Family Law Blog

JOHN SCHUMAN'S FAMILY LAW BLOG

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

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

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


Book - Guide to the Basics of Ontario Family Law

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


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

Do Separated Spouses Split Their Matrimonial Home 50/50 (equally)?

House photo


When married couples separate in Ontario, the home (or homes - there can be more than one) that they live in on the day they separate gets special treatment in property  “equalization” process. (Non-married or common-law couples may not divide property or may do it differently.) Those special rules may make it seem that matrimonial homes are divided “50/50”, but that is not actually how it works.


The property division provisions of Ontario’s Family Law Act do not give married people any right of ownership over their spouses’ property or other assets.  If title to the matrimonial home is in your name, it stays in your name, subject to some claims your spouse can make if he or she makes significant contributions to that property.  Just being married does not mean spouses both own their home (or homes).   Watch the video below for more details on how Ontario Law divides the value of property, not the property itself, on separation. 



There are a number of special rights that attach to matrimonial homes (or homes).  One is that neither spouse can kick the other out of matrimonial home, or secure debt against a matrimonial home, without the other spouse’s consent or a court order. 


The reason people think they share the equity in matrimonial homes 50/50 is that, absent a marriage contract, the entire equity in a matrimonial home is always included in the value of assets that married spouses share.  With almost every other type of asset, spouses only share in the growth in the value during the marriage.  However, section 5(2) of the Family Law Act does not allow a spouse to get any credit for bringing a property into the marriage if that property was a matrimonial home on the date of separation.  So, without a marriage contract, spouses share whatever value is in their matrimonial homes. 

Ontario Family Law Podcast


8 - How your heart can get you into financial trouble - Step Children and Matrimonial Homes

9 - Property Division in Ontario After Marriage

33 - The Law of Marriage Contracts & Cohabitation Agreements

Spouses do not necessarily have to give their spouses “half the house” on separation. That spouse is entitled to stay in the house, and to have the equity included in property division, but, if a home is not jointly owned, there is not right to “half of it.”  It is just included in the assets to be divided.  So, if the spouse who does not own the matrimonial home has lots of savings or a pension to include in his or her assets to be divided, that may offset the value in the matrimonial home.  If the spouse who owns the matrimonial home had a lot of assets (other than the matrimonial home) on the date of marriage, his or her increases in net worth may be less than the other spouse, which would mean the home would not be divided.  The same may be also be try if the spouse who owns the matrimonial home has a lot of debt on separation may not have the increase in net worth that is necessary to owe the other spouse anything.


But, in short term marriages, there is a real danger that a spouse can walk away being entitled to half the other spouse’s home.  If the marriage was short, the couple may still live in the same house that one spouse brought into the marriage.  In that case, the spouse with the house has to share half the value of the house because there were almost no changes in each spouse’s financial situation and so nothing to offset the value in the matrimonial home when the spouses “Net Family Properties” are “equalized.”  Watch the video below or listen to this podcast, for more on the dangers posed by the law of matrimonial homes. 

  


Note that that the special rights for matrimonial homes only apply between two spouses.  Those rights regarding matrimonial homes do not apply to third parties, such as in-laws, landlords, business partners, or friends.   A spouse has no right under Family Law to stay in a home owned by his or her in-laws or another landlord.  You certainly do not become entitled to “half” of a matrimonial home that neither spouse owns.   People who think they should have rights with respect to a property that is not owned by them or their spouse should speak to a lawyer to see if any other type of law might help. 


Before or after a marriage, spouses should never assume that the matrimonial home will just be divided 50/50 until they have each spoken to a lawyer to figure out how Ontario Family Law will work in their family’s situation.  This is an area where making a mistake can cost hundreds of thousands of dollars.  There may be things a lawyer can do to make things fairer - especially before a separation.  But even after separation, there may be possibility of making the tricky legal arguments to adjust how property is divided either pursuant to section5(6) of the Family Law Act or the Principles of Equity. 


Guide to the Basics of Ontario Family Law (book)

Obviously, there can be a lot of money involved in any marriage or relationship and that means there can be a lot at stake financially.   Get the help of a lawyer immediately to avoid financial hardship.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5847, 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 Available on Kindle
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Availed on the iBookstore


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 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a top family law lawyer


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 money issues in divorce or separation.


Contact John Schuman


Are Paramedics Covered For Injury/PTSD If They Start a Shift Early?

paramedic 1


Many paramedics show up for their shifts up to half an hour early. They do this so that the crew they are relieving don’t get assigned a call in the last 5-10 minutes of the shift and then have to do 2 or 3 hours of overtime. Even paramedics who are not receiving another crew sometimes come to work early in case they are needed.  It is a kind gesture.  However, a recent story about a Quebec Paramedic shows that good deeds don’t go unpunished. 

 

Paramedic, Olivier Mireault, showed up early for his shift, with his partner.  The other crew was coming back from a call, but was not at the station.  At the start of the shift, paramedics check their vehicles and equipment.  That involves, amongst many other things, checking the radios.  Just before their shift is scheduled to start, Mireault and his partner hear a call that they are much closer to - leaving from station, they would get there before another ambulance.  They immediately advised dispatch and took the call.   When Mireault and his partner left the station, it was 13 seconds after the start of their shift.   The call was for Mireault’s mother and she was, unexpectedly, dead.  Nothing that the paramedics could do could revive her.    Mireault suffered PTSD as a result.   Quebec’s version of the WSIB denied Mireault’s claim because he accepted the call while he was “off shift” (by seconds) and the PTSD related to the death of a family member, not a workplace event.


