ONTARIO FAMILY LAW BLOG

"I got a letter from the Family Responsibility Office, what is this about?"

2011-03-15T14:35:00.000-07:00

...then you must either be paying or receiving child support in this province, more likely the latter.

There could be a number of reasons for which you received correspondence from the Family Responsiblity Office, the "FRO" as it is commonly known.

It may be that a Court in Ontario made a child support Order in a case before that Court - such an Order automatically tiggers the involvement of the FRO. You are being contacted about child support payment arrangements.

It may also be that you are being sent a letter because the support recipient has informed the FRO that you are behind in your child support payments. It is important that you react to this correspondence - your failure to do anything about the communication may result in the FRO's taking further steps against you, including those resulting in a suspension of your driver's license.

If you are a recipient of child support, you may be hearing from the FRO about a "terminating event". The payor may have notified the FRO that support for a child is no longer payable because that child no longer qualifies for the payment.

Whatever the circumstances of the communication, hiding from it is not in your best interests. Contact the FRO directly or, if you prefer to understand your rights in advance, contact a lawyer with experience in dealing with the FRO.

Imputing Income for Support Purposes

2010-10-23T05:33:00.000-07:00

If you live in Ontario and are involved in a family law matter, you may have heard about the possibility of someone (perhaps you) being imputed with income. What does this mean?

The Child Support Guidelines (both at the provincial and federal level) give the Court the power to make a finding that a payor of child support should be treated, for the purposes of a court case, as if he or she were making an income which is not actually being received by that person.

There are a number of scenarios in which this may take place. By way of one example only: a parent claims that he or she cannot pay support because they are jobless and yet, that parent cannot provide a persuasive reason for their being unemployed. Plainly put, if a parent deliberately tries to avoid their child support obligations by being without employment, that parent risks being imputed with income by the Court, usually based on their historical ability to earn a particular level of income.

Imputed income is an interesting but complex area of family law and I encourage you to speak to a lawyer about your particular scenario to see if the concept is relevant to your case.

What is an "affidavit"?

2010-07-06T03:47:00.000-07:00

This word, commonly used in law, and in particular in the area of litigation (court proceedings), is widely misunderstood.

An affidavit is a sworn statement, in writing. The "deponent" (the person "making" the affidavit) provides facts which can constitute evidence for the purposes of a court proceeding. In Ontario family court, many decisions are made by Judges every day based on affidavit evidence. In other words, the actual deponents (witnesses), whether parties to the court case or not, do not appear at court and give oral evidence. Their written evidence (affidavits) are relied on by the Court to arrive at its decision.

In Ontario family court, affidavits have to be made in a certain, prescribed form (pursuant to the Family Law Rules or other, relevant legislation).

Affidavits are often accompanied by Exhibits, being other documents which are appended to the affidavit and form a part of it (by direct reference to them in the affidavit itself). These Exhibits are also evidence for the purposes of a court proceeding.

A stunning Ontario alium...

What is "questioning"?

2010-05-14T15:50:00.000-07:00

In Ontario family law, the term refers to giving and receiving evidence under oath. Simply put, it's a process during which a witness (often a party to a family law court case) is asked questions by the opposing party's lawyer. The answers are given under oath (they become sworn evidence) and a transcript is taken of both the questions and the answers. That transcript can then be filed with the Court and becomes further evidence in the court case.

This single term now covers under one label two steps in a court case which previously had separate names, even in family law, and that is: cross-examination (usually conducted in the context of a motion) and examination for discovery (usually held in anticipation of trial).
Questioning is a very important step in a family law case and you should discuss it with your lawyer. It requires forethought, strategizing and careful preparation, both if your lawyer is questioning the other side and if you are being questioned.

The vibrant colours of Ontario's spring...

Photo by AJJ

What is a retainer?

2010-04-15T11:29:00.000-07:00

In "lawyerspeak", a retainer can refer to at least one (or both) of the following:

1. The agreement you and your lawyer will sign at the commencement of your solicitor-client relationship. It will form the basis of that relationship and it will confirm its key terms, for example, what you are retaining the lawyer to do, at what rate you will be billed and how often, who will work on your file (eg: juniors, law clerks);

and

2. The amount of money you will pay to your lawyer at the beginning of your relationship (and which you will be expected to replenish from time to time) from which your lawyer will pay his or her fees. This sum of money is held by the lawyer in his or her trust account and can be debited only once your lawyer renders an account to you. The funds representing your retainer do not belong to the lawyer. They are your funds and your lawyer can only access them once an account is rendered and to the extent of that account.

