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, Kobo 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 the death of Riya Rajkumar means for Family Law custody cases

police-lights


Millions of people were startled late last night to when the emergency tones went off for the Amber Alert for Riya Rajkumar, only to learn, minutes later, that she had been found, but not safe.  Riya did not return from an “access visit” with her father for her birthday.  Her mother contacted police because she received messages about the father harming Riya.   The police found Riya’s body in the middle of the night.  They also found her father, who was arrested for murder.  The whole event seems disturbingly similar to the murder of Luke Schillings in 1997 and other similar incidents that resulted in changes in Family Court in 2009.


Predictably, everyone wants to prevent this kind of even from happening again.  Almost immediately, there were calls to cut off “access” to fathers, for presumptions of supervised access, and for family courts to be vigilant and act on any hint of possible abuse to cut of all ties between children and parents.  Doubtlessly, Children’s Aid Socities will be under tremendous pressure to be more intrusive in the lives of separated families to make sure this does not happen again.


Having practiced Family Law for twenty years, these reactions do not seem so much as an overreaction, but a wrong reaction.  Fortunately, these cases are extreme.  Judges are vigilant about protecting kids.  Custody/Access cases entirely revolve around what is in a child’s best interest and there are no such things as “parental rights in Ontario.”  Parenting is a responsibility – a responsibility to ensure that your children group up in the best way possible and meet the fullness of their potential.   It goes without saying that what happened to Riya was not in her best interest.  We do not yet know how the system failed her.



High Conflict Separations are dangerous for kids.  Even without the threat of physical violence, high levels of conflict between parents is really harmful for kids.  Everclear even wrote a song about kids being harmed by parents fighting after separation.  Parents who are overcome with anger with their ex spouse frequently act irrationally and do terrible things, including making false allegations of abuse, that judges then have to sift through and try to determine what is real and what is a parent’s unreasonable act of anger or mistrust in the midst of conflict.   Neither mothers nor fathers have a monopoly on being on the “wrong side” of parenting conflicts.




Cutting off kids from their parents every time there is any suspicion of harm is not good for the kids.  Ask any social worker or psychologist and they will tell you that kids need to know their parents, and know who their parents are.  That is true, even if the parent is not a nice person.  Part of a child building a stable sense of identity is rejecting what they do not like in other people, including their parents.  Only serious safety concerns should prevent a child from having a relationship with a parent.   Conflict and fighting can cause serious safety concerns.


Ontario Family Law Podcast

27 - Domestic Violence- The Critical Information

35 - Resolving Children's Issues Outside of Court

31 - How Lawyers Help at Family Mediation

People involved in Family Court have know for a long time that we need to devote more resources to mental health, particularly parents and children going through the family court system.  If someone feels that it is necessary to self-harm or harm others, then the system needs to be quick to provide support.


It also goes without saying that reducing the conflict can reduce the stress and potential for harm to children.  Family Mediation, Parenting Coordinators, and Collaborative Practice, are all options for separated parents that avoid the increase in hostility, negative emotions, bitterness and anger that often accompanies Family Court.  The professionals in those disciplines are often good at reducing the conflict, while identifying any underlying concerns, while directing the parents, and children, to appropriate resources.  In addition, just speaking to a good family law lawyer, can give parents the advice they need to focus on what is important and away from their anger at their spouse. A good counselor/divorce coach can also help parents address their emotions in a positive way and decreases the risk for the kids. If out-of-court options are too dangerous, because a parent or child needs protection from a Family Court Order, than all these professionals advise the parent to go to court, or the police, or children’s aid society. 


Focusing on being right often makes things worse.  But a good lawyer will direct their clients, and their children to places of safety and provide a good impartial assessment of risk.  Many police forces also offer risk assessments, as do children’s aid societies.  Those can help parents decide when it is too risky to let a parent see a child.


Guide to the Basics of Ontario Family Law - 4th edition cover

Parents who are worried about their children’s safety do need to take the appropriate legal actions in response.  In times of crisis, then many options are off the table, and that is when it may be time for Family Court, or 9-1-1.   If you are not sure about your situation, get some professional advice and do not take the risk of letting your child being harmed by him or her to see the other parent or by not allowing that relationship.


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The best way to protect yourself, your children, your stuff and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.


Can My Spouse Get a Divorce Before Following Our Separation Agreement?

signing  separation agreement


Ontario Family Law Podcast

3 - What is a divorce? How do I get one?

10 - Child Support - Who Pays and How Much?