According to Daniel Chouinard, president of the Fédération des employés du préhospitalier du Québec, which represents ambulance workers in the Province, the CNESST (the Quebec WSIB) often refuses claims involving paramedics and PTSD because the pretext is that it is part of their jobs. 


paramedics



Obviously, Ontario Paramedics are concerned that they too could find themselves without compensation or assistance if they are injured or suffer Post Traumatic Stress Disorder if they take a call before the start of their shifts.   The Law of Ontario is different from the Law of Quebec.


In Ontario, there is specific law surrounding PTSD and First Responders. Bill 163, Supporting Ontario’s First Responders Act, came into force in April, 2016.  You can learn more about the details of that law on this page.  As a result of that law, Section 14(3) of the Workplace Safety and Insurance Act reads “…a worker is entitled to benefits under the insurance plan for posttraumatic stress disorder arising out of and in the course of the worker’s employment…”

 

The legislation creates a presumption that PTSD diagnosed in first responders is work-related. Therefore, an employee doesn’t necessarily have to be “on the clock” in order to be entitled to WSIB benefits.


Once a first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process to be eligible for WSIB benefits is expedited, and there is no need for the first responder to prove a causal link between PTSD and a workplace event.


For employers of first responders, Bill 163 has significant consequences in terms of both the additional costs arising from expanded benefit entitlements, and the onus of rebutting the statutory presumption of entitlement, if the PTSD is not work-related. In some cases, this may be an heavy onus for employers to meet, especially when one considers the statistics: first responders are at least twice as likely as members of the general population to suffer from PTSD.  


Ultimately, the legislation in Ontario provides far more protection to first responders than does the legislation in Quebec. 


But would Bill 163 protect a worker such as Mireault, who responded to a call before he was on the clock? Is an individual considered to be working “in the course of employment” when setting up equipment, even before their scheduled shift?


In one decision heard at the Ontario Workplace Safety and Insurance Appeals Tribunal, the panel rationed that when a worker is performing an action related to his or her work, her or she is working in the course and scope of their employment: 

“The general rule in cases of travelling to and from work is that injuries sustained by an employee travelling to or from work off the premises of the employer are considered to have arisen outside the course of employment. Those cases in which travel to or from work is considered to be within the course of employment are exceptions to the general rule. The guiding principal in deciding whether a case presents facts which justify departure from the general rule is whether, due to the factual circumstances of the case, the worker has essentially entered the sphere of employment.”


Where the worker is using equipment or material supplied by the employer but receives no benefit beyond the use of the employer-owned equipment, (i.e.: the employees is not being paid), and when there is evidence that there is no requirement for the employer to provide such equipment or transportation, no obligation on the worker to use it and no remuneration such as wage or salary for travel time, the only possible criterion that could place the worker in the course and scope of employment would be the use of the equipment itself. So, by using the ambulance and the radio with the service’s blessing or permission (Mireault was not charged with stealing the ambulance), a paramedic would be acting within the course and scope of the paramedic’s employment. 


In another decision, the Appeals Tribunal held that whether or not the employer is exercising control over the worker, and/or whether the worker is performing any work for the employer at the time of injury, are additional factors that the Tribunal must consider when determining whether or not the worker was “in the course of employment.”


Based on the above line of reasoning, because Mireault was using equipment supplied by the employer (the radio) at the time he responded to the call, it is likely that he would receive WSIB benefits. However, Ontario’s PTSD law for First Responders is relatively new.  As such, neither the Appeals Tribunal, nor the Courts, have released decisions about what the “Course and Scope of Employment” means in PTSD cases.  It does seems inconsistent with Ontario’s new law to deny a paramedic WSIB coverage in these circumstances, so a getting a similar decision in Ontario seems unlikely but not impossible.  There will also be the question of whether the employer can rebut the presumption that PTSD is related to a job because it was the result of the death of a family member, which was not caused by the employees job. 

John Schuman, paramedic


This blog was written by John Schuman, who is both an Ontario Lawyer and has been an active paramedic for almost 25 years. John has knows about how the law affects paramedics and other first responders.  Watch the below video on legal issues affecting first responders or listen to the Ontario Family Law Podcast on special issues in Family Law for first responders.





If you are a first responder facing legal issues, contact a lawyer who understands your situation and where you are coming from.  Get in touch with John Schuman by emailing him, calling 416-446-5080 or filling out the contact form below.  As noted in the video, in addition to our understanding of your situation, we offer substantial discounts to first responders in many areas of law.



If you found this page helpful or interesting, please feel free to share it on your social network using the buttons below.  Feel free to comment on this page in the comments section at the bottom of the page. 


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Can Marriage Contracts Force Spouses to Pay Money For an Affair?

 Spouse Caught Cheating


Many spouses get marriage contracts, before or after the wedding, to provide predictability on separation and to make the marriage, and any separation "more fair.”  Common law couples use “cohabitation agreements” to do the same things.  The video and podcast below explain marriage contracts and cohabitation agreements in more detail.  Frequently, they are used to set out how the spouses will deal with money and their homes during the marriage or relationship and how spousal support and property division will work in the event of a separation.  Some time spouses want the way money is addressed to change if one spouse is unfaithful - some even want a “fine” paid to the innocent spouse immediately.  Such clauses in a marriage contract or cohabitation agreement are called “lifestyle clauses”.  They are very common among celebrities. 




