Family Law Blog

Can my abusive, drug addicted, unreasonable ex get custody of our child? What about access?

motherandstartledbaby


A parent who has a history of domestic violence, child abuse, drug addition, or has caused a children’s aid society to be concerned, will have an uphill battle to getting custody of a child.   Judges have specific factors that they have to consider before making an order for custody of a child.  Those factors help the judge decide what order is in the "child's best interest."  They are described on this webpage, which describes how judges decide custody cases.  You may also want to listen to this podcast that goes over not only how judges decide custody cases, but also what “custody" actually means.

Ontario Family Law Podcast


However, as the decision comes down to what is best for the child, it is difficult for people who are abusive, or have substance abuse problems, or have who have concerned a children's aid society to get custody of a child. 


7 - Custody of the Children - what it means and how it is decided

There Are Reasons Why Access Might Be Beneficial

27 - Domestic Violence- The Critical Information

Access is a different matter.  This is for two reasons.  First, access can take many forms, occur in different places, can be supervised, or occur in a therapeutic setting, or for limited times.  All of these considerations may make it possible for access to be "safe" for the child.  Judges won't order access if doing so may put the child at risk of harm.  However, there are only very limited circumstances where the risk of harm cannot be addressed by supervised access. 


Second, from a psychological and developmental perspective, there is a great benefit to children in knowing who there parents are.  Children form a sense of identity by knowing who there parents are - even if they form a sense of indentity by deciding that they are not like their parents because they don't like who their parents are.   Children who don't know their parents do less well psychological because a piece of their identity is missing.  So, for the child's sake, courts do like to try order some access.


Child Access Can be Bad for A Child?

There can be difficulty where a parent wanders in and out of the child's life on the parent's whim.  That can be a bad situation because the child does not get to really know the parent, but suffers a loss, or perhaps feels rejected every time the parent disappears.   


Access cannot be safe where a parent is bitter, angry or manipulative.  In those cases, a parent can try to put the child in the middle of the conflict, or try to manipulate the child.   Children suffer very badly when a parent tries to get that child to reject the other parent. For the same reasons that knowing both parents can benefit a child, one parent deliberately trying to alienate the child from the other parent can be harmful. The emotional damage from parental alienation or manipulation of the child, or forcing the child to deal with adult emotional issues can last a long time.


In these types of cases access may not be a good idea - even if it is supervised.  A lot of support, has to be put in place if access will be safe for the child in those situations.


Better Options to Figure Out Child Custody and Access

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Guide to the Basics of Ontario Family Law Available on Kindle

A child psychologist or social worker may be able to help you and your ex sort out what is best for your child.  However, that option is only possible if both parties agree on the professional and agree to participate in good faith to work for the benefit of the children.  If the parents can do that, they can come up with much better solutions than a court may order because they can focus on the specifics of the child's life and needs that a judge may not hear about if the parents do not present their cases carefully and effectively.


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Child custody cases can be very difficult and there can be a lot at stake for the children.  For difficult parenting cases, it is extremely important to speak to a good family lawyer who knows how the law could apply to a specific situation and can help you explore all the options for dealing with the problems.   You may also want to pick up a copy of this $20, easy-to-understand book on Ontario Family Law, which is not only available as paperback, but also as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  It explains custody-access law, how judges make custody and access decisions, the court process and other options for working out parenting matters - there are a lot of better options for working out parenting conflicts that result in tailor made solutions that benefit the children more than a court imposed custody order, but court may be necessary in some cases.


Child custody and access cases can be very difficult, but can also be very important to very one involved.  Little facts can make big differences in family law, so booking a consultation with a lawyer is almost always well worth the cost - if only to protect the kids.  To get in to contact with Certified Specialist in Family Law, John Schuman, use the contact form below, or the phone number at the top of the page.  You can also comment on this page using the comments section at the very bottom.


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Do I Really Have to Wait a Year to Get Divorced?

