Family Law Blog

JOHN SCHUMAN'S FAMILY LAW BLOG

Here is where you will find on-going up-to-date useful information on family law topics, such as separation, divorce, custody and access, child support, spousal support, property division, marriage contracts, family mediation and arbitration.  This blog is designed to answer your family law questions, so look around.

This blog will answer a lot of common family law, divorce, separation, and parenting issues.  If you are having trouble finding the information that you need, just use the search box on the left.  It will help you find the answers you need to your family law or divorce matter.

All of the answers are provided by a practicing Ontario Family Law/Divorce Lawyer.  However, note that small changes in circumstances can lead to a big change in how the law applies to the situation.  It is always important to discuss your particular circumstances with an experienced family law lawyer.  You can contact John Schuman at 416-446-5080 or by emailing him.  For more information about how to contact John, click here, and click here for more information about John.


Book - Guide to the Basics of Ontario Family Law

In addition to this blog, you can get a lot more information about Family Law in John Schuman’s book, The Guide to the Basics of Ontario Family Law, which is available from Amazon as a paperback or a $9.99 Kindle eBook or iBook for your iPad or iPhone.


Don’t wait to get the Family Law information you need.  Not knowing how the law work has gotten many people into serious Family Law trouble.  Before your Divorce or child protection case goes wrong, find out how the law applies to you!

What is Parenting Coordination? How Does It Work?

Parenting Coordinator working out an argument over a child

After separation, some parents either have difficulty, or worry that they will have difficulty, agreeing on matters related to the parenting of their children - even with a detailed parenting plan in place.  Parenting coordination is an alternative despite resolution (ADR) process that involves both mediation and arbitration to help parents implement the terms of their parenting plan without needing to go back to court every time there is a disagreement.


Parenting Coordination is different from Parenting Mediation.   The purpose of Parenting Mediation is to assist parents in working out a Parenting Plan.  A Parenting Plan sets out how separated parents will parent their children.  It includes not only the schedule for where the children will live, but how the parents will make decisions for their children, when parents will go to children’s events, what discipline strategies they will use, what responsibilities each parent has, and how the parents will address virtually ever aspect of their children’s lives.   If parents cannot work out a parenting plan on their own, then they either go to court in a child custody case and have the judge decide, or go to family arbitration and have their arbitrator create the terms of the parenting plan.  This page sets out how judges decide child custody cases and create the terms of parenting orders.


Where separated parents have difficulty getting along, it is common to have a parenting agreement or custody order that is very long and detailed so there a very few things for the parents to fight over.  The agreement or court order is supposed to provide the answer for every disagreement.  But there can still be situations that the parenting plan did not contemplate, or where it does not provide a clear answer.  When that happens, parents can get into an argument and “high conflict” parents may not be able to resolve the issue.  Parenting coordination is designed to help those parents and the children. 


The purpose of Parenting Coordination is to implement and enforce the custody order or parenting agreement - not to change it. A parenting coordinator has to follow the parenting plan and make sure the parents do the same. 


Parenting Coordination is a form of mediation/arbitration, which means the parenting coordinator acts a both mediator and arbitrator.  The parenting coordinator, who is often a social worker, child psychologist, or family law lawyer, tries to act as a mediator to help the parents overcome arguments and reach agreements on any matter related to the children.  If the parents cannot agree, then the parenting coordinator can act like an arbitrator and decide the matter.  (It is like the parenting coordinator has legal custody of the children because he or she has final decision making authority over the children, within the boundaries of the parenting plan.) 


The advantage of parenting coordinator is that it allows parents quick access to a method to resolve their parenting disputes, without the time and expense of going to court. Section 59.7 of the Family Law Act  allows parenting coordinator to use a “summary” or very simplified procedure when conducting an arbitration.  That means the parenting coordinator can try to “mediate” the dispute and if there is no easy resolution, the parenting coordinator can move on quickly to an expeditious arbitration that can use a very streamlined procedure, such as just relying on emails, or a brief phone call with both parties, rather than a full trial.  The only restrictions are that:

(a)   the parenting coordinator cannot rely on anything that went on during the “mediation”; and

(b)   in deciding anything related to the best interest of a child, the parenting coordinator must have full information about what is in the child’s best interests (including information about all the factors that a judge must apply when making decisions about parenting) and must apply that information and those factors to make the decision.

This allows for quick resolution of issues, such as what to do if a parent will not sign a travel consent, a parent stops visits, or a child refuses to go on visits.  Parenting coordination is much faster and much less expensive then going to court every time. In addition, if the parents sign a proper Parenting Coordination Agreement, the decisions of the Parenting Coordinator can be filed with the court and then enforced as a court order following the procedure under Rule 32.1 of the Family Law Rules.


The downside of parenting coordination is that it allows parents quick access to a method to battle out their parenting disputes, without the time and expense of going to court.   The big advantage to parenting coordination for some families can be its biggest problem for others.  If one or both parents just wants to continue to fight things out with the other parent, then parenting coordination gives a easy access to a forum to do that.  Sometimes that can perpetuate conflict, which is very harmful to those kids, because the parents can fight over every single tiny detail or issue over and over again.  In those cases, it may be better not to have parenting coordination and instead force the parents to pay the expenses associated with court and wait the (sometimes long) waits for a court date.  That makes it more difficult to fight over ever single little issue. 


Parents also have to pay for the professional fees of the parenting coordinator - although those can be less than court filing fees, or the fees required to have challenging court documents filled out by lawyers.  Also, most parenting coordination agreements allow the parenting coordinator to force one parent to pay all the fees because that parent has unreasonably caused conflict.


Deciding whether parenting coordination is right for your family, and perhaps which parenting coordinator would work best for you, is a complex question.  It is something you should speak to an experienced family law lawyer about to decide what is best for your family in your circumstances.  In any event, section 59.6(1) of the Family Law Act states that a parenting coordinator’s decisions are not legally binding unless both parties had legal advice prior to signing the agreement to use Parenting Coordination.  So you must speak to a Family Lawyer before signing up for parenting coordination.  

Guide to the Basics of Ontario Family Law, 3rd Edition


To find out if parenting coordination is right for you, or to get advice on any other form of parenting dispute, contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-5847 or using the form below to contact him.  We respond to all inquiries promptly.  You can get more information about parenting coordinator, other forms of alternative dispute resolution for family law matters, a description of family court process, and lots of information on most common family law topics by getting an immediate download of this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.


Guide to the Basics of Ontario Family Law Available on KindleKobo Logo

Tens of thousands of people turn to this website every month for assistance with their family law concerns.  If you found this page useful, help other people find it by sharing it on your social network using the button at the bottom of the page.  Feel free to comment on this page using the form below.


