emotional safety. For example, such concerns may arise when:

  • The access parent suffers from mental health problems;

  • There is a history of spousal or child abuse;

  • There is a high level of personal conflict between the parents and/or parental alienation;

  • The child is unfamiliar with the access parent and requires time to develop a relationship.

Those are just examples and there could be additional concerns which may require the access to be supervised for some period of time. If you are seeking supervised access, or a request is being made to have your access supervised, it is important to speak with a family lawyer to determine what options are available to you, and how best to proceed, given the facts of your situation.

Your Wedding May Be Expensive But Your Marriage Licence Does Not Have to Be
June 11, 2014

With wedding season well under way, there is no better time than now for a money saving tip to help stretch that wedding day budget.  A lot of money is spent on making a bride and groom’s “dream come true”. From the dresses and suits to the flowers and center pieces, it all adds up. While weddings as a whole are expensive, your marriage licence does not have to be. Each municipality in Ontario has discretion to charge a price to cover their service costs and administrative fees.

Not surprisingly, Toronto’s marriage licence fee of $140.00 is one of the higher prices in Ontario. While Ottawa’s marriage licence fee is a staggering $165.00; Ajax, Oshawa, Whitby, and Newmarket all charge $125.00 and Innesgrol only charges $90.00. Even more exciting, there exists at least one municipality that offers marriage licences for close to half the price of both Toronto and Ottawa- Tweed, a municipality just east of Peterborough, charges only $75.00.

From a legal standpoint, your marriage licence can be purchased anywhere in the Province of Ontario, regardless of where you are from or where in Ontario the ceremony is taking place. While the discount may not be worth the cost of gas to go out of the way and pick it up, a marriage licence is valid for three months, from the date it is issued, so you may want to plan ahead and pick one up if you are already passing through.  While saving anywhere between $50.00 to $65.00 may not seem like much in the grand scheme of things, for some every penny counts – so feel free to shop around!

 

Non-Canadian Resident Same-Sex Divorce
April 16, 2014

In 2005 Canada became one of the first countries in the world to legalize same-sex marriage nationwide. Same-sex couples from around the world that lived in countries with no recognition of same-sex marriage travelled to Canada to celebrate their relationships with a legal marriage ceremony.

At the time, not much thought was given to what would happen if those marriages broke down. Eventually some of those marriages did fail and the couples then found themselves with a peculiar dilemma. They could not divorce in their home country because they were not recognized as legally married. They also could not divorce in Canada because they did not meet the requirements of the Divorce Act, which had not been amended to address the growing number of marriages involving non-residents. The Divorce Act requires that one of the spouses reside in Canada for at least one year prior to requesting a divorce, a requirement that is almost impossible for a non-resident to comply with.

In August of 2013 the Canadian Government enacted the Civil Marriage of Non-Residents Act, which amended the Civil Marriage Act.  The legislation permits a same-sex couple to apply for a divorce in the Province where they married without a residency requirement, if they reside in a jurisdiction that does not recognize the validity of their same-sex marriage. Although the legislation permits foreign same-sex couples to terminate their marriages, there are some requirements and limitations that should be noted:

  • The legislation does not allow the couple to seek other court orders, such as child or spousal support. They can only seek the divorce itself.
  • The grounds for divorce are limited to being separated for at least twelve months.
  • The application must be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse (a) is incapable of making decisions about his or her civil status because of a mental disability; (b) is unreasonably withholding consent; or (c) cannot be found. For a resident of Canada, there is no requirement for the divorce application to be made jointly or any requirement for the other spouse to consent.
  • Each of the spouses must be residing- and for at least one year immediately before the application is made, has resided- in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage. The Court is requiring an additional sworn document from each spouse as evidence that this requirement has been met.

Despite the additional requirements and limitations, non-resident same-sex couples continue to make use of the legislation as a way around the cross-border complications of divorce.

The Presumption of Equal Shared Parenting on its Way?
March 27, 2014

Under the Divorce Act, a judge must decide what it is in the "best interests" of a child when deliberating on the issues of custody and access. Over the years, this "best interest" test has been criticized by many as being too vague and leading to endless litigation.

According to Maurice Vellacott, the MP who has introduced Bill C-560, this could all soon change.  Bill C-560 would amend the Divorce Act to create a presumption that equal shared parenting supports the best interests of children whose parents are separating. The current concepts of "custody" and "access" would be replaced with "parenting responsibilities" and "parenting time" and would apply equally to both parents. Simply put, it would be assumed that it is in the "best interests" of children to have separated parents equally involved in their growth and development. The goal of the Bill is to try and create a framework that will be suitable for most families and reduce the burden on parents and the court system.

Bill C-560 is not intended to be a one-size-fits-all solution and would still allow the Court to retain its discretion and order something other than equal shared parenting. Although there would be a presumption in favour of equal shared parenting, this presumption could be rebutted in cases where it was established that the best interests of the children would be "substantially enhanced" by something other than equal shared parenting.

Bill C-560 is currently in its second reading in Parliament.

