Thursday, March 23, 2017

What is a matrimonial home - Ontario? - BlogBite (18)

In simplest terms, in Ontario and for family law purposes, a matrimonial home is the place where married spouses live together at the time of separation.

Here is more information you may find interesting/relevant:

1. A matrimonial home does not have to be owned by both spouses or even one of them. It can be a rental unit, for example, or a property owned by a corporation.

2. A family can have more than one matrimonial home. For example, a family cottage can, in the right circumstances, be the second matrimonial home.

3. The Family Law Act gives spouses special "possessory rights" in connection with a matrimonial home, no matter who actually owns the property.  A spouse cannot be deprived of such rights without consent or court order.

4. The value of matrimonial homes is divided between the parties on separation in a unique way, based on the provisions of the Family Law Act. Homes which are brought into the marriage and which are the matrimonial home at separation are also treated in a very specific way under this legislation (and unlike the division of other assets). Legal advice is crucial in this area.

5. Remember: The phrase "matrimonial home" applies only to situations where the spouses are married to each other (ie: are not common-law spouses).

Monday, August 15, 2016

Child Support - who gets it and why?

A simple, straightforward-sounding question, right?

...and yet, so many people misunderstand the concept, who is entitled to receive child support and why. Here is some basic information:

1. Child support is the right of the child (or children, depending on your case). This means that parents have limited rights to make "deals" about child support;

2. Generally speaking, child support is paid to the parent who has care of a child on a day-to-day basis, either primarily or by sharing that responsibility with the other parent; *

3. Child support is meant to fund a child's expenses - both day-to-day expenses but also special expenses like sports and other extra-curricular activities;

4. When the child in question is a minor, child support is paid to the parent who incurs expenses for the child (and not to the child directly - we get a lot of questions about this point);

5. In Canada, there are two elements to child support:

a. the table amount - the recurring monthly amount which is calculated based on the non-primary-residential parent's income; and

b. an additional payment (paid either monthly or at some other frequency) which is the non-primary-residential parent's contribution to special or extraordinary expenses like extracurricular activities and schooling/daycare;

6. Child Support does not necessarily end when a child turns 18. It continues for a reasonable period of time while the child (young person) remains financially dependant on his or her parents, either for medical reasons or because of ongoing school attendance.

These are the bare basics - there is a lot more to child support and you should get advice on the specific circumstances of your case.

*special considerations apply when two parents have one child each living with them and also when a child spends at least 40% of the time with the non-residential parent.

Wednesday, March 30, 2016

"How do I know my 16-year-old is still in school?" - BlogBite

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Question: I am still paying child support for my 16 year old son. Someone just told me he is not in school any more and now working full-time. Am I entitled to know what he is doing? How do I find out?

Answer: Yes, you are entitled to confirmation that your son is still attending school and, therefore, remains eligible for child support. You can request the information from the other parent and it should be provided. Or, you can ask the other parent to authorize the school to provide the information directly to you. 

Saturday, March 12, 2016

"When do my child support payments end" (4) - BlogBite

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Here is a hypothetical about which we receive a lot of questions:

Question: My son turned 18 nine months ago. I stopped making child support payments to my ex-wife based on our court order a month later. I just got a letter from the Family Responsibility Office that I have to pay up what I owe for the last 8 months and continue to pay on a monthly basis. But he is 18!!! His mother is also sending me emails that I "do not get it" and have to continue paying. Do I have to?

Answer: Contrary to public belief, child support does not end automatically when a child turns 18. Not in Canada.

In order to give a definitive answer to the hypothetical, we would need more facts.

The questions we would ask include the following:

1. Is your son still attending school?

2. If so, what kind of program is he attending?

3. If not, does he have short-term plans to return to school, and if so, to what program?

4. Does your son have any physical or mental disabilities, academic challenges?

5. If he is not attending school and has no plans to return to school soon, is he working? Full-time? Part-time?

6. Is your son living with your ex-wife?

Answers to all those questions impact on whether or not you have to continue to pay child support.

And remember, FRO do not make the decision on whether you have to continue to pay - if necessary, the Court does - they only enforce the last court order.