Incredible pet portraits at Vayda's Pet Shop

"I just got my first bill from my lawyer and I do not understand it!"

2010-04-10T00:41:00.000-07:00

Solution: Call him or her and ask them to explain it! If you got a bill from the contractor who is fixing up your kitchen and it did not make sense you would call, would you not? So why not do the same when it comes to your lawyer's invoice? Unless you ask, you will not know the answer and your lawyer will not know there are questions. Be fair to him or her and to yourself.

The billing process and, in fact, all aspects of your relationship with your lawyer have to be transparent and you have to be able to understand what is being done, why and how you are being charged for it. If you do not ask when you get the first bill, the questions will fester (trust me) and by the time you get your second bill and the third, you may be too embarrased to ask since it will be clear that you should have asked sooner.....if you do not want to ask your lawyer, contact their assistant or even the billing clerk at their office - they should be in a position to answer at least some of the questions. All questions they cannot answer should be posed to the lawyer.

10 short Questions - 10 short Answers

2010-04-10T00:26:00.000-07:00

Here are answers to some commonly asked questions, on a variety of subjects in family law (Ontario):

1. Q: Can we be legally separated and still live in the same house? A: yes - speak to a lawyer for more information on whether you and your spouse qualify as "living separate and apart under the same roof".

2. Q: In a court case, do I have to have a lawyer or can I represent myself? A: you can act on your own, if you wish, but you will be expected to know the law and procedure just the way a lawyer is.

3. Q: Is my bonus part of my income for child support purposes? A: generally speaking - yes.

4. Q: Is a pension an asset (property) to be equalized between spouses (property subject to division)? A: yes, but special rules apply when the pension is also "in pay" at separation so please address this issue with a lawyer.

5. Q: Do I have to be in court when my case is argued? A: the answer depends on the type of hearing that is taking place. You have to be present for all case management hearings, that is Case Conferences, Settlement Conferences and Trial Management Conferences, and also, at Trial. Your attendance at Motions is generally speaking optional, unless you are giving live evidence (which is rare). There may be important reasons for you to attend a Motion in any event so speak to a lawyer about that issue.

6. Q: Can my wife and I just agree that we are divorced and not bother with court on this issue? A: no, you cannot. Only the court can grant a legal divorce so if you wish to be divorced, a court case will have to be started one way or another but it may be one which deals with the divorce only if you are able to settle all other issues.

7. Q: Can my husband and I have one lawyer and settle with their assistance? A: no, you cannot - each of you has to have separate representation unless this one lawyer is a mediator for you both, in which case he or she does not represent either of you (and give you separate advice). They only act as a facilitiator of a discussion between you.

8. Q: Will the court grant me custody of my dog if I ask? (this question is asked more often than you think) A: no - the court has no jurisdiction (power) to grant you or anyone else custody of a dog (in a family law case) and you will upset the judge by making this request.

9. Q: Can I bring a friend with me when my case is being heard by the court? A: - yes, you can but your friend may not be permitted to enter the courtroom while your case is being heard, depending on the nature of the hearing.

10. Q: Will the judge ask me questions during the hearing? A: that depends on the type of hearing and you should definitely explore that possibility with your lawyer. The general answer is: it is unlikely if you are represented by a lawyer, unless you are a witness at trial and these questions would be more administrative than anything else, for example: "did you hear the question posed by counsel?"

Photo by AJ

Lump Sum Spousal Support

2010-04-07T00:52:00.000-07:00

5 points to ponder when considering lump sum spousal support (not in order of importance - the level of importance of each of these points will depend on the particular circumstances of your case):

1. Lump sum spousal support is generally a one-time payment, as opposed to "periodic" (for example, monthly) payments;
2. A true lump sum support payment is neither taxable in the hands of the recipient nor tax-deductible to the payor;
3. Is is generally accompanied by a comprehensive release of spousal support, which is meant to make this payment final and non-variable;
4. It should be calculated with care and be based on factors including the length of the relationship (not just marriage), the parties' roles in relationship, whether child support is paid and in what amount, and the life expectancy of the payor and recipient;
5. When calculating the right amount of the lump sum, do not forget to consider the unique tax treatment of these payments - ie: take into account that the sum will have no tax consequences for either party. The payor will make the payment using net dollars (money on which he or she has already paid tax) and the recipient will receive the payment on a tax-neutral basis as well. For example, when calculating what lump sum three years of periodic payments would represent, it is not appropriate to simply multiply the amount of support payable per month by 36 months. This is because periodic payments have different tax consequnces to both the payor and recipient.