Am I in the Wrong Ontario Family Court to Get A Divorce?

courthouse_413

Ontario has three Family Courts.  Some municipalities, which are listed in Rule 1(3) of the Ontario Family Law Rules, have a Family Court of the Ontario Superior Court of Justice.  That court hears all Family Law matters.   However, the rest of the province has two separate courts that deal with Family Law Matters:  the Ontario Court of Justice and the Ontario Superior Court of Justice.  These two courts do different things and operate a little differently, although all Ontario Courts apply the Family Law Rules (except for appeals). Only the Superior Court of Justice can grant divorces, decide property matters, or make orders that an asset by held as security for a debt (including support arrears).   If you want to do any of those things (and most separating married couples do), then you must start your proceedings in the Ontario Superior Court of Justice.

Ontario Family Law Podcast - Episode 23 - Why You Need a Last Will and Testament

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

However, if you are in the Ontario Court of Justice and you want to deal with the divorce or property issues, it is not a matter of transferring your case.

If you want a divorce, then the Court granting the divorce will make custody and access orders  under s. 16 of the Divorce ActDivorce Acts. 15.1 of the , child support orders under , and spousal support orders under s. 15.2 of the Divorce Act.  Due to some complicated constitutional reasons, Divorce Act Orders supersede orders made under Ontario's Family Law ActChildren's Law Reform Act and , which are the statutes that the Ontario Court of Justice uses (as it cannot make Divorce Orders.)  For that reason, section 36 of the Family Law Act and section 27 of the Child and Family Services Act both state that any proceedings under those laws (meaning proceedings in the Ontario Court of Justice) are stayed if one of the parties starts a divorce proceeding.

So, what that means is that if you start a Divorce proceeding in the Ontario Superior Court of Justice, the court proceedings in the Ontario Court of Justice stop automatically.   The Judges at the Superior Court of Justice will want to hear what the judges said in the Ontario Court of Justice, and will likely re-make the same orders (as long as they were not successfully appealed).  But, that is something you will have to address, probably at the case conference.  

But, be warned: If you are moving the case just because you do not like what the judges are saying in the Ontario Court of Justice, this case illustrates that you could get punished by an order to pay your spouse's costs (legal fees) for moving the case for an improper reason



Guide to the Basics of Ontario Family Law, 3rd Edition


You can learn a bit more about the family court process by watching the video above or listening to these podcasts (iTunes version here).  You can get a lot more information about Ontario Family Law issues, including a further explanation of family court process by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a top family law lawyer.
   Make an appointment with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847, emailing him, or using the form below.  You can also use that form to comment on this page.If you found this page helpful, please share it on tour social network using the buttons at the bottom of the page.

Guide to the Basics of Ontario Family Law Available on Kindle


Does Child Support Affect Child Custody or Access?

child in shared custody receiving shared child support

Every family law professional, and every family court judge, will tell you that child custody and access are completely separate issues from child support. How child support is determined is completely different from how judges decide who gets custody.  However, there are at least two ways in which child support can influence parenting issues in family court cases:

1.  Failing to pay appropriate child support immediately gives the impression that a parent does not care about the child.  That can affect how a Family Court Judge or Family Arbitrator views that parent’s fitness as a parent.

2.  Shared Custody/Shared Parenting changes the way Child Support is Calculated. Sometimes people view shared custody as much as a financial arrangement as a parenting arrangement in the children’s best interests. However, things can work out differently than they expect.


The Importance of Paying Child Support Right From Separation

Child support is the right of the child.  The right of children to share in their parents’ wealth exists from the moment of separation.  It is a big mistake for a parent to withhold child support to the parent with whom the children primarily reside.  It costs a lot of money to raise children.  They have on-going needs.  When one parent leaves the children with the other parent, that parent must recognize that the children’s needs continue.  That means paying appropriate child support right from separation.  You can use on-line tools to figure out your base child support obligation.

When a parents do not recognize that their children still have financial needs after separation, by immediately paying appropriate child support, Family Court Judges interpret that as a parent not caring about the children’s needs.  Judges view parents who do not care, or understand, their children’s needs as poor parents - parents who cannot make good decisions for their kids, and therefore should not have custody.  That leads Family Court Judges to believe that parents who do not immediately start paying appropriate child support as parents who should not have custody.

10 - Child Support - Who Pays and How Much?


That, of course, can be an incorrect assumption by the Family Court Judge.  But a parent who starts off giving the Family Court a bad impression of him or her as a parent will have a much harder time in their case.  That parent has barriers to overcome to get the parenting arrangements that he or she wants - barriers that he or she would not have if she or he had shown devotion to the kids right from the start by paying child support.


You can make sure you are doing the right things after separation by speaking to a top family law lawyer, and by watching the video below that sets out some of the other mistakes that you need to avoid:


Child Support and Shared Parenting

Under section 9 of the Child Support Guidelines, child support changes when the children spend close to an equal amount of time with each parent.  The magic number is 40%.  When a child spends 40% of his or her time with a parent, that parent no longer has to pay the table amount of child support, but pays another amount that reflects a fair sharing of the costs of raising that child. The principles for how parents should financially support their children in shared parenting situations were set out by the Supreme Court of Canada in the case of Contino v. Leonelli-Contino. To summarize, when children share their time close to equally between parents, the starting point is that the parents each pay the table child support to the other. However, the way that works out, is that the parent with the higher income pays his or her table amount of child support minus the other parent’s child support obligation. 


For some parents, they want to have the children for forty percent or more of the time so that they can get a “break” in child support.  Several family court judges are suspicious when a parent seeks to move to shared parenting because they want the break in child support.  if the judge believes that a parent is more interested in the break in child support, than in the child’s best interests, that judge will not order shared parenting.  If a parent wants shared parenting out of a since interest in being very involved in the children’s lives and protecting their interest, that parent may actually want to offer to pay full child support so that the judge has no doubt about that parent’s motives and feels safe ordering shared parenting.  In addition, a parent who wants a shared parenting regime should watch the video below, which sets out when shared parenting, and other parenting arraignments, work best for the children, to make sure that the plan is best for the children and the judge will see that too:



There are some additional consideration regarding child support in shared parenting situation.  First, in Contino, the Supreme Court said that the ‘set off” of child support was only the starting point.  If that approach did not result in the parents sharing the costs of raising the children in proportion to their respective incomes, then the Family Court should make a different child support order that does.  For example, a Family Court Judge will not order “set-off” or reduced child support, where one parent continues to bear the bulk of the cost for raising the children.  Set-off only works where both parents are not only sharing parenting time, but also sharing the costs of raising the children.


A second consideration regarding child support in shared parenting situations is that it does not always save money.  Kids can be expensive.  When the children are being raised in two homes instead of one, the children’s expenses are often not divided in two, but multiplied by two.  Each child may need two beds, two sets of clothes, two TVs, two gaming systems, two bicycles, two sets of toys, and the list goes on.  In shared parenting, a parent may find that child support goes down, but the extra expenses that parent pays are much more than the decrease in chid support.  Many parents in shared parenting think it would be “cheaper” to have the children live with the other parent and just pay child support, but cannot do that because of how involved they are with their children.