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In Ontario, the Ontario Superior Court can grant divorce on one of three grounds:

1.    On the basis of separation for a year with no reasonable chance of resuming cohabitation;

2.    On the basis of cruelty;

3.    On the basis of adultery.


In order to get a divorce on any of these grounds, your spouse has to either admit the grounds (in the case of adultery, the party with whom your spouse committed adultery has to admit it as well) or you have to prove the fact after a trial.   Spouses will not admit cruelty because doing so could be admitting facts that give rise to criminal charges or that give rise to tort (personal injury) liability.   Spouses usually will not admit adultery because doing so can likewise have legal consequences.  In addition, to prove adultery, the other party to adultery has to admit it to, which can have negative repercussions for them.  So, to get a divorce on the grounds of cruelty or adultery, a spouse has to prove the cruelty or adultery at a trial.   To make it through all the family court steps that lead up to a trial (to find out about them watch this video or listen to this podcast) takes at least a year.  And, for the reasons below, you will NOT get priority in a crowded court calendar to have you trial for a divorce on the grounds of adultery or cruelty.  So, by the time you get to your trial, you may have already been able to get your divorce on the grounds of separation for a year.


Ontario has a “no fault divorce” system.  That means that the reason why you are getting divorced does not affect property division, or child support, or spousal support, or even custody and access unless a spouse’s actions relate to parenting.  Having an unnecessary fight over the grounds for a divorce may likely have the unintended consequence of showing a judge that you are a bad parent because you are willing to expose your children to unnecessary conflict.  Seeking a divorce on the grounds of adultery or cruelty may actually hurt your custody case.  Of course, if your spouse was very very bad and did something awful like commit adultery or be abusive in front of the kids, that would be an important factor that would affect the custody case, whether you sought the divorce on the basis of adultery or cruelty or not. 


All getting a divorce means is that you are free to remarry.  Things like custody, access, child support, spousal support and property division are called “corollary issues.”  You do not have to wait a year to ask a court to deal with the corollary issues.  A court can deal with parenting issues, or support issues, and even some property issues, right after you separate.   If you are particularly good a resolving matters, then all the corollary issues may be finished in less than a year and you just have to wait the year to get the divorce.  


However, for a court to have the jurisdiction to deal with custody, access or support under the Divorce Act, one of the parties must have lived in the same municipality as the court for at least a year.  You cannot even start divorce proceedings in Ontario if one of the spouses has not lived in the province for a year.  Fortunately, you can ask the court to deal with custody and access under Ontario’s Children’s Law Reform Act, and support under the Family Law Act, right after separation and then wait a year to get the court to make the same orders under the Divorce Act.


If you do not need a court to decide parenting, support or property issues, you can just ask the court to give you an uncontested divorce after you have been separated for a year.


To understand better what getting a divorce means and how you can get one, listen to this podcast. If you are contemplating separating and getting a divorce, you should watch this video to avoid some common mistakes that can really hurt you down the road.  Once you have decided to separate, the first steps you should take are discussed in this video, this podcast and on this page.


For even more information about separation and divorce, all the corollary issues surrounding them, and your options for dealing with child custody, access, child support, spousal support, property division and many more family law issues, pick up a copy of this $20, easy-to-understand book on Ontario Family Law.  It also includes a number of tips to help you succeed and get what you want in your divorce.

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


It is always best to get advice that is specific to your situation, particularly from a good Ontario Divorce Lawyer who will give you direct advice immediately.  Little facts can make big differences in family law, so booking a consultation with a lawyer is almost always well worth the cost.  To get in to contact with Certified Specialist in Family Law, John Schuman, use the contact form below, or the phone number at the top of the page.  You can also use that form to comment on this page.


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



How does child support work with shared parenting? Do we still share special and extraordinary expenses?

Parents sharing custody of a child

Child support in shared parenting situations gets a little tricky.  A lot depends on the specifics, so it would be a good idea to speak to a good family lawyer.  However, this page goes over some of the general principles.


When you have a "shared parenting regime", meaning that a child spends at least 40% of his or her time with each parent, then child support changes for that child.  The idea is that each parent should be paying his or her proportionate share of all of the costs for raising the child based on that parent's income.  Figuring out exactly what a child costs can be a exhausting exercise, so the Supreme Court said, in the Contino case that parents should start by setting of the table child support payments under the Child Support Guidelines for the shared child.  For example, if one parent makes $100,0000 and one parent makes $50,000.00, the parent who makes $100,000 will pay the table amount of child support for $100,000 income minus the table amount of child support for $50,000 income.  It is NOT correct for the parent making $100,000 to pay support based on a $50,000 income.