Spring is in full swing in York Region!

Pretending to be an ostrich will hurt you in a court case!

2010-03-29T12:46:00.000-07:00

A post title to get your attention but here is the message I want to stress for you:

* Do not ignore court documents which are delivered to you, either by mail, by process server or otherwise *

These documents are likely to signal a step in the court case (either a preceding step or one about to take place) and you are mistaken if you believe that ignoring these documents will stop that next step and/or the court case.

If you have "notice" of a step in a case, through a document, you are expected to respond to that document. If you do not, the Court will proceed with the step, in your absence.

Here is an example: if you are served with an Application, you have to respond to it (defend it) by way of Answer. You have a limited period of time to do so and if you do not respond, the Court will proceed without your participation in the case, based on the claims (and allegations as to fact) made in the Application. This scenario is unlikely to be in your interests and, therefore, you need to exercise your rights of response and participation.

Five Tips for your First Meeting with a Lawyer

2010-03-28T04:10:00.000-07:00

The idea of having to retain a family law lawyer can be quite overwhelming. Your even thinking about this issue means that you either have to initiate a dialogue involving lawyers and legal issues or that you have to respond to one.

The task can be particularly daunting if you have never been involved in legal proceedings before and/or if you do not know any lawyers. Where do you start, what do you say?

Here are some tips for your initial meeting with a lawyer (whom you may consider retaining to represent you):

1. Bring with you whatever paperwork you think may be relevant to the legal issues in which you are involved. If you are not sure whether a particular document is relevant, have it with you just in case - the lawyer can then ask for it if necessary. The documents you bring should include your last three income tax returns (complete with slips and attachments), as well as related Notices of Assessment and Re-Assessment;

2. Start by providing a general outline of your story and then give the lawyer an opportunity to ask you questions to flesh out or clarify the areas which need further discussion. Stick to the issues at hand - remember, you are potentially retaining this person to assist you with legal issues, not to be your counsellor. While it is important that your lawyer appreciate the emotional component of your case and what you are feeling, his or her job is not to provide you with psychological and emotional support - spend your money wisely...the more hand-holding you require, the more expensive the process will be. This is not meant to say that you are to be an unemotional blank slate at any of your meetings with your lawyer. This is often simply impossible as the issues are highly emotionally charged and you are in the middle of them. The point is to stick to what is relevant and to points with which the lawyer can help you, based on their actual expertise.

3. Be honest - the information which you provide to your lawyer should include "the good and the bad" - do not conceal the existence of unfavourable information/evidence from your lawyer simply because you think this will help them do their job - this tactic can have very serious and damaging concequences to your case down the road.

4. Assess whether you and your lawyer will get along and whether the potential relationship will be "a fit" - this is an important point missed by many out there - a relationship between lawyer and client can be very intense and you have to be basically compatible, communicate in an effective way and simply "get along" to make your case move forward to a resolution.

5. Do not be afraid to ask questions - legal issues often are (through years of convention) but are not meant to be shrouded in a veil of mystery - the better you understand the issues in your case, the more useful assistance you will be able to provide to your lawyer - remember, they work for you and not give versa.

Good luck!

Image via Zamm(flickr)

"When do my child support payments end?"

2010-03-25T00:55:00.000-07:00

This frequently asked question has the same answer throughout Canada, namely: "when your child/children are no longer dependant on their parents". Sounds simple but the answer surely requires further clarification.

First of all, the reasons for this "dependance" may include medical circumstances or the pursuit of education. This post will focus on the second reason.

Let's take a fictional Sally, the 19-year-old daughter of Sam. Sally is attending college on a full-time basis and living with two roomates. She has a part-time job. She uses part of the money she earns for her tuition. Is Sally eligible for child support? - yes. Sally is incapable of supporting herself because she is attending school. She is doing the best she can with her part-time job. The manner in which Sam will pay support for Sally will be suited to her particular academic circumstances and living arrangements (he will contribute to her school expenses and her living expenses rather than pay the table amount of child support) but simply put - Sally is still eligible for support from Sam. The fact that she is over 18 is irrelevant given she is attending school.