A third consideration is that in several shared parenting scenarios the support paying parent may pay more support than when the children have one primary residence.  This is particularly true when one parent makes a lot more than the other.  In that situation, the “set off” of support may not result in much of a decrease in child support.  However, because to the adjustments to tax benefits and deductions, and other cash flow considerations, when the Spousal Support Advisory Guidelines are applied, the decrease in child support is more than made up fore by an increase in spousal support - and spousal support may not necessarily end when a child reaches 18 or finishes school as is the case for child support.  It is important to have a good family lawyer do the support calculations for you to figure out the most prudent way to arrange support in light of your family’s circumstances.


Child Support and Child Custody Are Still Separate Issues

Despite the above, child support and child custody are not legally linked.  So, except for the circumstances described above, parents should not try to link them.  For example, a parent cannot deny access because the other parent is not paying child support. Similarly, a parent is not “entitled” to see the children just because he or she is paying child support.  How much time a parent spends with the children and when is determined based on what is in the child’s best interests, not based on how much child support that parent is paying,  And telling the children how much support you are paying is never a good idea.  That is involving the children in adult issues, which can only be harmful (and judges do not let parents see children if it is going to cause harm.)


Wealthy parent with lots to spend on the kids

Judges will not order that the wealthier parent get the children because he or she will be able to give the children a better lifestyle.  Child support is supposed to permit children to share in the wealth of both their parents.  Saying the other parent is “too poor” to raise the children properly is a pretty good way to anger a judge and lose your case.


Finally, paying child support does not mean that a parent gets to dictate how the other parent raises the children, or even how the receiving parent uses the child support.  Unless a court or arbitrator decides otherwise, what a parent does during his or her “parenting time” is not the business of the other parent.  After separation, parents do not get to control how each other uses their money, including child support.  If a parent is using child support money to buy drugs or alcohol, or gambling it away, then the support paying parent may have a case to say that the receiving parent is a bad parent because of addiction issues.   But, that determination is based on each parent’s parenting ability and the best interests of the children - not on a consideration of child support. 


There are a lot of things to consider in each of child support and child custody.  There are more things to consider, and things get more complicated, when the two issues interact.  In addition, a lot can change depending on the specifics of your situation.  In these situations, you really need to set up a consultation with a good family lawyer to learn your rights and obligations in your specific circumstances.  Make an appointment to meet with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847, emailing him, or using the contact form below.  We respond to all inquiries promptly. 

Guide to the Basics of Ontario Family Law, 3rd Edition


The Guide to the Basics of Ontario Family Law is available on the iBookstore for iPad, iPhone and Mac

You can also learn a lot more about child support, child custody, and how they interact, as well as getting more information on most other family law issues, a description of Family Court and the alternatives to court, and tips on how to avoid making crucial family law mistakes, by picking up a copy of this book on the basics of Ontario Family Law. You can get the paperback from Amazon, or you can immediately download the $9.99 Kindle ebook or iBook for your iPad or iPhone.

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Please feel free to comment on this page using the form below.  Also, if you found this page helpful, please share it on your social network using the buttons at the bottom to the page. You may also want to check out the other pages in this site, and find topics that interest you by using the search box up on the right.

Guide to the Basics of Ontario Family Law Available on Kindle


Does My Spouse Still Have to Share the House He Inherited?

House inherited from family that must be shared between spouses on divorce

The residence (or residences) you lived in on the date of separation is (are) your matrimonial home(s).  Matrimonial homes can cause people a lot of difficulties on separation. If one spouse is an owner of the matrimonial home, he or she MUST include that interest in Net Family Property - even if that interest would otherwise have been excluded as an inheritance.  Unless there is a marriage contract, matrimonial homes are always included in Net Family Property.  Net Family Property is what you divide when you separate.  Listen to this podcast for more on how property is divided in divorce.  How your property may be divided depends on what else you own, but, unless you agree not to apply the property equalization provisions of the Family Law Act, your has to share the value of his interest in the house  with you.  (Other people who are not your spouse do not have to share their interests in the house with you, only married spouses have to share their interests in property under the Family Law Act.)


A common property that people inherit is a family cottage - or they inherit the cottage along with other family members. However, if a husband and wife treated the cottage like a “family home”, then the inheriting spouse’s interest in the cottage has to be shared in a divorce.  Spouses can have more than one matrimonial home.  Not only do spouses have to share a cottage that is a matrimonial home, but both spouse have a right, under the Family Law Act, to continue to use the cottage after separation. To protect a family cottage from being a matrimonial home, speak to a good family law lawyer.


For more about how matrimonial homes are always included in property to be divided, read this page and watch this video:


While matrimonial homes are always shared in a divorce (unless there is a marriage contract), other inheritances are not included in the property that spouses share by value.  However, it can be possible to lose that protected status for an inheritance.  Speak to a family lawyer whenever you inherit anything of significance or importance. 


In any separation or divorce, there are many common mistakes that people make when they do not speak to a lawyer.  You should speak to a lawyer so you know your rights and how the law applies to your situation.  Otherwise, your ex may trick you into taking less than you deserve.  Pick up a copy of the Guide to the Basics of Ontario Family Law, which is an easy-to-understand book on Ontario Family Law that explains property division, matrimonial homes, child support, alimony and most other family law issues so that you know where you stand.  You can get the paperback from Amazon, or you can immediately download the $9.99 Kindle ebook or iBook for your iPad or iPhone.

The Guide to the Basics of Ontario Family Law is available on the iBookstore for iPad, iPhone and Mac


If you have any questions or concerns about your property in separation, or if you have any other Family Law questions that you need answers, contact Certified Specialist in Family Law, John Schuman, by calling 416-446-5847, emailing him, or filling out the form below. You can also use the form below to comment on this page.

Guide to the Basics of Ontario Family Law Available on Kindle


If you have found this page helpful, please feel free to share it with your social network using the buttons at the bottom of the page.


Can Parents Have an Agreement for No Child Support and No Access?

child being cut off from parents

For some parents, it seems that a “clean break” makes the most sense when they separate - and they feel that holds true for the children as well.  Those feelings can be especially strong when the primary parent for the child feels the other parent has been uninvolved and uninterested in the child.  Having that parent hang around can seem like a bad idea - especially if that parent seems like a bad influence.  It can definitely be confusing for a parent to pop in and out of a child’s life.  In addition, having that parent around can bring up bad feelings and bad memories that seem to interfere with the primary parent’s ability to be the best possible parent for the child.


Separated parents often ask their child custody lawyer or divorce attorney to create an agreement where one parent gives up all rights of access, or even to have a relationship with the child, and in return does not have to pay any child support - ever.   This is a difficult agreement to put together because agreements are really only useful if a court make the parties follow the agreement.  Without that, the agreement is only good for as long as both parties continue to want to follow it but falls apart as soon as one side doesn’t like it any more.  And judges do not like no access/no support agreements.