24 - How to Have a Valid and Enforceable Separation Agreement

32 - How to Change a Support Order

After separation, many spouses want their “exes” to live up to their obligations before getting a divorce.  To understand why that matters, it is important to understand what “divorce" means (which if more fully explained in this podcast). But to summarize, all the “divorce” means is that a person can get remarried.  Everything else (child custody, child support, property division, etc.) are separate issues.  It is possible to resolve “everything else” by way of a separation agreement, but only a Family Court Judge can grant the divorce. 


So, many people do not want their spouse to get a divorce until they have paid support, followed a custody order, or divided the property.  In most cases, doing those things is not required to get a divorce.  But, there are some considerations where there is a legal, valid and enforceable separation agreement in place. 



Unless the separation agreement says otherwise, parties are able to include terms from their separation agreement in a Divorce Order.  (and spouses can always ask the Court and the Family Responsibility Office to enforce the support provisions of a separation agreement by filing the agreement and Form 26B with the Family Court.)  If your spouse has not fulfilled the terms of the agreement, there may be an advantage in converting your separation agreement into a Court Order.  Doing so means the agreement can be enforced as a court order (using the FRO, garnishments, seizure of property, contempt of court powers or other enforcement tools).


If your settlement is made into a Court Order, then you can definitely stop your spouse from doing anything before the Court.  Additionally,  the Courts in Ontario almost always take the position that a person who does not obey Court Orders should not be able to ask for Court Orders against someone else.  The basis for this is fairness: it is not fair if only one side of a dispute follows what a judge says.  In addition, Rule 1(8) of the Family Law Rules gives judges a lot of powers to refuse to even hear from someone who is not obeying court orders.  Those powers include dismissing the person’s case, or striking their pleading and allowing the case to proceed uncontested, or refusing to let the party in default take any further steps before the Court.


The exception to the above is where a judge feels that parenting arrangements must be changed in a child’s best interest or when child support should be adjusted to make sure the child is receiving the proper amount.  Judges put children first.


If you spouse is not deliberately beaching a court order, and things are progressing as contemplated by the agreement, even if they are not finished, then there are very few reasons on which a judge will refuse a divorce:

So, if your spouse wants a divorce, and a ground for divorce exists (usually being separated for more than one year) and none of the above barriers exist, then your spouse will get the divorce.  Of course, if your spouse is not paying appropriate child support, that may block the divorce and you should speak to a lawyer about challenging the divorce.


If the agreement specifically says that your spouse is not allowed to go back got court before taking some specific steps, that may block your spouse from taking any other steps before the Court.  The effect of the agreement may be to prevent your spouse from changing anything in the agreement, until he or she has completed all the tasks required by the agreement.

Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including how to enforce a separation agreement, the requirements for divorce, and a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback

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However, to know for certain how the law applies to your daughter’s situation and to ensure she is doing the best thing for her (and any children), your daughter should speak to a Family Law Lawyer. Contact CertifiedSpecialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.



How Do You Calculate Child Support Where There Is More Than One Other Parent?


child support for multiple parents


In recent years, it has become more common place to see “complex” families where one (or more parents) have children with several other parents, or is a step-parent to children in other families.  So, how child support is calculated when one parent has children with several other parents is an increasingly common question.  The answer is different for parents who are the biological (or adoptive) parent to all the children or the biological parent for child (or children) and a step parent to other children.

 

Biological and Adoptive Parents

 

First, biological (and adoptive) parents always pay table support under the Child Support Guidelines. There are some possible adjustments where:

1.                          the payor’s income is over $150,000.00 (pursuant to section 4 of the Child Support Guidelines)

2.                          where paying support causes undue hardship – see section 10 but note that proving undue hardship in court is very hard

3.                          there can also be adjustments for shared or split custody (watch this video  or listen to this podcast if you need to know what those are), but for tax reasons it is better for both parents to pay full support in those situation.

4.                          Also, self-employed people can find that their income for child support is much higher than the income shown on their tax returns.


As the video below shows, other than the above, it is difficult to change Child Support.


 

Ontario Family Law Podcast

11 - Child Support's Special and Extraordinary Expenses

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

17 - Sole Custody, Joint Custody, Shared Custody- How do Judges Decide?