In some jurisdictions, lifestyle clauses can go pretty far, such as imposing a weight requirement for a spouse.  Such clauses can seem pretty extreme.  But, in an error where the law says there is “no fault divorce”, ultimatums about infidelity are among the most popular lifestyle clauses in domestic agreements.  Obviously, such clauses raise questions about the trust the spouses have for each other, and whether fidelity is the best way to determine a spouse’s financial well-being after separation. 

 

There’s been quite a few celebrity couples who have made use of this specific lifestyle clause. One for example is Justin Timberlake and Jessica Biel. Biel reportedly gets compensated at least $500,000.00 if Timberlake cheats on her.  This is an example of a unilateral cheating clause, but other couples are entering marriage contracts with clauses that have penalties if either spouse cheats.  

 

But these clauses aren’t just for celebrities – the general public is making use of them as well. And there are some sensible reasons behind this. As ‘fault-based divorce’ is no more. Section 5(1) of Ontario’s Family Law Act makes the division of property based on math not conduct, and infidelity is not one of the grounds on which property division cane be changed under section 5(6).  Section 33(10) of Ontario’s Family Law Act specifically says that the conduct of one (or both) spouses is not a factor in setting spousal support.  Under the Family Law legislation, adultery does not affect how money is divided on separation.


However, section 52 of the Family Law Act (section 53 for common law couples) says that how both property division and spousal support are determined can be change by way of a marriage contract or cohabitation agreement.  Further, section 56, with sets out what terms are illegal in marriage contracts and cohabitation agreements, does not prohibit clauses that punish infidelity.

Ontario Family Law Podcast

 

Many couples will include an infidelity clause in their marriage contract to 1) ensure their financial well-being and 2) prevent (or try to prevent) their spouse from cheating.   

 

33 - The Law of Marriage Contracts & Cohabitation Agreements

4 - How to Have an Enforceable Marriage Contract

Reportedly, when Elin Nordegren was contemplating getting back with Tiger Woods she wanted an infidelity clause inserted into their prenup with a $350 million financial penalty for Woods if he were to ever cheat again.

 

However, where lifestyle clauses are not carefully drafted, there can be problems.  The most obvious is when the marriage contract does not specify exactly what is meant by “cheating”? Are scandalous text messages going to count? Does there have to be actual nudity?  Another problem is what is the standard of proof to establish that there was cheating.  If the contract is not clear, then separated spouses can end up in lengthy, expensive litigation with no guaranteed outcome. 


There is also a question about whether a Family Court Judge, used to a the “no-fault divorce” system would enforce an agreement that imposed consequences for fault.   A guilty spouse challenged whether a lifestyle clause was even legal in the 2002 California case, Diosdado v Diosdado.  In that case, the Court of Appeal for the Second District held that the clause in the “Martial Settlement Agreement” (the equivalent of a marriage contract)  was not enforceable because it was contrary to the public policy underlying California’s no-fault divorce laws.  Although this case is not binding on Canadian Family Courts, there is a similar approach to Divorce in Canada.  


However, contrary to the Diosdado decision, other court decisions from the United States have found the clauses to be enforceable, so long as the infidelity can be proven and the domestic agreement does not violate state law. 

 

With regards to Canada, the D’Andrade v Storage decision provides some insight as to how Canadian courts are likely to respond to an infidelity clause in a marriage contract or cohabitation agreement. In that case, the court rejected the argument that an affair during the negotiations of a marriage contract, that was negotiated after the parties were already married, would void the agreement. The court stated:

In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement…

…it is important to consider the purpose of the contract in question. It is not to enforce personal obligations such as the duty to remain faithful or the commitment to remain in the relationship. While people may feel that these obligations are part of the marriage “contract,” these are not the obligations that domestic contracts are meant to deal with.


There has not yet been a reported Canadian Case that has upheld or invalidated a lifestyle clause in a marriage contract or cohabitation agreement.  While the Family Law and Divorce statutes do not prohibit such a clause, they do seem to run against the general “no fault principals” of those same laws.  Until there are court decisions about such clauses, it is not clear whether they will be enforced if a couple separates in Canada.  Still, as such clauses are not prohibited they can be included as a good family lawyer will draft a marriage contract in such a way as to ensure that the rest of the contract survives, even if the lifestyle clause does not.    It will always be difficult for a cheating spouse to convince a judge that he or she should be able to invalidate a clause to which he or she freely agreed.   Some judges will see that as “cheating” again.

Guide to the Basics of Ontario Family Law (book)

If you need more information about how to protect your assets or wealth during your marriage or common law relationship and after separation, pick up this best selling, easy-to-understand  book on the Basics of Ontario Family Law, which has sections that fully explain marriage contracts and cohabitation agreements and an extensive explanation of what will happen if you do not have one of these contracts for your relationship.  The book is not only available as paperback, but also as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  

Availed on the iBookstore
Kobo Logo
Guide to the Basics of Ontario Family Law Available on Kindle

                    

You may also want to listen to the Ontario Family Law Podcast episodes on:


One of the rules for having an enforceable marriage contract or cohabitation agreement is that both sides must speak to a lawyer and get independent legal advice one the contract. To find out whether contract is right for you, 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 416-446-5847, 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 money issues in divorce or separation.


