Do I have to pay child support if I am not on the birth certificate? Do I have any custody rights to a child that may not be mine?

Under section 2(1) of the Child Support Guidelines, the biological parent of a child always pays the full table amount of child support (unless the child is adopted or the parent passes the undue hardship test). A biological parent, who is not living with the child, has the obligation to pay child support from the moment the child is born provided the biological parent knows that he or she is the biological parent. If the mother does not place another person on the birth certificate as a parent, then that “other parent” may not know that he is the biological father unless the mother tells him. 

If the mother tells a man that he is the biological father of a child, but the man does not believe that a DNA test will solve the issue. If the mother will not agree to the test, the man can get a court to order one pursuant to section 10 of the Children’s Law Reform Act. If the child is not the biological child of the man, and the man has not acted as a parent to the child, then no child support is payable. If it turns out the child is the biological child, then the Court may order the father to pay retroactive child support, with interest, back to the day that the father ought to have known he was the father.

The new partner may also have an obligation to pay child support if he separates from the mother. That child support is in addition to but does not replace, what the biological father is paying.

On the custody issue, if you are not on the birth certificate, you do not “automatically” have custody rights and the mother does not have to give you anything. You do not have to sign anything if you do not want to have a relationship with the child. However, children generally benefit a lot from having a relationship with their biological parents. If you want to know if you are the parent, so you can be involved in the child’s life, then you can ask for the same DNA test referenced above.

The courts usually want biological parents involved in their children’s lives, so it is likely that the court would make an order to do that. For more on how a court decides to make parenting orders, listen to this podcast.

Find out how the law applies to your specific situation, and what you should do next, it is best to have a consultation with a top family law lawyer. You may also want to get a copy of this easy-to-understand best-selling book on Ontario Family Law. It explains all about child support, custody and access and how the court process, and the alternatives to court, all work. It also gives some tips on how to stay out of serious trouble.

To contact Certified Specialist in Family Law, John Schuman, about your child support, child custody or parenting matter, please call the number at the top of this page, or use the contact form below. John represents clients as a family lawyer in the Greater Toronto Area and throughout Ontario. He is also a skilled mediator, arbitrator and collaborative lawyer. 

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Can my estranged spouse keep coming into our house and taking things?

If you and your spouse were married, but you are not yet divorced and you do not have a separation agreement or divorce order, then the answer is yes.

Your spouse is allowed to keep coming into the house because it is a “matrimonial home.” The houses or houses in which married spouses lived together when they separated are called “matrimonial homes.” Matrimonial homes are special in family law for several reasons. (For a complete explanation – there are some important financial considerations too, which are described in the video.) One way that matrimonial homes are special is that married spouses are each equally entitled to stay in them until they are divorced, or there is a court order or agreement stating otherwise. You are not allowed to block your estranged spouse from coming into a matrimonial home without the court’s permission. You cannot change the locks on a matrimonial home without your spouse’s consent or a court order. Both of you are allowed to stay in the home.

If your spouse is causing problems in coming into the home, especially if those problems relate to the kids. You can ask the Superior Court of Justice to make an order giving you “exclusive possession” of the matrimonial home until you are divorced or have agreed otherwise in writing. There are very specific requirements you have to meet to get such an order, so you really do need to speak to a good family lawyer about doing this. Once you get an order for exclusive possession, you can change the locks and deny your spouse entrance to the home.

If your spouse is being harassing, or threatening, in coming around the home – to either you or the kids – then you may want to also get a restraining order. The court will make a restraining order to “keep the peace” until the case is finished or things otherwise settle down. The new terms for restraining orders are described on this page. These orders are also quite technical, so to get one, it is important to speak to a good family lawyer. 

With regard to taking things, you really need to settle the “property issues” between you and your spouse. After marriage, your assets and liabilities are divided in a legally set way, which is described in this podcast and on this page. However, until you have an agreement diving up your assets (including the house contents), there can be arguments about that. You and your spouse have until 6 years after your date of separation or 2 years after the day you are divorced to bring property equalization claims against each other. That is a long time to fight over who owns which table or chair. It is best to start working on getting a legally valid and enforceable separation agreement.

This sounds like a situation where your estranged spouse is being aggressive and unreasonable. You need to know your rights when dealing with such a person to make sure you do not give away more than you have to. This video described some common mistakes separating a couple of snakes. To find out more about your rights in separation, and how to avoid giving up too much, you should pick up a copy of this easy-to-understand berets-selling book on Ontario Family Law. 

However, to keep your estranged spouse in his place, and to make sure you are fully protected, it is best to meet with a good family lawyer who can apply the law to your specific situation to protect you. Toronto lawyer John Schuman is a Certified Specialist in Family Law. That means he has been recognized by the Law Society of Upper Canada as one of Ontario’s top Family Law/Divorce Lawyers. To reach John, either call the number above or use the form below. You can also use the form to comment on this page.

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Comments on this page from the internet

Daniel Boiani

Barrister and Solicitor, Partner at Monaco Boiani De Marco

Good information on a very common issue we face regularly.

Linda Hammerschmid

NO should be the answer, and if a spouse leaves I presume it is because they do NOT want to be there so the party left should change the locks and instruct anyone living in the house not to allow entry–EVEN if it is your parent!