John has a son, Peter, who is 22 and completing his last year at university. Peter lives with his Mom, Jenny, and works during the summer on a full-time basis planting trees in BC. He is physically away from Ontario all summer. Is Peter eligible to receive support from John? - yes. This time, because Peter is living with his mother, she will need some contribution to the expenses of her household and either the table amount or a portion of it will be payable by John to Jenny for the periods Peter is living with her. John will also be contributing to Peter's school related expenses.

I have provided you with only two of literally thousands of examples of situations involving older children. These children and their situations generate most questions around child support, similar to the question in the title of this post.

The manner in which child support will be paid for these children, and the amount of that support ,will depend on a host of circumstances, including the following:

1. what is this young adult doing - working, attending school?
2. where is he/she residing?
3. is he/she working and able to contribute to some of his/her own schooling costs?
4. is he/she enrolled in a reasonable program of study, with a reasonable prospect of graduating with a marketable skill?
This area of family law raises some important questions and many of the answers depend on the particular circumstances of each case - seek legal advice to see how these principles apply to your case.

Spring is here!!

Income and support obligations

2010-03-12T03:41:00.000-08:00

For the purposes of determining a payor's support obligations (assuming he or she has any), income is not just money they "bring home". For both child and spousal support, it is the gross income of the payor which is used to determine the extent and amount (we call this "quantum") of their payments.

The Federal Child Support Guidelines (and their provincial counterpart) give judges broad powers to "tag" various forms of income for support purposes. For example, if you are a business owner, you should not assume that it is only the income on which you are taxed by CRA which will determine how much support you pay. As I tell my clients often, in this area of the law "what is good enough for the tax man may not be good enough for a family law judge" meaning that over time, family law in Ontario has carved out special rules relating to income for support purposes. Areas which are vulnerable to consideration under the heading of "income" include (but are not limited to) salaries paid to non-arm's-length parties, personal expenses deducted (even if such a deduction is accepted by CRA), earnings left in the company and not drawn out without a valid explanation and bonuses. In certain circumstances, even cashed RRSPs can be considered income for support purposes.

If you would like more information, I suggest you consult a lawyer in your area but in any event, as a first source, you should turn to the specific wording of the Child Support Guidelines and their companion Schedules.

The ebb and flow of the tide...

Inheritances and Ontario family law

2010-03-04T00:25:00.000-08:00

Equalization of net family property is one area of family law where inheritances come into play.

Generally speaking, an inheritance received by a party during the course of the marriage is "excluded" property under Ontario's Family Law Act and such an inheritance is not "shareable" with the other spouse.

There are a number of issues to keep in mind in connection with the above, general statement. The list below is not exhaustive but, rather, it is included to show you how complex this area of family law can be and that you would be well-advised to seek legal advice about it:

1. it matters what the recipient did with the inheritance - for example, if the money was spent on travel for the family, it cannot be claimed as an exclusion..

2. picking up on point 1. - can the whole or any portion of the inheritance be traced to an asset existing at the date of separation/valuation? - if only a portion can be traced, only that portion can be excluded..

3. is the inheritance mingled with other assets and can it be "spliced out"?

4. was the inheritance used, in any way, for the matrimonial home? - this is an important issue and you should seek advice on it...

5. income from an inheritance is treated in a unique way in Ontario - find out how by contacting a lawyer....

Once again, the receipt of an inheritance during the marriage can impact significantly on the calculation of an equalizing payment on separation/valuation so do not "self-prescribe" in this complex area of family law...seek input from a family law practitioner in your area!

Stunning purple shutters in Alsace, France, via travelblog.org

What is the "table" amount of child support?

2010-03-03T01:04:00.000-08:00

Family law Courts and lawyers use this phrase in their daily parlance - the "table" amount of child support - what does it mean?

This is one of the two components of child support payable in Canada (as opposed to a contribution to special and extraordinary or "section 7" expenses).

This component of child support is calculated based on tables which are part of the Child Support Guidelines (both federal and provincial) - hence the monicker. These tables provide net figures of monthly child support payable, based on the following factors:

1. the number of children in question;
2. the province in question;
3. the income level of the payor (and only the payor parent - the income of the residential parent is not generally relevant for the table child support calculation).

Some issues to think about when talking about the table amount of child support:

1. special considerations apply when the income of the payor parent is more than $150,000;

2. special considerations apply in shared custody and split custody situations (see my earlier post about the confusion surrounding the issue of the word "custody" in these situations).