However, the presumption is that with the set off, after support is paid, each parent will be bearing an appropriate amount of the cost of raising the child.  If that is not the case, and one parent continues to disproportionately pay for the child's expenses (for example, only one parent buys clothes, birthday gifts, toys etc.), then it is not appropriate to just do the "set off" and it would be more appropriate to figure out the child's expenses and divide them up in proportion to the parent's incomes.  Ideally, that would be done by coming up with an average monthly amount for one parent to pay to the other.


The Contino case sets out how to deal with child support in shared parenting arrangements.  So, you can read it, or you can listen to this podcast that also explains how that works.   This video also gives an overview of child support. 


You should still be sharing your child's special and extraordinary expenses in proportion to your incomes, no matter how you have worked out "base child support."  It is true that some less expensive sports and other activities are not extraordinary expenses, while others definitely are.  Parents always share the costs of "special expenses" in addition to base child support.  To understand special and extraordinary expenses better, listen to this podcast  and look at this page.


For a much more complete explanation of how child support works with shared parenting and special and extraordinary expenses, pick up a copy of this $20, easy-to-understand guide to the basics of Ontario Family Law.  Not only does it explain how child support in detail, but it also explains how to get child support issues resolved both in and out of Family Court. 

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As you can tell, child support in shared parenting arrangements can depend on a lot of specific facts.  Whether an expense is subject to section 7 of the Child Support Guidelines is sometimes difficult for ordinary people to determine, but it is something that good family lawyers and family court judges know immediately. To make sure child support is right in your circumstances, you should speak to a good family law lawyer.  John Schuman is a Certified Specialist in Family Law who has done hundreds of child support cases, including some very complex and difficult ones.  To contact him, use the form below or call the number at the top of the page.  You can also use the form below to comment on this page.


If you found this page helpful, please feel free to share it on your social networking using the buttons at the bottom of the page so that your friends, colleagues and neighbours can get the information they need to know for they child support case.



How many times can a person get a refraining order to keep a driver’s license while not paying support as ordered? How long can it last?

child support payer who is about to loose driver's licence and claims to have no money

"Refraining Orders" are court orders that the Family Responsibility Office has to wait before taking away a support payor's driver's licence because that payor has not paid the support that the court has ordered.


Refraining Orders are governed by the Family Responsibility and Support Arrears Enforcement Act.  There are very tight rules for Refraining Orders.  Here are some that apply to your question:

1. A support payor can only get a refraining order within 30 days of receiving the notice that his or her driver's licence will be suspended.  If the payor does not bring a motion within that 30 days, he or she cannot get a refraining order - section. 35(10).

2. Refraining Orders can only last six months - section. 35(19)(d) - the court can only extend that period by three months ONCE, except where the support payor has brought a motion to change support (here is a video about motions to change support) in which case, the court can extend the refraining order ONCE for six months - section 35(21).

3. In order to get a refraining order, the payor must bring a motion to change support and prove that he or she is not able to pay the support under the current order - section 35(20).

4. A support payor must file a financial statement (and all the required attachments for that financial statement including Notices of Assessment from the Canada Revenue Agency) with the motion seeking the refraining order to show the court that his or her financial circumstances justify the court allowing the support payor to keep his or her driver's licence - section 35(7).

5. The court can only make ONE refraining order per Notice that a Driver's Licence is going to be suspended - section 35(11).  If a support payor does not pay the arrears, or does not bring a motion to change and have the amount of support owing changed with the period allowed by the order (and one extension) then the FRO can proceed to suspend the support payor's driver's licence.  With the initial refraining order lasting up to six months, and one extension of up to six months, the support payor has up to one year to get a new support order by bringing a motion to change the original support order.

6. If the support payor is successful in getting a change to a support order, and then defaults under the new support order, then the FRO has to issue a new Notice that it is going to suspend the payor's driver's licence.  The support payor must then follow all the steps above again, including seeking another change to the support order.

7. Judge are not obligated to grant refraining orders when asked to do so.  If a support payor has been bad about paying support, or has not shown any real effort to pay the court ordered support, the judge may refuse to grant the refraining order, and the FRO will then suspend the driver’s licence.