John's podcast photo

12 - How Step Parents and Grandparents Can Have to Pay Child Support

From the child support side, there are many, many, many court decisions in which Family Court Judges have written that: “Child support is the right of the child.”  Child support is meant to keep the child in the same standard of living as both parents.  It is intended to make sure the child has everything that the child would have had if the parents had stayed together.  It is the right of the child to have all of his or her needs met by parents.  A parent should not just be giving away rights and entitlements that belong to the child. It is always better for a child to be supported by any parent who is under an obligation to pay child support because more money should mean the child has more advantages in life.  It is so important that parents pay child support, that section 11(1)(b) of the Divorce Act require judges to refuse to grant a divorce to parents if they have not made appropriate arrangements for child support.


A very skilled family lawyer may be able to draft an agreement that persuades a judge that the right (and very usual) circumstances exist that the judge should enforce the idea that parents should not have to pay child support in accordance with the Child Support Guidelines.  Section 15.1(5) of the Divorce Act and section 33(12) of Ontario’s Family Law Act both provide that a court can order an amount of child support that is different from the Child Support Guidelines, because the parents have agreed to that different amount, only if the special provisions for support in the agreement benefit the child as much or more than the Child Support Guidelines to the extent that it would be unfair to force the child to receive support under the Guidelines instead.


In order to have an agreement for “no support” to survive scrutiny by the Family Court, the terms of the agreement must show that the parties understood their legal rights before signing the agreement (in this case how child support works under the Child Support Guidelines).  The terms of the agreement must also reflect that they are better for the child than applying the Child Support Guidelines, which can be a tricky thing to show if there is no support.  It may involve using terms that refer to the cost of pursuing support, the detrimental effect of exposing the child to conflict or other considerations.  You really need exceptional circumstances and a top family law lawyer to draft up an agreement for “no child support” to have any hope of a judge enforcing it. 


As noted above, the first step in getting a valid agreement for “no child support” is to make sure the parties understand their rights and obligations under the Child Support Guidelines.  They can learn about those rights by reading this $20-easy-to-understand book on Ontario Family Law, listening to this podcast, watching the video below, or, best to all, making an appointment to consult with a respected Ontario family lawyer


Another serious consideration that parents should think about before entering into a no child support/no access agreement is what can happen with child support if a judge does not respect the agreement.  Even if the parents signed the agreement years ago, if one parent changes his or her mind, it may be possible for that parent to get an order that child support should have been paid starting before the (unenforceable) agreement.  That may mean that the parent who thought he or she was protected from having to pay child support because he or she gave up having a relationship with the child, ends up paying child support anyway and also owes a huge amount of child support arrears.  Worse, it may not be possible to get out of paying all that back child support because support obligations are not erased by bankruptcy


The other way that no support/no access orders run into trouble is on the idea of no access.  There is a large body of research that shows that children benefit immensely from having a relationship with both parents. In addition to being exposed to different parenting styles and different perspectives, children develop a sense of indignity by knowing where they “came from” and accepting and rejecting aspects of each of their parents based on their experience of their parents and other people around them.   Except in extreme situations where contact with a parent places the child at risk of serious harm, contact is valuable.  Even where there is a possibility of harm, that must be weighed against the harm to the child from not having contact with both parents. 


There are several factors that Family Court Judges consider when deciding what order to make in relation to both custody and access of a child.  Those factors centre around what is in the child’s best interests.   The plans, or agreements, that the parents have made is just one of those several factors, and it may not be an important one.  Judges do not have to follow agreements between parents about custody, access or parenting. So, if the judge feels that the “no access” order is not in the child’s best interest, the judge may refuse to make it, or may order access in the face of the agreement - regardless of what the arrangements are for child support.


For a better idea of the different types of custody orders, and when each is appropriate, watch the video below. It may provide ideas for a parenting plan that would work, and that a judge might like better than a parent simply having no contact with a child ever again.


Another way that parents have sought to get a permanent “no support / no access” arrangement is by using adoption. Section 158(2) of the Child and Family Services Act states that when a child is adopted, there is no longer any legal relationship between the child and the original parents - including any obligations with regard to child support.  Further section 143(1) of the Child and Family Services Act specifically says that an adoption order ends all access.  So, some parents have tried to getting an adoption order that the child is “adopted away” from both parents to be adopted by one of the parents so as to sever the legal relationship with the other parent.  However, section 146(1) of the Child and Family Services Act says that a judge can only make an adoption order if it is in a child’s best interest.  For the reasons set out above, a judge may not believe it is in a child’s best interest to be adopted away from two parents to one of them just to create a “no child support / no access” regime for the child. If the judge believes that the adoption is for the convenience of the parents rather than the benefit of the child, the judge may refuse to grant the adoption.  Making his option work will also require some very skilled lawyering.


The Guide to The Basics of Ontario Family Law

It can be open to the parents just to informally agree to no access and no child support, but if either parent changes his or her mind, that arrangement could be changed entirely.


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There are a lot things that parents, and spouses, have to consider when going through a separation or divorce.  To find out what options will work best for you and who to get Family Law on your side, make an appointment to meet with Certified Specialist in Family Law, John Schuman by calling 416-446-5847, emailing him, or using the contact form below.  You can also learn a lot about the law of child custody, child support, and most other family law issues and how to “win” in your family law or divorce case by picking up a copy of this easy-to-understand book about Ontario Family Law, which is also available as a $9.99 eBook in from either Amazon/Kindle or the iTunes iBookStore

Guide to the Basics of Ontario Family Law Available on Kindle


Thousands of people find help on this site every month.  If you found this page, or any of the other pages helpful, please feel free to share it with you social network using the buttons below.  You can also use the form below to comment on this page.  Your comments may be helpful to others.


COMMENTS:

Al AaronAssistant County Attorney at Broome County

I never did like the idea of a child being a bargaining chip or piece of property in a matrimonial action.


Philip Marcus -  Jurist, Researcher, Lecturer and Writer

The answer to the question "Is it wise?" is an emphatic "No!" 

Parents have responsibilities to their children, not rights which they can exercise or not exercise according to their convenience or how they feel. 

They are both responsible to bring up the child to feel secure and loved, so (except in cases of abuse, where it is proven that contact of any kind with one parent would be dangerous to the child's welfare) they should both be with the child as frequently as possible; and each should strive to be a positive role model. They also are both responsible, according to the way this obligation is organized under law of the relevant jurisdiction, for supplying the child's material needs - a place to live, food, clothing, medical care, education, etc. 

These responsibilities continue even after the parents separate or divorce. 

The child is the beneficiary of these responsibilities. 

The idea that one parent has a right to child maintenance, which s/he can waive in the context of an agreement with the other parent, and that the other parent has a right to contact with the child, which s/he can waive in the context of such an agreement, should be repugnant. What about the needs of the child? 

So parents who agree that one parent shall provide none of these things for the child are in fact both neglecting the child, sacrificing the child’s needs and interests on the altar of their own convenience. Calling this a "clean break" (taken from the field of termination of property and financial relations between couple who divorce) assumes that separation and divorce mean a clean break of the parent from the child; only in very rare cases is this justified. 