30 - Entitlement to Spousal Support

When the child support payor has all the children with one other parent, calculating child support is easy.  The parents just go to the Child Support Tables (Click here for Ontario’s Tables), find the table for the number of children and then go down that table to the support payer’s income, and the monthly child support amount will be right there.  So, if there are three children, with just two parents, it is a simple matter of looking at the table for three children.  Note, parents share “special and extraordinary expenses” on top of monthly child support. Listen to this podcast for how to calculate the payment of those expenses – they can add a lot to the monthly payments.

 

Things work differently where the support payor has children with several other parents.  The Child Support Guidelines work on the premise that kids should not be disadvantaged by their parents’ choices, and there are some expenses that can be shared between kids in the same family. So where there are multiple support receiving parents, the support payer pays the full table amount for the number of children with each parent.  If the support payer has one child with one parent and two children with another parent, then the support payer pays the full table amount for one child to the first parent and pays the full table amount for two children to the second parent.  This is a lot more support than just paying for three children together.

 

Shocked at child support calculation

To illustrate how child support works where the support payer has children with several other parents, consider what would happen in the above situations where the support payer makes $100,000 per year. If the support paying support is paying child support for three children to just one other parent, he or she pays $1920 per month.  Where the support paying parent has to pay child support for one child to one parent and for two children to the second parent, that support owing is $910 to the first and $1471 to the second.  That is $461.00 or 24% more because there are two parents.

 

Having children with several different parents can mean paying a lot more child support. There can be an adjustment for undue hardship in extreme circumstances, but, as noted above, judges do not like kids to go without because of their parents’ choices.  Judges prefer the parents to make the financial sacrifices, not the kids.

 

However, if the support payer is, or may be, also required to pay spousal support, Section 38.1 of the Ontario’s Family Law Act, and section 15.3 of the Divorce Act, both say that priority must be given to child support.  So, if a parent is having financial difficulty paying child support to two (or more) parents, spousal support may no longer be payable.  Watch this video for more about factors that affect whether spousal support is payable.

 

Step Parents

Fistsfulls_of_Money from child support

Step parents have to pay child support when they stand in the place of a parent to the children. For more on when that can happen, listen to this podcast or check out this page.  It is often the case that step parents end up paying full child support in the same way as biological parents.  However, section 5 of the Child Support Guidelines, gives Judges the discretion to require step-parents to pay an amount that is different from the table amounts.  While the law expects that kids will share in the wealth of their parents, it does not expect that kids, or one of their parents, will get a windfall as a result of receiving child support from both a biological parent and step-parents.  Where the biological parent is paying support, judges will often reduce the amount of child support that a step-parent pays if the combined support payments would be more than the child needs.  However, there is no set formula for doing that calculation.


 

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Child support where there are multiple parents, or more complicated parenting arrangements can be difficult to determine. There are a lot of factors that come into play, and there may be additional ways that the law can help you. The best way to protect yourself, your children and , your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 

 

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

 

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.


If I am Right, Will I Win Big in Family Court?

Judge in Family Court


This website provides a lot of useful information about Family Law to let you know if you are on the right path in your separation and divorce.  Reading this best-selling book on Ontario Family Law will give you ever more information about what the law says and some tips for how to do well in court.  So, that should give you a good idea of whether you are “right.”  Also, knowing what you are talking about can really help in Family law, and prevent you from making some big mistakes.  But that does not guarantee that a judge will crush your ex.




If you are being reasonable, and following the law, you should be fine in Family Court.  If your ex is being reasonable, then your ex will probably be fine too.   If both sides are being reasonable, then many Family Court judges think it is unreasonable to go to Court because there are lots of good alternatives out there, such as mediation, mediation/arbitration and Collaborative Practice.  Those judges may get upset with a person who starts proceedings, even if that person is “right”, because the parties could have worked out the matter without going to the expense and acrimony of Court.




Family Court is a place where there are a lot of emotions.  Even though strong emotions are normal in separation and divorce , judges do not dealing with them, or even seeing them because they make people act irrationally and even badly.  Judges, lawyers and the legal processes do not deal well with the emotional side of divorce.  (If you need help with the emotional side of divorce, hiring a reputable divorce coach / divorce doula can really make every aspect of your life, including the legal part, go more smoothly.  Avoid hiring a cheerleader though, as a cheerleader can encourage you do things that upset judges.)  Emotions can be such a factor, and often a problem, in Family Court that Judges rarely like to see one side “win” outright because the emotions that causes can lead to problems that make the rest of the case more difficult.




Also, keep in mind that it is rare in Family Court cases for one side to be entirely right and the other side entirely wrong - especially if both sides have had assistance from a lawyer - either through representation in court, or assistance on a limited scope basis (legal coaching).  So in many situations, one side is right on some issues and the other side is right on others.  