Contact John Schuman


Am I Responsible For My Spouse’s Bad Investments If We Divorce?

Calculating Family Finances


On the breakdown of a marriage (but not a common law relationship), spouses "equalize" their assets and liabilities and share, with some exceptions, the growth in their net worth during the marriage.  The video below explains “Equalization of Net Family Property in greater detail.


Many separating spouses can feel that the equalization process can be unfair - particularly where one spouse has spent money on stupid things, gambled it away, is getting a windfall due to the division of the matrimonial home, or it has been a very short marriage.  In these, and other situations, dividing up all property "50/50" can seem unfair. 

Section 5(6) of Ontario's Family Law Act does allow a Court (or Family Arbitrator) to deviate from the usual equalization of Net Family Property and divide the family's wealth another way.  It accommodates all of the scenarios above and a few others.  

However, the test that the Family Court (or arbitrator) has to use is not whether the normal "equalization" would be unfair. Section 5(6) says that to deviate from the normal equalization, the Court must be "of the opinion that equalizing the net family properties would be unconscionable."   "Unconscionable" is much more than just unfair.  The case law says that it means that the usual result must be "shocking to the conscious of the court."   That is much more than just unfair.  One spouse spending a lot of money on an affair is not enough.  A spouse spending too much is not enough.  Justice Jennings put it this way

The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable.

Ontario Family Law Podcast

8 - How your heart can get you into financial trouble 

13 - Spousal Support in Ontario and Canada

30 - Entitlement to Spousal Support

33 - The Law of Marriage Contracts & Cohabitation Agreements


Specifically on the issue of investment losses, the Courts have held that improvident (stupid) investing is not enough to justify an unequal division of net family properties.  The investment must have been made recklessly or in bad faith.  That means the spouse must have known, or should have known, that the investment would become worthless. Risky investing is not enough. The spouse must have acted deliberately to lose money or known that he or she was likely to lose money.

That can definitely seem unfair - especially when one spouse is a conservative investor and one spouse is a high risk investor, or where one spouse's savings have done really well and the other spouse's investments have done poorly. But, fairness is not the test. There are many ways that Family Law operates that people think are unfair, especially with regard to money.  This podcast explains some of the bigger ways to lose money in Family Law.  Regardless of how the law works, when spouses have different opinions on financial matters, that can cause stress in, or even cause  the end of, their marriage.

Where spouses have significant differences of opinion about money, they should consider getting a marriage contract.  Spouses can get a marriage contract at any point during the marriage.  They can keep a marriage together if one spouse wants to do something risky and the other one wants financial protection.  The video below explains how to protect yourself  and save your marriage with a marriage contract.




But, if spouses are already separated because of money issues, it is likely too late for a marriage contract. Once separation occurs, things crystallize so it is difficult to fix things. The best time to see a Family Lawyer about financial problems in a marriage is before separation. The video below explains some other common family law mistakes that a family lawyer may be able to fix. 



Still, even after separation it is worth speaking to an excellent Family Law Lawyer.  It may be possible to correct an unfair financial situation  through spousal support, as section 15.2(6)(a) of the Divorce Act allows a judge to address the economic consequences of the marriage and its breakdown through spousal support.  That can be through either awarding spousal support or reducing an amount of spousal support to reflect how the marriage affected the spouses financially.   


Guide to the Basics of Ontario Family Law (book)

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 this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a top family law lawyer


Guide to the Basics of Ontario Family Law Available on Kindle
Kobo Logo
Availed on the iBookstore

Obviously, there can be a lot of money involved in any marriage or relationship and that means there can be a lot at stake financially.   Get the help of a lawyer immediately to avoid financial hardship.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5847, 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 money issues in divorce or separation.


Contact John Schuman



Do Ontario Private Elementary Schools Follow the Same Laws and Standards as Public Schools?

Ontario Private / Independent School

Many parents send their children to Ontario Private (or Independent) Schools because they want to make sure their child gets a “superior education.”  There are many private schools that do offer very good or excellent education or that have programs that are particularly suited to certain students.  However, that is not guaranteed.  When it comes to private education, especially for elementary students, Ontario is really a “buyer beware” market and parents must to their research.

Parents assume that because a school operated in Ontario, it is subject to the Education Act.  However, only very small parts of the Education Act apply to private elementary schools.  Section 1(1) of the Education Act requires that private schools:

  1. Provide instruction any time between 9 a.m. and 4 p.m. on any school day
  2. Have five or more students;
  3. Have students of compulsory school age
  4. Provide instruction in any (but not necessarily all) of the subjects of the elementary or secondary school course of study.

Beyond that, there are not many standards that apply to private elementary schools.  Page 7 of the Ministry of Education’s Private Schools Policy and Procedures Manual contains the following passage:

How are Private Schools Different from Publicly-Funded Schools?

In Ontario, private schools operate as businesses or non-profit organizations, independently of the Ministry of Education. Private schools do not receive any funding or other financial support from the Ontario government.

The Ministry does not regulate, licence, accredit or otherwise oversee the day-to-day operation of private schools.