So it is right that any agreement relating to a child's time with each parent after separation and financial support of the child should be brought before a judge for review, so that the child's needs will not be ignored. 

For more on the subject, see my article "Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships" on my website www.philip-marcus.com.


Andrea Ciobanu, MPA, JD - Managing Attorney, Ciobanu Law 

No, this is not wise and some states have provided opinions on this matter that it is is also illegal and unenforceable.

Please see:

“It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support,” Justice David wrote on June 25, 2013, in the case of Michael D. Perkinson, Jr. v. Kay Char Perkinson, 36S05-1206-DR-371. “Just as allowing an agreement purporting to contract away a child’s right to support must be held void, an agreement to contract away a child’s right to parenting time, where the presumption that such parenting time is in the child’s best interest has not been defeated, must also be held void as a matter of public policy. Every child deserves better than to be treated as nothing more than a bargaining chip.”


This opinion further put the onus on attorneys, and rightly so:

"The concept of parents negotiating away parenting time as a means to eliminate the  obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy."


The opinion then discussed that the parent seeking to enforce such an order would have to present a high level of evidence that such parenting time was not in the child’s best interests.

The opinion cited Indiana Code section 31-17-4-2 which states that parenting time rights shall not be restricted unless there is a finding “that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”

The opinion also reiterated the primacy of parenting time between the child and the non-custodial parent: “[N]ot only does a noncustodial parent have a presumed right of parenting time, but the child has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child’s best interest.”

Full opinion may be found at: http://www.in.gov/judiciary/opinions/pdf/06251303shd.pdf.


Mark B. Baer -Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker / Legal Analyst

Not only does such an agreement not take the child's interests into account at all, but it is in violation of public policy in California and would not be enforceable.


Linda Hammerschmid

In Quebec this type of agreement is voidable -- because child support belongs to the child and therefore a parent cannot negotiate it away. The Payor can see such an agreement set aside anytime , even if a lump sum was paid to have a clean break thereafter.


Walter Bentley III - Law Offices of Walter H Bentley III, PLLC

In Michigan, they are illegal and unenforceable. Access, Parenting Time, and custody are based on what's best for the child. It can be hard for clients to separate the two at times, which means I have to have some heart-to-heart conversations with some of my clients.



The Rules for Corporal Punishment (Spanking) Are Very Different in Canada and Florida

Cartoon about Corporal Punishment from the Freelance Star, Fredericksburg VA, October 26, 1961

Recently, CBC’s As It Happens interviewed an Under-Sheriff in Florida whose deputy had been called to witness a father “spanking” a twelve year old girl using a paddle. As the Florida police officer explains, Florida Law allows corporal punishment of children, even using objects, as long as it does not result in injuries such as dislocations, bone or skull fractures, inter cranial haemorrhage, suffocations, burns or disfigurement.  Twenty years ago, while working as an Ontario Paramedic, I remember responding to a call where a child had received that level of injury and his father said “It was his right to teach his child as [he] saw fit.”  While not entirely accurate, that statement did reflect section 43 of the Canadian Criminal Code, which permits the “correction of a child by force”. One of my first wins at trial was the successful use of that section in a criminal law case.


The Criminal Law Rules

That parent’s beliefs are no longer the law in Canada.  The rules for corporal punishment are much stricter.  They were set out by the Supreme Court of Canada in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General).  In that case, an organization promoting children’s rights argued that section 43 of the Criminal Code violated section 15 of the Canadian Charter of Rights and Freedoms because in Criminal Law, there were already defences to using physical force (against someone’s will) to protect another person - such as grabbing a child, or other person, and pulling them out of the way of a speeding car.  The Supreme Court disagreed and allowed section 43 to stand.  However, the Court laid out strict rules for what is permissible corporal punishment.  These rules for parents, under the criminal law, are set out at paragraph 37 of the Supreme Court’s judgment, which says:


37                               Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17).  Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age.  Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour.  Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful.  Corporal punishment which involves slaps or blows to the head is harmful.  These types of  punishment, we may conclude, will not be reasonable. 


Paragraph 40 of the decision sets out some further rules about what type of punishments are allowed by the Criminal Code and what types are not:

Degrading, inhuman or harmful conduct is not protected…  Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.  Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality…   The gravity of the precipitating event is not relevant. 


The Child Abuse and Child Protection Rules

However, even if a parent does not use corporal punishment that is a criminal offence, using any corporal punishment can get that parent in trouble with a children’s aid society.  A children’s aid society may even decide to take children and put them in foster care if it feels that a parent’s disciple methods are inappropriate.  Children’s aid societies always view any use of corporal punishment as being inappropriate because current research does not support the idea that any form of spanking or hitting benefits child of any age or that it is an effective teaching tool. 


Section 37(2) of Ontario’s Child and Family Services Act sets out the types of child abuse that justify a children’s aid society, or child protection agency, intervening with a family and possibly apprehending children.  Those circumstances include a parent (or other caregiver) physically or emotionally harming a child, or putting a child at risk of physical or emotional harm.  In Children’s Aid Society of Rainy River v. B.(C.), the court held that infliction of real harm, that was more than trifling, could justify a children’s aid society stepping in to protect the children.   Whether the discipline violated the Criminal Code is not a consideration - it is whether the child is being really harmed or put a risk of real harm.


It may be possible for a parent who uses spanking or other forms of corporal punishment to convince the Family Court, that there is not proof that his or her discipline actually causes harm to a child.  It may be possible to do so only after a long and expensive court case. And for the duration of the court case, and possibly afterward, the children’s aid society will be intervening with the family, investigating and judging every aspect of family law and possibly reporting it to the police.  In addition, even before a judge finally decides the case, a Family Court Judge may order the parents to take course about how to discipline children, or anger management courses, domestic violence courses, or counselling.  This is because all of the social science research and child development research has found better ways to discipline children than spanking them, hitting them, or using other forms of corporal punishment.


The Guide to The Basics of Ontario Family Law

If a children’s aid society worker calls and wants to speak to you, or your family members, then you should read this page immediately.  If the child protection worker tries to speak to your kids, without your permission, read this page. If the CAS is investigating you for improper discipline, child abuse or neglect, you need to get help immediately!  It is very important to know not only your rights when dealing with a children’s aid society, but also how to avoid doing things that seem like a good idea, but that the children’s aid society will use against you.  Get a copy of this easy-to-understand book on Ontario Family Law in paper back or even better, as a $9.99 eBook for Kindle  which you can download in minutes and start reading right away.

iBookstore_140x70Guide to the Basics of Ontario Family Law Available on Kindle


However, if you have a children’s aid society investigating you, then you really need to speak to a good child protection lawyer immediately!   If you do the wrong things, or say the wrong thing, you could lose you children and they could end up in foster care, or adopted to new parents.  If the children’s aid society’s concerns involve you hitting children, then the police may become involved, charge you under the Criminal Code and put you in jail, at least until you get bail.  Only a consultation with a good child protection lawyer, can keep you out of serious trouble.


