Family Law Blog

Does Not Being Named on the Birth Certificate Affect Child Custody or Child Support?

Infants / babies with only one pare named on the birth certificate

In the world of child custody / access and child support, whose names in on the birth certificate matters very little, if at all.  It can mean that the mother can do more without getting the father's (or other parent's) consent.


Custody/Access


In custody / access cases, the judge bases decisions on what is in the best interest of the child.  Who is named on the birth certificate does not influence that.  In fact, section 21 of the Children's Law Reform Act says that you do not even need to be a parent to apply for custody or access to child.  Section 24 of the Children’s Law Reform Act sets out the factors that a judge has to consider in custody/access cases in family court.  This popular page explains those factors, and so does this podcast, so you do not have to understand how to read the statute.  However, in Ontario child custody law, genetics is only one very small factor in that determination, and is rarely an important one. 


The term custody means who makes decisions for  a child.  To learn more about that, watch this video and read this page.  The reality is that not putting a father's name on a birth certificate essentially gives the mother sole custody.  Without the second name on the birth certificate, many agencies assume the father is unknown, and they do not look for his consent for things like medical treatment, school registration, issuing a passport or giving consent to travel (see this page for more on travel consents).   So, if you care about those things, then you should go to court to get an order that your consent is required too.


If the mother, whose name is on the birth certificate, says that she does not know who the father is, section 10 of the Children's Law Reform Act allows the Family Court to order DNA testing.


Child Support


You do not even need to be a biological parent to pay child support (Step parents, grand-parents and other involved people may be on the hook for child support - to understand that, read this page and listen to this podcast).  However, biological parents (who can be determined by the aforementioned DNA test) always pay the FULL table amount of child support.   The Child Support Guidelines make no mention of birth certificates.  Everyone who has actively parented a child pays child support for that child and biological (or adoptive) parents pay the full amount of child support, whether they are involved parents or not (unless they are not involved because the child has been adopted to someone else).

Ontario Family Law Podcast


For more on child support, watch this video: http://www.schumanlaw.ca/john-schuman-ontario-family/child-support-in-ontario.html, listen to this podcast,  and read this page.


Also, if you think you might be the parent of a child, avoiding paying child support likely won’t help.  The Family Court can order you to pay back child support, even when that is a lot of money. 


There are lots of ways to get yourself into trouble in family law.  If you think you are the parent of a child, you really should speak to a good family law lawyer.  You should also pick up a copy of this $20 easy-to-understand book on Ontario Family Law.  It covers the issues above in much more detail and gives some tips to keep you out of trouble in family court or in other family law matters.


Guide to the Basic of Ontario Family Law (Book)

Still, nothing is better than consulting with a lawyer about the particulars of your situation, to get legal advice that is tailored to you.  Even small things can make a big difference, so it is always worthwhile to speak to a top family law lawyer.  To get in touch with Certified Specialist in Family Law, John Schuman, please call the number at the top of the page or use the form below.  You can also use the form to post comments on this page, or suggest other blog topics.


Finally, if you find this page helpful, please share it.  There are social networking buttons below.

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Am I Entitled to Spousal Support? I paid for my spouse’s education, I looked after the kids when they were little, and I my income is lower.

Spousal Support Cheque for payment of alimony

Questions about spousal support are complicated with uncertain answers.  Although as your question mentions eligibility for spousal support, you have correctly identified that eligibility is a different question from how much you will get.


Spousal support is very different from child support because it is still, ultimately, up to the discretion of the judge to decide.  That is distinct from child support, which is governed by the Child Support Guidelines.  The Child Support Guidelines are the law and they set out precise amounts for every parent of a child to pay.


Spousal Support does have "Guidelines" but:

1.   they do not apply in every circumstance (just being married or living together does not, by itself, create an obligation to pay spousal support

2.   they are not the law (although the calculations made under the Spousal Support Advisory Guidelines can be really helpful to a judge)

3.   they do not provide a precise number, but a range of possible support options that require the court, or the separated couple, to consider many factors in relation to the relationship, the family and the spouses situation to arrive at a final number, without a precise calculation.


So, to go back to your initial inquiry about whether you would be entitled to support, which is the first point above, you first need to meet the basic legal entitlement test.  To even be considered for spousal support, the separated spouses must fall into 1 of the following categories:

1.   they must be married to each other (how long does not matter);

2.   if not married, they must have lived together for three years; or

3.   if not married, they must have a “relationship of some permanent” and be either the natural or adoptive parents of a child.


