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!

Why No Ontario Family Court Judge Will Give You Custody of Your Kids

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For many years, custody of the children was the big prize in any divorce or separation.  Especially with the introduction of “no-fault divorce”, custody of the children was important because it showed who won the divorce.  For separating parents, getting custody, and controlling the other parent’s “access” has been the ultimate goal, which superseded other considerations, like maintaining an amicable relationship, or being able to co-parent, or addressing the children’s needs. With the introduction of the Child Support Guidelines, custody became even more important because it also meant entitlement to child support and even sharing parenting meant getting less child support. The huge importance separated parents have placed on getting custody is indisputable.  However, parents who  go to court to get custody of the children are certain NOT to get it.




Just the idea of child custody has become controversial over the last several years.   Many, including groups concerned about domestic violence, those concerned about parental rights and people who favour traditional parenting feel child custody is an important concept because it is important for children to have a primary parent who makes all the decisions for children, especially after separation because waring parent cannot make decisions together that focus on the children’s best interests. So, one parent needs complete control over the children.


Ontario Family Law Podcast

59 - Why You Won't Get Custody of Your Kids

61 - Can You Move with the Kids After Separation or Divorce 

60 - Should You Take Your Ex to Family Court 

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

For those concerned about children’s rights and doing what is in the children’s best interests, the concept of custody of the children is one that has many problems.  The idea of having “physical custody” of the children came from the idea that children were essentially the property of a parent not human beings.  “Parental Rights” were thought to be inalienable, until separation, then the parent who had custody had total control over the children.  The idea of child rights did not exist because children are not mature enough to have rights.


The term “custody” evolved in Canadian Family Law.  Eventually, it came to reference not having physical custody of the children, which is what almost everyone thought, to who makes decisions for the children. The parent who had custody got to make those decisions, which meant caring for the children for most of the time, while the other parent had “access”, which meant that parent could “visit” with the children, but had very little  say in the lives of the children.  The Child Support Guidelines also provided that the parent with whom the children lived got child support, which added to the significant gulf between he parent who had custody and the parent who did not.


Getting custody came with many rights, it was more than just a trophy.  It was worth fighting over – especially when one parent could make decisions for the children in a way that marginalized the other parent in the children’s lives.  Often non-custodial parents felt like “tourists” in their children’s lives.  Even though “access parents” had extensive rights under the Family Law statutes, being called an “access parent” became a term of shame that somehow seemed to reflect an incompetency in parenting regardless of that parent’s parenting skills and love for the children.


So, parents went to Family Court to go to war with the other parent to get custody.  Parents spent massive financial and emotional resources getting custody.  Often that drained all the family’s savings, and the children’s university savings,  It also left parents emotionally exhausted.   We now understand that the exposure to that high level of conflict, not the divorce or separation itself, resulted in serious harm to the children. Check out the Family Law Podcast episode on whether going to court is a good choice.




However, Ontario (and Canadian) Family Law clearly set out that when judges decided who got custody, they were no longer considering parental rights, nor the importance of maternal instinct in raising children.  The test under the law became looking at what was in the best interest of the children.


The term “child custody” stopped referring to who had the children physically with him or her, and instead referred to which parent made decisions regarding children.   With whom the children spent their time  because a separate issue from “child custody”.   There were orders for “custody”, which addressed who made decisions and orders for where the children spent their time that could no longer be unilaterally changed by the parent who had “custody.”


But even so, family law professionals, and many judges, started to realize that child custody was an antiquated term.  The mere idea of child custody focused on what the parents wanted and not what the children needed.


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For at least a decade, parenting professionals and parenting mediators have avoided the term custody and have instead looked at what the children needed.  The focus shifted to children’s lives and what they needed – where they needed to be an when, what important issues did they face and who should make decisions about them, what parent was available to take on responsibilities related to the children. Ideally, parents would cooperate to meet their children’s needs, even when one parent had to take on more of the responsibility.   But, where parents could not cooperate, parenting professionals, parenting mediators, and some judges would still avoid custody order by creating parenting regimes with extensive terms that set out, sometimes in minute details, how the children’s needs, including their need to spend time with each parent, but also their needs to attend school, get healthcare and participate in activities, would work.


A lot of lawyers, judges and family professionals came to the conclusions that focusing on child custody meant focusing on the parents, but children really needed the focus of separated parents to be on them.


So, in 2019, the Federal Government, followed by the provincial governments, made big changes to the Divorce Act and other family laws to abolish the terms custody and access and change the focus of “parenting orders” onto the children and their needs.


Judges now make parenting orders, not custody orders, and those parenting orders have two components – parenting responsibilities and parenting time.


There are some basic parenting responsibilities – like feeding the children, making sure they get to bed, encouraging proper behaviour and preventing them from doing anything dangerous.  Unless there is a reason for a judge to order otherwise, both parents have those responsibilities when the children are with them.


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But, there are bigger responsibilities involved in raising children, such as getting the children to the doctor, dentist or other professionals,  doing school projects and involvement in school activities and committees, getting the children to the church, synagogue or mosque and to any religious education, and getting the children to their practices, games and competitions and other activities, just to name a few.   Taking on these responsibilities also involves making decisions about them.


While together, parents have to sort out how they will divide up these responsibilities.  They have to do that after separation as well.  So working out parenting after separation means listing all the parenting responsibilities and deciding which parent is going to take on each of them and if it is possible for the parents to share those responsibilities, which can mean a great deal of cooperation.


This is not an “all or none” exercise.  It should involve looking at each responsibility, such as swimming lessons, soccer practices, dentist appointments and many more, and deciding which parent will be responsible for each one individually.   It is possible for parent to be responsible for hockey and the other to be responsible for gymnastics.  It is also possible that parents may share responsibilities, if they can work together, and both do things like work with the school on a child’s IEP.   Who does what is based on what will work best for the child, and if often relates to who looked after that responsibility when the parents were together.  But, it also can depend on which parent is available, which parent is interest in that responsibility, which parent knows something about that responsibility, or which parent does it with the child, or other considerations particular to the family.  Some responsibilities can be so very significant, perhaps too much for one person.  So, it may be ideal for parents to share that responsibility with the other parent if they can cooperate, or it may be dependent on which parent can get help with the responsibilities from parents of other children, or others in the community.


It is always best for the children when their parents can share responsibilities, with both parents being involved in all aspects of their lives and one parent is able to jump in and take responsibility when the other parent has something come up.  But, that really requires that the parents be able to get along and put the children first and not prioritize fighting out their gripes with their ex.  Exposing children to parental conflict can actually cause physical damage in the children’s brains and can lead to long lasting psychological and emotional problems. So, a parent who demands to take on responsibilities with another parent with whom they fight constantly will not get a lot of sympathy from a judge.


Fortunately, the new Family Law Legislation also provides incentives for parents to learn new ways to work out their issues in a cooperative manner through mediation, collaborative practice or other Alternative Dispute Resolution Options.   But still, sharing a parenting responsibility with an ex does mean being able to get along with that ex and make decisions cooperatively and without one parent bullying, harassing, or attacking the other.


Where parents cannot get along, it is still possible for each of them to take on responsibilities independently.  One parent takes on one set of responsibilities and the other parent takes on the other without overlap.


In other cases, it may be that it makes most sense for one parent take on most of the parenting responsibilities.  That decision should reflect the realities of the situation, such as the availability of the parent to take on responsibilities, and no be based on angry, emotion or ideological bases.




Similarly, parenting time, especially as children get older, is often a function of where the children need to be and when, and then which parent can be available to meet the necessary responsibilities. So, if one parent is responsible for taking a child to an activity, that parent should have parenting time that permits that.  Parenting time also has taken into account how parent’s schedule affects their availability to parent.  Really, setting up parenting time often involves looking at the children’s schedules and then the parent’s schedule and the children’s schedule and figuring out the logistics of getting the children where they need to be and getting the things done that have to be done, and allowing the children time with each parent.  Time with the children should be a prize, but reflect how their parents can best meet their needs and ensure the children have the best possible relationship with each parent.


Where there are disagreements about how to achieve these objectives, the concept of parental rights will not have any bearing on how a Court or arbitrator resolves any parenting issues. When deciding which parent has which responsibility for the children and what time children spend with parents, the ONLY thing a judge or arbitrator is allowed to consider is the best interest of the children.


In determining the best interest of the children, a judge or arbitrator has some specific factors to consider.  Those factors are:

  1. the child’s needs, considering the child’s age and stage of development, and  the child’s need for stability;
  2. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and anyone else who plays an important role in the child’s life;
  3. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
  4. how the parents cared for the child in the past;
  5. where possible, the child’s views and preferences, giving due weight to the child’s age and maturity
  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
  7. any plans for the child’s care;
  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  10. any family violence
Guide to the Basics of Ontario Family Law - 4th edition cover


To get the best advice, specific to your situation, you should speak to family lawyer.  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 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, 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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What the Judge Will Consider in Deciding Whether the Hamilton Paramedics Are Guilty in the Yosif Al-Haswani Trial


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As I am both a lawyer and a paramedic, a lot of people (paramedics mostly) have been asking me about my thoughts as I follow the case of the two former Hamilton paramedics charged with “Failure to Provide the Necessities of Life” in relation to the death of Yosif Al-Haswani on the evening of December 2, 2017.  All the testimony is finished in the Trial.  To be clear, I have not been attending Court, but I have been following the media reports of the trial in some detail and my comments are based on those reports.  The case has huge legal repercussions for paramedics and other medical professionals who make mistakes when doing their job.   

