Family Law Blog

Do Grandparents Have Any Rights in Family Law?

grandparent caring for grandchild

Many grandparents have, or want to have, a close relationship with their grandchildren.  There is social science research that says children benefit from knowing their heritage through contact with their ancestors.  Many family court judges will tell you that children also benefit from having more family members involved in their lives and caring for them.  Unfortunately, grandparents are not always able to stay involved in their grandchildren’s lives.  Sometimes that is because the children’s parents have “cut them out” or blocked grandparents from seeing their grandchildren.  When that happens, grandparents want to know if they have any legal rights.


However, in Ontario Family Law, there are no rights for adults.  The rights belong to the children.   What matters is what is in the children’s best interests. All the factors above are reasons why it may be best for the children to have a relationship with their grandparents, even if a court order is required. 


Section 21 of Ontario’s Children’s Law Reform Act, allows more than just children’s parents to start court proceedings in relation to child custody or access.  That law allows parents or “any other person” to make those claims.  So, grandparents can bring a custody or access application in Family Court with respect to their grandchildren.  That case is determined in the same way as any other custody case, based on what is in the “children’s best interest.”  Among the factors that favour making an access order in favour of grandparents are:

  1. the love, affection and emotional ties between the child  and the person seeking access;
  2. the ability of the person applying for access to the child to act as a parent; and
  3. the relationship by blood between the child and each person who is a party in the case.


However, the courts have noticed that when grandparents come before the court looking for access, it is because the children’s parents, or at least a custodial parent, have decided that contact between the children and grandparents is not in the children’s best interest.  Where the parents are competent parents, courts do not like to intervene in their decisions.  Judges assume that parents who deny access to grandparents do so out of concern for their children’s best interests, and such considerations as:

  1. the love, affection and emotion ties between the child and the other people with whom the child lives and the people who are actively involved in the child’s upbringing;
  2. the stability of the home environment (and avoiding disrupting a stable home environment);
  3. the ability of the custodial parents to provide the child with guidance and support; and
  4. the ability of the custodial parents to make good parenting decisions.


In the case of Chapman v. Chapman, the Ontario Court of Appeal said that the courts should respect the autonomy of the parents and their decision about what is in their children’s best interests.  However, that does not mean that the courts should never intervene when parents deny their children the opportunity to have a relationship with their grandparents.  In that case, the court of appeal said: 

  • A relationship with a grandparent can - and ideally should - enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children.  When those positive relationships are imperilled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship  

So, in Chapman, the Ontario Court of Appeal set out three factors that judges must consider when deciding cases in which grandparents seek access orders:

  1. Does a positive grandparent-grandchild relationship already exist?
  2. Has the parent’s decision imperilled the positive grandparent-grandchild relationship?
  3. Has the parent acted arbitrarily?


Where there is no existing positive grandparent-grandchild relationship, and it is not necessary for the court to intervene to protect the child from harm under the Child and Family Services Act, the court will not make an order to create a positive relationship. Put more simply, a grandparent must have already had a positive relationship with the kids to bring an application for access.  If no such positive relationship existed, the grandparents will not get an order for access.


Also, to be successful, grandparents must show that the parents acted “arbitrarily”, which means the parents made their decision to “cut out” the grandparents based on considerations other than the children’s best interests.  The court will respect the decisions of parents that are based on their beliefs about what is in the children’s best interests.


Things are entirely different when the parents are before the court because a Children’s Aid Society has had to intervene to protect the children.  In that case, section 51(3.1) of the Child and Family Services Act requires a judge to consider placing a child with extended family members before placing the child in foster care.  The legislated assumption is that placing with a family member is far better for the child.  There are several steps that grandparents can, and should, take to make sure their grandchild lives with them and is not in CAS care.

Ontario Family Law Podcast - Episode 13 - Spousal Support in Ontario and Canada

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


There is a flip-side to having a court order for access to a child.   Access orders are usually made in favour of parents.  Grandparents and other “non-parents” who get access orders to a child often put them selves in “the place of a parent” to that child.  Under Ontario Law everyone who stands in the place a parent must pay child support.  So, grandparents can be forced to pay child support - even if other “parents” are already paying child support.  For more information about how that can happen, listen to this podcast.


Book - Guide to the Basics of Ontario Family Law

Grandparent access cases, or even grandparent custody cases, are very complicated family court matters.  In addition, sections 21.1 and 21.2 of the Children’s Law Reform Act create a number of additional requirements and procedures for non-parents who go to family court for custody or access orders. Grandparents who are having trouble seeing their kids should go to see an excellent family lawyer with experience in grandparent-access cases. To make an appointment to consult with Certified Specialist in Family Law, John Schuman,  call 416-446-5847, email him, or fill out the form below.  We answer all inquiries promptly. 