For more information about how support payers get themselves into trouble in the first place, read this article.  


For more information about how child support works generally, watch this video or listen to this podcast.  


Learn about spousal support in this video and this podcast.


Self employed people can really get in trouble over support because their income for support can be much higher than their income on their tax return.  For more about that, listen to this podcast or read this page


All these issues regarding support, how it is enforced, and the court process used to obtain and change support orders are described in this $25 easy-to-understand book on Ontario Family Law.


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

However, if you are in trouble with support, your REALLY should speak to a good family law lawyer because the consequences can be quite severe.   You want a lawyer to give you the extra edge that is needed to get you of trouble.  To get in touch with Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, use the form below or call the number at the top of this page.  You can also use the form below to comment on this page.


If you found this article helpful, you are not alone.  Many people have trouble with child support and spousal support and the way the Family Responsibility Office and Ontario Family Courts enforce it.  Please share this page on your social network using the buttons at the bottom of the page so that the people in your social network can also learn how to get out of support trouble.



Should my daughter let her ex intimidate her into paying for her car, so he can use it, rather than paying child support?

Mother and baby intimidated by child support payer

Your daughter’s ex should be paying child support pursuant to the Child Support Guidelines based on his income, which includes both base support and his contribution toward the children’s “special and extraordinary expenses”, which are health, education and child care expenses as well as certain large expenses.  To learn more about child support, watch this video and listen to The Ontairo Family Law Podcast, starting with this one


He should not be paying for her car, nor should she be letting him use it.  That is prolonging a dependency which sounds like is not healthy  as their relationship sounds like a bad one and it is over.  They should separate from each other as much as they can while remaining parents to the kids.  The car is an extra tie between them.


That said, if your daughter and the father lived together for any period of time, your daughter may be able to seek spousal support as well, which would cover the car payments.  For more on spousal support, watch this video  and listen to this podcast.  


If the father is intimidating, threatening or aggressive, then your daughter really needs to speak to a good family lawyer to "level the paying field."  A lawyer will not be intimidated by him and can advise as to the best options for dealing with that sort of behavior.  (This article explains the current rules of retraining orders).  You can reach John Schuman using either the form below, or the phone number at the top of the page. 

Book - Guide to the Basics of Ontario Family Law


To get even more information on restraining orders, child support, spousal support and the options for your daughter to pursue her rights, pick up a copy of this $25 easy-to-understand book on Ontario Family Law ($9.99 as an e-book)


Guide to the Basics of Ontario Family Law Available on Kindle

If you found this page helpful, feel free to share it with your friends using the social networking buttons at the bottom of this page. It may be that someone you know is in this type of situation and could really use some good family law advice.

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My retired spouse and I are retiring, do we share his pension?

Making a payment after divorce

Before the pension beneficiary retires, the pension is divided as property, and that can reduce the amount of support you receive. (See this recent article.)  However, once the pension beneficiary retires, the pension is no longer property and is treated as an income source on which support is based.  If you have been living together for a long time, and looked after your spouse during the marriage, then you will be entitled to quite a bit of spousal support - perhaps 50% of his total income - although your CPP, Old Age Security and other sources of money factor into the calculation.


To learn more about spousal support, you should watch this video and listen to this podcast.  That will give you some idea of how spousal support is calculated and what to expect.  Keep in mind that spousal support is entirely up to the Family Court Judge's discretion, so it is important to present your case well, which is a good reason to a least consult with a good family law lawyer.


As you are recently separating, you should watch this video on the first steps you should take, listen to this podcast and read this webpage. In addition, this video covers some common mistakes.

Book - Guide to the Basics of Ontario Family Law


In addition, to get more useful information on family law, including how support and property division works, how family court works and what the options are to going to family court, you should pick up this $20 easy-to-undestand book on Ontario Family Law. It also has lots of tips on how to do well in your divorce while avoiding many costly mistakes.

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


If you need more assistance with issues arising in relation to divorce after retirement, please feel free to contact Toronto Lawyer, Certified Specialist in Family Law, John Schuman, using either the form below or the phone number at the top of the page.  You can also use the form below to comment on this article.  If you have found this page useful, please feel free to share it with your friends and colleagues using the sharing buttons at the bottom of the page.