3. the question of "income for support purposes", ie: the income to be used when determining child support obligations under the tables, is not an easy one, particularly in situations where the payor parent is self-employed.

The table amount of child support is neither taxable to the recipient parent nor tax-deductible to the payor parent.

A beautiful fence in Northern Ontario..

Photo by AJJ

"Can I move with my child?"

2010-03-02T03:33:00.000-08:00

That question is very difficult, virtually impossible to answer, without knowing the specific facts in your case but the initial answers would be as follows:

1. if your child's/children's other parent agrees - yes
or
2. if the Court approves the move - yes

Even non-custodial parents have the right to object to a proposed move (or a move which has already taken place, in specific circumstances) if the potential change in the child's residence would affect their contact with their child/children and no reasonable arrangements can be made to address the change in their physical relationship.

This area of family law is commonly referred to as "mobility" law and it is customary to address it in Separation Agreements, so that the possibility of a move is addressed in advance, before it takes place, and the parties turn their minds to the mechanics of dealing with the move at the relevant time. Notice periods are common.

Without question, a move from Ontario to Australia will have far greater consequences for the parent staying behind than a move from Ontario to Oakville. That being said, in two specific cases, a court may approve a move to Australia but not a move to Oakville. That is one of the reasons I said at the beginning of this post that the specific facts of your case are very, very important and relevant.

Mobility is particularly relevant to shared-residence situations - where the child/children live with each parent for at least 40% of the time - in those situations, it is particularly important that the respective parents' residences be reasonably close to one another to allow the arrangement to work effectively.

Spring is almost here....open your mind to the possibility!

photo credit: alaf.co.uk

Motions versus Trials

2010-02-16T09:17:00.000-08:00

These are, generally speaking, two completely different animals when it comes to a court case in Ontario, subject to my comments below about "motions to change".

A Motion is like a mini-trial. It is a court appearance (they are generally argued in person, before a judge) which is meant to address some short-term, sometimes emergency issues. A number of Motions can be brought in the course of a proceeding, as issues arise - issues which cannot be left for determination until Trial. Motions often deal with issues of children's custody and residence, as well as child and spousal support. Orders made at Motions are generally temporary or "interim" orders. They are meant to be in place until either a further Court Order or agreement between the parties.

A Trial is a hearing, sometimes days long, which disposes of a court case on a final basis (subject to appeal).

The Family Law Rules provide for another animal and here, the language can be a little confusing. We have what are called Motions to Change (a final order, for example). These are separate proceedings, formerly called applications to vary. The final hearing in such a proceeding can be a motion but it is very similar to a Trial and can be either by affidavit (written) evidence or viva voce, meaning, witnesses give evidence in person.

Pensions in Family Law

2010-02-04T13:01:00.000-08:00

Pensions are relevant in family law for a number of reasons. These include the issues of income and equalization.

On the income front, a pension in pay is likely an income source for the purposes of calculating support obligations. In other words, individuals receiving a pension may still be obligated to make support payments. Retirement does not signal an automatic end to support payments.

Pensions are also assets which are subject to equalization under the Family Law Act. They have a value for the purposes of one's net family property and we use actuaries (pension valuators) to establish that value. Just like with respect to all other assets subject to equalization, a pension valuator establishes any value the pension had at the date of marriage (for which you get credit), as well as the value of the pension at the valuation date.

In some family law cases, a pension can be both an income source and an asset subject to equalization, which gives rise to the issue of "double dipping". You are encouraged to seek advice on this very interesting but somewhat tricky area of family law.

Changes to Child Support

2010-02-02T02:01:00.000-08:00

A child support order is never final. It can, and often should be, changed. Such changes are called "variations". Reasons for these variations are too many to exhaustively discuss here.

On the most basic level, the amount of child support should increase and decrease with corresponding (material) changes to the income of the parent who is paying support. Changes in child support may also be triggered by a change in a child's educational status (eg: they begin to attend university) or a change in a child's residential status (they begin sharing their residence with both parents).

Contrary to "prevailing gossip", in Canada, child support does not automatically end when a child turns 18. Such support continues if the child remains "a child of the marriage" or otherwise a dependant, for legitimate reasons.

"Help, I am feeling overwhelmed..."

2010-01-29T09:13:00.000-08:00

As a person involved in a family law case (or in any legal case, for that matter), it is natural for you to feel overwhelmed from time to time. You are dealing with many very personal and sometimes, very strong emotions and on top of it all, you are also expected to participate, in an intelligent and committed way, in your lawyer's work on your behalf.