If it is absolutely clear that one side is right and one side is wrong on any issue, or several issues, then court should not be necessary at all.   The lawyers should be able to advise their clients of how the law works and since the result is clear, the parties should be able to agree to it without going to the enormous expense of having a judge decide it.




Of course, there are times when one side is completely unreasonable and will not agree with what should be an obvious result, or when an angry spouse thinks that by making the litigation as difficult as possible, he or she can force the other party to give up on a reasonable position.  When such cases makes it to a judge, the decision will be that one party wins, and the unreasonable party can go down hard.  Being reasonable may not always guarantee a win, but being unreasonable can guarantee a party will lose - unless both sides are equally terrible.  It is important to know and understand what types of things that judges always view as unreasonable


It is also critically important that everything that you write for that a judge reads (including instant messages, emails and social media posts) makes you look like the reasonable one.  You also need to give the right impression to the judge every time you are in Court.  Even if your position is reasonable, a judge may think you are an unreasonable person, even an undeserving person, based on your behaviour.   It is not enough to take a reasonable position, you have to act reasonably, all the time. 



Ontario Family Law Podcast


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

31 - How Lawyers Help at Family Mediation

It may not be possible to overstate how much lawyers can help in Court.  Obviously, it is important to know how the family court system works and exactly how the law applies to your case. You may get a good feel for that by doing your research, but a top family lawyer will have experience and knowledge of lots of cases to know how your case will work out it court.  In addition, a big part of being a good lawyer is knowing how to present a case to a judge - knowing what judges like to hear and how they like to hear it, often knowing what particular judges like and do not like.  That can make a big difference in how you do in court, especially where the lawyer knows now to make the other side appear unreasonable or unlikeable. (In mediation and arbitration, the mediator or arbitrator gets much better opportunity to meet and understand the parties - much more so than judges can.)

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The best way to protect yourself, your children, your stuff and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 

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You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.



If My Ex Gave Me Furniture, Do I Have to Give It Back If We Break Up?

apartment-architecture-bookcase-271816


Ontario Family Law Podcast

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

29 - Common Law Separation and Property Division

9 - Property Division in Ontario After Marriage


Gifts made during a relationship can be the source of tension and conflict when that relationship breaks down and the reason for giving the gift no longer exists.  Although items such a furniture are usually not worth enough to justify hiring a family law lawyer, other gifts such as jewelry, engagement rings or art can be worth going to family court or arbitration over.  Still, knowing the law can help you resolve these disputes.

The first big question when dividing property after a relations is whether you and your spouse were married.  If you were married, everything you owed remains yours, but the furniture would be part of your net family property and the value of it would be shared pursuant to section
5 of Ontario's Family Law Act.  (Watch the video below for more on property division in an Ontario Divorce).  In a divorce, section 24 of the Family Law Act says a judge can order that a spouse cannot take the furniture or other contents out of a matrimonial home - regardless of who owns it.)




If you and your ex were never married, then, in Ontario, Family Law does not apply to property issues and you each own what you own and can do what you like with it.  That rule can be subject to claims in equity, which separated common law couples make regularly. 
This podcast explains those claimsYou can defeat those claims if you can prove  that the gift was clearly a gift.  Separating spouse frequently say that a gift was not actually a gift, but a loan, or a conditional gift, or something that was meant for both spouses to own together.  It is up to the person alleging the gift to prove it.  But, if it is clear that the furniture, or other items, were an unconditional gift to you, then they are yours to deal with as you like.  If you have any doubt as to whether it was an unconditional gift, you probably need to speak to a family law lawyer about the specifics of your case.

You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But, it is always best to speak to a good family law lawyer


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The best way to protect yourself, your children, your stuff and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 

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Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on how to divide up the “stuff” after a separation.











Do Child Support Payers Have to Provide Their Complete Tax Returns Every Year? Or Just Their Notice of Assessment?


42-15997889


The Child Support Guidelines (section 3 and 24.1) contemplate that the amount of child support will be reviewed every year.  This is consistent with the objectives of the Guidelines, to ensure that children benefit from the financial means of their parents.  That would not occur if one parent starting making a lot more (or a lot less) and the amount of Child Support did not change to reflect that.