After qualifying under one of the three categories above, a spouse is not necessarily eligible for support.  To understand whether a spouse may be eligible, you need to understand that spousal support actually encompasses two types of support, with different eligibility considerations:

1.   Compensatory Support

2.   Economic or Non-Compensatory Support.


Compensatory Support is to compensate a spouse for the unpaid work that he or she did during the marriage - such as caring for the children, preparing meals, cleaning or maintaining the house, etc.   It is, in its simplest form, "pay" for these types of activities.  But, it is paid after separation.  So, a spouse can be entitled to support if he or she did work during the relationship for which he or she was not compensated.  Of course, that compensation could include unpaid work that the other spouse did during the relationship.


Financial need and ability to pay are big factors in deciding spousal support or alimony

Economic/Non-Compensatory Support is a consideration of a spouse's economic needs at the end of the marriage or relationship, couple with the effect of the relationship on that spouse.  It includes considerations such as:

1.   the spouse would have had a higher income/better job, but for the spouse’s responsibilities to the children or other spouse during the relationship;

2.   the spouse became accustomed to a certain lifestyle during the relationship, which the spouse can not sustain on his or income alone;

3.   the spouse has some other form of impediment to becoming self-sufficient that arose during the relationship, which such that the spouse needs assistance to meet his or her needs;

4.   the spouse cannot maximize his or her income earning potential because of on-going child care responsibilities in relation to the children of the marriage or relationship;

5.   the spouse has to maintain a home for the children of the relationship to live in some or all of the time (and there should not be big disparities between the homes of the parents);

6.   whether the proposed support paying spouse can afford to pay support in light of that paying spouse’s obligations to pay support for children, or other family responsibilities.


If, after looking at those considerations, you conclude that you may be eligible for support, you should still speak to a top family law lawyer.  After all, it is still up to the judge to decide on whether a person gets support at all, so you want to present your case effectively, hitting all the important points and persuading the judge of your entitlement.


Do not delay meeting with a lawyer.   Several of the factors for deciding whether a person is entitled to spousal support relate to financial need (do you need support to keep your lifestyle, become self-sufficient, etc.?).  The longer you go without support, the more that you show that you do not need support to live a lifestyle that is acceptable to you.   The longer you wait to pursue a spousal support claim, the harder it is to establish entitlement, and the more you show that you do not need much support (or any support) to look after yourself.  That is true even if you let things languish in negotiations for a long time.  Judges assume that if you really need support, and your spouse is not paying, you would head to court to get it.  Even if you are entitled to compensatory support, waiting can still reduce the amount of spousal support.

   

Once a spouse has established entitlement to spousal support, the amount is based on several factors that are set out in sections 15.2(4) and 15.2(6) of the Divorce Act and section 33(9) of the Family Law Act.  


In addition, you will need to consider the income available to the support paying spouse, taking into account expenses related to children and other necessities.   Where a spouse earns income from sources other than employment, determining income can be a little tricky.  To help make sure support is based on the right income, listen to this podcast, read this page, and make sure your ex is not hiding money or income by watching this video  (the large version of the one below). 


The Spousal Support Advisory Guidelines will give ranges for both the amount and the length of spousal support. However, to get down to a final number for both, you need to consider those factors as set out in the law.  Remember that the Spousal Support Advisory Guidelines are not legally binding like the Child Support Guidelines, and it is still ultimately up to the judge as to whether you get anything at all. 

Guide to the Basic of Ontario Family Law (Book)


For more about spousal support, listen to this podcast  and watch this video.  In addition, for a more complete discussion and explanation of spousal support, and most other family law topics, including how court works and how to avoid it, pick up a copy of this $20 easy-to-understand book on Ontario Family Law.

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You should probably meet with a good family law lawyer who can explain how all the factors above apply to your particular case.  There maybe little factors that make a big difference.  

Guide to the Basics of Ontario Family Law Available on Kindle


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But, if you cared for the children, and looked after your spouse for a period of time, and your income is lower than that of your spouse, your chances of getting spousal support appear to be pretty good.  To make sure, and maximize your chances, consult with a lawyer.


If you have a spousal support issue (either because you are seeking, or may be paying support),  contact Certified Specialist in Family Law, Top Toronto Divorce Lawyer, John Schuman, using the number at the top of the page to talk to us during business hours or use the form below to reach us at other times.   We promptly respond to all inquiries, usually by phone unless you request otherwise.  John has been counsel on many complicated and difficult spousal support cases and can provide you with expert legal advice and representation on that and all other family law matters.