You can book a consultation with Certified Specialist in Family Law, Toronto Child Protection Lawyer, John Schuman, by calling 416-446-5847, or emailing him, or using the contact form below to send him a message.   You can also use the contact form to comment on this page.  If you found this page useful, please share it on your social network using the buttons at the bottom of the page. 


My Ex Spouse Is Not Paying Our Children’s Expenses, What Do I Do?

childcare expenses

This is a more complicated question than in may at first seem.  There are several things you have to consider. The first is whether the expenses are ones that should be paid in addition to child support, which depends on several factors, such as the type of expense and the incomes of the parties.  The second is whether the amount of the contribution is specifically set out in an order or agreement, or whether it must be calculated each time.


What expenses do parent pay in addition to base child support?


There are two components of child support in Ontario and Canada.  The first component is the base or table amount.  That is the amount that is based only on income and the number of children.  To calculate support, you use the tables in the Child Support Guidelines.  Use this page to get the amount of child support  when children live primarily with one parent.  For more complicated situations, start by listening to this podcast or watching this video and read this page.


The second component to child support are Special and Extraordinary Expenses, which are also called Section Seven Expenses because the rules for these payments are set out in section 7 of the Child Support Guidelines.  And, it is also important to realize that special expenses are different from extraordinary expenses:


John's podcast photo

Special expenses are things like health care and dental expenses, child care and expenses related to special needs, they are almost always shared by parents.   They also include the cost of post-secondary (college or university) education, but who pays those education expenses can be complicated

11 - Child Support's Special and Extraordinary Expenses

Extraordinary expenses are expenses that are very large in light of the income of the child’s parents but benefit the child because of the child’s extraordinary talents or skills.   These are such things as rep hockey (but probably not house league hockey), swim team (but probably not swimming lessons) or competitive gymnastics (but probably not recreation gymnastics).  A support paying parent does not have to pay for every expenses over and above base child support.  The extraordinary expense must be disproportionately large such that they are too much to be covered by base child support. In addition, there must be a reason why the expense benefits the child.  While every child might want a pony, that does not make it a legitimate extraordinary expense unless the child is a particularly talented rider.  In addition, for the very rich that pony might be part of base child support, but for many other families, the pony may just be unaffordable and so will never be a part of child support.  These are all factors that play into whether parents share an expense in addition to base child support. 


In addition, to the above considerations, section 7(3) of the Child Support Guidelines says that parents only share the after-tax deduction, after subsidy, bursary, etc. cost.   The idea is that parents only share what they are out of pocket.  So,for things like child care, where there may be a significant tax credit, the full amount on the recipe may be much higher than the amount the parents have to share because of the cost of the expense may be significantly reduced by tax credits and subsidies. 


Finally, parents share qualifying special and extraordinary expenses in proportion to their incomes.  If one parent earns his or her income from self-employment or from a means other than salary, figuring out what that parents in come may be can be very complicated. 

The Guide to The Basics of Ontario Family Law


There is a lot to consider, so if special and extraordinary expenses are a concern for you, then you probably need to speak to a good family law / child support lawyer, or at least listen to this podcast, or get a copy of the book at the right to make sure the amount is right. 


Collecting and Enforcing Special and Extraordinary Expenses

iBookstore_140x70

When parents separate, they usually agree, or judge orders, or an arbitrator awards, what special and extraordinary expenses the parents should share  and what proportion of the expenses each parent should pay.  But, there are a number of tricks to consider.

Guide to the Basics of Ontario Family Law Available on Kindle


First, some orders or agreements specify what expenses should be shared.  If the order or agreement specifies that only the listed expenses are shared, then the other parent may not have to contribute unless there is a new agreement or order requiring that.  For some expenses, like necessary medical expenses, it is almost certain that a judge will order the parents to share the expense.  In that case, there is no legal reason not to immediately pay the expense and avoid the trouble and cost of going for court.  For other expenses, whether the expense should be shared is more complicated and so it is a good idea to speak to a lawyer before paying an expense that is not part of an order or agreement (unless you want to share the expense).


Second, some orders and agreements specify a specific dollar amount that the child support paying parent must pay every month toward special and extraordinary expenses.  Other agreements state what percentage of the expense each parent will pay.   If you are worried about the other parent paying his or her share of special and extraordinary expenses, then you really want to have a specific dollar amount set in the agreement or order, even if it may occasionally be too low an amount.  This is because the Family Responsibility Office (FRO), will collect the other parent’s contribution to special and extraordinary expenses - but only if there is a specific dollar amount set out in the agreement or order.


Family Court Judge deciding what parents should pay toward special and extraordinary expenses

The FRO will not look at receipts and figure out what amount to collect based on the percentage in an agreement.  It will not figure out the correct contribution in any way.  It will only enforce the specific dollar amounts set out in the agreement. So, if the other parent is refusing to pay his or her share of a special or extraordinary expense, and there is no specific dollar amount set out for the FRO to collect, you will have to go back to court and have a judge set out what the other parent should be paying.  That is the case even if you have an order that sets the specific percentage that each parent pays and receipts that show the exact amount of the expenses.  It is usually possible to get a judge to do this on a motion, but it will likely require fine an updated financial statement, and may require a case conference in addition to the motion hearing.  So, it is often better to specify a specific dollar amount for each parent to pay toward special and extraordinary expenses, even if that amount is a little low, to avoid the cost of going back to court to have a judge to specify the amount that the FRO should collect.


Obviously, if there is no doubt that the other parent will always pay the proper amount of support, you will not need a judge to specify the specific dollar contribution to special and extraordinary expenses, because you will never have to ask the FRO to collect them.


For a helpful and informative discussion of child support enforcement, listen to this edition of Ward and Al Radio show.


The Guide to The Basics of Ontario Family Law

Special and extraordinary expenses can be a difficult, contentious and complicated matter to deal with.  Collecting them can also be complicated and difficult.  To ensure that both the contribution and collection of section seven expenses is correct, you really should speak to a good family lawyer about your specific situation.  Contact Certified Specialist in Family Law (including child support), Family and Divorce Lawyer, John Schuman, by calling 416-446-5847, or emailing him, or using the contact form below.  In addition to seeing a lawyer, for even more information on child support, get a copy of this $20-easy-to-understand book about Ontario Family Law. It can give you a lot of help with child support, most other family law matters, family court process, and all there alternatives to going to court. 


If you found this page helpful, please share it on your social network using the buttons at the bottom of the page.   You can comment on this page using the contact form below.


Can I Get Custody of My Niece Because Her Father is Abusive?