He or she will ask you to complete forms, gather documents, review drafts of court materials and letters, give instructions, sometimes on short-notice. This can all be quite overwhelming and stressful.

The solution is not to hide and not return your lawyer's calls. The solution is to talk to him or her about it, to ask for help, to accept help being offered and to determine what tasks have to be completed when. It may be that, depending on the context of your particular case, some matters can be delayed a little to give you some breathing room, some time to recharge your battery.

The key is open communication with your lawyer - he or she cannot read your mind, and may not be able to easily appreciate what you are going through if you are "all together" during meetings and telephone conversations. Deal with such stress when it first emerges, not when it's at the point of making you inert and unable to participate in your case.

"Legal Separation"??

2010-01-21T11:31:00.000-08:00

The term “legal separation” is often misused and frankly, misunderstood. I often have individuals calling me because, as they say, they want "a legal separation".....

Whether a couple is separated or not is a question of fact. It is sufficient for one party to give effect to a separation, by their actions. The other side does not have to be in agreement with the separation for it to occur.

Contrary to a prevailing notion, a separation of a couple does not have to be registered anywhere or legally confirmed in writing in order to take effect.

In Ontario, the date of separation is relevant to at least two issues, namely, the divorce and the equalization of net family property (property division).

For more information, I encourage you to seek legal advice from someone who routinely practices in this area of the law.

What is a "Separation Agreement"?

2010-01-21T10:24:00.000-08:00

A Separation Agreement is a contract between separating spouses, whether married to each other or not. It is usually a document made up of many pages, signed by both parties, and generally speaking, Separation Agreements are meant to deal, on a final basis, with all issues arising out of a separation. Sometimes Separation Agreements become Court Orders and sometimes they do not. This depends on the legal context in which they are signed.

There are circumstances in which Interim (temporary) Separation Agreements are appropriate.

A Separation Agreement can be a complex document, depending on the circumstances of the parties and whether or not, for example, it deals with children's issues as well. In order to be properly binding and to have the desired consequences for the parties (a measure of finality, for example), the contract has to have some important attributes, including independent legal advice for each of the parties, as well as complete and frank financial disclosure.

"Home-cooked" Separation Agreements are always cheaper in the short-run but they can be very expensive in the long-run, especially when one of the parties discovers, at a later date, that the Agreement is either not enforceable or not giving them what they expected it would.

Spend your money wisely and with forethought.

What is "custody"?

2010-01-13T10:13:00.000-08:00

In Ontario family law, the word is generally used in reference to decision-making about a child or children.
In general terms, a parent who has sole custody of the child makes, on their own, all major decisions about that child’s health, welfare and education. Parents who are joint custodians make such decisions together. There is also the concept of "parallel parenting" which I will address in a future post.

Please note that a child’s custodial parent may be different from that child’s residential parent. “Residence” refers to where the child lives. For example, the parents of a child may be that child’s joint custodians but the child may live primarily with Dad.

The use of the phrase “shared custody” in the Child Support Guidelines (both federally and provincially) has caused some confusion. In the Guidelines, the term refers to a situation where the child essentially has two homes and spends some time with one parent and the rest of the time with the other. In this particular instance, the word “custody” is used to denote the child’s residential arrangements but this is an exception to the general rule outlined above with respect to the use of these phrases.

Child/Spousal Support and CRA

2010-01-11T14:27:00.000-08:00

Periodic child support payments, unlike spousal support, are made in Ontario on a tax-neutral basis. This means that they do not form part of the income of the recipient and are not deductible to the payor.

The preceding statement must be approached with some caution because there are some payments made by parents, effectively being child support, which do have tax consequences. For example, daycare expenses can have tax consequences to the payor, and favourably so. Depending on the age of the child, either all or some of those expenses may be deductible for tax purposes. Again, depending on the child's residential arrangements, a parent may deduct those expenses (while the other parent does not) and in such a case, the deduction may affect the way the amount owing by the non-deducting spouse is calculated in the first place. By way of a simple example, if the annual cost of daycare is $5,000, in calculating at what proportion the parents will share the expense, one must consider which parent will take the tax deduction and in what amount.

Periodic spousal support, on the other hand, is taxable as income in the hands of the recipient and tax-deductible to the payor. A different tax treatment applies to lump sum spousal support payments.