To learn even more about the rights of grandparents, and parents, in custody and access cases, how those cases work, how family court cases and options for resolving these difficult cases outside of family court, get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or in the paperback version. 


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Do I Have to Show My Bank Accounts to My Spouse?

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As long as you and your spouse are not involved in family law litigation, or you are under a court order to disclose your bank accounts, you are under no legal obligation to show your spouse the contents of a bank account that is solely in your name. If accounts are joint, then the other account holder has a right to information regarding the account and to see the statements. As far as whether you should show the account to your spouse, that is a matter of personal choice.


Ontario Family Law Podcast

34 - Financial Disclosure in Family Law Cases

If you do separate from your spouse, and you want a separation agreement or you end up in court, the rules are different. Financial disclosure (including of bank accounts) is the first step, and the cornerstone, of family law proceedings. It is a requirement under the Family Law Act that all separating spouses make full and frank disclosure of all relevant financial information. Rule 13 of the Ontario Family Law Rules says you have to make that disclosure right at the very beginning of your case - almost as soon as you start your case or almost right after you have been served with court documents.  You should listen to this podcast that explains what disclosure is necessary in family law cases, when it has to be provided, and what can happen if not enough disclosure is provided. This page on family court disclosure is also a good resource to check out.  As part of this disclosure, you will have to disclose all the accounts you currently hold and their balances. You will also have to show them the statements to prove the amounts in the account. You should also watch this video, where I explain the issues regarding hiding money in family law cases and how a good lawyer will be able to track money that spouses have hidden.


If you think that your separation will involve going to court, you should watch this video on family court and how to prepare yourself for it. If you want to resolve your separation outside court, this link provides some explanations on the extra-judicial ways to do this. If you do end up in court, the fact that you did not show your spouse your personal bank account will probably not affect your case, as you were under no obligation to show it to him. However, if you do not disclose the account as part of your financial disclosure, there are serious consequences, ranging from the judge awarding costs against you to possibly dismissing your case.

Book - Guide to the Basics of Ontario Family Law


Regardless of whether for court or for a separation agreement, financial disclosure is complicated and is one of the reasons why separating spouses should always contact a lawyer.   To learn even more about separation and the rules of financial disclosure, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 eBook for Kindle or Kobo or as an iBook for iPad, iPhone or Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.

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Guide to the Basics of Ontario Family Law Available on Kindle


Balancing your privacy with the expectation in family court can be tricky. To protect yourself, or just discuss your case, contact Certified Specialist in Family Law, John Schuman, who is an expert in child support issues, call 416-446-5847, email him, or use the form below. We answer all inquiries promptly.


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Do Common-Law Partners Share Their Pensions?

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When married spouses separate, they are entitled to an equalization of their net family properties under Part I of the Family Law Act. This means that married spouses are entitled to divide the increase in their net worth that arose during the marriage. However common-law or cohabiting spouses do not have a right to an equalization or division of property on separation. For common law spouses to make a property claim against their spouse, they generally have to rely on equitable ‘trusts’ and must prove that they made a contribution to the property that they were not otherwise compensated for. You should listen to this podcast about the special characteristics of common law relationships and watch this video about common law separation and property division.


Ontario Family Law Podcast

29 - Common Law Separation and Property Division

30 - Entitlement to Spousal Support

With regards to pension property, a common law spouse can apply for a division of Canada Pension Plan credits accumulated during the relationship, provided they have cohabited for at least one year. Generally, if both spouses have been paying into CPP, the entitlement of the lower earner will be increased and the future benefits of the higher earner are reduced accordingly. However, other pensions are considered property like anything else, and common-law spouses do not have an automatic right to share in them. If a person made significant contributions to their spouse’s career, such that they directly helped increase the value of the pension, they may have a trust claim. However, equitable claims are complicated and each case depends on its particular facts. If you believe you may have a claim in equity, you should always contact an experienced family law lawyer as these claims require significant skill to pursue. 


If your partner is retired, you may be entitled to share in his pension as support.  In fact, if you were economically disadvantaged by the relationship because you were in a common-law relationship and did not have property division, you are more likely to be entitled to spousal support. So, you might get “part of the pension” as spousal support.   In the event that child support is still payable by someone who is retired, pension income is income for child support.


Many pensions have survivor benefits for spouses who die after the pension members.  Common law spouses may be entitled to those survivor benefits, but that would depend on the specific circumstances and the term of the pension.  If you think you should be getting survivor benefits, then speak to a good lawyer.

Book - Guide to the Basics of Ontario Family Law


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

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If you are getting a "bad deal” in separation, then you should speak to an reputable and experienced family lawyer to find out what options you have.  There may be seldom-used possibilities that apply to your case, but that will “make things right.” To discuss your case with Certified Specialist in Family Law, John Schuman, who is an expert in child support issues, call 416-446-5869, email him, or use the form below. We answer all inquiries promptly.