Contact us NOW, using this form:

Comments:

Daniel Boiani - Barrister and Solicitor, Partner at Monaco Boiani De Marco

Excellent and thorough answer as always John. I hope you don't mind if I "cut and paste"? With appropriate credits of course!


I think my partner/spouse is a bad parent. Can I just move out with our child?

Child suffering because of a bad parent

Moving out and taking a child, without the other's permission, is never a good idea - unless there are immediate safety concerns.  Family Court Judges do not like it when one parent takes a child away from the other.  It looks either like kidnapping or like the parent who took the child is trying to get an unfair advantage.  In addition, taking unilateral action, without concern for the child's relationship with the other parent is viewed by many judges as bad parenting.  That does not help.   For more on the repercussions of moving away with the child, watch this video.


If you are worried about your child's safety, then you should go to court and get an emergency order for custody.  Then you will have a judge's "permission" to leave with the child. Doing that makes you seem like a more reasonable, less impulsive person, and allows you to explain your concerns and have a judge agree that you have a legitimate reason to take the child, before you do that.  This page explains the steps on how to get an emergency custody order


There are some critical things you need to know before even putting together your court documents for an emergency custody order.  First, you need to understand what factors a judge considers when making any custody order.  Those are explained in this podcast and on this webpage.  You need to know those child custody factors so you tell the judge the right things when presenting your case. 


You also need to know what custody and means and the different types of custody.  Knowing that will help you consider what parenting regime will work best for your child.  They are explained in this video and on this podcast


For more about children in separation and divorce, check out this page, which has many more links to useful resources.

Guide to the Basic of Ontario Family Law (Book)


There is also a lot more information on child custody, access, the steps in court and the alternatives to court in this $20-easy-to-understand book on Ontario Family Law.  It will also help you avoid making a lot of serious mistakes that could really jeopardize your child custody case.


iBookstore_140x70Guide to the Basics of Ontario Family Law Available on Kindle

However, because so much is at stake in a child custody cases, and you really want to protect your child and make sure that a court does not make the wrong order, you really should speak with a good family law lawyer.  A good family law lawyer will tell you how the law applies to your specific situation and work with you to come up with the best plan to make sure that your child gets the best result possible.  Good lawyers are also very persuasive to judges and can get you results you could not get on your own - which is very important when the welfare of your child is a stake. John Schuman is a Certified Specialist in Family Law, who is renown for his concern for children and children’s rights and has protected children in many difficult and high profiles custody cases.  To contact him, and get a prompt response to your concerns, please call the number above, or use the form below.


Please also feel free to comment on this page, by using the form below,  or share it on your social network using the buttons at the bottom of the page. 

COMMENTS:

Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

I liked your response. There is too much 'self help' which can rebound to the detriment of the party who has not informed himself in advance of taking action. I can foresee that taking the child would result in police action since in Massachusetts the mother in unwed situations is the presumed custodial parent with legal authority unless father obtains redress from the Probate Court.


Kathleen Robbins - Attorney - Mediator

This dad who is apparently married to the mother needs to establish that he is dad - either through DNA testing or, here in Texas, he and the mother could sign a document before a notary called an Acknowledgment of Paternity to establish paternity.


John Schuman, C.S. - Partner Leading the Family Law Group at Devry Smith Frank LLP

In Ontario Law, the concept of parent is broader than just biology or DNA.  And, where people are actively involved in parenting a child, they are both presumed entitled to continue to do that. So, whether you are mother or father, taking the child away may have serious consequences if there are no legitimate safety concerns.


Marco Calabrese, Attorney - Int.Family Lawyer- Assistance to Expats

You're not married: first wrong move. 

You chose not be be fully protected by family law. Your rights are quite blurred in this case. 

Second: moving with children without the other parent's permission is kidnapping. 



Unfortunately the answer varies widely from state to state. Unlike Texas, New Jersey presumes a married man is the father of his wife’s children. The acknowledgement of paternity isn't necessary where the parties are married. In New Jersey, absent a custody order, either party has a right to physical custody of the child. However, I recommend to dads who are going to leave and take the child, that they file a custody case first to avoid possible adverse treatment in a case filed by the wife. Yes, I know it shouldn't happen, but there is judicial prejudice where the child is an infant and if he doesn't start the case, he may find the wife trying to get an emergency order in her favour. 



Can my Ex go after my property forever? Or, is there a time limit? Can I finally buy a new house without worry?