What do you do if the other parent in your Ontario custody case doesn’t even bother to respond to it?

child whose parents take no interest in custody case

It is certainly a sad situation when a parent of a child does not even take enough interest in parenting to respond to your claim for custody of the child.  It certainly sounds like that parent does not want to play a role in the child’s life.  Fortunately, when that happens, there are court procedures in place to make it easier to get a child custody order.


You can file for an "uncontested trial."  There is a specific Ontario Court Form for that: . The case law says that on issues related to parenting, the judge should really hear from both sides - see this case as a good example.  So you will have to explain in your documents, and to the judge, how hard you tired to get the other parent to participate.


To be successful, you will also have to address all the factors that a judge wants to hear about in custody cases, and show why your parenting plan is in the child's best interest.  To prepare your documents, and get ready for court, you should listen to this podcast and read this article


You might also want to watch this video on child support or listen to this podcast as just because a parent does not want to play a role in a child’s life does not mean that parent should not pay child support. 


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You may also want to pick up a copy of this $25, easy-to-understand book on Ontario Family that explains the family court process in more detail and also gives a fuller explanation of custody and access (and also child support).  It will help you understand better what you have to do to get the family court order that you want.  Of course, the best way to ensure that you get the custody order that you want and you get the appropriate amount of child support is to consult a lawyer.  Even if you do not have the lawyer represent you in court, you can get a lot of helpful advice at a consult that will save you a lot of time and money and get you into a better position before the court. 


If you would like to contact Certified Specialist in Family Law and top Toronto Family Law Lawyer, John Schuman, please use the form below or call the number at the top of the page.  You can also use the form below to comment on this article.  If you found this article helpful, please share it with your social network using the buttons below the contact form.


Do I have to pay spousal support in retirement after we shared my pension in the divorce?

elderly gentleman paying spousal support based on his pension

Orders for spousal support that are "indefinite" are subject to a review and possibly a change when there is a "material change in circumstances."  That means support can be reduced or ended when there is a big change for the support payer.  Retirement usually qualifies and almost definitely qualifies when the support payer retires on income from a pension that he or she had during the marriage.


Where a spouse retires and is living off a pension that accrued during the marriage, it is very likely that spousal support will be significantly reduced or ended. When you divorced, the value of your property was divided with your wife. That division included the value of the part of your pension that accumulated during the marriage.  That is why your wife got the house and you got the pension.  (For more on how property is divided after marriage, listen to this podcast.  Essentially what happened is you got half the value of everything your wife accumulated during the marriage, and she got half of the value of everything you accumulated during the marriage, which means, she got half the value in your pension. 


Obviously, if she already received half of your pension, it is not appropriate for her to get a portion of it again as support when you retire. This is called in legal circles (and out of them) "double dipping."  She already got her share of her pension, so the part of your pension payments that related to what you earned during the marriage are not included in the calculation of your income for spousal support. That means your income is now very low (for support purposes) and that justifies the reduction in spousal support.


Some caveats to that: 

1. The portion of your pension that you earned outside the marriage was not equalized and so using the income that comes from that portion of the marriage would not be "double-dipping."   So, you can still pay support on your pension income that is not related to the marriage.

2. "Double Dipping" does not apply to child support. Child support is based on your total income, whether it comes from an asset that was equalized or not.


To better understand spousal support, you may want to listen to this podcast  or watch this video

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If you are going to try to change the spousal support order, then you should watch this video.  This $20, easy-to-understand book on Ontario Family Law has an entire chapter on how to change a support order: . It also has sections on spousal support, property division and double dipping, so you will have even more information to answer your question. Part of planning for retirement includes making sure there are no issues with former spouses or partners who may still be dependent on you.  However, it sounds like there is a significant amount of money at stake, so it would be a good investment for you to speak to a good family law lawyer to make sure that everything is done properly and the judge grants your request. (If both of you have lawyers, your wife may consent to reduce support to avoid the costs of going to court with a weak case.) 


If you have found the this page helpful, please feel free to share in on your social network using the buttons at the bottom.  Or, you can comment on it using the contact form below.  That same contact form will get a message to John Schuman CS, if you want to speak to speak to him about your family law matter.



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