 

When the events of December 2, 2017 first came to light, many paramedics, including myself, expressed concern that there must be some other side to the story.  There is a clear protocol in place for paramedics to follow when caring for a patient with penetrating trauma.   Yosif Al-Haswani had been shot, with what doesn’t matter if the result was penetrating trauma, and so something strange must have gone on.  Something, or someone, must have convinced the two paramedics, Christopher Marchant and Steven Snively, that something else was wrong.  Something must have confused them.  Paramedics do not, generally, make significant departures from the patient care standards, and when they do it is often in a situation of chaos and confusion at the scene that makes following those standards difficult or impossible.

 

The Story That Came Out in the Evidence at Trial

 

The evidence of Marchant and Snively does make it clear that they made mistakes and departed from the expected standard of care.  They also did a terrible job of “charting” their treatment on the patient care records.

 

From the media reports, here is what happened on December 2, 2017 according to the testimony that was reported at trial, but from a paramedic’s perspective.

 

  • Just before 9:00 p.m. Al-Haswani saw two people accosting an older man on the street.  Al-Haswani had a confrontation with those two people.  One of them shot Al-Haswani  in the abdomen with what was reported, at the time, to be a BB gun.   Al-Haswani’s brother ran into a convenience store to get someone to call 9-1-1 because Al-Haswani had been shot.
  • The police arrived and asked for an ambulance.  The officer reported that Al-Haswani had a superficial wound to his abdomen from a BB Gun.  The call-taker at the dispatch center recorded in the call log that there was no immediate threat to life.  However, as the dispatch center was severely understaffed that night, the call-taker put “unknown” into the system in the fields regarding the patient’s level of consciousness.  With an unknown level of consciousness, the call was dispatched as the highest priority – Priority 4.
  • ·      When being dispatched, Marchant questioned why they were being sent Priority 4 for a superficial wound from a BB gun.  The dispatcher took offence to the paramedic questioning dispatch directions, especially when they were short-staffed.  She filed a report against the paramedic and then called him the next day to chastise him.
  • As a result of being short staffed, the ambulance dispatch mistakenly did not send a supervisor to a gunshot call.  However, due to the unknown level of consciousness, the ambulance dispatch asked the fire department to respond.
  • On arrival, the police, at least one fire fighter and bystanders told paramedics that Al-Haswani had been shot with a pellet gun. He had a very small wound in his abdomen near his bellybutton. But there was no external bleeding.   Snively had seen pellet gun wounds before and had not seem them penetrate the skin.  
  • The Paramedics found Al-Haswani conscious, but confused, lying on the ground.  There was no “air of emergency” as the bystanders did not seem particularly concerned.   A police officer, and then the paramedics sent the fire department away because under both the paramedic and fire department’s protocols, there was nothing for the fire department to do.
  • Advanced Care Paramedic, Snively, went to Al-Haswani, but did not take any equipment with him.  He assessed him, including assessing the patient’s wound in his abdomen.  Bystanders, including Al-Haswani’s father saw him doing this assessment.  However, that assessment was not documented on the ACR.  Snively assessed Al-Haswani’s vitals as being normal and transferred the responsibility for attending to the patient to Primary Care Paramedic, Marchant.
  • Primary Care Paramedic Marchant, who was the attending paramedic, cut off Al-Haswani’s sweater but did not document on his Call Report that he had every examined, or “palpated” Al-Haswani’s abdomen because the wound was so small and, apparently, caused by BB Gun.  He did document on the Ambulance Call Report that Al-Haswani has “no complaint of abdo pain.”  Based on the seemingly minor nature of the injury, and the story that it a BB Gun had been used, Marchant “ruled out” penetrating trauma as being the cause of Al-Haswani’s condition.
  • On the street, Al-Haswani would not answer the paramedics’ questions, but instead spoke to his father in Arabic.  Al-Haswani’s father then spoke to the paramedics.  The paramedics took this as a sign that Al-Haswani was being difficult, but his breathing was under control.   The paramedics asked if Al-Haswani was under the influence of alcohol and drugs and his friends adamantly said no.
  • When a bystander told a paramedic that Al-Haswani wouldn’t use drugs because he is a medical student, the paramedic replied, “If he’s a medical student, he wouldn’t be here.” A police officer said loudly, “He’s been shot with a BB gun, and he’s acting like it’s an AK-47.”   Al-Haswani’s father said that the paramedics acted like “there is no danger in the matter.”  He also remembers one of the paramedics telling him to “tell your son to stop acting.”  Another bystander testified that when the paramedics arrived, they “weren’t’ taking anything seriously.”
  • A firefighter reported that one of the paramedics said, “he’s acting, he’s pretending” to which Al-Haswani replied, “then why does it hurt so much.”  The firefighter also remembers a paramedic saying “Don’t worry. You’re going to live.  It’s nothing serious. It’s just a mosquito bite.”
  • When they tried to pick up Al-Haswani by picking him up by the legs and arms, he wriggled making him impossible to lift.  Eventually, a bystander convinced Al-Haswani to let the paramedics place him on the stretcher.  Al-Haswani’s father said the paramedics put his son on the stretcher in a “shamefull” and “humiliating” way: he was “hanging before walking” and the paramedics “threw” Al-Haswani onto the stretcher.  They did not use a “scoop stretcher” or spine board to move Al-Haswani onto the main ambulance stretcher.  Using one of those devices would have been the correct way to move a trauma patient.
  • In the back of the ambulance, Al-Haswani had trouble breathing.  He became confused, and “combative” and had to be restrained.  The police assisted with restraining him.  Some unfortunate comments were made to Al-Haswani attempting to direct him to improve his behaviour.  He did not.
  • In the back of the ambulance, the paramedics gave Al-Haswani oxygen, took his vitals and noted his heart rate was 143-145 beats per minutes.  They did a complete 12-lead to see if he was having a cardiac event, took his blood sugar to see if that would explain his altered mental status, but the reading was 5.4 (normal). 
  • The paramedics spent 23 minutes on scene moving and assessing Al-Haswani.  Dr. Verbeek, the medical director for the Sunnybrook Base Hospital Program for paramedics testified that time frame is not an unusual or particularly long time to spend on a scene, particularly where confusion makes it difficult to understand what happened to the patient and there were difficulties moving the patient to the ambulance.
  • Marchant did not believe that Al-Haswani had penetrating trauma, and so he looked for other causes, deciding that he had a psychiatric not a trauma patient.   As a result of that conclusion, several first responders, including the paramedics, made disparaging comments about Al-Haswani in the belief he suffered from mental health concerns.
  • The paramedics left on a Code 3 (urgent, but not life threatening) and did not use the lights or sirens.  They selected St. Joseph’s Hospital rather than the trauma center at Hamilton General Hospital.   They assessed the patient as being CTAS-2 with mental health concerns.  St. Joseph’s’ hospital is the preferred hospital for mental health concerns.  CTAS-2 means a doctor should see him within 15 minutes.
  • It took less than eight minutes to get to St. Joseph’s Hospital.  About two minutes from the Hospital, Al-Haswani’s became completely unresponsive (unconscious) and his vitals indicated he was “pre-arrest” and blood started squirting from the womb on the abdomen.  The paramedics upgraded to Code 4 (life threatening), used the lights and sirens and continued to rush to St. Joseph’s.  Marchant told the hospital the patient had a “small penetrating wound” from a BB-Gun to the abdomen and was “CTAS-2”.  Al-Haswani was actually CTAS-1 so that he saw a doctor immediately on arrival.  The paramedics did not decide to change their destination to the trauma center but kept going to St. Joseph’s. When he opened the back doors at the hospital, Snively noted that the patient’s heart rate was 45 beats per minute.  He said they rushed him inside.
  • Al-Haswani was in cardiac arrest by the time he was in the resuscitation room.   The Emergency department is not a trauma center and did not have a “Trauma Team” specializing in treating serious trauma patients.  Whether that would have made a difference is not clear as Al-Haswani already almost had half of his blood volume in his abdominal cavity from a wound cause by a .22 pistol fired at close range. Dr. Verbeek said the chance that a trauma team could have saved Al-Haswani was very low, but “it was not zero.”
  • Al-Haswani’s father confronted Marchant in the Emergency Department after learning of his son’s death. He said, “Do you believe him now?” Indicating that the paramedics had ignored his son’s complaints on scene. A surveillance camera also caught Marchant and Snively having an animated discussion at the hospital after the call.
  • Marchant did not file his Ambulance Call Report until the next day. The standards for writing those reports required it to have been done before he left the hospital.   Both paramedics decided the next day that they should do incident reports regarding the call.

 

The Views of the Doctors on the Paramedics’ Actions

 

Dr. Verbeek testified that paramedics are not expected to make a diagnosis, nor should they rely on what weapon was used to decide on their next steps.  He said there are clear protocols in place and when a patient falls within a protocol, the paramedics must treat the patient in accordance with that protocol.   There is a protocol for penetrating trauma that says the patient is to be taken as quickly as possible to the trauma center.   Paramedics are not to second guess that.  They are to assume that things could be worse than they seem, not better.  In this case, once there was penetrating trauma of any type, no matter how caused, the paramedics should have assumed the patient was dying from that injury.