 

To ensure that the correct amount of child support is paid every year, the Guidelines require parents to exchange income information, every year.  It does not matter whether child support is owed pursuant to an agreement or court order.  Section 24.1 of the Child Support Guidelines reads as follows:

 

24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

1. For the most recent taxation year, a copy of the person’s,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

2. As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.  O. Reg. 25/10, s. 6.

Notices of assessment

(2) If the person has not received his or her notice of assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice.  O. Reg. 25/10, s. 6.

Change in address

(3) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give written notice of his or her updated address information to every person required to provide documents and information under subsection (1).  O. Reg. 25/10, s. 6.

Failure to comply

(4) If a person required to provide a document or information under this section fails to do so, a court may, on application by the party who did not receive the document or information, make one or more of the following orders:

1. An order finding the person to be in contempt of court.

2. An order awarding costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings.

3. An order requiring the person to provide the document or information to,

i. i. the court,

ii. the applicant, and

iii. any other party to the domestic contract or other written agreement to whom the person did not provide the document or information when required to do so.  O. Reg. 25/10, s. 8.

the person did not provide the document or information when required to do so.  O. Reg. 25/10, s. 6.

 

 

Section 25.1 requires disclosure of the same information when support is due pursuant to a domestic contract.  Where the support payer earns a substantial part of his/her income from sources other than employment, section 25 of the Child Support Guidelines requires additional disclosure.  Listen to this Podcast on Family Law Disclosure and read this page to understand how disclosure works in Family Law Cases, and more about what can happen when a parent does not provide disclosure.

Ontario Family Law Podcast

 

32 - How to Change a Support Order

34 - Financial Disclosure in Family Law Cases

If the support payer earns most of his/her income through employment, then consider using the Ontario Government’s Online Child Support Calculation Service.  The government will access both parties’ income tax returns and adjust base support and some Section 7 expenses.  The cost of this service is $80 per parent and both parents must agree, and qualify, to use it.   The court process, which is necessary where parent’s incomes are more complex, one parent is self-employed, or there is split or shared custody, can be challenging.  Watch the video below on changing child support in court to understand more. 

 

If your child support case is more complex, or you have an ex who insists on making things difficult, then it may be time to speak to a top family law lawyer about your rights and options. Child support is the right of the child.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

Guide to the Basics of Ontario Family Law - 4th edition cover

 

You can get a lot more information about Ontario Family Law issues, including a further explanation of child support, disclosure, the court process for obtaining and changing child support, and other family law issues 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 good family law lawyer.

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Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the child support issues after separation and how to best to protect the children.



Can common law partners create a legal and binding separation document without a lawyer?


Custody of child


In Ontario, section 55(1) of the Family Law Act says that for a separation agreement to be a separation agreement, it must be in writing, signed by the parties and witnessed. 

However, the considerations do not end there.  There are additional factors a judge must consider when deciding whether to enforce a separation agreement.  If the court will not enforce a separation agreement, then that agreement is only worth anything while both parties agree to follow the terms.  If one party decides not to follow the terms, and the agreement is not enforceable, then there is nothing the "innocent" party can do.

The other factors that a judge will consider in deciding whether to enforce a separation agreement are set out in section 56 of the Family Law Act.  Judges do not have to follow agreements as they relate to custody, access, or the upbringing of children.  They also do not have to follow agreements with respect to child support where the agreement is not consistent with the Child Support Guidelines.  Any term that requires a party to remain chaste after separation is invalid.


Ontario Family Law Podcast

24 - How to Have a Valid and Enforceable Separation Agreement



However, where many agreements run into trouble, that a lawyer can avoid, is under section 56(4) of the Family Law Act.  You can learn more about those considerations by listening to this podcast, or reading this page.  However, section 56(4)(b) says that a judge can set aside a separation agreement if either party did not understand it.   The evidence that judges look for when trying to decide if someone understood a legal document is whether that person got advice from a lawyer.  As a result, judges frequently refuse to enforce (i.e. ignore) agreements where the parties do not have Certificates of Independent Legal Advice attached to contract.   Section 56(4) lists some additional potential problems that lawyers help their clients avoid to ensure that both parties are bound by the separation agreement.

Obviously, people who sign separation agreements want the certainty that such documents provide against future arguments, fights and claims by a former spouse.  Having an unenforceable contract does not help with that at all. So, seeing a lawyer to get Independent Legal Advice is well worth it.




Another common mistake that people make when signing separation agreements is not understanding what the law says each side should get.  Some people give away way to much, or get way to little, because they don't know what Family Law actually says.  You can get a lot more information about Ontario Family Law issues, including support and property division and most other common family law issues by downloading the latest edition of this best-selling $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 good family law lawyer. 