If you found this page helpful, please feel free to share it on your social network using the buttons below, or comment on it using the form below.


Ontario’s New Law to Help First Responders with PTSD Explained

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On April 5, 2016, the Ontario Government passed new legislation to make it easier for First Responders (Police Officers, Paramedics, Fire Fighters, their dispatchers, and Correctional Services Workers) to get assistance through the Workplace Safety and Insurance Board. This legislation promises to help a lot of first responders and their families through greater access to mental health treatment for first responders suffering from Post Traumatic Stress Disorder.


You can read the text of the legislation here. This new legislation, called "Bill 163, Supporting Ontario's First Responders Act (Posttraumatic Stress Disorder), 2016", will replace Bill 2, which also proposed greater assistance for first responders with PTSD and was the bill that many first responders and the #ivegotyourback911 campaign supported. The Ontario Government explains its proposed First Responder PTSD legislation on this page. But for people who are not both a first responder and a lawyer, this page will explain what the new legislation does and does not do.


Is the Legislation Final?

Yes.  It has passed all three readings in the Ontario Legislature - in under two months  which is very fast for a bill to become law.  Before the bill actually becomes law, the government must submit it to the Lieutenant Governor to sign into law.   However, this is usually just a formality.   The government may delay submitting the bill to the Lieutenant Governor if it needs time to get things in place before the law goes into effect.  Perhaps the government will want to give WSIB time to get ready.  Also, even after the Lieutenant Governor signs the law, the legislature can pass new bills to amend it.  There is pressure to extend the coverage of the bill to include nurses.  So, there may be changes to the law in the future.  But, until the legislature passes those changes, Bill 163 is the law. 


Who is Covered By This New Legislation?

The new law sets out that the following occupations will be subject to the new rules when applying for WSIB benefits as a result of post-traumatic stress disorder:

    1.  Full-time firefighters.

    2.  Part-time firefighters.

    3.  Volunteer firefighters.

    4.  Fire investigators.

    5.  Police officers.

    6.  Members of a First Nations emergency response team.

    7.  Paramedics.

    8.  Emergency medical attendants.

    9.  Communications officers.

  10.  Workers in a correctional institution.

  11.  Workers in a place of secure custody or place of secure temporary detention.

  12.  Workers whose duties include dispatching the workers described in paragraphs 1 to 5.


How Does the New Law Change the Rules for PTSD and WSIB?

Anyone who has been diagnosed with PTSD by a qualified practitioner (see below) and who works in one of the first responder occupations described above will not have to prove to WSIB that the PTSD is related to a first responder’s work for it to be considered an “occupational disease” or "work injury.” Instead, WSIB will be required to assume that it is and provide benefits unless WSIB can prove that the PTSD is not work related. This is the big change in the legislation because first responders will no longer be required to prove that their PTSD is the result of their work as first responder.


Who Can Diagnose PTSD?

For the WSIB to recognize a first responder has PTSD, that diagnosis must be made by a psychiatrist or registered psychologist.  A psychiatrist is a physician who holds a specialist’s certificate in psychiatry issued by The Royal College of Physicians and Surgeons of Canada.  A family doctor or other type of physician cannot make the diagnosis for the new rules to apply.  A psychologist is a member of the College of Psychologists of Ontario.  WSIB does not have to recognize a diagnosis of PTSD that is made by a social worker, psychoanalyst, psychotherapist, therapist or other type of counsellor.  The “new rules” will not apply if one of the diagnosis comes form one of those professionals. 


Does the New Legislation Cover Other Mental Health Issues?

The new legislation only applies to first responders diagnosed with Post Traumatic Stress Disorder as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), published by the American Psychiatric Association.  First Responders with depression disorders, anxiety disorders (other than PTSD) or any other mental health issues will still have to prove that those conditions are an “occupational disease” that was caused by their work before receiving WSIB benefits.


Does the Legislation Apply Retroactively To First Responders Already Diagnosed with PTSD?

The answer to this question is “it depends.”

If a first responder with PTSD has already had his or her claim denied by WSIB, then the legislation does not change anything - the claim remains denied.

If a first responder has a claim pending or an appeal pending before the Appeals Tribunal when the bill becomes law, then the matter goes back to the WSIB adjudicator to decide under the new “rules” that assume that the PTSD is work related.

If the first responder is diagnosed with PTSD up to two years before the bill becomes law, and the first responder has not made a claim or the claim or appeal is still pending, then the “new rules” apply and PTSD is assumed to be work related. Obviously, the sooner the bill becomes law, the more first responders who will be able to benefit from the new provisions.