Friday, March 11, 2016

"When do my child support payments end"(3) - BlogBite

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Child support and when it ends is a topic on which we received the MOST questions.

For this reason, we have decided to include some simple question and answer hypotheticals in our BlogBites.

Question: My daughter really wants to go to college. She just finished high school but the program to which she wants to apply tells her she needs to get more specific high school credits before she can submit her application. She is going to take the credits, while living with her mother, but she can only take them on a part-time basis. It will take her 3 semesters, part-time, to get them. She said she will work part-time as well, while she is attending school part-time. Do I still have to pay child support?

Answer: In our view, YES. Your daughter has a plan. She plans to attend college and she has looked into how to apply. The further courses she is taking will permit her to apply to a program of her choice. In our view, the court will not be concerned about the fact that she is taking them on a part-time basis only, particularly since she is also planning on working. In other works, she is not idle - she is applying herself. She should save a portion of her earnings during this time and contribute them to the cost of her college education, particularly if you and her mother's income brackets are not high.

Remember, no two cases are alike. Apply any hypotheticals to your case with care!

Wednesday, March 9, 2016

"Your Honour, I don't have a lawyer" - Unbundled services and other resources

The title - an increasingly common phrase heard in Ontario's family courts.

Between 2014 and 2015, more than 50% of family law litigants were unrepresented.

There are many reasons for this state of affairs - they are not the subject of this post.

Since 2011 or so, active steps have been taken, by various branches of the government and the legal system in general, to address the growing tide of self-represented parties before the Court.

What we want to draw to your attention in this post, if you are a self-rep, are two things:

1. take a look at this website, which has A LOT of very useful information for self-reps. It's a product of an ongoing project headed by the University of Windsor Law School (my alma mater), studying the needs of self-reps and finding ways to assist them - representingyourselfcanada website

2. one option you have, while navigating through the court system on your own, is to get some limited help from a lawyer - these are called "unbundled services" - this means that you do not retain a lawyer for the whole case but rather, for specific tasks only. For example, a lawyer could help you prepare materials for a specific hearing or review an offer than has been made by the other side. You would be entering into a Limited Retainer with that lawyer, based on a set of Rules provided to the legal profession by the Law Society of Upper Canada.

We do provide unbundled services. Many other lawyers do as well. Find the lawyer who is right for you - in your area.

Representing yourself can be tough and overwhelming and we realize that sometimes, you simply have no other choice. Consider unbundled services, though - they may assist you in dealing with some particularly challenging areas in your case.

Wednesday, March 2, 2016

"Can I deduct legal fees at tax season?" - BlogBite

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Question: Can I deduct my family law legal fees on my tax return?

Answer: you can, but only in specific circumstances. If you are either the recipient of or are pursuing entitlement to either child or spousal support, you have a shot at deducting for tax purposes legal fees related to establishing, quantifying, varying or enforcing those support payments. At tax season and on request, your family law lawyer will give you a letter confirming the total amount you paid in connection with these steps in the immediately preceding calendar year. You will have to submit that letter with your tax return.

Have more questions? call us....(905) 898-8500.

Saturday, February 27, 2016

Limited Scope Retainers and Unbundled Services - BlogBite

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Question: What is a Limited Scope Retainer? I have heard of "unbundled" legal services, what does that phrase mean?

Answer: Both of these terms relate to a scenario where a person requiring legal services or advice hires a lawyer to deal with only a part of their case or a specific issue in the case, as opposed to dealing with the entire case as part of a classic retainer. Limited Scope Retainers are becoming increasingly common. With growing frequency, individuals who cannot afford legal representation for their whole case engage a lawyer to assist them with specific parts of the case, specific issues or specific questions which arise as they represent themselves.

We do provide unbundled services - if you have any more questions, call us! (905) 898-8500.

Thursday, February 18, 2016

"I want the Judge to speak to my child" - BlogBite

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Question: "My son, who is 6, has told me over and over again that he wants to live with me and not his mother. I want him to tell the Judge that. Judges speak to children to find out what they want, correct?"