Private school operators set their own policies and procedures regarding the operation of their schools, and are not obliged to comply with the policies and procedures that school boards must follow. For example:

  • Private schools are not required to use the Ontario curriculum unless they are seeking authority to grant credits toward the OSSD. Those that do may also offer other content beyond the Ontario curriculum.
  • In Ontario private schools, principals are not required to have Ontario principal's qualifications, and teachers are not required to be members of the Ontario College of Teachers (OCT) or have OCT certification.
  • Private schools are not authorized to deliver correspondence courses, which are delivered through the Independent Learning Centre (ILC). However, a private school can host the student taking such courses.
  • Private schools may, but are not required to, communicate student achievement using either the Elementary Provincial Report Card (for Grades 1-8) or the Provincial Report Card (for Grades 9-12).

 

When it comes to private elementary schools, there are very few rules that  the school must follow.   Most of the requirements are set out in Section 16 of the Education Act but those rules relate mostly to things that few parents care about, such as giving the Ministry notice of the intention to operate a private school, and providing the Ministry with statistical information about the number of students, staff and courses offered.  There are more rules for private schools that want to award Ontario Secondary School Diplomas, but not for elementary schools.

no bullying

There are no requirements that private elementary schools offer a minimum standard of instruction, or follow any requirements with regard to things like anti-bullying, discipline (including suspension or expulsion of students) or teaching any particular curriculum or skills.

Many parents have been surprised to learn that private schools can kick out their child without any good reason or without any process because that is what the parents’ contract with the school says.  For more on school suspensions or expulsions, what this video:


The Schools’s Standards Are In The Contract

teacher at private elementary school

Almost all the standards that a private elementary school has to follow are in its contract with the parents.  Parents must look at the contract carefully and ask questions.  If the contract does not required Certified Teachers, then the school does not have to provide them. Parents can only complain to the college of teachers if the teacher or principal is a member there.  If the contract does not require the school to teach certain subjects, then the school does not have to do so.  If the contract does not say that the school will follow the Ontario Elementary School Curriculum, then the school probably does not.  Most private school contracts include a Code of Conduct, which may have no resemblance to the Provincial Code of Conduct, but sets out how students will be disciplined and to what extent the School has the right to impose any form of discipline it wants.  Some school contracts specifically allow the school to do whatever it wants.  The those cases, the school is subject only to the criminal code, or the right of a Children’s Aid Society to intervene because a “person having charge of a child” has harmed a child or put a child at risk of harm.

Ontario Family Law Podcast

22 - Children's Right's in Ontario Schools

Additionally, although private schools are not required to follow the procedures set out in the Education Act  and accompanying regulations for exceptional pupils, they are required to follow the Ontario Human Rights Code and so cannot discriminate against students and must accommodate special needs to the point of “undue hardship” – unless the contract with parents requires the school to provide specific accommodations.  This podcast describes the rights of students with special needs.


Still it remains very important that parents do their research before enrolling their child in a private school. They need to be clear what sort of education their child will receive and by whom.  They should also know what protection from bulling or what special assistance their child may receive.  It is also important for parents to know what the School’s Code of Conduct is, how children are disciplined and precisely what can cause their child to be removed from the school.  All of these things should be included in the contract with the school, otherwise, the school is not legally required to follow any specific rules when educating a child.

Obviously, it is also important to find out about the school’s reputation and review references or testimonials – as people would do with any big purchase.  The Ministry of Education has very little power to assist dissatisfied parents.   The most appropriate remedy can be suing the school for breach of contract.

If you are experiencing difficulties with a private school, it is important to figure out what rights you may have, and how the law might help you. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-5847, 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 children’s issues in divorce or separation.

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How Do I Change My Child Support and Visitation/Access?

child-access-toronto


Things change for families and separated families.  Parents change jobs, kids get older and their interests change, financial circumstances rise and fall.   Especially when it comes to kids, Ontario Family Law recognizes that arrangements change over time.  When there has been a significant change in the circumstances of the child or the parents, everything related to a child can change - child support, parenting, custody or access.   The idea is that the changes should be in the child’s best interests, although what is possible may be limited by finances.  


Changing Child Support 

There are three ways to change child support:

Changing child support online
  1. If both parents agree on the change - either because one or both parent's income has changed or because the children’s living arrangements have changed, the parents can draft up an “amending agreement” to their separation agreement or file a Consent Motion to Change Child Support at the court, where there is a court order setting the child support amount.  It can be dangerous for a child support payor to reduce child support, even if the other parent agrees, without a formal agreement or court order.  Without that formal order or agreement,  the other parent can go back and enforce the last formal agreement or court order and support paying parent could end up owing a lot of money - all of the alleged arrears and interest.
  2. Parents can use Ontario's Online Child Support Calculation Service to adjust child support as long as one parent does not object (a parent must actively object), and neither parent falls into one of one of the exclusions.  parents cannot use the service if they have  shared custody,  the support payer does not earn most of his or her income from a salary, or the support payer earns more than $150,000.00 per year, or if a child is 17.5 years old or older and is still entitled to support. In these situations, child support may be more than a simple calculation. But, if where child support will be a simple calculation, for an $80 fee paid by each parent, the Ministry of Finance will get both parents’ tax returns and do the support adjustment and advise the Family Responsibility Office of the change. 
  3. If neither of the above options work for you, then you will have to bring a Motion to Change Support in Family Court.  The procedure to change support, which is found in Rule 15 of the Family Law Rules, is usually simpler than an initial divorce of Family Court Application.  It may involve 2 appearances or less. Either parent can also use this process to change the support paid under an separation agreement if the other parent does not agree.  To learn more about how to do this, listen to this podcast and watch the video below:
Ontario Family Law Podcast

10 - Child Support - Who Pays and How Much?