What is "equalization"

2010-01-08T17:34:00.000-08:00

Equalization is a formula, set out in Ontario's Family Law Act, which we use to effect property division between divorcing spouses (the formula applies only to parties who are married to each other).

I used the phrase "property division" because that generally helps a client understand where this concept is used among issues common to a matrimonial case. Technically, however, the phrase is incorrect in describing what happens in Ontario: the Family Law Act envisions not the actual division of property (each party is entitled to 2 chairs out of 4) but the sharing of "value" - the spouses share with each other the increase in their respective net worths between the date of marriage and the date of separation. This means that the spouse with a greater net family property (see explanation elsewhere in this blog) has to give the other spouse one-half of the difference between them, with the effect that their net family properties are equalized.

Using the simplest example possible, if a husband and a wife were separated and the only asset between them was a pension, which resulted from the husband's employment, then the value of that pension would be considered his net family property. If the pension has the value of $100,000, and the wife has no assets of any kind at separation, then the husband would have to pay to her $50,000 in an equalization payment. At the end of this process, each would end up with $50,000.

There are other important elements which fit into the equalization formula and you will find them further explained in other posts in this blog (eg: "excluded property" and "date of marriage deductions").

The Art of Listening...

2010-01-05T02:48:00.000-08:00

..."what do you mean?", you ask....we all listen!

The truth is that if you are in the midst of a family law dispute, you are very likely stressed, tired and frankly, a little bewildered. In such situations, you may be vulnerable to missing important information being provided to you by your lawyer, by the Court, by other agencies working for you.

Here is some advice:

1. listen, I mean, really listen, rather than just think you are.. ask yourself - If I were asked to do so, could I repeat what was just said? do I really understand it?
2. take notes! Do not underestimate the assistance they can give you later - for example, you will be able to review your notes of a meeting, at a later date, and ask any questions which arise....
3. slow down the conversation, if you need to...make sure that you are following and ask any follow-up questions...
Hope this assists - remember, your lawyer is working for YOU!

Time....

2010-01-04T05:03:00.000-08:00

Time can be an important factor in a family law case, in more ways than I can summarise here. By way of one example only, in custody cases, status quo is of vital importance and may impact on your case, either for you or against you. It may, therefore, be vitally imprortant that you react to a situation promptly and without delay. There is also the matter of various limitation periods which may apply to your case. It is in your interests to address these matters with a lawyer, so that your rights are not prejudiced.

Tips for completing your Financial Statement (2)

2009-12-01T04:43:00.000-08:00

Accuracy is the key when completing your Financial Statement. The more detailed and thorough you are, the more believable you will be to the Court and you will also be able to expect the same standard from the other side.
For example, when filling out the portion of the statement dealing with your bank accounts, it is not sufficient for you to say that you have a bank account with $3.00 in it. What kind of an account is this (eg: chequing)? What is the account number? With which bank? What is the exact balance on the date you are representing?

If your Financial Statement contains this information at first instance, at the very least, you will avoid a letter from the other side (at added cost to you because your lawyer will have to process it) asking for the information.

Your child is watching....

2009-11-25T14:17:00.000-08:00

Children are very much in tune with the moods of their parents. They frequently follow by example and this is particularly true in cases of separation, when a child is stressed and unsure how to feel.

The point is that your child is watching you and is likely to mimic your behaviour and your attitude towards the other parent. If you are hostile, the child, especially when very young, is likely to perceive that as the expected reaction. If you are cooperative with your spouse, the child is likely to "buy into" a schedule, for example, or a plan proposed by both parents. Access is a classic example. If you are opposed to access and speak negatively about your spouse, the child is likely to pick up those signals and act accordingly: ie: refuse access. If you are encouraging of your child's contact with the other parent, your child is likely to follow by example.

Remember, you child is watching!

"But we have an agreement already!"

2009-11-25T05:34:00.000-08:00

Often, when I meet with a client for the first time, I am assured by him or her that there is already agreement on some of the issues. Later, it sometimes turns out there is no such agreement and my client is very angry about this. He or she says: “how can they deny we agreed on this?” Well, they can. Agreements without independent legal advice, even when made in writing, are problematic and one of the spouses also sometimes claims that they were under duress to agree, which presents a further problem. Suggestion? Do not rely too much on “agreements” made verbally between spouses in the midst of separation, and without the advice of lawyers. You may later be very disappointed.

