Family Law Blog

JOHN SCHUMAN'S FAMILY LAW BLOG

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

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

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


Book - Guide to the Basics of Ontario Family Law

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


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

If I Cash In My Stock Options 10 Years After Separation, Will My Ex Get More Spousal Support


Cashing in stock options

Family Law questions about spousal support are never quick to answer.  Neither are questions about stock options in the family law context.  Your question does raise a number of important issues surrounding spousal support that people often misunderstand.  (Getting spousal support law wrong is a frequent family law mistake.)

 

To determine whether you are entitled to spousal support based on your spouse’s stock options, it is necessary to go over the basics of the law of spousal support.


 


Spousal Support is not like child support.  While there are Spousal Support Advisory Guidelines, they are very different from the Child Support Guidelines in many ways.  A couple of those differences are that:

  1.  Spouses are not automatically entitled to spousal support the way that children, through their parents are automatically entitled to child support.  Entitlement to spousal support, can be complicated issue, which is discussed in this podcast episode.  Even if a person meets the definition of “spouse” under the Divorce Act or Family Law Act, that person may still not be entitled to support.
  2. Spousal support is not just based on income.   The factors that decide whether a spouse is entitled to support also influence how much spousal support to which a spouse may be entitled and for how long.  It is not just a question of looking at table and seeing the amount of support payable for the spouse’s income, which is how child support works.   The Spousal Support Advisory Guidelines produce a range of figures for support and range of time for how long support should be paid.  How much and how long are determined by looking at the factors influencing entitlement.  And, if a spouse does not meet the legal tests for entitlement, the calculated figures mean nothing as the proper amount of support is $0.
  3. Unless required by a court order or separation agreement, spousal support does not automatically change, even when the spouses financial situations’ change.
Ontario Family Law Podcast

13 - Spousal Support in Ontario and Canada

30 - Entitlement to Spousal Support

The factors that determine entitlement to spousal support are set out in section 15.2(6) of the Divorce Act (for married spouses) and section 33(9) of the Family Law Act (for common law spouses).  These are set out in some detail the podcast. But, to summarize, While the wording is quite different, spousal support under either piece of legislation can be based on one or more of three bases for spousal support (sometimes called types of support):


  1. Compensatory Support – support that is designed to compensate a spouse for the  services provided during the marriage/relationship and the income or other wealth that a spouse gave up for the marriage/relationship (e.g. leaving a job to look after the kids and the spouse).
  2.  Non-Compensatory Support – support that is designed to give a “soft-landing” when a spouse will not be able to maintain the same lifestyle after a short marriage/relationship, or try to maintain the lifestyle after a long marriage or relationship.
  3. Contractual Support – where the parties agree that a certain amount of spousal support ought to be paid for a period of time.  This is usually set out in a marriage contract or cohabitation agreement.  However, spouses who do not fully understand entitlement do may obligation themselves to pay spousal support in a separation agreement that they would not otherwise have to pay because their spouse does not meet the test for entitlement.

 

All of this matters because, as noted above, spousal support does not automatically change with a support payer’s income.   In some cases, changes to support will not be permitted by the support order or separation agreement. 

 

Even where a support order or agreement does permit a change in support, the support recipient must establish that he or she is entitled to an increase in spousal support.  Such an increase is based on two sets of factors:

  1. There is link between the increase in the support payer’s income and the marriage or relationship, and
  2. There is an entitlement to increased support based on the three bases set out above.

 

The issue of stock options highlights the first factor. 

 

Stock options are performance incentives that are tied to the performance of the employee’s company.  Instead of being paid entirely by salary, the employee “earns” the right to buy shares in the company at a certain price.  If the company does well, then the employee can later buy the shares at a price that is less than they are worth and sell that at some point for a profit.   The income that an employee earns through stock options appears on that employee’s tax return at the time he or she sells the stocks, not at the time he or she earns the options.  In addition, it usually appears as a taxable capital gain rather than a salary.  (True stock options will always show up as a capital gain).


reporting stock options on tax returns



When calculating support, good family lawyers, know that stock options income should be included in income for calculating support at the time the support payer earns the options and not when the support payer sells the stock and pays the tax.  It is possible that the support payer may never sell the stock and may pass it onto heirs - or at least wait until a support obligation is over before cashing them in.  Calculating what income should be used when stock options are an issue is unbelievably complicated and anyone who has a stock option issue in his or her divorce or separation needs to speak to a lawyer who knows about them.