32 - How to Change a Support Order

35 - Resolving Children's Issues Outside of Court

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


If you are not sure whether you should ask to change child support, listen to this podcast or watch the video below on how to calculate your child support obligation.  Or you can speak to an experienced family lawyer about your situation and figure out which option works best for you and whether you can save on legal fees by using unbundled services


Changing the Parenting Schedule


Changing "visitation" or the "parenting schedule" may not be as straightforward as changing child support.  Obviously, if  parents can agree on a change to suit the children, that is what is best for the children.                                                                                           When parents do not agree do not agree, then they should consider using a parenting mediator, or one of the other lower-conflict ways of resolving parenting issues. Finding non-confrontational ways to resolve parenting issues, including the parenting schedule, is much better for the kids.  But, if either parent is being unreasonable, or not acting in the children’s best interests, then Family Court may be the only route to protect the children and get the parenting arrangement that is best for them.  If the children might be harmed, of if one parent is not seeing them at all, that concerned parent may be able to get an Emergency Custody Order. Otherwise, the same "Motion to Change” procedure that applies for support would apply to change the parenting schedule, but with that different focus (and slightly different court documents as the parents would have to file Form 35.1 Parenting Affidavits instead of short form financial statements). 

 


In making any decision about children, judges only do what is in the child's best interest and have factors to consider in making that determination.  Since those factors are what a judge will use, parents should consider them too in deciding what kind of visitation or what kind of parenting plan to seek.  There are many different types of parenting arrangements after separation and what works best depends on the child. In addition to the podcasts above, watch the video below for a description of each type of parenting arrangement after separation.  If you are not sure, or have concerns, then it is important to talk about your specific situation with a top family law lawyer.  That will ensure you are doing the best thing for your children.



Guide to the Basics of Ontario Family Law (book)


You can get a lot more information about Ontario Family Law issues, including a further explanation of child support, family court, child custody and 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 specialist family law lawyer

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Guide to the Basics of Ontario Family Law Available on Kindle


Anytime a  parent has a concern about parenting, child custody, child access or child support, it is important to make the right decision.  To ensure that you do, see a family lawyer right away to know your options and how best to proceed. Contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-5847, 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 children’s issues in divorce or separation.


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My Ex and I Did Our Own Separation Agreement. Is He Right That It Doesn’t Matter and He Can Get More?

home made separation agreement


Although avoiding using  a lawyer to help with a separation agreement may seem like a way to save money, many people find it costs them more in the end.  Lawyers make sure that the separating spouses have a valid and enforceable separation agreement.   If you do not follow the rules to make sure your separation agreement, then you may not have a separation agreement and all.  Without an enforceable separation agreement, either spouse may be able to come back and make claims against a spouse who thought everything was settled.  The spouse may have moved on with his or her life and made big financial decisions based on the terms of the separation agreement.


When a separated or divorced spouse unexpectedly falls on hard times, one of the first places they look is to their ex, especially when the separation agreement may not hold up.

 



That said, when it comes to claims for division of property after a marriage (it is very different for common law relationships) there are strict time limits in which a spouse can make a claim.  If those time limits have expired, then those claims are “dead” and it is too late for either spouse to go after money that way.  Section 7(3) of the Ontario Family Law Act says that a spouse cannot bring a claim for equalization of net family properties more than 2 years after the date of divorce or six years after separation, whichever is first.  So, regardless of the validity of a separation agreement, neither of the former spouses can get an equalization payment if they have been divorced for more than two years or separated for more than six.  It is important to remember that the date of separation may not be the date when one spouse moved out. It is the date when the spouses stopped acting like spouses of each other.                                                                                                                                        

Ontario Family Law Podcast

30 - Entitlement to Spousal Support

1 - Separation and First Decisions


There is no time limit for a separated spouse to make a spousal support claim.  However, the longer it has been since separation, the more difficult it may be to prove entitlement to non-compensatory spousal support. However, the inability to make a property claim may increase the amount of compensatory support.  Ensuring you have an enforceable spousal support release is one very important reason to see a lawyer about your separation agreement.  Spousal support claims can be worth hundreds of thousands of dollars over time. 


If your ex is saying you do not need a lawyer for your separation agreement, that should be a red flag that you should book at least a consultation with a lawyer to find out why your spouse doesn’t want you to get legal advice. If your spouse says your separation agreement (or your marriage contract) is not valid, then you really need to speak to a lawyer if you want to see if there is a way to save that agreement. Contact Certified Specialist in Family Law (and author of the book below), John Schuman, by emailing him, calling 416-446-5847, 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 (book)

  

You can get a lot more information about Ontario Family Law issues, including support and property division and how to have an enforceable separation agreement 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.

Guide to the Basics of Ontario Family Law Available on Kindle
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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 ex-spouses coming back to get more after settling a divorce or separation. 


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My Girlfriend Won’t Let Me Care For Our Newborn. What Can I Do?