A Divorce May Do More Than Just End the Marriage
January 22, 2014

A British woman recently attempted to argue that her lawyers should have clearly explained to her that a divorce would cause her marriage to be terminated.  Most people are aware that a divorce legally terminates a marriage and it does not come as a surprise that her case was therefore dismissed by a judge.  In fact, obtaining a divorce is also the only way to legally end your marriage. There are different grounds for getting divorced, but the most commonly used one is a breakdown of the marriage for more than one year

Many people may be surprised to learn that a divorce may do more than just end your marriage. For example:

Obtaining your divorce may have an impact upon the time you have to divide property with your former spouse. In Ontario, an application for a division of property cannot be brought more than two years after the day the marriage is terminated by divorce. If you intend to deal with property division it is therefore important to take steps prior to the divorce or within the two year period thereafter.

Another issue often overlooked is that of medical and dental benefits.  Your ability to be a dependant on the health insurance plan of your spouse or the ability of your spouse to be a dependant on your plan is likely to be affected by obtaining a divorce. Commonly, medical and dental benefits end for a spouse upon divorce because they no longer qualify as a dependant. Some plans allow a spouse to continue being covered under a former spouse's policy, as long as the former spouse is not insuring a new partner, but this not usually the case.

Divorce is the only issue that must be resolved by way of Court Order, even should all the other issues be resolved by way of negotiation, mediation or arbitration and the terms of settlement incorporated into a separation agreement.

Finally, it is important to remember that should you want to re-marry the Divorce Order itself is not sufficient. In order to obtain a marriage license, you require a Certificate of Divorce. This can be obtained from the Court for a nominal fee, usually 31 days after the divorce has been granted.

Child and Spousal Support - The Role of "FRO"
October 23, 2013

The Family Responsibility Office ("FRO") is Ontario's governmental body that administers and enforces child support payments and spousal support payments in the province. They collect child and spousal support payments, including child support and spousal support arrears.  FRO has a duty to monitor payments and take enforcement action to collect all monies that are due.  They cannot, however, change the support order or agreement or negotiate a reduction in arrears.  To change the amount that FRO is attempting to enforce requires a change in the support order or the terms of a domestic contract.

The role FRO plays depends upon whether the support amount to be paid is contained in a court order or a domestic contract, such as a separation agreement. In Ontario, all orders made by a court with respect to support (both child support and spousal support) are automatically filed with FRO.  Unless the parties agree to withdraw from FRO, all support payments must be made to the FRO Office.  The parties can however choose to withdraw by together completing and sending a form to FRO. If either party changes their mind down the road, they are able to again request FRO’s involvement but there is an administrative charge that must be paid.

If the terms of child support or spousal support are contained in a domestic contract then FRO is not automatically involved in collection. Steps must be taken to have the domestic contract filed with FRO and there is a specific process set out for doing this.

If a support order or a similar provision in a domestic contract is not clearly written or lacks important information, FRO may not be able to enforce it. How the order or clause in the domestic contract is written is therefore very important. 

FRO has been afforded extensive powers to assist them in collecting support payments. Some of these include:

  • Garnishing bank accounts (i.e. taking the money owed directly from the payor’s bank account);
  • Reporting the payor to the credit bureau;
  • Suspending the payor’s driver’s licence, Canadian passport and federal licences (such as a pilot’s licence);
  • Placing a lien on the payor’s personal property by registering the amount owed with the Ontario government;
  • Issuing a writ of seizure and sale for property owned by the payor (any profit from the sale of the property is used to pay the support arrears);
  • Starting a “Default Hearing” where the payor is required to explain the default in support payments, and may be liable to serve up to 180 days in jail.

According to FRO, the use of these enforcement mechanisms has helped them collect $6.1 billion in support payment on behalf of support recipients over the last 10 years.

Airing Dirty Laundry
September 20, 2013

One of the foundations we as Canadians take pride in is the openness and transparency of our judicial system. This same openness and transparency however is being met with growing concern from families going through divorce proceedings and who feel that their lives are private and should remain as such. These concerns stem from the fact that unless a court orders otherwise, the public is able to see the full names of the parties along with any documents and orders filed in the case. These publicly accessible documents usually include personal information such as income tax returns and bank statements as well as intimate details of a family’s daily lives.

The internet has made it even easier to access this information. Often a simple Google search of a person’s name will result in information about their case appearing on screen.  

With this in mind, some have suggested that we should follow Quebec’s lead and only refer to parties in family law cases by their initials.  This would allow the public to read about the issues litigated, including any precedent setting decisions involving custody and access, child support, spousal support and division of property, without revealing the identities of the parties.

While not always appropriate in every case, using mediation and/or arbitration may be another means to avoid having such personal information be made publicly available.  Mediation and arbitration are private processes and therefore the process can be confidential.  

As it stands, Ontario family law cases remain publicly accessible, except in very limited situations. This is one factor which should always be considered before embarking on litigation.