 

Dr. Crosskerry testified that up until about three years ago, paramedics were not trained to look for “disconfirming evidence” of what they think is wrong.  That means, they were not trained to try to disprove their working theory of what was wrong with the patient.  Dr. Crosskerry also said that it is common for healthcare providers to base their treatment on their preliminary conclusions, particularly where, as in this case, the paramedics were told by several people that the patient had been shot with a BB Gun.  In such cases, where the patient’s condition seems clear, healthcare providers can be confused by, or ignore, signs and symptoms that are inconsistent with their understanding of the patient’s condition.  There are many examples of healthcare providers providing the wrong treatment, or not treating at all, because of initial conclusions about what was “going on” with the patient.  Essentially, Dr. Crosskerry said that the paramedics acted the way many, if not most, health care providers act.  There is a need for more training to avoid mistakes when health care providers do not constantly reevaluate their thoughts about a patient and the patient’s condition.  In many places, that training is already underway, due to unrelated studies about how health care providers make mistakes.

 

What Other Paramedics Think 

As the story of what happened on December 2, 2017 came to light, the views of many paramedics changed.   It initially started with “there must be another side to the story.” Then it moved to “Not taking a patient with penetrating trauma to a trauma center is clearly an inexcusable departure from protocols.”   Then it became “Why were they looking for a heart attack in a patient who had been shot?” or “When the patient’s patients’ condition deteriorated why didn’t they realize their conclusions were wrong and go to the trauma center?”  Many paramedics, the ones who self-evaluate their work often, moved onto “Could I have made that same mistake when the information given at scene was so wrong?”

paramedics

 

Cleary the paramedics misinterpreted or ignored a lot of signs that Al-Haswani was in serious distress.   They picked the wrong hospital.  They didn’t realize that a wound that didn’t look like penetrating trauma actually was and when the patient started to deteriorate, they didn’t re-evaluate their conclusions about the injury until moments before Al-Haswani’s death.  But, even then, under the Field Trauma Triage Standard for Paramedics, they should have rerouted and gone to the trauma center.

 

In light of the seriousness of Al-Haswani’s injuries, is doubtful, but not impossible, that going to the trauma center would have saved his life.

 

The Criminal Law That Applies to this Case

 

However, in this case, the question is not whether the paramedics made an error.  The question is whether that error is deserving of criminal sanction.

 

The paramedics are charged with failing to provide the necessaries of life contrary to s. 215 of the Criminal Code For a person to be guilty of that offence, the Crown must prove:

 

1.     The accused person had a duty to provide the necessaries of life to a person who is unable to withdraw from the “charge” of the accused person because of detention, age, illness, mental disorder, or other cause;

2.     The victim was in circumstances where he or she needed the necessaries;

3.     The accused failed to meet that duty by acting (or not acting) in way that constitutes a marked departure from what a reasonably prudent person would do in the same circumstances.

 

The paramedics had a legal duty to provide assistance to Al-Haswani.  That was their job.  There was nothing preventing them from doing it.  Further, Al-Haswani was in no condition to get himself to the trauma centre, or even to insist that the paramedics take him there.  He needed someone to take him there and that is what the paramedics and ambulance were there to do: to assess him and get him where he needed to go.  

 

Sopinka Court House

Al-Haswani needed medical treatment.  “Necessaries” has been held as “necessaries as tended to preserve life”.  The courts have held that medical attention necessary to sustain life meets the definition.

 

It is in the third criteria where the legal case gets difficult.  The actions of the accused must be a marked departure from what a reasonably prudent person would do.   The duty is not on one of perfection – the paramedics do not need attain perfection in their treatment.  Additionally, mere negligence is not enough to establish criminal liability either.  There error has to be more than what would just attract damages in a civil case.  The care provided must fall beyond an absolute minimum standard of care, being the provision of the bare necessities in the circumstances.   That other health care providers have made similar types of mistakes leads to the question of whether taking the patient to the wrong hospital falls below an absolute minimum standard of care.

 

This then raises the question of whether making a mistake is enough to make someone guilty of this offence under the Criminal Code.  Whether someone should be imprisoned for making a mistake is a very different question from whether someone should have to pay compensation for making a mistake.   Once a marked departure from the standard of care is established, the next question is whether the accused was capable of recognizing that he or she had fallen short of that standard. It is not appropriate to punish the “morally innocent” under this section.  The fact that the paramedics were actively trying to find out what was wrong with Al-Haswani by doing a 12-Lead ECG to check for a heart condition, taking a blood sugar to look for a blood sugar imbalance, and looking for psychological factors shows they were not willfully trying to avoid providing the correct treatment, but rather they were trying to figure out what the correct treatment was.  The paramedics were working in the uncontrolled environment that is characteristic of pre-hospital medicine and that is very different from making decisions in the relatively controlled environment of a hospital with many other health care professionals around to help and provide advice.

 

After being told repeatedly that the “mechanism of injury” was inconsistent with penetrating trauma, and having done an assessment of Al-Haswani’s abdomen that confirmed what they had been told, should the paramedics have kept the possibility of a major traumatic injury within their considerations?  And if they had done so, should they have prioritized the trauma center over the hospital that had psychiatric services, which was consistent with what they saw as being wrong with their patient?  When Al-Haswani’s condition deteriorated quickly, should they have changed direction and gone to the trauma center instead?  Were the decisions the paramedics made markedly different from the decisions that other paramedics or other health care providers would have made in the situation?

 

These are the questions that Justice Harrison Arrell will have to decide based on the evidence he heard and observed from the witnesses to the events of December 2, 2017.  The evaluation of the versions of events for a short, but chaotic, series of events will play a big part in the case.

 

This Case Could Have a Huge Impact on Canadian Health Care

 

Since this is a criminal matter, the Crown must prove all of the parts of the offence beyond a reasonable doubt.   That health care providers occasionally make mistakes, even while trying to avoid them, may raise more than a reasonable doubt as to whether these paramedics are deserving of a criminal sanction.  But, health care workers all across Canada are watching to see whether, unlike in other professions, their mistakes will lead to criminal sanctions.   Such a decision could certainly lead to profound changes in health care across Canada.


This is a hot issue among health care provides.  Please feel free to comment on this story below or share in on your social media platforms.  If you would like to contact the author, lawyer and paramedic, John Schumancall 416-446-5847, email him, or fill out the form below.

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How Should Separated Parents Share the Kids' Holidays During COVID-19?

Christmas Baby


Holidays can be difficult for separated families. It may be impossible for the children to celebrate with both parents and their families or to have the most important time, that is, Christmas morning, with both parents. So how can separated parents divide up those special times?  Doing so can be one of the biggest challenges after separation or divorce.


When it comes to holidays, the first and most important consideration is that these are special times for the children too. Often they are even more special for the children than for the adults. The children do not want to spend these special times marked by fights among their parents. Especially fights where the child must take the side of one loved parent against another loved parent. That can ruin the entire special day or the entire holiday season for the child. Parents who love and want to protect their children must avoid fights over their children at these special times. It is always more important for the children to be happy than for a parent to be right. Of course, finding a fair plan for the children over the holidays can be hard. There are a few general principles that parents can use to help them make their plans.


The Golden Rule for Parenting After Separation

Where a judge has to decide what time the child gets to spend with each parent over the holidays the main consideration is what is in the children’s best interest. What is in the best interest of the child always trumps what is in the best interest of the parent. What is best for the child can vary from family to family and can be affected by what is usual for the family.


Ontario Family Law Podcast

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

46-2 Update on Parenting During the Pandemic - What Family Court Judges Say

37 - Sharing the Holidays After Separation

What it is best for the children during these holidays and lockdown remains the focus of the Courts and should be the focus of every separated parent.  Every Family Court Judge who has faced making a decision about parenting has commented about how the pandemic represents extraordinary times. It is an event that is having a profound impact on children, even children who are not in the midst of parenting conflict.  Justice McGee noted that:

 “Even young children will carry the residual emotions into adulthood, at which time those children will reflect back on whether their parents eased their fear and disruption, or whether their parents were focused on their own needs.  How parents act during this difficult time not only sets an example for their children, but can affect their children’s development. 


 It has never been more important to put children’s needs first and do whatever is necessary to avoid conflict – especially during the holidays.


The Impact of the Pandemic

Family Court Judges have also made it clear that it is essential for children to have relationships with both parents during the pandemic. Judges have repeatedly quoted Justiced Pazaratz’s decision early in the pandemic in which his Honour said 

“In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”


Judges have specifically held that seeing both parents is in expect parents to find ways for children to move between homes and spend time with both parents in a safe way.  Only actual EVIDENCE, not speculation, that a parent is putting children at actual risk of harm will cause a judge to restrict parenting.




As public health officials are saying everyone must limit contact with other people, it seems like it might be in the children's best interest to stay in one spot and have contact with as few people as possible.  Obviously, it would not be in the children's best interest to engage in any activity that could put them at risk of infection.  That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis.


However, the current view of parenting professionals and judges is that having contact with both parents is important to a child's sense of well-being and healthy development.  This means that seeing both parents is also in the child's best interest.  Children suffer when deprived of contact with their one of their parents.  They suffer even more when there is conflict between their parents over things like the schedule.  So, disturbing the current arrangements with out your ex’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road.




To summarize the decision that parents have to make, it is: is in the children's best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children's best interest to spend time with both parents even if that means they will come into contact with other people.  Again, a lot depends on the new specifics of the situation.  If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all.


What Judges Think is Fair During the Holidays

Specifically with respect to the holidays, there are an abundance of decisions from Family Court Judges about what is fair.   The following are what most Family Court judges expect:




First, children should rotate where they wake up on Christmas morning or with whom they spend special events. Christmas is often the most problematic, but this can apply to any holiday or special event that is of particular importance to the family. Children should get the opportunity to spend this time with each parent. But keep in mind that for really young children, the fight may not be worth it. They may not know what day it is, so it may be possible to create a special time on any day.