Answer: When a Judge in Ontario considers a child-related issue (but not child support), he/she is expected by the legislation to take into account the views a child expresses as to the situation. It is important to realize that this is only one of the many factors a Judge is to take into account, and is not determinative of (does not decide) the issue.

That being said, those expressed views are to be considered having regard to the child's age, maturity, and ability to express themselves clearly and consistently. Further, the Judge must determine whether the views expressed, if any, are really those of the child and not of either of the parents, through the child.  If there is any general rule to be drawn from the legislation and related case law, it is that the younger the child, the less likely the Court is to take into consideration the child's views and preferences.

Judges rarely speak to children directly. That happens only in rare and unique circumstances. Children's voices come before the Court in a variety of other ways, which will be the subject of another post. Stay tuned.

Have more questions? Call us!

Tuesday, February 16, 2016

"Why does it matter what I had when we married?" - BlogBite

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Question: "I was married and I am now separated. Someone told me that it is important for me to show what I had when I married my wife. Why does this matter?"

Answer: Ontario's Family Law Act provides a mechanism for the sharing, on separation, of the spouses' assets and debts, by value. The Act contemplates the sharing by the spouses of the increase in their net worths (based on a formula) between the date of marriage and the date of separation. In other words, a separated spouse gets credit for the value of their assets (less liabilities) at marriage. This is why it's important for you to establish that value.

Do you have any further questions? Give us a call....

Sunday, February 14, 2016

"My ex-wife is now married to a rich guy" - BlogBite

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Question: My ex-wife is now married to a rich guy. They live in a mansion and she drives an Audi. She does not need child support from me. Do I still have to pay it?

Answer: The answer is "yes".

The obligation of a parent to support a child is rooted in the parent/child relationship between them (and this includes non-biological children with whom the adult acted like a parent). In other words, it is you and your child who have a fundamental, including financial relationship. The child support you pay it not the right of your ex-wife. It is the right of your child and they continue to be entitled to receive it from you.

You pay child support based on your income, whether high or low. Your ex-wife's financial circumstances may mean that in the end, your child may enjoy a more affluent standard of living because of his or her mother's new financial circumstances but that does not affect your fundamental obligation to support your child.

By way of example, if you make $25,000 a year and your ex-wife's new husband makes $500,000, you still have to pay child support based on $25,000 but you are not expected to pay enough support to match her and her husband's $500,000 lifestyle.  Remember, you child is still entitled to support from you based on $25,000 worth of income.

Saturday, February 13, 2016

"Can I change the locks?" - BlogBite

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Question: My husband and I are separated.  The atmosphere in our home is very uncomfortable and I do not think  it's good for the kids. I would like him "gone". Can I change the locks while he is at work?

Answer: No, the law does not permit you to do that. Married spouses have equal possessory rights to the matrimonial home, no matter who is actually on title (owns it). Those rights can only be set aside in one of two ways:

1. your spouse agrees to move out; or
2. the Court Orders your spouse to move out.

Changing the locks without his knowledge means taking away his possessory rights without his consent or Court Order.

If you feel that you must protect your own safety and the children's, changing the locks is not a solution to the problem - if safety is an issue, you MUST call the police.

Do you have more questions? contact us...

Friday, February 12, 2016

Dispute Resolution Officer (DRO) - BlogBite

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Question: - I am going to court without a lawyer. I was told the next hearing is before a DRO. Who is that?

Answer: A DRO (Dispute Resolution Officer) is a senior, experienced family law lawyer who presides over a variety of hearings in family court in Ontario. This person, although a lawyer, does not represent either of the parties. They are appointed by the Court system to help at an early stage of a family law case. Depending on where your case is taking place, a DRO may handle the first Case Conference or preside over the first hearing in a Motion to Change. DROs do not have the power to make court orders but they can refer a matter to a Judge, who can.

Do you have more questions? call us....

Thursday, February 11, 2016

"Am I entitled to my child's report card?" (8)

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Question: "My ex-wife has sole custody of our son. She says that because of this, I am not entitled to our son's report card. Is this true?"