Guide to the Basics of Ontario Family Law - 4th edition cover
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But the best way to protect yourself, your investment in your home and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


Feel free to share this page on your social network by clicking on the buttons below.  To contact John Schuman about your case, or comment on this page, use the form below.


Can My Spouse Change The Locks on Our Matrimonial Home Just Because I Am Not On Title?

House 2 photo


When spouses are married, the home (or homes) in which they lived together, and separated are special.  Those properties are "matrimonial homes."   In Ontario, on separation and until there is a Divorce Order, both spouses are equally entitled to stay in the matrimonial home, regardless of who owns it. That means one spouse cannot do anything to "kick out" the other or prevent their estranged spouse from going back into your home other than getting a court order for “exclusive possession.”  That Order gives one spouse the exclusive rigth to be in the home.   Click this link for a lot more information on spouses rights to stay in matrimonial homes.



Ontario Family Law Podcast

9 - Property Division in Ontario After Marriage

29 - Common Law Separation and Property Division


It is important to note that spouses who are not legally married (
common law couples) do not have matrimonial homes and common law couples do not have rights under Ontario Family Law to stay in a home after separation.   There may be things a common law spouse can do under landlord tenant law or other laws.  But, if the end of the relationship is going that badly, speak to a top family law lawyer right away. 



When the spouse who is not “on title” contributed to the value in the home, that may give that “non-titled spouse” an ownership interest in the property under the
Principles of Equity.   Those principles operate when spouses

1. treated a home owned by one of them as if it was really owned by both of them and

2. one spouse has lost out as a result.

Clearly that is not fair, and fairness is what the Principles of Equity are about. 


However, for married spouses, making a claim under Equity for an interest in a property is harder because the value of matrimonial homes is always included in Ontarios Equalization of Property on separation - unless there is a marriage contract.  If the value of the home is already being shared, one spouse does not really lose out unless there is a big change in the value of a matrimonial home after separation.  Consult with a lawyer if that may be the case.

 



Hopefully, if one spouse changes the locks, the police will recognize the other spouse's rights under
Part 2 of the Family Law Act.  If the police recognize those rights, the officers will let both spouses enter the home until there is a divorce or another court order preventing it.  But if the police will not assist with gaining access to the home, it may be time to start the Family Court Process.


Guide to the Basics of Ontario Family Law - 4th edition cover

You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But, it is always best to speak to a good family law lawyer.

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But the best way to protect yourself, your investment in your home and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


Feel free to share this page on your social network by clicking on the buttons below.  To contact John Schuman about your case, or comment on this page, use the form below.

We Have Custody of Our Grandchild: Can We Get Child Support?

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Biological parents are always child support payers under the Child Support Guidelines and they always pay the full table amount.   When a child is in the care of someone who is not a biological (or adoptive) parent,  each biological parents is required to pay full table support - unless the child has been adopted as adoption severs the legal ties between a child and parents.   If a parent  is not self employed or earns most of his or her income from a source other than a salary, government benefits or other predictable and easy-to-calculate source, then child support is a simple calculation done using the Child Support Guidelines and the tables.   It is so simple, that there is an online government service for calculating and setting up child support that can replace court if the support payor and support recipient agree.  

Ontario Family Law Podcast

When the parties do not qualify for that service or someone does not agree to use it, it may be necessary to go to court, although there are still other alternatives to court - either mediation, mediation/arbitration or Collaborative Practice.  For even more information about child support, and the options for getting it, pick up a copy of this easy-to-understand book on Ontario Family Law and see a top Family Law Lawyer

10 - Child Support - Who Pays and How Much?

11 - Child Support's Special and Extraordinary Expenses

For big expenses in relation to children, there may be additional child support obligation. Orthodontics, child care, high level sports, medical expenses and other large expeneses would be “section 7 expenses.” The Child Support Guidelines say the cost of such expenses should be shared be all “parents” - the custodial parents and the biological parents - in proportion to their incomes.  For more information on child support and section 7 expenses, listen to the podcasts to the left. 

Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including a further explanation of child support, the rights of grandparents and other parenting legal issues 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 good family law lawyer.

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Get the help of a lawyer immediately to avoid financial hardship for both you and the kids.  Child support is the right of the child.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

 


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the legal parenting issues after separation and how to best to protect the children.