Second, where possible, traditions should continue for the children. This may conflict with the first point. But that is usually rather an opportunity to resolve the conflict than to create it. If for example, one side of the family has traditionally celebrated Christmas on Christmas Eve, and the other side on Christmas Day, it can be possible for the children to attend both family celebrations every year rather than miss one. Dinner on Christmas Day is not a price to be won. Especially if it means ruining your family’s traditional Christmas Eve celebration. Be sensible and practical about how the children can maximize their celebrations.

Third, holiday time is usually shared equally. As with the first point, the children are getting a good opportunity to experience the holidays with each parent and their families. There are some obvious exceptions to this, such as when such an arrangement is not safe for the children or where one parent has to work and cannot take advantage of the extra time with their children. Again, this division has to be what is best for the children.

Fourth, for Christmas, parents often share the time from Christmas Eve to Boxing Day equally and then share the rest of the school break equally. For this special period, it makes sense for the special day to be divided and it can make no sense for one parent to get the entire week around Christmas and the other parent being shut out of Christmas entirely.  

Fifth, trying to give bigger or better presents than the other parents teaches the children to be manipulative. The children will play one parent against the other for the better gift when they know that their parent will fall for it.

Sixth, just because you are angry or emotional about the holidays after your separation does not mean your children are feeling the same way. Although it can be hard, parents should try to make holidays a happy time for their children. The separation was not the child’s fault, so they have no reason to feel angry or guilty.

Trashing the other parent around the holiday table or at any other time the children are present is never okay. Family court judges say that is bad parenting and even a reason to change custody or the parenting schedule.


Finally, during the pandemic, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials.  Or, when a parent insists on engaging in other risky behavior at this unusual time.  Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account.  If the arrangements do take that type of behavior into account, then no change may be necessary.  However, if a parent is insisting on doing engaging with the children in activities that are clearly not the children's best interest in light of the advice and information from our public health officials, then changes may be necessary.  The Ontario Courts have supported the directions from Public Health Officials.  If a parent is going to disregard those directions, putting a child at risk, the Family Court will intervene. 


But what most kids of separated parents want during the holidays is to be free from experiencing their parents fighting.  Parents must put the children first, realizing that children need both parents  and that COVID19 means that everyone has to be careful about making that happen.


Taking the High Route

Nothing ruins holidays for children like fights between their parents. It is one of the most psychologically harmful things parents can do to their parents. As unfair as the other parent may be to you over organizing the holiday, exposing your children to conflicts over or about the holidays is more unfair to the children. If you cannot get matters sorted out before the holidays in or out of family courts, then it is much better to take the high route and save your children from the fight. Then take this to the judge or an arbitrator to fix it for the next holidays. The judge will appreciate that you put your child’s well-being ahead of your own and they will be displeased with any parent that uses their children as pawns over the holidays. Taking the high route can only lead to things working out better for you and your children in the long run.


If you are having difficulty coming to an agreement with your ex over what is in your children's best interest, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  It is possible that lawyer can contact your ex's lawyer and they can work something out.  Perhaps they can agree on a mechanism such as parenting coordination or arbitration to work things out.  At the very least, they will be able to give you some objective advice about what is in your children's best interest and what you should be doing.  Don't get into a fight in front of your children and cause them even more stress and anxiety over this difficult time.  Got in touch with professionals to help you figure out that what is best for your children in light of your parenting situation and the extraordinary times in which we are currently living.

                    

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To get the best advice, specific to your situation, you should speak to family lawyer.  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 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

  

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, 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.

   

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 for your children after a separation. 


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Could I Be Liable For Child Support to My Spouse’s Ex?

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Child support is the right of the child and the obligation of the parent.  So, the quick answer to whether one spouse has to pay the other spouse’s child support is “no". But, like most things in the law, things can be more complicated than that.

Child support is always payable by a biological or adoptive parent that has a child for 50% of the time or less.  (Where there is “shared parenting”, the amount of child support can vary from the child support tables, but usually both parents pay table child support to each other).   For more about how child support works watch the video below, and listen to this podcast.



In Ontario, getting married does not mean one spouse “owns” the other spouse’s assets nor does it mean one spouse is  responsible for the other spouse's debts - including any debts for child support.  Under Ontario Law, married spouse are still legally independent from each other.  Part 1 of Ontario’s Family Law Act covers property division on separation. For a full explanation of how that works, watch the video below, and listen to this podcast.   But to summarize, separated married spouse share in the increase in each other’s net worths, but not in the actual assets themselves.  Common-law couple have even fewer property rights.  So, if your fiancé is in debt to his ex for child support, that is not your debt. 



However, unfortunately, that may not be where it ends.  There are still ways that one spouse could end up “on the hook” for the other spouse's child support debt.

Ontario Family Law Podcast


9 - Property Division in Ontario After Marriage

10 - Child Support - Who Pays and How Much?

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

29 - Common Law Separation and Property Division

33 - The Law of Marriage Contracts & Cohabitation Agreements

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53 - How to Pay Less Child Support

First, with regard to property division, when married spouses separate, they share in the increase in each other's net worth. When a married spouse builds up a child support debt, that debt decreases his or her net worth.  So, on separation, that net worth is lessened by the amount of the child support debt.  Since, on separation, each spouse essentially gets half of the other spouse’s increase in net worth, any debt owed by one spouse reduces how much the other spouse will get by half of the value of that debt. 

 

Put more directly, the spouse without the child support debt ends up indirectly paying half of that child support debt because of the decrease in what the other spouse shares through Ontario’s Property Equalization process. 


But, things can even work out worse than that if the spouse who owes the child support is also the spouse whose net worth has gone up less (or not at all).   The spouse with the greater increase in net worth during the marriage owes the other spouse an “equalization payment” on separation.  If the spouse who owes child support has a lower increase in his or her net worth (either because of the child support debt or otherwise), the other spouse will have to a larger equalization payment. So, when one spouse has his or her  net worth is decreased by child support debt, how much the other spouse owes for an equalization payment owe would be increased by half the amount of that debt.  In that case, the other, “innocent”,  spouse is indirectly, paying half of that child support debt. 


These types of debt problems, which can have very unfair results, can be fixed with a marriage contract.  Watch the video below on how to use a marriage contract to avoid sharing in your spouse’s debts.  Spouse can have a contract that says one spouse’s child support debts will not affect Property Equalization if the spouse’s separate.  That means the marriage contract can legally prevent one spouse from ever being responsible for the other spouse’s child support.



There is another way one spouse’s child support for their children of a previous relationship can become a problem for his or her current spouse.                                                                                                                                                                                                                                         As noted above, child support is the obligation of parents.  However, the term “parent” can  mean more that just biological or adoptive parents.  While biological and adoptive parents always pay full table child support, other people who have acted as a parent to a child can be on the hook for child support too.  That means that a step-parents can end up owing child support to his or her spouse’s ex.  Listen to this podcast that explains more.   This does not mean the step parent shares in his or her spouse’s child support obligation.  Instead, it means that step parents can acquire their own child support obligations for their spouses’ kids from prior relationships.  As explored in this video from a high-profile new story, acting as a parent to someone else’s kids can create a child support obligation - especially where a person does it with the best motivations.




A spouse is not directly responsible for the child support owed to the other spouse’s ex. However, that “innocent” spouse could end up sharing in that debt on separation after a marriage when his or her current spouse owes back child support to a former spouse. 

                                                                                                                                                                                                                                                   A spouse who acts like a parent to a partner’s children from a previous relationship can  also end up owing child support to that partner’s ex!


Guide to the Basics of Ontario Family Law - 4th edition cover
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new kindle logo
New Kobo Logo

Paperback available from:

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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.  But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.


To get the best advice, specific to your situation, you should speak to family lawyer.  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 416-446-5847, 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 for your children after a separation. 

 

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Can My College Keep Charging Me Tuition Even Though My Classes Were Cancelled Due to COVID-19?

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When the Ontario Government ordered the shutdown of universities and colleges in March due to COVID-19, many students suddenly switched from in-class to online learning.  However, for many programs, especially programs related to healthcare, applied sciences and other programs that required practicing skills, that education was put on hold entirely.  Many students in those programs are still waiting to resume their programs.  Their education has been delayed, they cannot start their careers and there are very few student jobs during the pandemic.  

 

Despite this many colleges are insisting that students continue to pay the tuition, on the original schedule.  Others are even asking for additional tuition since students are continuing their education over “extra semesters” to complete the studies that were put on hold in the spring.  That seems particularly unfair in these difficult times.  It can also be illegal and students may want to consider whether they want to confront their college before completing their program.

 

Private career colleges often have contracts with their students that set out the terms for payment of tuition.  Sometimes, these contracts also set out precisely what kind of education the college will provide. However, some colleges have contracts that state that tuition is still owed regardless of the quality of program the college provides.  Some contracts set out the terms in which a student will be entitled to a refund, or when a student can get a tuition adjustment because the student is not attending school.  Very few of these contracts contemplate situations where the college is forced to temporarily stop providing the program all together, or is not able to provide the program required for the students to get certified in their chosen profession.

Ontario Family Law Podcast

 

49 - Can Parents Get Private School Tuition Back Due to COVID-19?

Often publicly funded colleges have their own sets of rules for tuition and how they provide their programs.  Some require students to accept a specific set of terms.  Other colleges or programs follow external standards for the programs they provide, sometimes to meet accreditation criteria. 

 

In many cases, what is happening in the pandemic is far from what the contract with college contract contemplated.  Many accreditation bodies have struggled with how, or even whether, to adjust their standards due to COVID19.  Should they relax those standards because the pandemic prevents students from completing the previously required educational program? 