Niece who is being abused by parents

Ontario Law does allow you to seek custody of your nephew - especially in the circumstances where a child is being abused.  Doing that does allow you protect your niece and ensure that loving family members are the ones looking out for her.  However, if the abuse is putting the child at immediate risk of harm (or has caused the child to suffer harm already), then you should contact a Children’s Aid Society.  A Children’s Aid Society can intervene immediately if necessary.  Going to court in  custody case may take days, or weeks, and that could be too long if the child will be badly harmed before a judge can intervene.  Still, if the child will be safe for several days, then a custody proceeding may be in her best interest because the options for her care stay within the family.

Bringing a Custody Case

Section 21(1) of the Children's Law Reform Act allows the parents of a child or "any other person" to apply to court for an order respecting custody of or access to a child.  When a Family Court Judge decides a child custody case, that judge must consider several factors, which are explained on this webpage in this podcast.  How close the child is with you and her father, and her mother is one factor.  Another is the ability of each person to "act as a parent."  There are several other factors and if you are going to seek custody you should take the steps necessary to make as many of them in your favour as possible.  However, section 24(4) of the Children's Law Reform Act says a judge must consider any violence perpetrated by anyone seeking custody and that is big factor for judges.  In fact, section 21 of the Children’s Law Reform Act requires all the parties to a custody proceeding to file a Form 35.1 Affidavit, which require the party to reveal all past and pending criminal charges and any involvement in violence to which a child may have been exposed.  Proven substance abuse issues are also a really big concern for Family Court Judges.

The Family Court process that you may need to follow is described in this video and is set out in more detail in a series of podcast episodes that starts with this one.  Read this page to find out specifically what you have to do to get an emergency custody order. If you do not want a children’s aid society to become involved to protect your niece, then you will have to convince the presiding judge that the risk of harm constitutes and emergency - but no so big an emergency that the children’s aid society should step in. 

Ask to Care for Your Niece After the Children
’s Aid Society Has Intervened

If a children's aid society finds out that your brother has substance abuse issues and has been violent in the home, especially in front of a child, that agency will be very concerned about whether your niece is suffering emotional harm.  The agency may apprehend your niece and put her in foster care. If that happens, you should act very quickly to put forward a plan to care for your niece, rather than having her stay in foster care.  Section 51(3.1) of the Child and Family Services Act says that a Court must give priority to placement with family members over ordering that a child remain in foster care.  There is a really big advantage to you presenting that plan to the CAS and then to the court at the first hearing, which is 5 days after the CAS apprehends.  But, if the CAS gets involved, you will have absolutely no control over the process and the CAS may decide your niece should be adopted rather than returned to any family member.  So, it would be better to avoid the CAS becoming involved by seeking custody before that happens.


Next Steps

Obviously, the best way to ensure that you protect your niece and you are successful in your family court case is to get the help of a good family law lawyer who can present your case in a persuasive way, make sure that the judge hears how all (or at least most) of the factors that related to child custody support your case and makes sure you prove your case in accordance with the rules of evidence.  John Schuman is a Certified Specialist in Family Law who, in his many years of practice as a child custody lawyer in the Greater Toronto Area, has handled many difficult child custody cases.  He is known for his concern for children’s rights, and his sensible and effective approach to these cases.  In one particularly difficult child custody case, Justice Sherr noted, “Mr. Schuman’s conduct in this case is an example of what lawyers are supposed to do in difficult cases.”  To contact John Schuman, call 416-446-5847, email him, or use the form below.

You can learn a lot more about custody cases, family court, and how to succeed in your custody case (or other family law case) by getting a copy of this $20 easy-to-understand book on Ontario Family Law It also has many tips to get what you want, and avoid getting in trouble in child custody and access cases.

The Guide to The Basics of Ontario Family Law


If you found this page useful, please feel free to share it on your social network using the buttons at the bottom of the page.  We also welcome your comments on what you have read above.  Please use the form below to send in your comments. 

Guide to the Basics of Ontario Family Law Available on KindleiBookstore_140x70


Can You Deny Access Because the Other Parent is Not Paying Child Support?

child in child support and child access dispute

There are several factors that judges consider when deciding how much a parent should see a child.  Whether a parent is paying child support is NOT one of them. In fact, a parent denying access for anything other than safety concerns can get that parent into trouble with the court.   Child support and access are separate issues.

 

If you want to make sure a parent pays child support, the best thing to do is to negotiate an enforceable separation agreement and file it with the Court for enforcement or get that parent to agree to a court order for child support.  If that order sets out a specific monthly (weekly, bi-weekly or annual) amount then the Family Responsibility Office will collect the support.  However, an agreement that says the other parent will pay certain expenses in lieu of child support is not as good as an agreement (or court order) that says that parent will pay you a specified amount of money that covers those expenses because the Family Responsibility Office will only collect amounts of money that are clearly set out in a court order or separation agreement. When a parent does not pay the support that is set out in an order or agreement, the Family Responsibility Office can garnish that parent’s pay and bank accounts, take away his or her driver’s licence, or even put that parent in jail.

 

For a discussion of child support, and parents avoiding child support, listen to this episode of the Ward and Al Show.

 

For a more complete discussion of child support, listen to this podcast, or watch this video.

The Guide to The Basics of Ontario Family Law


This question shows how issues in Family Law can seem to intersect and be related.  Sometimes they are and sometimes they are not. Confusing what issues are related and what ones are not can get you into trouble.  If you want a resource that covers all the main topics of family law, and provides some advice as to how to succeed in getting what you want in or out of court, get a copy of this  $20 easy-to-understand book on Ontario Family Law.  

iBookstore_140x70

           

Your best option, especially for tricky issues such as this one, is to speak to a good family lawyer who will give you advice specific to your specific circumstances and give you (or your girlfriend) a plan to solve your problems.  Contact Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, at 416-446-5080, or by email, or using the contact form below.

Guide to the Basics of Ontario Family Law Available on Kindle


Comment on this article using the form below.  And, share it on your social network using the buttons at the bottom of this page.  Sharing this article helps get this information to your friends, colleagues and acquaintances who need to know about what to do in this situation.


COMMENTS:

Bruce Eden - Independent Legal Services Professional

Contrary to what the courts in the US (and Canada) say, child support is linked to access. The US Supreme Court has ruled that a parents RIGHT to the care, custody and nurture of their children has a CORRESPONDING, RECIPROCAL duty of supporting the child(ren) financially and emotionally.


David Hooton - Father to two amazing girls

If you deny the children access to either parent then you are an abuser and the lowest form of humanity. This goes for either parent male or female or Judge.


Bruce Eden - Independent Legal Services Professional

Correct. It is emotional, psychological and physical child abuse. The emotional, psychological beat-down of the child results in physical stress on the child. Parental alienation is a form of child abuse combining all 3 types of child abuse.


Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

While both parents have a duty to provide financial support, Massachusetts does not link the two issues of access and financial support and those who deny access may lose custody.