Baby and Father









Unfortunately, young mothers refusing to allow their child's father to be involved in their young child's life is a very common situation.  Young mothers often feel that they need to protect the child and only a mother can provide appropriate care for an infant or young child.  (There are also situation where new fathers are the primary parent to a newborn and they are concerned about letting the child see “mom”, but that situation is currently less frequent due to the importance of breastfeeding.)  This is an unacceptable situation.  Newborns and young children need to form relationships with both parents.  If that is not happening, if is important for the excluded parent to seek help from a top family lawyer to make things right for the child and the parent.

parents with baby


The idea that one parent should parent a child, even a newborn, alone is not consistent with the current research in social science and child development. Even at a very young age, children benefit from having both parents actively involved in their lives.  Most family court judges recognise this.  One parent refusing to allow the other parent to have any contact with a young child is a situation where it is possible to get an
 emergency family court order.

It is very important for children to have frequent, meaningful contact with both parents.  That means both parents should be involved in feeding, bathing, and other parenting tasks (not just playing), at minimum, several times a week.  Due to young children's short memories and perception of time, frequency of contact is very important - more important than long periods of time. Although young age is not necessarily a reason why a child should not be spending overnights with both parents. 

What is often best for a  young child, even a newborn, is to allow that child to develop a secure attachment to both parents through having both parents actively and frequently involved in the child’s care. Denying a child contact with one parent, or exposing the child to a lot of conflict, especially at a young age, can lead to long term problems.
 
For all children, it is important  to keep tensions down and avoid conflict down between parents, because conflict between parents is very harmful to the child.  To accomplish that goal and to provide the best hope for a joint custody situation, it is best for parents to first try parenting mediationwith a parenting professional, before going to court.  The parenting professional can help the parents understand the children's needs and help them work out a parenting plan that best suits the child's needs at each stage of development.  If the other parent will never agree to mediation, it is still important to propose it because judges get angry at parents who refuse to try to work out things for the kids without a fight

Ontario Family Law Podcast

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


Before a parent goes to court, it is important for that parent to understand that judges base decisions only on what is in the child’s best interest.  There are several factors that judges consider when deciding what is in a child’s best interest.  To succeed in court, it is important for a parent to have evidence that what they want is in the child’s best interest.  To better understand what evidence is, and why it is critical to have good evidence in family court, watch the video below.

 
You can learn more about the family court process, how to start a family court proceeding, and what to do at each step by listening to the Ontario Family Law Podcast episodes on the Family Court process.  


It is also important for separated parents to understand the difference between different types of parenting arrangements and when each will work best for the child. That will help them come up with the best parenting plan for the child or, if they have to go to court, to know what types of orders the judge will be inclined to make. The video below explains the different types of custody and the different types of parenting schedules, and when each works best.



Guide to the Basics of Ontario Family Law (book)
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But, if a parent is not seeing a child at all, or is not having meaningful contact with a child, then that parent should see a family lawyer right away to know your options and how best to ensure the child has the best possible relationship with both parents. Contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-5847, 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 further explanation of child custody and 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. 


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 for newborns and very young children. 


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Important Tax Information for Parents with Shared Custody

tax returns


A recent Canadian Tax Court Case has important implications for parents with shared custody and the way child support is paid and collected.  The decision in Harder v. The Queen changes the way parents with shared custody must deal with child support.   It is likely that most parents with shared custody will have to change their child support arrangements and the Family Responsibility Office will have to change its procedures to prevent running into tax problems.


How Shared Custody, Child Support and Taxes Used to Work

The Supreme Courts set the rules for child support in shared custody in it decision in Contino v. Leonelli- Contino.  At paragraph 49 of that decision, the Supreme Court said that the starting point for calculating child support in shared custody, which persists unless it results in an unfair sharing of the costs of raising the children, is that the parents calculate what each of them would owe under the Child Support Guidelines Tables and set those amounts off against each other.  In the majority of shared parenting situations, consistent with the Supreme Court’s decision, parents agreed to use set-off the child support amount such that the parent with the higher income made a child support payment that reflected the set off amount.


Part of the basis of this set-off approach is that each parent gets some of the tax benefits associated with caring for the children in a shared-custody situation. The amount of child support under the tables takes into account the tax deductions/benefits available to parents for having children.


The CRA’s policy on tax credits and benefits for parents in shared custody situations states that when parents share custody of their children, they must rotate the benefits/credits for the children such that each parent gets the tax benefits for the children for six months of the year.  That policy was last updated in July 2015. 


As  a result of this policy, parents with shared parenting set off support against each other and each claimed half the tax benefits for the children for whom they had shared custody.


The Significant Changes to Child Support to Avoid Tax Problems

judge-in-courtroon

According to Justice Block in his tax court decision in Harder v. The Queen,  the Courts, Family Arbitrators, Family Mediators, Family Lawyers and separated parents did not properly consider the Section 118(5) of the Income Tax Act in making the above described child support arrangements.  That section of the Income Tax Act states that a person who has to pay support for a dependent cannot claim tax deductions or benefits with respect to that dependent.  Children are dependents.  So, that means that, notwithstanding the Canada Revenue Agency saying that benefits must be rotated in shared custody situations, a parent paying child support may not claim those benefits. 


Based on the Supreme Court’s decision in Contino about setting off support in shared parenting, and the CRA’s policy that benefits be rotated in shared parenting, it seemed logical to interpret the “set-off support” paid in shared custody situation as parents notionally paying each other, but simplifying the logistics of that by having the payments flow only one way - from the higher income parent to the lower income parent.  This is how child support orders and agreements were written and how the FRO processed support.