 

In situations where the parties to a contract cannot perform their obligations under the contract due to circumstances beyond their control, the contract is said to be “frustrated.”  Ontario’s Frustrated Contracts Act applies to contracts between colleges and students. 

 

The ordered closure of the colleges, and the continued public health orders and insurance requirements prohibiting students from completing certain aspects of their educations (such as labs, apprenticeships, and clinical placements) have prevented colleges from providing the education they promised on the timeline that they promised to provide it.  However, that was not the colleges' fault.  It was not the students’ fault either.  When the parties to a contract cannot complete the terms of the contract, that contract is said to be “frustrated” and the Frustrated Contracts Act applies. 

 

Although there have not yet been any court decisions on this issue, it is difficult to see how a college could charge additional fees for a program when a contract has been frustrated.  The Frustrated Contracts Act implies that students should get money back when the college has been forced to cancel classes, unless the college was able to find another suitable way to deliver the required education.

 

Section 3 of the Frustrated Contract Act says that payments are no longer owing for frustrated contracts.   The college contracts were frustrated when the colleges were forced to cancel classes, labs and placements due to the pandemic.   With the contract frustrated, students do not have to pay anything that they continue to owe the college under their current contract for their program. (They may owe something under a new contract to restart their education again after the shutdown.)  The same rules can apply to the college with regard to not paying anything back, even though a student’s education may have no value if the student cannot complete the requirements to be certified to enter their chosen profession. 

 

However, where students have already paid for their program but they are not receiving the education they were promised, particularly where there is some kind of contract setting that out (that can be just a promise or an advertisement that the college will give the student the opportunity to achieve certification), there may be a breach of contract and the students may be able to demand repayment.  Section 18(2) of the Consumers Protection Act allows consumers to recover any payment that exceeds the value of goods or services provided to the consumer.  So, if a student is not able to do anything at all because they cannot achieve certification, there may be a question whether what the college provides had any value at all. 

 

However, as this is a matter of contract law, the best option is for students to speak to an Education Lawyer about their rights under the contract to see if they can get any money back. 

 

Students must consider their relationship with their college, particularly colleges that play a role in the certification process and so can try to prevent a particular student from getting their professional certification.  Pushing back against the college too hard may mean that the college may be “uncooperative” in assisting the student to complete the requirements for certification.  If a student challenges the college, the student may find that he or she has to start their education over someplace else.  In that case, the student may be pursuing a claim in court for a full refund because the partial education he or she received has no real value.

 

But, starting college over from scratch can delay a student's entry into the workforce.  It may not be worth it.  Or it may be better to try to negotiate a resolution with the college. Sometimes it may be necessary for a student to get a lawyer to assist with those negotiations so the student does not get pushed around or forced into an unfair deal that does not benefit them.

 

Sometimes, colleges will not negotiate and will just pass on the unpaid tuition to a collection agency.  However, because of the terms of the Frustrated Contracts Act and the Consumer Protection Act, as set out above, the student may not actually owe any money.  Section 22(1) of Ontario Regulation 74 under the Collection and Debt Services Act says that a collection agency cannot contact someone any further if that person emails or sends registered mail to the collection agency stating: 

  1. the person disputes owing anything; and
  2. the alleged creditor (e.g. the college) or the collection agency can take the person to court.

 

Section 22 of the same Regulation says that the collection agency cannot contact the person any further if a lawyer advises the collection agency in writing that all communication must go through that lawyer. 

 

If a college were to take a student to court for unpaid tuition, or for “extra tuition” due to COVID-19, then the Frustrated Contracts Act and the Consumer Protection Act, and potentially the contract with the college, may offer defences that the student could use in court.  That could result not only in getting the alleged tuition debt erased, but perhaps also getting a tuition refund, the college having to pay some of the student’s legal fees, and in some cases the college paying the student for damages.  But, to know for sure, the student should speak to a good education lawyer. To set up a consultation with us, fill out this form.

 

If you are experiencing difficulties with a college or university, 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 416-446-5080, 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).

 

For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website.

 

Many thousands of people get family law assistance from this website every day.  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 challenges students face at college or university. 


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Does My Spouse Get Half My Pension If We Separate?

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A pension can be a great way to plan for retirement.   However, they can cause difficulties in separation and divorce.   Deciding how much a pension is worth, how it should be divided and what discounts may apply can all be complex issues.  It is unusual for separating spouses to share the full value of a pension equally.  A lot of factors come into play.

Ontario Family Law Podcast

9 - Property Division in Ontario After Marriage

29 - Common Law Separation and Property Division

44- Can You Be Better Off Financially If You Divorce?


52 - How Are Pensions Divided in Divorce?

There are two types of pensions: defined benefit and defined contribution.  Defined benefits are the “traditional” type of pension where employees and employers pay into a pension over the course of their employment and receive a set amount every month.  The second type is defined contribution, where the employer contributes a set amount to an RRSP or other savings account.   This page talks about defined benefit pensions as they are more complicated.  Defined contribution pensions are divided like an RRSP on separation. 


Before a spouse retires and starts collecting a pension, the pension is "property" (like a house or RRSPs or other assets) that is divided as part of property equalization pursuant to Part 1 of Ontario's Family Law Act.  (Note common law couples do not equalize their assets on separation and so they have no claims to each others pensions under the Family Law Act).  As with other assets, it is only the increase in value between the date of marriage and the date of separation that the spouses have to share.  They do not share the part of a pension that accrued before the date of marriage or after the date of separation. 




Pensions are very valuable assets. Their value is not what the spouse paid into the pension, but the total present value of what the spouse will receive on retirement from the part pension that accrued during the marriage.  A spouse who will be getting payments of just $2000 per month could have a pension worth half a million dollars!  Prior to changes to the Family Law Act in 2009, where one spouse earned his or her pension during the marriage, it was common for that  spouse to get the pension and the other to get the house, which could make life financially difficult for the spouse with the pension.


Since 2009, the most common way that people have dealt with pensions is to divide them "at source."   That means that a portion of the pension is transferred to the other spouse's pension or LIRA.  That decreased the pension payments for one spouse while increasing the money paid to the other spouse on retirement.  However, no payments are immediately necessary to deal with the pensions when equalizing property on divorce.  So, a spouse does not have to give up a house or other valuable assets to avoid making a large immediate payment.


To divide a pension at source after separation, spouses with a provincially regulated pension go to their HR departments, fill out some paperwork, pay a fee (usually $600 per pension) and the pension board calculates how much should be transferred to "equalize" the part of the pension or pensions that accrued during the marriage. Federally regulated pensions can also be divided at source, but the process is a little different.  Foreign pensions usually cannot be divided at source. The division at source takes the pensions our of the equalization calculation and all the other property is divided as if there was no pension.   That avoids one spouse getting the pension and the other spouse getting everything else.


But sometimes the best long-term financial decision is not to divide the pension at source.   Financial advisors helping a separating spouse may advise that the spouse with the pension will be better off in the end if they keep the full pension and get the all the full pension payments on retirement.  So, one or both spouses may prefer that the pension be included in the equalization calculation and be reflected in the cash that changes hands immediately. If the parties cannot agree on which way to divide the pension, sections 10.1(4) and (5) of the Family Law Act have the effect of making division at source the preferred way to divide a pension and only allow a judge to order the cash payment in limited circumstances.


Where spouses are going to include the pension in the equalization calculation so as to leave the pension intact, the spouses use the calculations that they got back from the pension board after filing the forms through HR.  The pension board gives the value of pension accrued during the marriage, so that is the number to plug into the equalization calculation for the value of the pension.  However, that calculation contemplates that the pension will be transferred to another pension or to a LIRA, which means the person who receives the transfer will pay the tax when receiving the payments after retirement.   When the pension is not being divided at source, the spouse who is keeping the pension will have to pay all the taxes on the pension benefit payments.  So, the tax debt associated with the pension also has to be included in the property equalization calculations.


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Essentially that means that the total value of the pension is reduced by the tax liability.  So instead of sharing 100% of the calculated total value of the pension in equalization calculations, only 85%, 75%, 60% or some other amount is shared between the spouses.  The reduction takes into account the taxes that have to be paid on the pension benefits payments. If there are any other reasons that a person might not receive a full pension benefits accrued during the marriage, then the reduction in value should take that into account as well. 


The amount of tax that a person will ultimately have to pay on pension benefit payments is influenced by several factors, such as:

  • the size of the pension benefits payments
  • what other income the person will be declaring and what impact that has on the marginal tax rate applied to the pension earnings
  • what credits or deductions can be applied to reduce the tax on the pension benefit payments
  • when the pension benefit payments will start
  • what other assets the person may be using during retirement

There is no way to know what the tax liability will be without consulting an accountant or other tax professional.  Even then, the liability can change with other changes in the person's life.  For that reason, the value of the liability is often "discounted" to take into account uncertainty and the fact that liability will not be incurred for some time.


Rather than hire an accountant to do more precise calculations, many people just want to use an educated guess as to what the tax liability will be.  For most pensions, the benefit payments will pay the recipient between $44,000 and $50,000 per year, which puts there tax rate at a little over 24%.  For income over $48,353 but less then $78,783, the marginal tax rate is just under 30%.  So many people just assume that the tax liability will be around 25% of the pension payments.


The 25% reduction is not set out in the law.  It is just an assumption or a commonly used value.  The factors set  out above could make it too high or too low.  For a person with a modest pension and no other retirement income, or who is a long way from retirement 25% will too much of a reduction.  For people with good pensions, or who have other money for retirement, 25% may be too low.  