Fancy new house that old spouse is trying to get

There are protections to keep ex-spouses from going after each others’ properties for ever.  However, there are also some times when people can create problems for themselves and virtually give their assets away to their ex long after separation. 


The “Limitation Period” For Property Claims

Under Ontario Law, there is a deadline (called a “limitation period” in legal terms) for making a property claims related to a marriage. (Note that common law couples do not usually share in each other’s assets afters separation.) That limitation period is the earlier of six years from the date the married couple separated, or two years from the date of their divorce. (If you need to know how a "divorce" is different from "separation" or property, support and other claims, listen to this podcast.) 


There are other types of claims that a person can make to property for up to 10 years.  Those are claims in "equity" and they relate only to "real property", which is land (or a condominium or similar.)   Claims in equity arise where a person contributed to the property but did not get anything back, or where the owner of property offered to hold it "in trust" for someone else.  They are extremely complicated claims, so you need to speak to a lawyer if you think they apply to you.  However, if is unlikely that your wife contributed anything to your new home and more unlikely that you promised her anything with respect to your new home. 


It is only in the most exception of circumstances that a court will let a person start a claim after a limitation period has expired.   Those circumstances are where a person missed the limitation period by only a short period and did so because they made an honest mistake because they could not speak to a lawyer in time.  The six year period is a long time, so if you were not in negotiations with her to settle matters during that time, it may be very difficult to bring a claim after the limitation period.


So, your wife can probably not make a claim to any new house that you buy - unless you have made some mistakes.


How Your Ex Can Get Your Property if There is Problem With Support

There are a few situations in which your ex can always come after your assets.  One is where you have not been making your child support or spousal support payments, or it looks like you will not be making those payment in the future (for example, if you indicate that you might move to a country that is not one of the jurisdictions that enforces Canadian Support Orders).  In that case, section 34 of the Family Law Act permits the Ontario Superior Court of Justice to make a court order either transferring property to the support recipient to satisfy some or all of the support owed, or a court order that the property be held as security (by placing a mortgage or lien against it)  for the child or spousal support owed.  There are other ways that falling behind in child support can cause problems, which you can read about here.


How Your Ex Can Cause Problems If You Are Not Divorced and There is a Matrimonial Home

Ex Spouse Taking Money To Allow The Sale of a Matrimonial Home

Another time when you might run into serious trouble is if you are buying your new house by selling a house that you lived in with your wife.  Until you are either divorced, or there is an agreement or divorce order that changes the spouses' legal rights, both spouses MUST provide their consent to sell a property that they lived in together during the marriage because that house is a "matrimonial home" under the law.   There is no time period in which a home stops being a matrimonial home.  You need either a divorce order, or an agreement or court order that says it is not a matrimonial home anymore.  So, if you are selling a house you lived in with her, you have to get her permission, and she may ask for money before she gives it.  To learn more about the problems that can be created by matrimonial homes, watch this video or listen to this podcast


Guide to the Basic of Ontario Family Law (Book)

What To Do If There Are Problems

Whether you have trying to formally end an old relationship, or starting a new one, there can be a lot of thing you need to know about family law to protect yourself.  The best is always to speak to an excellent family law lawyer about your specific situation and get advice tailored for you.  You can also pick up a copy of this $20-easy-to-understand book on Ontario Family Law, which explains property division, matrimonial homes, child and spousal support and many other family law issues, as well as tips on how to avoid common family law problems.

Guide to the Basics of Ontario Family Law Available on KindleiBookstore_140x70


If you would like to contact Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, please call the phone number at the top of his page, or use the form below.  We respond promptly to all inquiries.   You can also use the form below to comment on this page.


Hundreds of people turn to this website every day for help with their family law issues.  Feel free to share this page on your social network so that anyone you know can get help with their family law or family court problems.



Who Pays for a Child’s Special Needs After Separation?

child with a disability / illness / injury

Many children have special needs.  For some it is a physical disability or illness that requires special attention, and sometimes, special equipment, medications or supplies.  At other times, it is a learning disability, that requires special attention in school, or perhaps tutoring, occupational therapy, or other services.  Sometimes it is a mental illness, such an anxiety or depression, which can also require special services.  Perhaps, it is a developmental delay or disorder, such as something on the autism spectrum, or another concern, which can require lots of special services to assist the child.  Even the testing related to determining what a child’s needs may be can cost thousands of dollars.