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How Do I Appeal My Child’s Suspension From An Ontario Public School?

student being suspended by principal


Children in Ontario have a right to attend publicly funded schools.  Except in specific circumstances, School Boards cannot  refuse to allow a child to attend school.   Public School Principals can suspend their students from attending school for up to 20 days to discipline specific types of behaviour. The student, or the student’s parents, have the right to appeal that suspension.  However, since the School Board has 15 days to convene the suspension appeal from the date it receives a Notice of Appeal, the child is often back at school before the appeal hearing.  In most cases, the appeal is about what record is in the child’s Ontario School Record.


Note that these rules for suspensions do not necessarily apply to private schools or independent schools, and in most cases do not.  


The Suspension Notice and Notice of Appeal

A student is not suspended until the parents (or the student who is 18) gets the written letter saying the student is suspended that sets out the following: 

  1. The reason for the suspension.
  2. The duration of the suspension.
  3. Information about any program for suspended pupils to which the pupil is assigned.
  4. Information about the right to appeal the suspension including the contact information for the Board Superintendent to whom the parents must send the Notice of Appeal and a copy of the Board’s policies and guidelines for suspension appeals.


Section 309(3) of the Education Act says that parents must send their Notice of Suspension to the appropriate superintendent within 10 days of receiving the letter from the principal. 


The Grounds to Appeal a Suspension

A parent cannot appeal their child’s suspension for any reason.  There are three specific bases on which to challenge a principal’s decision to suspend a student:

  1. The alleged behaviour did not occur;
  2. The alleged behaviour is not behaviour for which a student can be suspended either because:
  3. The principal did not properly consider the mitigating factors that would require that the student not be suspended. 

This page will cover these grounds, as they are the ones that parents should choose from when writing the notice of appeal.  


Challenging the Facts Alleged By the Principal 

It is possible that, after doing an investigation, the principal got the events wrong and suspended a student for something that the student did not do.  This is, by far, the most difficult basis on which to win an appeal. In any appeal the principal is assumed to have gotten the basic facts right, unless, there is evidence to show that the principal got it wrong.  Where a student’s version of events differs from the principal’s, it is likely that the Board members hearing the appeal will believe the principal’s version - unless there is some objective evidence supporting the student's story.  So, parent need to gather written witness statements and see if there are other documents that support the student’s version.


As part of the appeal process, the parties have to exchange the evidence that they have that is relevant to the appeal.  Often, the principal provides this disclosure in the days leading up to the appeal hearing and rarely any earlier.  However, it is important for the parents to carefully review that disclosure to see if there is anything that supports their child’s case, whether there is anything that might undermine the principal’s credibility, and whether there are any notes or other forms of documentation that are suspicious by their absence.  That can all be used to challenge the version of the facts presented by the principal at the appeal hearing.


Making Sure the Behaviour Is A “Suspendible Offence”

Students cannot be suspended for any form of bad behaviour.  Section 306 of the Education Act, sets out all the behaviour for which a student may be suspended.  That list is as follows:

  1. Uttering a threat to inflict serious bodily harm on another person.
  2. Possessing alcohol, illegal drugs or, unless the pupil is a medical cannabis user, cannabis.
  3. Being under the influence of alcohol or, unless the pupil is a medical cannabis user, cannabis.
  4. Swearing at a teacher or at another person in a position of authority.
  5. Committing an act of vandalism that causes extensive damage to school property at the pupil’s school or to property located on the premises of the pupil’s school.
  6. Bullying.
  7. Any other activity that is an activity for which a principal may suspend a pupil under a policy of the board.

 

With regard number seven above, parents have to check the Suspension/Expulsion policy of their child’s particular board to see what other specific behaviour can be the basis for a principal to suspend a student.


In addition to the above, the following behaviour are ones for which a principal is required to suspend a student (these are also behaviours for which a School Board may expel a student): 

  1. Possessing a weapon, including possessing a firearm.
  2. Using a weapon to cause or to threaten bodily harm to another person.
  3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
  4. Committing sexual assault.
  5. Trafficking in weapons or in illegal drugs.
  6. Committing robbery.
  7. Giving alcohol or cannabis to a minor.
  8. Repeated Bullying.
  9. Bullying that  creates an unacceptable risk to the safety of another person.

Other more severe forms of the behaviour listed above can lead result in a mandatory suspension or expulsion.