Getting the number right is something that separated spouses  should really speak to a respected family lawyer about to make sure the pension is shared at the correct value.  Since pensions can be worth a lot of money, the discount can also be worth a lot of money.  Speaking to a lawyer to get the numbers right can save you money. 


Note that the Canada Pension Plan is not treated like a defined benefit pension.  It has very different rules.  CPP pension credits are always “divided at source” and so never form part of the property equalization calculation.  Also, both married spouses and common law couples who  have lived together for more than 12 months can have their credits divided for the entire period of their cohabitation.  All that is required is that one spouse apply to the Canada Pension Plan for the division.  Married spouses must do that within 3 years of separation.  Common Law couples have 4 years from separation to apply to divide the credits.


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

When spouses separate after retirement and the pension benefit payments have started, then the pension is usually considered to be a source of income for spousal support (and possibly child support) purposes rather than an asset to be divided.  


 

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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 416-446-5847, 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 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.


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Can Parents Get Private School Tuition Back Due to COVID-19?

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Ontario students have been out of school for almost two months. Parents of children in the public school system have been struggling with helping their children through lessons at home with what many of them feel is inadequate support, especially for children with special learning needs.  Parent with children in private school have been facing that, and additional concerns regarding paying tuition.  Even though they are closed to students due to the pandemic, and many parents are struggling financially, some Ontario Private Schools are asking parents to pay for the 2020/2021 school year now.   Others are continuing to charge for school this year or are refusing any form of refund even though students are not going to school.   For parents who paid for boarding, that can be a lot of money and it seems particularly unfair since their children are not currently living at the school.   Unlike publ ic school parents, private school parents feel stung even more if the distance learning for their children is not meeting their expectations in light of what they paid.

 

There may be some legal relief for parents.  However, it may depend on whether their child is actually attending a “private school” and what the contract says if the child is in a  private school.  The video below goes over the importance of contracts when sending a child to private school.   

 


In the pandemic, parents must determine whether their child is attending a “private school” or a “daycare".  Under Ontario’s Education Act, is a private school is an institution that provides instruction to students between the ages of 6 and 18 years old.  Organizations that provide instructions to children under the age of six do not fall under the definition of "private school", but probably fall under the definition of “daycare". On April 9, 2020, the Ontario Government passed a regulation prohibiting closed daycares from charging fees for the period while they are closed.   So, parents of students who are three, four or five years old do not have to pay tuition fees because daycares cannot legally charge them.

 

For students aged 6-18, things may be more complicated.  As noted above, a lot depends on the contract that the parents signed with the school.  There is always a contract.  At some point parents signed something agreeing to pay the tuition fees.  Sometimes that is all the contract says, but often it requires that students and parents conform to a code of conduct, it may set out rules or expectations for what type of education the school will provide, and it may contain terms about when the school can stop providing lessons to a student and whether tuition will be refunded if the school does stop teaching a child. 

 

There is no “standard private school contract” in Ontario.  Every school comes up with its own contract with parents.  Many schools change the contract every year and base the changes on challenges the school has faced in the year before.  So, parents have to find that contract and see what it says about what happens if the school says a student cannot attend class anymore.  The wording of that term may or may not address what happens in situations where the school is forced to shut down or provide online lessons.  (It is almost certain that privates school contracts will have explicit terms to address the situation starting in 2020/2021).

 

Ontario Family Law Podcast

49 - Can Parents Get Private School Tuition Back Due to COVID-19?

In many cases, what is happening in the pandemic is far from what the private school contract contemplated.  In situations where the parties to a contract cannot perform their obligations under the contract due to circumstances beyond their control, the contract is said to be “frustrated.”  Ontario’s Frustrated Contracts Act applies to contracts between private schools and parents.

 

38 - Ontario Private Schools, Standards, and Education Law

39 - What Ontario Public Schools Must Do About Bullying

Due to the pandemic, private schools may not be providing the education that parents were promised under the contract.  On March 17, the Ontario Government ordered that all private schools be closed indefinitely.  That was not the private schools’ fault.  Nor is it the parent’s fault.  So, the parent’s contract with the private school was frustrated by the ordered school closing, unless the school is providing comparable educational services to what it provided before March Break.

 

In these circumstances, section 3 of the Frustrated Contract Act says that payments are no longer owing for frustrated contracts.  The parents do not have to pay anything that they continue to owe the school under their current contract (presumably the contract is only for the 2019/2020 school year) and they don’t have to pay anything further under the contract.  The same rules apply to the school about paying anything back.  So, where parents have not finished paying for 2019/2020, they may be safe to tell the school they are not going to pay for anything after March 17, 2020.

 


Where parents have already paid for the school year, but their child is not receiving the education promised under the contract, there may be a breach of contract and the parents may be able to demand repayment.  Section 18(2) of the Consumers Protection Act allows consumers to recover any payment that exceeds the value of goods or services provided to the consumer.  So, there will be a question about whether the parents got what they paid for.  To some extent this will relate to what the school promised in the contract.  Many schools actually do not promise much in the contract.  However, it may be possible that the school made promises on their website or elsewhere on which the parents relied.  In that case, those promises may also form part of the contract.

 

However, as this is a matter of straight contract law, the best option is for parents to speak to an Education Lawyer about their rights under the contract to see if they can get any money back.

 

When dealing with private schools, the parents have to consider another aspect of their relationship with the private school and possibly their contract with the private school.  That consideration is whether they want to their child to continue to attend the school.  


Many private schools operate on razor thin margins.  The educators operate them do so for the love of teaching and do not operate to earn large profits.   For 2020/2021, the Ontario Government pays school boards up to $6,274.76 per elementary school student, but that does not include additional amounts to pay for school supplies, principals, vice-principals, school-secretaries, students with special needs, building operation and maintenance and may other costs, which equate to several thousand dollars more per student.  Parents should keep that in mind when considering whether the private school has any additional funds available to pay parents back – especially at a time when private schools may be trying to continue to pay teachers their full salaries to stop those teachers from leaving for another school.  So, a private school may not take kindly to a parent demanding money back.

 

Many private school contracts provide that they can “kick out” a student at any time for any reason.  Others state that they do not have to “invite” students back for the next academic year.  So, parents who create difficulties for a private school may find that their children are no longer able to attend that school.   The school’s contract with parents may allow that. 


Another trick that some private schools are trying is to say that if parents do not pay, they will not assist students or mark their assignments and tests, which will result in lower marks on the final report card.  Again, this something that the Ontario Government is not allowing.   The Ministry of Education Guidelines for Continuity of Learning During COVID19 say that teachers must use the evaluations of students completed before March 13, 2020, unless it is in the student’s interest to include later material.  That sounds like marks can only go up after March 12, 2020.  While that may or may not be the case, it is clear that schools cannot lower a students marks because parents are not paying tuition during the pandemic.    


So, again, when parents or students are facing these types of difficulties, it is critical for them to speak to an education lawyer.


In these difficult situations, it may be necessary for parents to have a conversation with the private school about what payments is fair under the circumstances.  Of course, it is important for parents to understand where they stand legally before having that conversation.  However, with the Ontario Courts essentially closed to these types of matters, many people have worked out disputes through negotiations and discussions.  That approach may address financial concerns and keep a child in the school that they love.


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 416-446-5080, 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).


For more information about Private Schools and Ontario Education Law, and other education law issues, such as assistance for children with special needs and school discipline such suspensions and expulsions, check out the Education Law section of this website.


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 challenges children face in school and the education system.


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The COVID19-Family Law Property SCAM That Can Cost Spouses Hundreds of Thousands


FAMILY LAW COVID19 RESOURCE CENTRE


COVID 19 Property SCAM Podcast


Even during this pandemic, there are some separated or separating spouses who are trying to take advantage of the situation, and the operation of Part 1 of Ontario’s Family Law Act, to try to get ALL of their ex’s wealth. It is important for married spouses to understand how that can happen, so they can plan accordingly.

 


 

Up until COVID19 hit, when it came to property matters, separated spouses were more concerned about what happens when assets increase significantly after separation and when those separated spouses share in that increase and when they don’t.  Unfortunately, due to the COVID19, the economy is facing the opposite situation, with people’s RRSPs and other investment savings plummeting in value.  Even with the Courts almost completely closed, many spouses are making legal claims to try to get ALL of what their ex has left. There may be some situations where that is the proper result, but it most it is not.  This type of action is not unique to COVID19.   It is also a concern whenever the economy takes a downturn. It was also a problem in 2008 and 2009.



 

To understand how his scam works, it is necessary to understand how property division works after a marriage.  There is no property division for common law couples under Ontario’s Family Law Act.  To briefly summarize and simplify how property divison works (follow the links for a complete explanation), with some exceptions, married couples share the increase in their net worths from their date of marriage to the day they separate. That makes those two dates very important.  With the possible exception of matrimonial homes, married spouses start counting how much they have, and really how much what they have is increasing in value from the date of marriage.   For the purposes of property division under Ontario’s Family Law Act, they stop considering their increase in net worth on the date they separate.  But, in these trouble times, that same law means that they stop counting any decrease in network on the date of separation too.  

 



The value of what a spouse owns before the date of marriage and after the date of separation don’t matter.  All that matters is what the married spouses had on those two dates. That fact is what makes this scam work.

 

Ontario Family Law Podcast

48 - The COVID19 Family Law Property SCAM

47 - How COVID19 affects Child Support and Spousal Support

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

9 - Property Division in Ontario After Marriage

29 - Common Law Separation and Property Division

40 - How to Keep Your Money in Separation and Divorce

Ontario Family Law recognizes that spouses do not have to physically separate, meaning one spouse walking out of the home, for the spouse to be separated.  The law recognizes that spouses can live “separate and apart under the same roof.”  The law says that when the spouses move apart is not necessarily the important date for property division, the date is when they stop living together as husband and wife, even if they continue to reside under the same roof.