These services, equipment, supplies or medications can be very expensive.  The expenses can far exceed what is covered by base child support.  In Ontario and Canada, the base amount under the Child Support Guidelines, may not be the full amount of child support.  Additional large expenses may be shared by the parents, in proportion to their incomes, pursuant to section 7 of the Child Support Guidelines, which covers Special and Extraordinary Expenses.  


child with autism and anxiety

Many people have heard that parents only have to contribute to section 7 expenses either if they agree, or if they agreed to them prior to separation.  After separation, support paying parents sometimes refuse to pay for large expenses such as private school or hockey because they say they “cannot afford it.”   Affordability and agreement to pay can be requirements before a parent has to contribute to expenses on top of paying child support.


However, it is important to realize that when we talk about “special and extraordinary expenses” it often sounds like they are grouped together.  However, under the Child Support Guidelines, special expenses are different from extraordinary expenses.  The differences can be important.


Extraordinary expenses are “nice to have” items.  They are large expenses, relative to the parents incomes, that may be difficult to afford but could benefit the child because of the child’s special talents.  These are expenses that benefit children.  But, they are not always affordable, or he expense may be too large an infringement on a parent’s lifestyle.  And, they may be expenses that one or both parents may feel that they should not have to pay, perhaps because of the costs, or perhaps because they just do not agree with them.  For example, some parents are philosophically opposed to the concept of private schools and believe that children should be educated in a public school system. It may be wrong to force a parent, who believes that, to pay for a private school education that the parent would never have agreed to pay for if the parents had not separated.


Special expenses are different.  These are large expenses that a child needs.  They are not just “nice-to-have” expenses.  They are things such as:

-     mental or dental expenses over and above what is covered by the parents’ insurance;

-     the portion of health insurance premiums that are related to the child.

-     expenses for primary or secondary school education that are needed to meet a child’s particular needs;

-     child care so a parent can work or go to school;

For special expenses, a Family Court Judge, or Family Law Arbitrator, considers the necessity and reasonableness of the expense, and takes into account what money is available.  But, if the expense is necessary, and the money is available, the parents will pay for these expenses.  


Obviously, the costs of services, programs, equipment and medication to meet a child’s particular needs fall under “special expenses.”   If the parents have the money, or the parents can reasonably find the money, making the payments for the welfare of the child their first priority, then the parents must contribute to these expenses.  Except in unusual circumstances, that contribution will be in proportion to the parent’s relative incomes.


Guide to the Basic of Ontario Family Law (Book)

Child support can get complicated where a child has special needs, or a parent’s income is hard to determine.  Consulting a good family lawyer can ensure that the amount of child support is appropriate.  John Schuman is not only a Certified Specialist in Family Law, but also a lawyer who has represented parents and children in leaving Education Law cases.   He not only understands child support, but children with special needs, the programs and services those children may need, and how schools and the education system work.  To contact him, either call the number at the top of the page, or use the form below.   You can also learn a lot more about child support, and most other family law issues, including how the Family Court System, and the alternatives to Family Court, work, by picking up a copy of his $20-easy-to-understand book on Ontario Family Law.

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What happens to child support if a child decides to switch homes/parents?

children leaving to live with the other parent

As children get older, they make their views on matters known.  At a certain age, children may “vote with their feet” and move in to the home of the parent who does not have custody or does not have “primary residence” under a Family Court Order, Separation Agreement or Parenting Plan. When a child reaches a certain age, courts recognize that it can futile to order a child to live somewhere they do not want to live.  Social workers and child psychologists often recognize this too.  This can be a problem where the child moves because he or she was pressured or improperly influenced by a parent to get the child to move in with him or her.  Sometimes, just the desire not to pay child support be the motivation to do that (even though in Canada, child support payments usually do not cover the full cost of raising a child). 


Child support is for the child.  It is not meet the child’s needs. It is not a “bonus” for a parent for looking after a child.  When a parent who does not pay, it is usually the child who goes without. It also sends the message to the child that the non-paying parent does not feel a responsibility toward the child.  For those reasons, child support in Ontario and Canada is a “no fault” scheme. Nothing in the Child Support Guidelines permits a reduction of child support because of the conduct of a parent (aside from a person becoming liable for child support because he or she acted like a parent.)  A child, over 16 years of age, withdrawing from the “parental control” of both parents can  end child support.  However, if a child has not withdrawn from his or he parent and is either under 18 years old, or is over18 years old and remains dependent because of disability, illness or education, the obligation to pay child support continues


Even a child’s conduct, except conduct of the most egregious type against the support paying parent, does not end support.  (For a discussion of this, see paragraphs 148-156 of this Ontario Family Court decision.)