If the stock option income was included in the calculation of your spousal support, then the cashing in of the stock options should not affect your spousal support because it was already factored in to the amount you receive.


If the stock option income was not included in the calculation of your spousal support payments, then when you  earned those options is very important:  

  • If you earned the options during your relationship, then they will be linked to your relationship and that gives your ex a basis to ask to share in the increased income. 
  • If you earned the options after your relationship for work you did after your relationship that was not linked to your relationship, then your ex probably has no claim to additional spousal support.
  • If you earned the options after your relationship for work you did after your relationship, but that work is related to the relationship (e.g. you were promoted to the job while you were still together, you were able to do the work leading to the options because your ex looked after you during the relationship) then your ex may be able to claim additional support.

But, even if the options are linked to your relationship, to get increased support, your ex will still have to establish that there are compensatory grounds (show that your ex has not been fully compensated for your ex's sacrifices during the marriage), non-compensatory grounds (you ex is struggling financially) or contractual grounds (you and your ex agreed to the additional support).


In addition, if you had the stock options at the time of separation, and included their value in the calculation of the equalization of net family properties, then it is not appropriate to divide up the options again for spousal support.  They capital gains from stock options will still be income for child support.  In addition, income from stock options earned after separation, which were not included in the property equalization process, but which can be linked to the marriage, can be used for spousal support calculations, if the support order or separation agreement permit. 


Clearly, the situation of stock options and support is complicated and even more complicated when discussing post-separation increased in income.  It is similar for most deferred compensation employee incentive plans.   So, it really is important that you get legal advice specific to your situation to make sure your support arrangements are right.

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Paperback Available on:

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The best way to protect yourself, your children, and your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Certified Specialist in Family Law (and author of the book to the left), John Schuman, has extensive experience assisting high net worth clients on complicated legal matters, including stock options.  Contact him right now by using the contact form below, by emailing him, calling 416-446-4036, or using the contact form below.  John, We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

  

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


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


Contact Us:

 

How Do I Get My Pet Bunny Back From My Ex In Our Divorce?

Pet Bunnies

Under Ontario's current Family Law Legislation, pets, of any sort, are not treated like children.  They are, for all purposes of law, “property," like furniture or cars or bank accounts.  So, judges do not decide things on the basis of the "best interests of the pet," the way judges decide parenting issues on the basis of the best interest of the child.


Since the “best interests” do not factor into the decision about who gets your bunny, the issue about who gets to have the bunny is determined by who owns the bunny or who can prove to have “title” to the bunny.




Ontario Family Law Podcast

9 - Property Division in Ontario After Marriage

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

29 - Common Law Separation and Property Division

35 - Resolving Children's Issues Outside of Court

To answer whether you can get your bunny back, you have to understand how property division works on separation and divorce, which is explained in this video and this podcast.  It is important to note that being married in Ontario does not give spouses any ownership interest in each other’s stuff.  So, the bunny belongs to whomever paid for it, or if there happen to be pedigree papers, the owner listed on that or other paperwork that proves ownership. Ownership does not change just because spouses are married or divorced.  Under Part I of the Family Law Act, married spouses share in the value of each other’s property but do not own each other’s stuff in anyway – unless they bought something in joint names.


Ontario’s Family Law does not give common law couples any right to property division or any ownership in each other’s stuff. It is possible that if both spouses contributed to value of the bunny that they will both become owners pursuant to the principals of Equity, which are explained more in the link above about property division and common law relationships.