 

That gives at least one spouse a big incentive to say the marriage was over, and the parties stopped living as husband and wife BEFORE the COVID19 crisis hit.  It gives an incentive to say the marriage ended before the value of their spouse’s assets plummeted – and to say that they were just sharing the same space as co-tenants, not as spouses anymore.

 

To illustrate the advantage this gives, consider a situation where one spouse had $500,000 in investments, but no other significant assets on January 1, 2020 and the other spouse had very little.  By the end of March, those investments have fallen to $250,000 in value and the stress of being isolated together in the home means that one spouse walks out.  But, that spouse with no assets does not want to share in $250,000.   That spouse wants to share in $500,000.   So, that spouse says they separated – stopped living like spouses -  on January 1 when the investments were worth $500,000.  Under Ontario Ontario’s property equalization scheme, that means that spouse would be owed and equalization payment of half the assets on January 1 - $250,000 – or ALL of what his or her ex has left.

 

That is an extreme case. Most won’t have results that bad.  But, it illustrates the point.

 

Of course, the opposite it also true.   If the spouses had a big fight on New Years, never got along afterward, and stopped living like spouses then, the spouse with the investments has a BIG INCENTIVE to try to reconcile the relationship, even briefly, while the investment value has cratered.  Because, if the spouses rekindle their relationship, even for a couple of days or nights, the date of separation becomes that last date, and they share in the LOW value for the assets.  That could be a big help, particularly if everyone’s investments rebound after the crisis.

 

The law is not so unreasonable as to allow one spouse to pick the date of separation that benefits him or her the most.  If the parties cannot agree, it is a judge or family arbitrator that decides.  With so much money potentially at stake, there is clear incentive for one spouse to lie or stretch the truth. Consequently, judges try to look at the facts objectively and ask themselves: “When would an objective person, who knew the couple, say the relationship was over?”  In determining that, it is not just when the couple stopped having sex, or even when one spouse started having an affair (some relationships recover from that).  The judge (or arbitrator) looks at factors such as

  •  when the spouses stopped eating together,
  • when they stopped going out or vacationing together,
  •  when they stopped showing signs of affection for each other,
  •  when they stopped referring to each other as spouses,
  •  when they took the wedding rings off
  •  when they separated their finances (opened separate accounts or stopped paying each other’s bills)
  • many other possible factors depending on the family’s situation.

 

Determining when spouses separated in these difficult circumstances can be open to argument.  Also, the separation date can be very dependent on the specific facts of the individual case. Since there can be a lot of money at stake, it is important for spouses in the midst of a separation to get in touch with a lawyer who can provide advice based on the specifics of the individual situation.  The lawyer can advise on the best thing to do in the particular situation of each case.  The specific circumstances can make a big difference on what a separating spouse should do to protect himself or herself. It can be important even for someone to speak to a lawyer before he or she walks out to determine when might be the best time to do that, or even if that matters anymore.  top family law lawyer can give you advice about your options and how to get to the result that is best for you.  In these situations, the lawyer’s advice can save a spouse thousands, even hundreds of thousands, of dollars – especially when it helps avoid a scam.

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

 

To get the best advice, specific to your situation, you should speak to family lawyer.  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 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

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Paperback available from:

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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, 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.

   

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 for your children after a separation. 

 

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How COVID19 Affects Child Support and Spousal Support

FAMILY LAW COVID19 RESOURCE CENTRE


COVID19 and Support Podcast


The Corona Virus has had a previously unimaginable impact on our economy and the incomes of many Canadian. COVID19 has put many people out of work, reduced the incomes of many others and completely shut down some businesses, leaving the owners with no money at all.  What does that mean for child support and spousal support obligations?   In the short run, probably very little.  In the long run, perhaps a lot. 


The government has not enacted any new laws to change support obligations as a result of the Corona Virus.  Unless the support payer and the support recipient agree to something different, support continues as set out in the last court order or separation agreement.  The children or spouse who are dependent on that support remain dependent on that support.  



However, many support payers feel that the children or their ex cannot have financial security that they do not have themselves – especially when there is no money left. 


In ordinary situations, if a support payer’s income dropped and the recipient did not agree to change support, the payer could go to court and ask for a change.  But now the courts are closed to all but the mom desperate Family Law cases and for many judges cases about the best interests of children have to take priority over all financial matters.  All the reported Family Law cases since the start of the  corona virus crisis have dealt with looking after children.  Click to read this page that has up-to-date information about what judges have decided in those cases. 




As of April 6, 2020, the Superior Court of Justice started trying to hear more cases after having increased its capacity to deal with cases electronically.  But only the Superior Court for the City of Toronto will start hearing contested support motions without a judge first assessing whether the parties cases are so dire that urgent relief is necessary.  However, even in Toronto, the Court will only hear support motions that are necessary to preserve financial stability for the family.  For most of Ontario, the Court will only make new support orders where the situation faced by at least one party is truly catastrophic or where the parties have agreed to the order. 


Ontario Family Law Podcast

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

47 - How COVID19 affects Child Support and Spousal Support

10 - Child Support - Who Pays and How Much?

13 - Spousal Support in Ontario and Canada

32 - How to Change a Support Order

35 - Resolving Children's Issues Outside of Court

With that said, for support payers who are having their support deducted directly from their pay, a reduction in pay may mean a reduction in how much money the payroll department sends to the Family Responsibility Office.  Pursuant to section 23(1) of Ontario’s Family Responsibility and Support Arrears Enforcement Act, 1996, the FRO can only get half of a support payor’s pay, so when pay goes down, the FRO will never get more than half.  


Similarly, if a support payer is suddenly on employment insurance, the FRO will still collect support from those payments, but the amount it can take may be much less. That can mean a reduction in the support collected.


It does not mean a reduction in the support owed.  Arrears of support will accumulate under the last support order unless the parties agree, or a court expunges those arrears later.


Also, like many other workplaces, the FRO has been affected by COVID19.  Their operations have been disrupted. The FRO has also recognized that it cannot strain the court system by using it to take aggressive support enforcement steps. So it will not be going after unpaid support as enthusiastically as usual. Again, that does not mean that the amount of support owing has changed.  In only means that the FRO Is not collecting the  support now.  The agency will collected the missed support payments later unless there is a new court order or written separation agreement that changes the amount owed. 


In the short term, support payers should be continuing to do their best to abide by their support obligations.  Their failure to do so may result in more enforcement measures or a court case later.


When the courts start to reopen, and support enforcement becomes likely again, there will lots of court cases about whether support should be reduced because that support payer’s income has gone down.  Lotos of families will be using the special, simplified, court procedure to change a support order or agreement.   Child support is supposed to change with the payer’s income.   Spousal support may change depending on the terms of the order or agreement. 




Support can change when the payer’s income changes. It looks like many people will see their income go down in 2020.  How much and for how long will be considerations for a judge.  A short blip may not justify changing support.  Something more could. With that in mind, an issue will be how quickly judges will jump in to change support.  They will not want to reduce support if it is just going to go up again in the near future when everything returns to normal.  However, a  judge  might consider reducing arrears accumulated if COVID19 was the cause of the missed payments.


How quickly support can change will be another issue. Section 16 of the Child Support Guidelines contemplates using the parents’ tax returns as the basis for calculating income for support.  As a result, many people adjust support, especially child support, when their tax returns are ready for the previous year because that is when there is a clear picture of what their income was.  In those cases, support is based on the income from the year before.  Support payers who income went down in 2020, may see their support payments go down in 2021, and then adjusted again in 2022 depending on how 2021 works out.


But, court decisions under the Child Support Guidelines also stress the importance of using  the most recent income information.  It is not necessary to wait for the T4s to come out next year to adjust income, particularly where the support payer is in financial hardship.  But, that will require convincing either the parent receiving support or the judge that change in income is permanent and is going to go past the end of COVID19.  After that, the support payer will have to establish what his or her new income is.  So, it may be better to be patient to let what the new income is become clear before running to court and using up the Court’s time and a lot of legal fees.  




On the other hand, judges do not like it when support payers unilaterally impose a change in support.  And one of the things that the payer must do to get an Order stopping the FRO from taking a license is start the court proceeding to change support.  So, it may be good to wait before running off to court, but not to wait too long.


However, when a judge does change support, section 34(1)(f) of the Family Law Act says that  the judge can change support  retroactively.  That means that a judge can order the return of an overpayment of support or more likely a credit against future support that can result in a support holiday going forward.  In D.B.S. v. S.R.G., the Supreme Court of Canada held that a judge can order a retroactive adjustment of support back to the date that one party can prove that he or she put the other party on notice that a chance so support was required.  So, if your income has gone down, now is the time to send that email telling your ex that and asking to change support.  Even if your ex says no, if your circumstances have changed, the judge may fix that later. 


If your ex does agree, as of April 6, the courts have been making new support orders when both parties agree.  That can change the amount the FRO collects, even if it is only temporarily. 


if you are not getting your full support payments, now is not going to be the time to get the FRO to take drastic support enforcement measures. The Order will stay as it is, and the arrears will accrue.  When this is over the FRO will take enforcement steps.  And, if your ex is just using COVID19 as an excuse to not pay support, then you will have an opportunity to explain that to the judge later, when everything, including your support, should have returned to normal.