In cases where a parent has acted wrongly to coerce a child to move, then the court take that in account before making a new custody order, or may consider making a spousal support order to ensure that the parent who is losing child support is not in financially precarious position as a result. 


So, child Support is the right of the child to have financial support for his or her needs. Those needs exist independent of where a child lives, or a why a child lives there.  If a child decides to leave one parent and move in with the other, than the child support obligation changes as well.  It is always the parent with whom the child does not live who pays support.  Or, if the child decides to split his or her time approximately evenly between parents, the parents essentially pay child support to each other and set off one amount against the other.  For more on about child support obligations in Ontario and Canada, listen to this podcast.


Child support can be changed when there is a “material change of circumstances” for a parent or the child.  That means child support is changed whenever there is any significant change for parent or child.  The child changing homes qualifies.  To find out how to change a child support order or agreement, watch this video.  However, if either parent’s income is even a little hard to determine (tax returns do not always tell the whole story) then you really should get help from a family law or divorce lawyer.


Guide to the Basic of Ontario Family Law (Book)

There is much more about these, and other issues, in this $20-easy-to-understand book on Ontario Family Law.  It covers all these child support and child custody issues, explains what happens in family court, and gives many tips to keep you out of trouble in difficult situations such as the urgent issues that can arise when you have a trip planned and your ex will not let you go, or you get into a parenting or child custody fight.  Pick up a copy and find out how to get what you need in your family law matter.

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If you feel that something is wrong about why a child is changing residences, or you are worried about a child custody issue, or the other parent is refusing to pay the appropriate amount of child support, then you should speak to a family law or divorce lawyer.  To contact Certified Specialist in Family Law, John Schuman, please call the number at the top of this page, or use the form below to get in touch with us. You can also use the form below to comment on this page.

If you find this page useful, please share it on your social network using the buttons at the bottom of the page. 


Comments:

Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

Child support in Massachusetts is based upon the Child Support Guidelines which consider a number of factors but not alienation because it is just about financial support of the children and the Court does not see support as having to do with conduct since the goal is to provide support to children.


Hamoody Hassan - Senior Counsel at Hassan Law

The law does not and should not recognize the criteria suggested in the article to limit or reduce child support. Children are not bargaining chips. 

Parents do not have children to "do the minimum". 

Our professional duty is to encourage parents to be the best parents they can be, notwithstanding illness, mental incapacity, anger, hostility, or alienation. 

Parents should to take a long view of their lives and the lives of their children. 

There is nothing unfair in supporting one's children - in fact it is unfair to the child to look for excuses to support them less, because of a parental inability to navigate a conflict. 

Many parents say they would rather no access than pay support or get support, but experience has shown those parents who talk that way, don't really mean it - the recipient feels the payor got away with it and the payor feels the recipient stole the kids. 

What do kids who this nonsense feel - they feel bad, lost, and will often when older seek any port in the storm, or such strategies will likely inform their future lives. Often they will wear the parental behaviours like a cloak and feel they are "victims". 

Sorry, in my view parents should pay what they can and do what they can regardless of what garbled message they receive from the recipient parent.


Lisa Marie Vari - Managing Attorney at Vari & Associates, Pittsburgh & Miami Divorce & Family Law Lawyers

Excellent article, John! I often have clients that ask me that same question and many of them don't understand, or don't want to understand, the point you reiterated throughout your article, that child support is for the child.



My Ex won’t sign a travel consent for our child? What do I do?

airplane waiting for child's travel consent to take off

Usually, judges let parents travel with the children, unless the trip presents some sort of danger - such as travel to a war zone or where there is a worry that the travelling parent will not return to Canada with the children.  Judges do tend to be very cautious about allowing travel to countries that are not party to the Hague Convention on the Civil Aspects of International Child Abduction. Aside from that, and travel that is dangerous in some way, judges usually believe that travel is beneficial to children and helps them grow.  So, they allow it, unless there is a GOOD and PROVEN reason not to permit it.  (With the exception of "non-hague travel" the refusing parent should not base the refusal on groundless speculation.)