So, if you own the bunny, and your spouse does not, then and your spouse will not turn the bunny over, you may have to start court proceedings.  Rule 44 of the Rules of Civil Procedure give the Court the power to Order the Sheriff’s office go to wherever you ex is living and recover items that you have proven to the Court belong to you.   The procedure is quite complex, and you will definitely need a lawyer to assist both with getting the Order and with arranging the necessary security for damages that the Court Rule requires.


If you and your spouse own the bunny jointly, then the situation becomes much more complex.  You must bringing a Family Court Application under section 10 of the Family Law Act for a determination that you are the rightful sole owner of the bunny based on the “Principals of Equity” rather than title (because you have contributed more to the value of the bunny than your spouse).  Alternatively, you can claim, under that section, that you should be the owner who has possession of the bunny because you will “preserve the asset” better.  


Judge Deciding Pet Issues in Family Court

However, where there is joint ownership, and one owner does not want to buy out the other, Judges do not try to determine the value of assets, including bunnies, or force one party to buy out the others’ interest in the bunny.  The judge will just order that the bunny be sold on the open market and the proceeds of sale divided between the owners (again Ontario Law treats pets and “property” and not as children).   The judge may order that either party can put in offers/bids to buy the bunny with the bunny being sold at the highest price.  Alternatively, the judge may order that neither party can try to buy the bunny if that would be best for all concerned.


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If you and your ex can agree to it, you could go to Family Arbitration and instruct your arbitrator to decide the issue of where the bunny should live best on the bunnies best interest.  However, section 2.2(1) of the Arbitration Act, 1991 technically requires that assets from assets from a marriage be divided according to the Family Law Act and not the parties’ instructions.  So, your best options might be to try to work something out through negotiation, mediation or Collaborative Practice, where the needs of the bunny can come first.


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


Paperback Available on:

Paperback available on Amazon

The best way to protect yourself, your children, your pets and your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by using the contact for below, by emailing him, calling 416-446-4036, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


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


Contact Us:

 

My Ex Is Going to Cut Off Child Support When Our Disabled Child Turns 18 - What Can I Do?

boy_in_wheelchair_2

Child support does not end at age 18 for children who are unable to become financially independent because they are disabled or are in full time school.  While it may be appropriate for child support to change in those circumstances, it is not up to the support payer to decide whether continued child support is appropriate or in what amount.  If the parties cannot decide what child support is appropriate, after exchanging financial disclosure and information about why the child cannot be come financially independent, the decision will be up to a judge in Family Court. 


Ontario Family Law Podcast

10 - Child Support - Who Pays and How Much?

32 - How to Change a Support Order

34 - Financial Disclosure in Family Law Cases

If you have a court order for child support, unless it specifies and end date, then child support will just continue. If you have opted out of FRO enforcement, then you can go to www.theFRO.ca to find the forms to start up FRO enforcement again.  If you have a separation agreement,  then you can file that separation agreement with the Family Court  using a Form 26B.  If you do not have a separation agreement or a court order, then you will have to start a court application for support.  If the order or agreement has a fixed end date, then you will need to start a “Moton to Change” based on your child's  anticipated need for support. 



 

Child support can get complicated for children over the age of 18 because the Child Support Guidelines Tables do not always apply, and there can be more ways to pay child support.  The best way to protect yourself, your children your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact CertifiedSpecialist in Family Law (and author of the book to the left), John Schuman, by using the contact for below, by emailing him, calling 416-446-4036, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 

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

 

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

 

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


Contact Us:


What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean?

030620-F-0000W-007


On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum.  To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it  Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations.  The decision does not apply to private school teachers as they do not have to follow the Ontario Curriculum at all.  This page will provide an general overview and explanation of the Divisional Court’s decision about what sexual education curriculum is in place in public schools.

 

The challenge to the Ontario Government’s repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows:

  1. The repeal of the curriculum violated teacher’s freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum.
  2. A prohibition on teaching topics such as “consent” and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do.
  3. A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms.
  4. The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons.  As a result of the residential schools system and the “Sixties Scoop”, it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children. 
  5. The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so. 