Daniel Boiani

Barrister and Solicitor, Partner at Monaco Boiani De Marco

@Linda Hammerschmid: I would emphasize that what you are saying is what the law SHOULD be, and not what it actually is.

Linda Hammerschmid

Guess it depends on the jurisdiction in which you practice. I am in Montreal, Quebec Canada

Daniel Boiani

Barrister and Solicitor, Partner at Monaco Boiani De Marco

I noticed that and thought it was an interesting potential difference in the jurisdiction’s treatment of this issue.

Linda Hammerschmid

And that is the difference between future law and current law– jurisdictions. 
Advances in law start in one place and mutate to others. 
Always interesting to learn who is doing what.

Am I Responsible for My Spouse’s Debts After Separation But Before Divorce?

When separating from your married spouse, the critical dates for calculating property division are the dates of marriage and the date of separation. For complete information on how property is divided after a marriage. You do not share in your assets or liabilities after separation except in specific, and uncommon situations (some of which are described here. However, if your spouse runs up a joint debt (e.g. takes money out of a joint line of credit), you are still liable for that because you signed a contract with the bank that says you would repay all the money borrowed on that account. Also, if your spouse runs up debt to pay for the necessities of life, section 45 of the Family Law Act says that he can incur that debt in your name. That does not happen often. If your soon-to-be ex does not fall into one of those two categories, then he is probably committing fraud… which will cause him a lot of trouble.

If you have a joint line of credit or other debt, you may want to close it or freeze it before your spouse can borrow money on it, for which the bank may hold you responsible. However, banks are often reluctant to freeze an account if both parties to the account do not agree. So, if you have a joint line of credit or a joint credit card, you should get in to see a lawyer as soon as possible so that you are not suddenly burdened by unexpected debt that you know nothing about. Good family law lawyers know the steps to take with the bank.

Of course, if you do leave your ex with no money to live off after separation, you may find yourself in court very quickly as your spouse seeks child support or spousal support. Judges do not like it when the spouse with the money leaves the other spouse with none – even less if the kids live with the spouse with no money. The judge may make a large child support and spousal support order that leaves the spouse with money wishing they had just handed over the credit card on separation.

It is time that you started the process of getting a separation agreement, and then a divorce, to finalize things between you and your ex.

For more information about what to do when you separate from your spouse, you should get a copy of this easy-to-understand best-selling book about Ontario Family Law. It explains how the law applies to your question and many other questions in greater detail. It also has a lot of tips about how to keep yourself out of trouble after separating and how to avoid choices you may regret.

However, the best way to get advice specific to your situation (because little facts can make a big difference!) is to contact a good family law lawyer. The Law Society of Upper Canada has certified John Schuman as a specialist in Family Law. You can reach him using the form below, or by calling the phone number at the top of the page. You can also use the form below to comment on this page. 

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How long does a biological father have to contact a child before losing all rights?

In Ontario, we do not talk about “parental rights”, but rather parental responsibilities. Parents do not have rights over their kids. Our custody and access laws are child-centred. Judges make the Order for children that is in each child’s best interest. In figuring out what order is in a child’s best interest, judges have to consider specific things, which you can hear about in this podcast and are also explained in detail on this page. The question is not when the biological father loses his “rights” but rather when it is no longer in the child’s best interest to have a relationship with his father. The same applies to mothers who disappear or otherwise lose contact with their children.

The social science research shows that children do benefit from having some sort of interaction with both parents, even when one parent is not a good parent. Knowing who a parent plays an important role in helping a child develop his or her sense of identity, even if the child develops that identity as being “not like my father (or mother)” because the child does not like who that person is as a person or a parent. It is also important for a child to form that opinion based on personal experiences rather than what the other parent has told the child. If at some point what the child heard about a “rejected parent” turns out to be different from what the child later understands to be the reality, that can be very harmful to the child from a psychological perspective. 

That said, there can be a lot of damage from a parent popping in and out of a child’s life, randomly, and without explanation. The child can experience repeated periods of loss/grieving, shattered expectations and possibly feelings of rejection that can lead to long-term problems. There are also times when seeing a parent is just not safe. In those cases, a judge may make an order that there not be any access until the situation improves. Still, as explained on this page, judges will fully explore the child’s situation and see if anyway can be found to make access work for the child (whether access is convenient for the parents is of less concern).

Also, a child deciding not to visit a parent he or she has not seen for a long time may not be something that the court will support. Children do always understand why it is important to maintain relationships, or at least communication, with both parents. See this page on how courts respond to children saying they do not want to see a parent. Judges do not just to what kids say – although they should listen to kids.

If there is a court order for access, then you should not just cut off access on your own because of what the access parent is doing or not doing. That can get you into trouble. Read this page to find out more about what a parent should do if he or she thinks a parenting order is no longer in the child’s best interest.

Parenting and child custody cases can be very difficult. Judges view them as very important and carefully scrutinize both parents. To make sure you do not end up in a bad situation, or in trouble at court, you should speak to a family lawyer. You can contact Certified Specialist in Family Law, John Schuman, who has many years of experience with custody/access cases, using the form below or calling the phone number at the top of the page. You may also want to pick up a copy of this easy-to-understand best-selling book on family law, which gives more information on child custody, child access and parenting problems and gives lots of tips to stay out of trouble.

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

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), 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. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

To comment on this article, or to contact John Schuman, please use the form below.

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