For more on the law of travelling with kids after separation, see this page


If the other parent is not refusing for a good reason, then you will have to go to court to get a judge to approve the trip. (Unless you have a parenting coordination or family arbitration agreement that simplifies the process - see this for a little more.)  That court appearance can be a very expensive.  However, if the other parent is unreasonably refusing to give travel consent, judge are prone to order them to pay most or all of your legal fees associated with getting the permission to travel. To ensure that you get to go on the trip, it is best to get a lawyer to put your case together for you and present it to the judge in a way that will make the judge very sympathetic to you and allow the trip.  A good lawyer will also fight to get your fees back in these circumstances.  To contact Certified Specialist in Family Law,  Toronto Family Lawyer, John Schuman,  call 416-446-5847, email him, or use the form below the comments. We answer all inquiries promptly.


Guide to the Basic of Ontario Family Law (Book)

For more on travel consents, other child custody and access matters, a description of the court process for these  types of issues, and a longer description of the alternatives to court, get a copy of this easy-to-understand book on Ontario Family Law.  You can get it and start reading it in minutes for $9.99 from the Canadian Kindle Store, Kobo, or as an iBook for iPad, iPhone or Mac, or you can order the paperback. It also covers many other family law issues and provides lots of tips for staying out of trouble and getting what you want in family court cases. 

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You can comment on this page using the form below.  If you found this page helpful, as many have already, feel free to share it on your social network using the buttons at the bottom of the page.  Then your friends can also benefit from the help on this page.

Guide to the Basics of Ontario Family Law Available on Kindle

COMMENTS:

Kenneth Phillips -  Law Office of Kenneth J. Phillips

I agree with all of your answers John, the links you posted will be very helpful for the parent seeking help. I also suggest that the parent should consult with a professional as to not drag this out for too long and avoid the same problem in the future.


Susan Donofrio - Director of Staff Development at Legal Aid Society of Columbus

Typically the parent would file a motion with court asking to be named the sole parent with authority to obtain passports and travel outside the country with the children. The entry should track the passport office regulations exactly, if you are successful.


Jarrod Jennings  -  JENNINGS & MEDURA, LLC.

I've unfortunately had to deal with this issue twice. We had to file an expedited motion and pushed for fees and sanctions. The Court admonished the parent who refused to sign and indicated that it may be a basis to remove his joint legal custodial rights altogether in a petition to modify if the conduct continued. 

Still, it's a very difficult issue and the airlines are black and white about it- no permission, no fly.


Marluce de Oliveira - Senior Attorney

This used to be a considerable problem in child´s guardian ! Very annoying !! oftently the refusing to sigh the travel request is only a caprice !!! Vengace !!! Sometimes, problems with child support !!! I dare to suggest a modification on the visitation agreement just to include that the other party has the right to travel with the children during its visitation time and that unjustified refusing should be discuss before a trial court, always, on behalf of the children but, never bring them against the willing of the other parent party due to psychological trauma risks suffering.


Lisa Marie Vari - Managing Attorney at Vari & Associates, Pittsburgh & Miami Divorce & Family Law Lawyers

Cases like this one come up all too often in my Miami office. We have many parents wishing to take their children out of the country to visit family and the other parent refuses to grant permission. Sometimes the refusal to allow the kids to travel is due to fear that the other parent won't return with the child (something we've sadly had to deal with), but most times the other parent is just being difficult. 

When faced with this situation a parent's best bet is to contact the attorney that represented them during their previous child custody or divorce case. Depending on the situation a motion may be the best way to resolve the issue.


Elliott Yug - Attorney

I had this situation and filed a motion authorizing my client to obtain the passport and for travel. At the hearing the other parent indicated they had no problem signing the application for the passport and out of the country travel. Thereupon I presented the Court with an order to that effect and we were done.


Abdel Hakim Benalah - Juriste (Algeria) 

Quand l’un des parents(généralement la mère) qui lui a été attribué le droit de garde et tutorat et refuse à l’autre de lui signer une autorisation de sortie hors territoire et lui remettre le passeport de l'enfant, ce dernier doit formuler une demande d’autorisation muni d'un procès verbal dressé par un huissier de justice portant refus express de la mère de l’autoriser a sortir avec son enfant à l’étranger et refus de remise du passeport doit se présenter devant le juge ou le président du tribunal territorialement compétent du lieu ou s'exerce le droit de garde et le tutorat. 

Mais si la mère ne lui est pas attribué le droit de tutorat que le droit de garde n’a pas le droit en aucun cas de s'opposer à cette autorisation car elle peut s'exposer aux sanctions d'avoir refuser de remettre un enfant à celui qui a le droit de visite et refus d’exécution d'un jugement vêtu de la formule exécutoire. Bonne chance.