Tips for completing your Financial Statement (1)

2009-11-24T07:57:00.000-08:00

It is more than likely that your lawyer will ask you to complete a draft Financial Statement. This may seem like a daunting task at first glance but with organization and patience, you will get through the project, I promise!

Here is a tip: if you get to a portion of your Financial Statement about which you have a question or which you do not understand, do not put the entire project on hold! Rather, skip over the part which gives you trouble and proceed with what you can complete. Then call your lawyer's office and ask for assisstance with the part on which you are stuck. Momentum is the key here: work on your draft as soon as you can and provide the draft, even with some portions missing, to your lawyer as soon as you are able.

Image by Royalty Free-Corbis

One Spouse = One Lawyer

2009-11-22T11:44:00.000-08:00

I am asked, from time to time, to meet (and give legal advice) to both spouses in a separation. In such situations, one spouse, by way of telephone call, tries to convince me that he or she are not fighting with the other, that they have agreed on everything and that they simply need one lawyer to "put it in writing" or "finish the paperwork". The primary motivation is such cases is cost.

While the fact that you and your spouse get along is a great thing, that cooperation does not alter the fact that your rights before the law may be adverse (different). For this reason (and several others), each of you needs a lawyer of your own. The fact that you are cooperating will simplify matters considerably and save costs as well, but one lawyer cannot act for you both.

It is possible for one lawyer to prepare a Separation Agreement, for example, on behalf of either the husband or the wife (his or her client). The other lawyer will then review the draft of the document and advise his or her client about it, independently and confidentially. In this scenario, one lawyer will represent one client (spouse) - at all times.

Helping your lawyer help you (1)

2009-11-22T08:12:00.000-08:00

One way to help your lawyer and reduce your own costs of legal representation is to assist him or her with gathering information and paperwork to be used in your case. For example, if YOU get your tax returns from your accountant rather than having your lawyer complete that task, you will already be saving yourself fees and, besides, that will allow your lawyer to concentrate his or her efforts on areas of their expertise.

Be as organized as you can be. When asked to bring in documentation, do so as soon as you can and in a way which will be easy for your lawyer (and any staff) to understand and then use to your benefit. Providing unsorted piles of documentation is not wrong but it is not as helpful and you will be paying someone at your lawyer's office to organize it. Why do that?

Image by Royalty-Free/Corbis

Does what my child wants matter?

2009-11-21T15:29:00.000-08:00

Many clients ask: "Will the Judge speak to my child? Will the Court listen to my child's wishes?"

The answers to those questions depend on a number of factors, including your child's age and the context (case) in which the questions are being asked. For example, the wishes of a 4-year-old are generally not taken into acccount by a Court. The wishes of a 14-year-old might be, depending on the circumstances of the case and the child's ability to express themselves without the influence of others.

Contrary to a widely held layman's view, there is no "magic" age at which children decide where they will live; not until they are 18. The older the child, however, the more likely it is that a Court will, at least, take ther preferences into account, bearing in mind at all times that Courts retain the ultimate decision-making power over children and their best interests, until they reach the age of majority.

The Office of the Children's Lawyer (Ontario)

2009-11-20T16:44:00.000-08:00

What is it? - The Office of the Children's Lawyer (OCL) is an Ontario government-funded law office (part of the Ministry of the Attorney General) which provides legal services targeted at protecting children's personal and property rights (for children under 18).

What role might the OCL play in my family law case? - The OCL conducts clinical assessments of families (in the context of custody and access disputes, for example) but also provides legal representation (their own lawyer) to children under 18. There may be good reasons why you may want to have the OCL involved in your case and, therefore, they may become involved on consent of both parties. The OCL may also be involved in your case as a result of non-consent court order.

Who pays for the OCL's services? - The services of the OCL are free to parties in a family law proceeding provided the OCL agrees to accept the case. The OCL (and not the court) ultimately decides whether the office will become involved in a particular case or not. This discretion is directly related to the fact that thousands of litigants want to use the free services of the OCL and apply for the OCL's assistance each day. Based on a review of Intake Forms submitted by the parties, the OCL decides which cases qualify.

Welcome....

2009-11-20T15:52:00.000-08:00

..to the inaugural post on the Ontario Family Law Blog. It coincides (roughly) with the opening of my own, independent practice in Newmarket, Ontario.
I look forward to sharing with you what I hope you will find to be useful information about this area of the law in the Province of Ontario.