 

The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns.  However, it said that the Ontario Government was not preventing teachers from covering the “new” topics in their classrooms.  Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics.

 

Importantly, despite some initial “ill-considered pubic statements”, the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum.  The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum.  Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum.  

 

Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because:

  1. Nothing in the 2010 Curriculum prohibits teachers from covering these topics.
  2. The Ministry’s Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code.
  3. PPMs 128. 144, and 145 require school to ensure a “safe positive and inclusive school climate”.  
  4. The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted. 
  5. The Ministry of Education’s position is that how teacher’s meet the above expectations is a matter of the teacher’s professional judgment and discretion.
  6. The 2010 Curriculum allows teachers to “amplify” instruction to include current examples.
  7. Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity. 
  8. The Ontario Human Rights Code requires to protect gender identity and gender diversity.

 

The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government’s decision to repeal the sexual education curriculum. 

 

Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the “new topics” in the 2015 curriculum.   The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are allowed to do. 

 

The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the “repealed topics” with elementary school students.  The Ministry of Education is just not explicitly telling them how to do so.


More information about Ontario Education Law is available on this page.For additional information about education law, or to get legal help or protection for your child, contact Education Lawyer, John Schuman, call 416-446-4036 or use the contact form below.  You can also comment on this page, or share it on your social network using the buttons below.  Sharing is one of the best ways to make sure people who need this information get it.



Can My Ex Refuse To Change the Schedule To Stop Our Child From Going to Disney World?


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Disney World are a frequent source of conflict after separation, and the subject of many Family Court motions, perhaps because the non-travelling parent is jealous or fears that the trip could give the travelling parent an advantage in having a relationship with a child.  Judges do not care about those concerns, judge base these parenting decisions only on whether the trip is in the child's best interest.  Judges will generally allow small manipulations of the parenting schedule to allow a child to go on a vacation.

 

So, the issue is: what do you do when a parent unreasonable refuses a travel request?  Read this page for your options and the steps you may have to follow to go on the trip.  Unfortunately, if the other parent cannot be persuaded, and continues to unreasonably refuse to allow a parent and child to travel, it may be necessary to go to Family Court.  On the upside, if the judge is upset enough, the resulting Court Order may dispense with the necessity of getting travel consent in the future if the other parent is just being unreasonable.

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


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

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However, if the trip is coming up soon, you may want to get in to see a lawyer pretty quickly to get advice specific to your situation and to get things in motion so the trip can go ahead.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John, call 416-446-4036, email him , or fill out the form below. You can use the same form to comment on this page.


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


If I Need Permission From My Ex To Move Away With Our Child, Does My Spouse Need Permission to Move Away From Us?

parent leaving


When a child has one or two (or more) primary parents after separation, the (or each) primary parent needs permission from the ex to move any significant distance away.  This is because the move will interfere with the ability of the other parent (or parents) to parent the child. Whatever the parenting schedule may be, it likely will not work if it was based on parents living relatively close to each other, or just in the same city and now the parents are living in different cities.  It is the disruption in the parenting schedule that matters, so it may be that even if the parents still live in the same city, traffic  to the lengthy of the the commute will prevent the existing parenting schedule to work for the child even if the parents live in the same city.  It is whether the parenting schedule can still work for the child that creates the need for getting permission,  Both parents must agree that the move is in the child’s best interest and a part of that determination is whether the child will still be able to have the same relationship with both parents.




Ontario Family Law Podcast

5 - What say do children get?