Answer: no - her position is not correct. Unless there are exceptional circumstances in your case, like every parent you are entitled to be informed about your child's academic progress. The fact that your ex-spouse has sole custody does not eliminate that right.

Do you have more questions? call us....

Saturday, February 6, 2016

"I am separated and can't cope" - BlogBite

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Question: "I am separated and I can't cope. I am so devastated, I cannot even face dealing with all of the issues which I have to face, now that the relationship is over. What am I to do?"

Answer: For most people, separation results in a fundamental shift in everyday reality. Most people cope with it, over a period of time. The length of time it takes to normalize one's life after separation depends on a whole series of factors, most importantly - the individual himself or herself.

Here are some tips and suggestions:

1. Do not beat yourself up - being hard on yourself will make you feel even worse about the situation. Be kind to yourself and remember that a separation can be as devastating as a physical accident - your feelings and emotions have sustained a trauma - this time takes time to heal.

2. Help the healing process - even if you are incredibly hurt, it is important to take steps forward, little ones if necessary, but forward. Rely on your support network of friends and family. Share your grief with those close to you. Join a support network, online or in person. Seek help from professionals like doctors, therapists and counselors. You may also consider turning to someone who shares your faith for assistance - a rabbi, a pastor, a priest.

3. Do not bury your head in the sand - inertia does not advance your situation to a conclusion. Move forward by tackling the issues, at your pace. Get legal advice on the issues in your case, so that you are better equipped to make calm, rational, organized decisions about them.

..and if you have any questions, please contact us. We will do our best to help.

Custody of pets - BlogBite

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Question: We had a family dog when we separated - will the Court give either of us custody of the dog?

Answer: In Canada, the word "custody" does not apply to pets in a legal sense. Courts do not preside over hearings where parties fight over custody of a cat or pet or budgie. The Court may turn its attention to a pet, as a possession/chattel, especially in a case where there are children who have bonded with the pet.

Do you have more questions about your pet? please contact us.

Thursday, February 4, 2016

Disclosure in Family Law - BlogBite

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Question: "do I really have to give the other side my tax returns, records for my business and copies of my bank account statements?"

Answer: Most likely - yes.  Disclosure in family law is virtually a foregone conclusion. I say "virtually" because there are some requests (for example, whether or not a party to a family law case needs to produce their new spouse's financial information) which are arguable before a family Court. Overall, however, a party to a family law case should be prepared to make broad, thorough and ongoing disclosure. Legislation and case law provide for it and family Courts expect it. It is fundamental to assessing and addressing family law claims. 

Wednesday, February 3, 2016

My child is attending school part-time, do I still pay child support? - BlogBite

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Question: my daughter is attending school only on a part-time basis. Do I still have to pay child support?

Answer: the answer depends on other facts in your case. There are situations in which a Court will order a parent to continue to pay child support even to a young person (including over the age of 18) who is taking only part-time courses.

It is important that you speak to a lawyer and give them an opportunity to ask more questions about the facts of YOUR case so you can receive a less qualified answer - please call us for a free 30 minute consultation. 

Tuesday, February 2, 2016

Spousal RRSPs - mine or hers? - BlogBite

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Question: during the marriage, I contributed to my Wife's RRSP - on separation, is it mine or hers?

Answer: It's hers. That being said, if you were married, on separation you will receive one-half of the notional value of the RRSP through the equalization mechanism (the division of assets in Ontario). The RRSP will be one of the assets listed as part of her net family property and will be equalized with you.

Do you still have questions? Please call us for a free 30 minute consultation.

Monday, February 1, 2016

Can my child tell FRO to stop collecting child support from me? - BlogBite

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Question: my son has been working full-time for a year now, he is over 18 but his mother is still receiving child support from the FRO (being collected from me). Can he call FRO and help me out? Tell them he is an adult now?

Answer: No - all issues related to FRO collection/enforcement must be dealt with by the person paying child support (payor) and the person receiving child support (recipient). If they do not agree on steps to be taken with FRO, the court needs to be involved.

Still have questions? - call us for a free 30 minute consultation. 


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