 

 

Cost of Raising a Child Climbing
August 19, 2013

A recent U.S. study shows that the average cost to raise a child born in 2012 has increased by 2.6% as compared to 2011. A middle income family can now expect to spend between $12,600.00 and $14,700.00 each year raising a child. On average it will cost $241,080.00 to raise a child until they are 18 years of age, with child care being the second biggest expense for families.  

This upward trend is particularly concerning to parents who have separated and who are the primary caregivers for their children. Separated parents are often worried that they will be responsible for taking on the entire financial burden of raising their child on their single income. However, this is not the case, as in Canada the law recognizes that a child needs the financial support of both parents, even after separation.

Child support guidelines have been created to calculate the amount one parent pays the other for the financial support of a child. These guidelines are a set of rules and tables. They help to ensure that the calculation of child support is fair, consistent and predictable. In many instances, if you know the gross annual income of the parent paying support and the number of children for whom support must be paid, then you can use the guidelines to calculate the legally stipulated child support amount. However, there may be special circumstances where the application of the guidelines may become more difficult. One such example is where the parent paying child support is self-employed. The income a self-employed person claims for tax purposes may not necessarily be the income that should be used for calculating child support with the guidelines. While there are numerous child support calculators online, child support can be a complex area of the law and the straight-forward application of the guidelines may not be correct or appropriate. It is therefore important to speak with a lawyer who is familiar with the guidelines and can advise you.

 

Getting Creative With Access
June 21, 2013

When meeting with a client for the first time, we spend a significant amount of time discussing how we can minimize disruption to their children's lives as a result of separation and divorce. In the majority of cases, children will end up having two bedrooms, one at each parents home, and will need to bring some of their personal items back and forth.  Not surprisingly, it is not uncommon for a child to forget to bring certain items.  This could result in the child missing a scheduled social, recreational or educational activity and often increases the conflict between former spouses.

A divorced couple in Edmonton, who experienced this first hand, have recently taken a dramatic step to eliminate this problem. Instead of having to transport their children back and forth from their respective homes, this Edmonton couple designed and built their own duplex home that has a special hallway that links the two houses together. The children's rooms are located in the hallway and are accessible to both homes, with two locking doors at the end of the corridor. Depending on whose access week it is, one of the doors is locked.

Although this type of living arrangement may not be practical or possible for most people, it is a great example of parents putting their personal differences aside and focusing on the best interests of their children. We always encourage and support our client's in coming up with creative solutions, especially when it comes to issues related to custody and access, when negotiating separation agreements.

 

Divorce Leading to Maximum Security Jail Time
February 25th, 2013

We are often asked what will happen if a spouse refuses to follow a court order. We can now refer them to a recent Ontario decision where a spouse was sentenced to 30 days in a maximum-security jail for failing to abide by an order made as part of his divorce proceedings. The order in question required the spouse to preserve a significant amount of money from the sale of a property, which he purposely failed to do. Although admittedly an extreme example, this decision illustrates the powers the courts have to enforce their orders.

A jail sentence in a family law dispute is severe and rarely occurs. It is more common for the court to impose less severe sanctions, such as the payment of a fine or costs. However, in this instance, the court felt that the behaviour of the spouse was so egregious that jail time was warranted in order to maintain the integrity of the court.

Although client's sometime feel that certain orders, such as the date by which financial disclosure must be exchanged, are relatively unimportant, they should still always be followed. Aside from the penalties that can be imposed by the court, failing to abide by orders can also hurt your credibility and lessen your chances of obtaining the results you desire.

Sperm Donors and Parental Status
January 14th, 2013

Although the question of parental status and sperm donation may only affect a relatively small portion of the population, the issue has garnered a lot of attention recently. This attention is in large part due to two ongoing sperm donor related cases. In Kansas, the State is seeking to have a sperm donor declared the father of a child and hold him responsible for thousands of dollars in child support. Closer to home, an Ontario man is seeking paternity rights over a son his sperm helped create for a lesbian couple.

It might come as a surprise to many, but Ontario is one of the only Provinces in Canada that does not have legislation that adequately deals with assisted human reproduction. In British Columbia for example, the new Family Law Act, states that a sperm donor will not have parental status rights or obligations unless the biological mother enters into a written agreement recognizing those rights prior to the child's birth.

Without legislation that addresses the issue of sperm donors and parental rights, Courts are being left with the difficult task of interpreting sperm-donor parent agreements within the overriding context of the best interests of the child. The outcome of the above mentioned Ontario case will have wide ranging ramifications for individuals who require third parties in order to create families and that do not want the donor to become involved in their family.  

372 Bay St. Suite 303,
Toronto, Ontario M5H 2W9
Serving: Toronto (GTA), Durham, Halton, Peel, York Region and Niagara. Including: Ajax, Brampton, Burlington, Maple, Markham, Milton, Mississauga, Newmarket, North York, Oakville, Oshawa, Pickering, Richmond Hill, Thornhill, Vaughan, Whitby & Woodbridge.
Copyright © 2016 PEIRES LAW LLP
All Rights Reserved | Terms of use