However, in Harder v. the Queen, Justice Block stated that interpretation was wrong under tax law.  Where parents set-of child support amounts, this resulted in only one parent receiving support and one parent paying support.  Under the wording of section 118(5) of the Income Tax Act, the parent paying support could not claim the benefits and credits in relation to the child or children for whom that parent was paying child support. 


According to the decision in Harder v. the Queen, the correct  thing to do is for each shared custody parent to actually pay the full table child support amount to the other parent, so that the full table support is flowing both ways.  The Family Responsibility Office should collect the full child support amount payable by each parent and pay it to the other parent, essentially having the support between the parents cross paths as doing a “set off” will have negative tax consequences for at least one of he parents.


There are some obvious practical problems with the approach set out in Harder v. the Queen.  For example, a lower income parent may not have the funds available to make the support payment until receiving the support from the higher income parent.   That would cause one of the support payments to “bounce” and one parent to “over pay” by not getting the support back to which he or she is entitled.   It will also dramatically increase the cost for the Family Responsibility Office, and the support collection agencies in other provinces, to enforce child support in shared parenting arrangements.  


However, as Justice Block points out, this complicated and tedious approach to child support in shared parenting is required by section 118(5) of the Income Tax Act and it is the way things must be done until Parliament changes the law.


Ontario Family Law Podcast

32 - How to Change a Support Order

Justice Block’s decision in Harder v. the Queen means that most parents with shared custody will have to change what they are doing for child support.  It may also mean that they have to change their child support order or separation agreement to reflect how the Income Tax Act requires child support be paid so that both parents can get the tax benefits related to raising the children.  The Ontario Family Law Podcast and the video below give some general advice about how to change a support order or agreement.  However, the rules for separation agreements require that separated parents and spouses consult with a family lawyer, and they will probably want speak to a lawyer who understands both family law and tax law to make sure the agreement or court order does what they expect. 


Obviously, parents who have just separated and who are planning on sharing custody of their children will want to make sure that their child support order or separation agreement complies with the requirements to maximize the tax relief for them.  Again, they should contact an excellent family lawyer to make sure that happens.


Guide to the Basics of Ontario Family Law (book)

To learn even more about child support, get a copy of this  easy to understand book on the basics of Ontario Family Law as a paperback, or download it immediately as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.    

Available_on_Kindle
Available on Kobo
Available in the iBookstore


Obviously, there can be a lot of money involved in child support cases  and only could really help a child with his or her needs (or not).  You need to get the help of a lawyer immediately to avoid financial hardship.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5847, 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.


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Do I Have to Pay Half of My Child’s Dental Bill on Top of Child Support - Even Though my Ex Has Benefits?

child visiting the dentist


Separated Parents do have to share some expenses for their children on top of base child support. Section 7 of the Child Support Guidelines sets out what expenses parents have to pay in addition to the monthly child support payments.  Those expenses are called “Section 7 Expenses” or “Special and Extraordinary Expenses. It is important to understand Special and Extraordinary Expenses as parents frequently pay to much or too little because they do not understand how the Child Support Law works in relation to children’s expenses.  

 

Health care and dental expenses are ones that may be shared on top of child support.  To figure out how much extra is owing, it is important to look at the wording of the Child Support Guidelines. Section 7(1)(c) says that the expense that may be reimbursed are:

 

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

 

So, parents only share the portion that exceeds insurance reimbursement.  Further, section 7(3) says:

 

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. 

 

In order to figure this out, you are entitled to see whether the other parent has submitted the expenses to his or her (or a new spouse or partner’s) insurance, and what reimbursement he or she has received. 

 

Ontario Family Law Podcast

11 - Child Support's Special and Extraordinary Expenses

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

In addition, if your ex can claim the uninsured portion of the dental expenses as medical expenses on his or her taxes, you only have to share the net cost after taking into account the tax credits available to your ex. (If he or she choses not to claim them, that is not your fault.)   You need your ex’s tax return to figure out the amount of the deductions or credits, which is why section 24.1 of the Child Support Guidelines requires parents to exchange tax returns annually.  If the expenses have been partially paid by a benefits plan, you will see that by the reduced amount claimed on the tax return. 

 

Also, if your ex’s new partner or new spouse is claiming the children through a benefits plan, then it may be that he or she is treating the children as his or her own.  If the new partner stands in place of a parent, then the Child Support Guidelines may require that the expense be shared 3 ways.  Listen to this podcast for more on that


Child support law gets complicated and people frequently make mistakes that result in significantly too much child support or way too little child support being paid.  To make sure child support is right in your circumstances, it is often worthwhile to speak to a family law lawyer.  Certified Specialists in Family Law are a good choice as they are recognized for their expertise on these issues.  If you are the parent seeking or enforcing support, any legal fees you pay may be tax-deductible.   Contact Certified Specialist, John Schuman, by calling 416-446-5847 or emailing him.

Guide to the Basics of Ontario Family Law Best Seller
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To learn even more about child support, special and extra-ordinary expenses, retroactive child support, and all the possible claims for support, as well as most other family law issues,  get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.

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Guide to the Basics of Ontario Family Law Available on Kindle


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 Pintrest buttons at the bottom of the page.


Contact Us: 

 


© John P. Schuman 2012-2017