If the alleged behaviour does not fall under one of the categories set out above, then the student cannot be suspended for it.  So, for example, a student cannot be suspended for repeatedly not doing homework - unless there is a Board policy that allows a student to be suspended for that.  It is important to check the Board policies to make sure the alleged behaviour is listed there.   If the alleged behaviour does not fall in the list of “suspendible offences”  then the appeal will be successful.


The appeal will also be successful if the behaviour is not closely linked to the school. Section 306(1) of the Education Act says that a student can only be suspended for behaviour that student engaged in: 

  1. while at school, 
  2. at a school-related activity, or 
  3. in other circumstances where engaging in the activity will have an impact on the school climate


With regard to the last point, the Child and Family Services Review Board has held, in J.G. v. Kawartha Pineridge District School Board,  that for an activity to impact the school climate, there must be a close “nexus” between the activity and the school AND it must affect the “school climate” generally, not just one or two students.  So, if a student shoplifts on the weekend, or does or traffics drugs at a party that is not related to school, or gets into a fight that has nothing to do with school, even if the student is criminally charged, he or she cannot be suspended from school (although the terms of Criminal Court Orders can force a child to change schools).  


Mitigating Factors

Ontario Regulation 472/07 sets out a number of factors that a principal must consider before suspending a student.  These factors, which are often the focus of successful appeals, are all ones that reduce the length of a suspension or make a suspension entirely inappropriate. The factors that a principal is required to consider before suspending a student are: 

  1. The student does not have the ability to control his or her behaviour.
  2. The student does not have the ability to understand the foreseeable consequences of his or her behaviour.
  3. The student’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
  4. The student’s history (if it mitigates these seriousness of the behaviour).
  5. The absence of a  progressive discipline approach being used with the student, if that approach was possible. 
  6. Whether the activity for which the student may be or is being suspended was related to any harassment of the pupil because of his or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.
  7. How the suspension or expulsion would affect the student’s ongoing education.
  8. The age of the student (if it mitigates the seriousness of the behaviour).
  9. whether the suspension is likely to result in an aggravation or worsening of the student’s behaviour or conduct.
  10. In the case of a student for whom an individual education plan has been developed,
  • whether the behaviour was a manifestation of a disability identified in the student’s individual education plan,
  • whether appropriate individualized accommodation has been provided.

It is also possible to challenge a suspension on human rights grounds.  For example, repeated suspensions are often an indication that the school is not meeting a student’s needs or does not have appropriate strategies in place to educate the student.   Where a school is not accommodating a student’s special needs, it is possible to raise arguments pursuant to the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms.  However, usually it is not necessary to resort to such arguments because it is already possible to challenge a suspension based on mitigating factors 6 and 10 above. 


The Appeal Process

If a principal suspends a student to conduct an investigation into whether the student should be expelled, there is no right of appeal until after the principal has completed the investigation and the child receives a suspension rather than being expelled.  Section 310(4) of the Education Act says that a principal can only suspend a student for 20 school days to allow the principal to make that decision. 


In all other cases, section 309(6) of the Education Act says that the hearing of the suspension appeal must occur within 15 school days of when the parents deliver their Notice of Appeal.  While the School Board can set up the precise procedure for the hearing of the appeal, it must be heard by School Board Trustees.  The precise procedure is set in the School Board’s policy regarding suspensions and expulsions.  In most cases, it is a committee of three or more trustees that hear the appeal.   The hearings are usually short.  Few School Boards contemplate having witnesses and cross-examinations at a suspension appeal.  However, the hearing must give all the sides an opportunity to be heard.  While there is no right of further appeal from the School Board’s decision, the lack of procedural fairness can give parents a basis on which to ask the Courts to intervene.


Additional Assistance

The video below contains additional information on appealing suspensions and expulsions. 


Also, note that an “exclusion” or a “trespass notice” are not the same things as a suspension or expulsion.   Principals and School Boards cannot use an “exclusion” or a “trespass notice” to prevent a student from attending the school in which that student is enrolled. 


Children’s Rights Lawyer, John Schuman, and his colleagues have extensive experience in appealing suspensions and in advocating for children who are running into difficulties at school. We can provide legal representation at an appeal hearing, or negotiations, or we can just provide information and advice about the process.   Call us at 416-446-5869, email us, or use the contact form below to set up a consultation to set up a plan to meet your child’s needs and your budget.


Thousands of people find this website helpful everyday. If you found this page helpful, please share it on your social networks using the buttons at the bottom of the page.  That makes it easier for others to find this information.  You can also leave your comments below.



© John P. Schuman 2012-2018