Of course, parent do not have to wait for the courts to reopen to resolve support or any other family law matters.  Separated parents and spouses can use arbitration and family mediation to replace the Courts while they are closed, and even when they are not.



If you are having support problems, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  Even during the Corona Virus crisis, it is possible that lawyer can contact your ex's lawyer and they can work something out.  A top family law lawyer can give you advice about your options and how to get to the result that is best for you. 

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


To get the best advice, specific to your situation, you should speak to family lawyer.  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 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Paperback available from:

amazonlogo

           

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, 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.

   

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 for your children after a separation. 

 

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Does COVIT-19 Mean You Legally Can Stop Your Ex From Seeing the Kids

FAMILY LAW COVID19 RESOURCE CENTRE


COVID 19 Podcast 2


The corona virus crisis is having a profound impact on every aspect of our society.  With all the significant changes in the way that everyone is living every aspect of everyday life, and all the new public health requirements, separated parents are having questions about whether they should continue to follow the current parenting scheduled as set out in a Parenting Order or to an agreement with their ex.  All that is happening at a time when the Ontario court system is almost shut down and dealing with only the most desperate situations through telephone hearings.  However, in the last few weeks, there have been several court decisions that confirm that established principles under our family laws continue to apply even during COVID-19.  There are links to the Court decisions on this page.


At the outset, it is important to remember that parenting cases are the ones that are most often depend on the particular facts of each case.  Every family is unique and so are almost every parenting order that a Court makes.  There can be little things about the circumstances of your particular children, or the history of your particular case that would make a big difference in how a judge will see things.  Also, in times of stress and panic, it is possible that a judge would not see things the same way parents see them while working under the stress of the pandemic.   So, it remains important to get a lawyer who is knowledgeable about your specific circumstances and can give you carefully considered advice.   If you have concerns about whether to continue to follow your existing parenting agreement or court order, then you should speak to your lawyer for advice,  contact Certified Specialist in Family Law, John Schuman, and his team by calling Hannah, at 416-446-5807 for consultations, at reduced rates, by telephone and video conference to avoid the transmission of the virus.


Almost all separated parents had parenting arrangements in place before the coronavirus virus crisis.  The question many of those parents are asking is  whether COVID-10 means that they have to change their parenting arrangements.  Making the wrong choice can lead to serious legal problems.  In cases involving children, the overriding principle is what is in the best interests of the child.  Court cases during COVID19 confirm that continues to be the case.  So, the question ever parent has to ask is: “Is in the best interest of my children to change the current parenting arrangements?"



With the encouragement from public health officials to limit contact with other people, it seems like it might be in the children's best interest to stay in one spot and have contact with as few people as possible.  It would not be in the children's best interest to engage in any activity that could put them at risk of infection.  That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis.


However, the current view of parenting professionals and judges is that having contact with both parents is important to a child's sense of well-being and healthy development.  This means that seeing both parents is also in the child's best interest.  Children suffer when deprived of contact with their one of their parents.  They suffer even more when there is conflict between their parents over things like the schedule.  So, one parent disturbing the existing parenting arrangements without the other parent’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road.  Ontario Courts have continued to apply this principle during COVID19.


However, where a parent has not pursued parenting time, or regular parenting time before COVID19, the Court is not going to entertain a request to set up regular parenting time during the pandemic.  Children need consistency and peace during this time.  They do not need added stress, exposure to conflict, or big changes top their lives.


Many separated parents may be temped to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent during COVID19, the Courts have been clear that there may be consequences for that parent once regular court operations resume




Justice Pazaratz of the Ontario Superior Court  (Family Court) made one of the first decisions when a parent cuts off the other parent due to COVID19.  Many other judges have followed that decision. Her Honour was clear that existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed.  


To summarize the decision that parents have to make, it is: “Is in the children's best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children's best interest to spend time with both parents even if that means they will come into contact with other people.”

 

Again, a lot depends on the new specifics of the situation.  If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all. However, a parenting doing something that will expose him/herself  or the child to an increased risk of contracting the virus does justify changing the parenting arrangements.


When separated parents can be cooperative, even creative, it may be possible to make changes to the parenting arrangement to benefit the children.  Perhaps changing the current arrangements is in the children's best interest.  Judges expect separated parents to cooperate and make those changes together at all times, but especially during COVID19.  Judges are not happy with parents who cannot put their children first and find ways to cooperate.  For example, with the disruptions to workplaces, it may be that one parent has more ability to look after the children, especially at times of the other parent continues to go to work.  This can be especially important with schools and daycares closed.  Through cooperation, parents can also make adjustments to their schedules to minimize the number of other people with whom the children come into contact, and thereby reduce the chances of transmission of the virus.  Similarly, to avoid the children being exposed to infection, it may be beneficial to adjust the schedule, to reduce the number of time children go back and forth between a parents so that the children have fewer opportunities to be exposed.

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46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

47 - How COVID19 affects Child Support and Spousal Support

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

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

35 - Resolving Children's Issues Outside of Court

Another consideration at this time is that some parenting arrangements have the children being exchanged between parents at a public place, with other people around.  In the current situation that is no not recommended.  You and your ex want to do the exchange of the children at a place away from other people.  So, you may need to change where do it.  If there are ongoing safety concerns and that is the reason why the exchanges are where it are, then you will you may still need to change the location to keep yourself away from other people, but still do it in a place where you are visible so that nothing stupid can happen.  Perhaps you'll have to move to a place that is further away from other people but still has people close enough around so that they can notice any difficulty from a distance.  Perhaps you will have to move your meetings to be in the vicinity of a police station or someplace else where people can intervene if something goes wrong even if those other people are at a distance during the exchange itself.  Remember, the only thing you should be concerned about is the best interests of your children making arrangements.


Where one parent is worried about his or her ability to keep the children safe from infection, then it may be possible for the children to maintain contact with both parents over Face Time Skype, or other videoconferencing or other methods of communication.  For example, parents could still interact with their kids by playing video games that allow players to play together from different locations.  Parents have to balance all the considerations to determine what is in the children's best interest. However, the courts have been clear that these types of parental contact are not sufficient and should only  be put in place when there is a real danger to the child’s safety by being with the other parent.  Real danger means the parent must have been advised by a public health to go into self-isolation, be a confirmed or presumptive case of COVID19 or be actually engaging in risky behaviours. 


Being employed in health-care, as a first responder, or as any other type of front-line work is not engaging in risky behaviour that should result in a change to the parenting arrangements.  People holding those positions work with their employers to put into place measures to protect them from contracting the virus.  The screening tools for COVID19 consider whether a person has been in contact with someone with COVID19 without necessary Personal Protective Equipment in place.  It is an usually foolish and selfish parent who does not wear PPE during this crisis if only out of concern for the children.  So, before changing parenting arrangements, judges want to see evidence that a parent is being reckless and not wearing the PPE or otherwise putting him or herself at unusually  high risk. 


Obviously, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials.  Or, when a parent insists on engaging in other risky behavior at this unusual time.  Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account.  If the arrangements do take that type of behavior into account, then no change may be necessary.  However, if a parent is insisting on doing engaging with the children in activities that are clearly not the children's best interest in light of the advice and information from our public health officials, then a parent may have to insist on changing the arrangement.


If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting-time between a child and one parent, the circumstances may meet the test for “urgency”, which would allow a concerned parent to get the matter decided by a Judge under the special provisions that the Ontario Courts have put in place during COVID19. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area:

  1. The parent’s concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date;
  2. The parent’s concern must be serious enough in that it significantly affects the health, safety or economic well-being of the children or one or both of the parents; and
  3. The parent’s concern has to be rooted in real evidence. It cannot be speculative or theoretical.
  4. The parent’s concerns must be clearly particularized in evidence with examples that describe the concern and why it is urgent.



There are very few circumstances in which a judge will find that deliberately breaching a court order is okay.  Judge can throw people in jail when they deliberately go against Court Orders.  Judges also expect parents to respect and follow their parenting agreement. So, i any parent who thinks they have to stop their child from seeing the other parent MUST speak to a lawyer about getting into Court to get a judge’s permission to change the existing arrangements.


Similarly, if you are a parent who wants to see your children but is worried that you have been exposed to the coronavirus now is not the time to insist on your parental rights.  There are no parental rights in Ontario. There are only parental responsibilities and your children have rights.  Children have the right not be placed into danger unnecessarily, especially not by their parents whose main concern should be protecting them during these dangerous times.  No judge is going to be sympathetic to any parent who puts the misconceived idea of “parent rights” ahead of the children’s safety or who hide the fact that the parent is a carrier of this virus and puts the children at risk of contracting it.

 

Procedures like family arbitration or parenting coordination may also give parents a procedure to resolve these types of disagreements more quickly and more easily than trying to get into Court during COVID19.  While both parents have to agree to use those mechanisms, suggesting to an ex that it would be good to have an impartial professional weight on what would be in the children's best interest will show the court that parent at least tried to work things out and that may give some assurance that a judge will not be terribly upset by the decision when the matter finally makes it into court later.


If you are having difficulty coming to an agreement with your ex over what is in your children's best interest, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  It is possible that lawyer can contact your ex's lawyer and they can work something out.  Perhaps they can agree on a mechanism such as parenting coordination or arbitration to work things out.  At the very least, they will be able to give you some objective advice about what is in your children's best interest and what you should be doing.  Don't get into a fight in front of your children and cause them even more stress and anxiety over this difficult time.  Got in touch with professionals to help you figure out that what is best for your children in light of your parenting situation and the extraordinary times in which we are currently living.

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


To get the best advice, specific to your situation, you should speak to family lawyer.  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 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

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