Abdel Hakim Benalah - Juriste (Algeria) 

When a parent refuses to sign the authorization of release of her child which he has the right of custody is or not, outside his country the other parent must make a request and reasoned order from judge of the place where is exercised the right of custody and that will decide emergency.




Can my common-law partner kick me out, change the locks and keep our kids inside our home?

angry spouse changing the locks

That is a terrible situation.  It sounds like you will have to take steps right away to protect yourself, your children and your legal rights. 


With regard to getting back in the house, your rights are very limited in a common law relationship.  You basically only have rights as a "boarder" in the home.  For more on the rights of common law couples in relation to their home on separation, see this page. 


With regard to your children, your rights are much more complicated.  But, it is not acceptable for your partner to just to cut you off from them - by changing the locks or otherwise. A parents does not get to unilaterally decide to keep the children.  If the parents cannot decide who will have custody of the children, then a judge (or family arbitrator) must decide.   To see how judges decide who gets custody of a child, see this page  and watch this video.


This page provides a bit of information on what to do if one parent won’t let the other see the children.   However, in a situation where one parent kicks out the other to keep the kids, you are going to need to speak to a lawyer and get to court quickly before your partner does anything else that is impulsive.  This podcast describes how to start court proceedings:   However, a lawyer can really help put together a case that will convince a judge that your daughters should be with you - and right away. Toronto Family Lawyer, John Schuman, and his team have successfully dealt with many emergency child custody situations. To contact him, call the phone number at the top of the page, or use the form below.  To understand the first steps in court, watch this video or listen to this podcast


For the usual things you should be worried about when separating, watch this video


Guide to the Basic of Ontario Family Law (Book)

You can learn about how Ontario Family Law applies to you, how the Family Court System works and how to advance a child custody case, pick up a copy of this $20 easy-to-understand book on Ontario Family Law.  It will give you an understanding of how the law works in general and has lots of tips to help you win your family court case.

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Is My Spouse Entitled to My Corporate Tax Returns In Separation or Divorce?

corporate tax returns, which must be disclosed in family court

Owning your own corporation has lots of advantages - but none of them are in Family Court, where owning your own corporation makes things much more difficult.  For more information about that generally, see this page


The information about your corporation is important in separation and divorce for two reasons:

1.  Your shares in your corporation are an asset, which almost always fall into the property calculations for the "equalization of Net Family Property" in separation.  For more on how property is divided in a divorce, listen to this podcast.

2.   Your income for support purposes (child support and spousal support) is based on how much you can get in your pocket, not what your tax returns says.  Corporations offer a lot of ways to lower your income for tax purposes, but not for support purposes.  For more on that, listen to this podcast.


Section 21 and Section 25 of the Child Support Guidelines list the types of documents, information and other disclosure that is needed to calculate a person’s income for the purposes of determining support. (Determining how much income a corporation makes is usually important for determining the corporations value for property division purposes too.)   However, more information, documents and disclosure may be needed that just what is listed in those two sections.  Other documents and information may be needed to understand or verify what is in the disclosure listed in section 21 and 25 of the Child Support Guidelines (or to properly value the company.)


While it is unlikely that your wife will need your corporate tax returns for tax purposes, unless she is a shareholder in the corporation, she is entitled to a lot of information in relation to your corporation to resolve the issues arising from your separation and divorce.  While your corporation may be a separate legal entity and separate from you for other areas of law, in Family Court (and other family law processes), the income and assets belonging to a corporation that you control are considered to be yours (and not the separate property of the corporation). 


Guide to the Basic of Ontario Family Law (Book)

To understand where you stand with regard to all the legal issues that arise from your separation, you should consult a good family lawyer who can give you advice particular to your situation. To speak to Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, call the number at the top of this page, or use the form below.  Until you can meet with a lawyer, you might want to watch this video to avoid some common mistakes that separated people make.  You will also want to pick up a copy of this $20-easy-to-understand book on Ontario Family Law because it explains most family law issues, including support, property division and the challenges of being self-employed, your options for resolving matters with your spouse, and some tips to stay out of trouble.

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COMMENTS:

Linda Hammerschmid

This issue is neither social nor psychological. Depending on the law in one's district it is Family/corporate law. 

Here in Quebec inside a divorce file normally we get both the personal and corporate tax returns.


Mark Finn - Senior lawyer at McKean Park

This issue forms part of the Rule in Australia to make full and frank Disclosure,and is part of the Discovery and Inspection Process. 

Clearly the answer is your spouse can look at returns as indeed you can look at hers along with her other financial documentation



© John P. Schuman 2014