Bruce Eden - Independent Legal Services Professional

What happens if the one parent falls behind in child support and is in arrears, files for a custody modification or parenting time support, and the other parent then files for enforcement of child support with contempt? Does the person filing the enforcement, but denying access, lose custody? Because that's usually the defense. The parent denying access may have been doing it for a while, yet once the paying parent falls into arrears, usually for job loss or disability, he runs the threat of being deprived of his children AND his Liberties


Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

I think the general public is becoming more aware of the need to file for Modification of Child Support in the event of job loss or disability if the unemployment or workers compensation benefit would support a reduction.


Bruce Eden - Independent Legal Services Professional

No. My question involves the fact that if the payor parent is in arrears (whether small or large) because of job loss or disability, the payee parent will try and use this as excuse to deny access of the child(ren) to the payor parent, saying if he isn't paying he's not going to see the children. When the payor parent goes in to enforce his parental rights, the other parent will file a motion to enforce the support and arrears, usually seeking a contempt charge. This is mixing the support and parenting time issues, but the payee parent, usually with custody or primary residential, never gets sanctioned for combining the issues


Padraig Cullinane - Independent Law Practice Professional

Well, access to children and payment should never be traded off one for the other, in time hopefully the access parent will realise the need to support his/her children. It's a difficult situitation, but saying no payment = no access will only make matters worse for the most part.


Barton Resnicoff -  Law Office of Barton R. Resnicoff

In NY, they are also separate issues and dealt with separately, with one exception. Children need a roof over their heads, clothing, food and other necessities. They also need a relationship with both parents. If the non custodial parent does want to pay child support, the Court system will set a child support amount and collect it or he/she will have significant enforcement problems. On the other hand, a custodial parent has an affirmative obligation to encourage a relationship with the other parent. Failure to do that could be basis for a change in custody or, in extreme cases, a reason to suspend support(the one exception).


Robin Yeamans - Law Office of Robin Yeamans

Under Calif law, they are separate, and she must allow visition. But she should get a support order and a wage assignment so his employer pays her directly.


Jerry Reiss - Actuary at EBC

Tradeoff what was done in the 70s in a number of states. Not sure if it was law but it sure was judges did then. There is no trade off in Florida since 1993 when I began doing expert witness work.


Joe Lewis - Founding partner, Port City Legal

Maine considers these separately, also.


Emily Gosnell - Independent Legal Services Professional and trial attorney in family, criminal, traffic matters, social security

All I can tell you is what the law is in NJ. We view child support and visitation as separate issues. Just because he isn't paying support absolutely does NOT authorize the client to deny visitation. Many of my clients have been outraged by my explanations, but our case law is clear. Indeed in a really bad case change of custody can result from visitation denials. I understand the custodial parent's frustration, but they have to comply or else disaster can result.


Tatiana Terekhova, Divorce Financial Analyst - President & Founder at FAIRSPLIT Inc., Milton, Ontario

Financial Professional at Peel Halton Collaborative Family Law Practice Group

Thank you for always choosing such hot topics.


Janneke LewisLawyer and human rights advocate at North Shore Law LLP, North Vancouver, British Columbia

There is no connection between child support and access here in BC - and there should be no connection. Each parent has an obligation to support their children. Get a court order for support and register the order with the Family Enforcement authority. Paying support is not a choice.



Can You Change an Unfair Agreement on Child Support or Spousal Support?

The law treats changes to child support and spousal support quite differently.  But, either one can be changed in the right circumstances.  That can definitely fix and unfair agreement.


children deserving a fairer agreement on child support

Child support is supposed to be reviewed, and changed, every year based the situation of the parents and the children.  Section 14 of the Child Support Guidelines states that any change in circumstances that would change the amount of child support by any amount justifies a court making an order to change the amount of support.  Sections 25 and 25.1 of the Child Support Guidelines require support payers to provide income information every year.  The combined effect of those provisions is that Child Support can be changed every year.  On top of that, section 14 of the Child Support Guidelines also provides that changes in circumstances of the children also justify a change in child support - that could include just about any situation where the child support agreement appears unfair to the children.  In fact, family court judges will want to change a child support agreement if it appears to be unfair to the children.


Spousal support is a little different.  Generally, courts like to hold separated or divorced spouses to their agreements - otherwise the courts would be full of ex-spouses wanting to fight out the same issues over and over again.  However, there is room for the court to intervene to fix an unfair agreement. 


Section 56(4) of the Ontario Family Law Actseparation agreement in divorce says that a Family Court can set aside the agreement if either side did not understand it (courts assume that each side needs independent legal advice to understand a separation agreement), if each side did not disclose significant assets or liabilities (which can include a proper valuation of the business), or if there are other problems under the law of contract (which may include duress, unequal bargaining power or other problems in the negotiations).  If any of those situations sound like they might apply to you, you should consult with a family lawyer right away. 

 

To learn more about the requirements to have an enforceable separation agreement, and the reasons why you can have a separation agreement thrown out, read this page.

Ontario Family Law Podcast - Episode 16 - How to conduct the Family Law Trail

 

Under the there terms of your agreement, you may also be able to ask a court to change the spousal support terms.  Some agreements specify when, or under what circumstances, a party can change the support terms.  When an agreement says you can change support, you can go ahead and seek a change in support if you  If the agreement does not say when you can change spousal support, then you can change the support under an agreement if you have had a significant or large change in circumstances. To find out how to do that, watch this video on changing a spousal or child support order or agreement.

 

To understand better whether your agreement was fair, or whether you should have gotten a different amount of support, or what amount of support you should expect if you seek a change in support, you should listen to this podcast on spousal support or this podcast on child support  (the first in a series of podcasts, or watch this video on spousal support.  Below is a video to help you understand if your child support is the right amount.

 

Guide to the Basic of Ontario Family Law (Book)

 

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There is also a lot more on spousal support, how to get it, and how to change it, in this easy-to-understand $20 book on Ontario Family Law (that is very highly reviewed.)

 

But, as noted above, the best way to ensure you are treated fairly, and you protect your rights, is to speak to a good family lawyer who can make sure that your ex, or a family court judge, sees things your way.  Make an appointment immediately with Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, by calling 416-446-5847, emailing him or using the contact form below.  You can also use the contact form to comment on this page.

Guide to the Basics of Ontario Family Law Available on Kindle


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Comments:

Jerry Reiss - Actuary at EBC

It is quite different here in Florida. Child support is based on guidelines. An agreement where the spouse pays too little may not be enforceable because the only way to depart from guidelines and pay less if the court were to make specific findings why paying less is in the best interest of the child. But it may be modifiable anyway upon a showing of a substantial change in circumstances and the burden is the same whether by agreement or by court order. Not so for alimony where the burden is higher by agreement. Changing permanent things such as property is extremely difficult and generally requires proving fraud. There is a difference between a mistake and a lie as well as between a lie and fraud and to use anything less than fraud requires showing that you were not represented at any time during the proceeding and not provided discovery. Only when those conditions can be met will an unfair agreement procured by overreaching work as a remedy. We have moved a long way in family that gives marital contracts almost parity with all other contracts.


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© John P. Schuman 2014