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

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

35 - Resolving Children's Issues Outside of Court

However, if a “non-primary parent” moves, then that parent will be interfering with his or her own time with the child. However, that move will, presumably, not affect the primary parent’s time with the kids. More importantly, the move will not affect the child’s relationship with his or her primary parent. It will, obviously, affect the child’s relationship with the non-primary parent.  That relationship may not have been as important in the past. It will always be detrimental for a child to lose contact with one parent.  But, if where a parent is moving away from a child, that parent clearly views the relationship with the child as less important than whatever is prompting the move.  There may not be the level of commitment necessary for a strong relationship, which may be why that moving parent is not a “primary parent” in the first place.  Hopefully, even after the move, the child will maintain some contact with the moving parent, and hopefully that will be enough to meet the child’s need for some knowledge and understanding of the identity of both (or all) parents.  Unfortunately, judge have learned it is futile to try to force parents to have a relationship with their children.  It does not work out well, regardless of how important it is for a child to know their parents.  A parent who is not putting their child first, will not put their child first if forced to visit and that will leave to disappointment and problems for the child.


If both parents want to move further away from the child’s existing home, it will be hard for a non-primary parent to deny the other parent permission to move because the primary parent’s move will not affect the other parent’s time with the child.  If the primary parent is moving  to Australia or Europe, then the other parent might have a reason to oppose as such a large move could have even more devastating effects on that parent’s relationship with the child then would result from that parent’s own move.   However, chances are if the non-primary is already moving far enough way that he or she could not continue to see the child  on weekends, then there is no reason to oppose the primary parent moving.


Deciding whether to let one parent move away with the kids is one of the hardest questions judges face and they consider a lot of factors in deciding whether to allow a parent to move away with the kids.   The most important of these factors, perhaps the only one the judge will care about, when deciding any parenting matter, is what is in the child’s best interest.  Going back to the original question, if a non-primary parent is moving away anyway, it may not affect the kids at all if the primary parent subsequently moves too.


 


If one parent won’t give the other permission to move, then the moving parent should start family court proceedings right away.  Without the other parent’s consent, a parent cannot move a child away if it affects the ability of the child to have a relationship with both parents.  If one parent does just move away,  a judge could order that parent to bring the child back, or make a worse order, if the moving parent just cut off the child from a parent.   Any lawyer who tells anyone that he or she can predict, with certainty, how a judge will decide a “mobility case” (a case about moving with the kids) is lying.  Judges are all over the map on these cases and each case depends on its own specific facts.  But, if a parent moving with the kids won’t impact the other parent because the second parent is moving anyway, the first parent has a pretty good chance.  A non-moving parent who opposes a move may have to pay some or all of the moving parent’s  lawyers’ fees if the reasons for opposing the move are not reasonable.


Also, a parent having to spend a lot of money to exercise access is one of the few bases on which a judge can reduce child support below the Table Amount in the Child Support Guidelines.  That may not impact a parent’s decision to move, but it is something to consider.   It is harder for a parent to ask for a reduction of child support because of travel costs if the parent moved away and chose to incur those costs.  

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

 

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

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However, the best way to protect your kids, and your relationship with them, is to see a good family lawyer who has lot of experience in child custody and access cases.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John, call 416-446-4036, email him , or fill out the form below. You can use the same form to comment on this page.


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


What the death of Riya Rajkumar means for Family Law custody cases

police-lights


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


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


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



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




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


Ontario Family Law Podcast

27 - Domestic Violence- The Critical Information

35 - Resolving Children's Issues Outside of Court

31 - How Lawyers Help at Family Mediation

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


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


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


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


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


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


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

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

signing  separation agreement


Ontario Family Law Podcast

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

10 - Child Support - Who Pays and How Much?

24 - How to Have a Valid and Enforceable Separation Agreement

32 - How to Change a Support Order

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


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



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


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


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


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

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


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

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


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

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


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



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


child support for multiple parents


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

 

Biological and Adoptive Parents

 

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

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

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

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

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


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


 

Ontario Family Law Podcast

11 - Child Support's Special and Extraordinary Expenses

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

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

30 - Entitlement to Spousal Support

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

 

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

 

Shocked at child support calculation

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

 

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

 

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

 

Step Parents

Fistsfulls_of_Money from child support

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


 

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

 

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

 

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


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

Judge in Family Court


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




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




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




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


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




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


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



Ontario Family Law Podcast


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

31 - How Lawyers Help at Family Mediation

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

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

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


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




© John P. Schuman 2012-2019