Is There A Time Limit for Making a Claim for PTSD?

The presumption that PTSD is related to the job of being a first responder only applies for up to 24 months after the person leaves his or her job as a first responder.  If a person has not been a first responder for two years, then that person has to prove that the PTSD is work related and the new “presumption” does not apply. It is obviously important for first responders to make their claim quickly if they leave their jobs as first responders with PTSD.


Does All First Responder PTSD Fall Under the New Rules?

No.  A first responder is not entitled to any WSIB benefits if the post traumatic stress disorder was caused by the first responder’s employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.


Does the New Law Change Anything For Employers?

Employers of Fist Responders must present their plans to combat PTSD in the workplace if the Ministry of Labour asks for those plans.  There is no penalty for employers who do not.


The new legislation promises to make it much easier for first responders with PTSD to get WSIB benefits, which should also make it much easier for them to get help.  The #ivegotyourtback911 and everyone else who lobbied the Ontario Government so hard for this legislation deserve a lot of thanks and credit for bringing these changes about.


If you are a first responder (in any of the twelve positions described above) and you have need legal advice or assistance, check out this page for lawyers dedicated to helping first responders or contact lawyer and paramedic John Schuman by calling 416-446-5080 or emailing him.  There is a 20% discount for first responders for many types of legal issues  You can also contact us, or comment on this page, using the form below. 

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First Responder Lawyers offering 20% Discount



Can a Spouse Quit a Job Before Separation to Get Spousal Support and Avoid Paying Child Support?

calculating support for separation agreement and employment contract


Some spouses think that it can be a good idea to quit their jobs, immediately before or after separation to get a support order in Family Court that is more to their liking.  This strategy frequently backfires.  The explanation of spousal support and child support that follows shows why.


Spousal Support (Alimony)

Spousal support is one of those complicated areas of law.  In addition, it is ultimately almost entirely up to the discretion of the judge hearing the case. But, here is a summary of important things to consider when a spouse quits a job or reduces hours of work shortly before separation.

Ontario Family Law Podcast

30 - Entitlement to Spousal Support



First, just because two people were married (or lived together for more than three years, or had a child) does not mean that a spouse is entitled to spousal support.  Many people (and less experienced lawyers) overlook the entitlement question.  However, if there is no entitlement there is no spousal support.  The on-line spousal support calculations assume entitlement, they do not show it - a calculation showing a value for spousal support does not mean there is entitlement.   This podcast provides a more complete explanation of spousal support entitlement.  However, to over-simplify, if a spouse has not suffered economic disadvantage as a result of the marriage or childcare responsibilities, has not become accustomed to a standard of living that is impossible to maintain on his/her income alone or has other financial needs, or has not provided services to the other spouse or children for which she has not received compensation or sufficient other benefits, then that spouse may not be entitled to support.  There are other articles on this wbsite that explain spousal support entitlement in more detail.


Second, once a spouse has established entitlement there are questions both about "how much" and "how long."  The Spousal Support Advisory Guidelines gives some guidance on this.  These are the calculations you see on on-line calculators.  However, there are are almost a hundred pages of rules about how to apply and interpret those calculations and how to determine where support should be in the range of values produced by the calculations.  The on-line calculators do not explain those rules.  You either have to read the text of the Spousal Support Advisory Guidlines (linked above), which is designed for lawyers and judges to read, or consult a lawyer about your case.

Third, spousal support is not just based on how much a spouse makes:  

  1. Spousal Support is also based on how much a spouse could make.   A judge considering a spousal support case will use a "full-time income" for a person who could be working full time.  
  2. Spousal support is considers what contributions the spouse made to the marriage and children and what sacrifices the spouse made.  It is not just important what a spouse makes, but what a spouse could have made if the relationship had not happened. 
  3. Spousal support can be paid either periodically (usually monthly) or a lump sum.  Where there is entitlement to spousal support, but the amount is not too high, spouses often prefer the lump sum so that there are no further payments and what happens to either spouse in the future does affect how much spousal support is paid or received.  But where spousal support is to continue for a long time, or in a large amount, monthly payments may be more appropriate.  There are also important tax considerations for each type of payment, which are described below.


There may also be some additional considerations that apply in the specific circumstances of a particular case.  For more on that,  watch this video on spousal support, but it is almost certainly better to see an excellent and knowledgeable family law lawyer with experiences in spousal support cases to determine how spousal support works in your particular circumstances.


The decision by a parent to quit a job cab also impact child support, but may not.

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Child Support
Child support is a little easier.  When a child lives primarily with one parent, the other parent pays child support. The Child Support Guideline Tables give a precise number for child support that applies in most situations.  It gets more complicated in cases of split or shared custody, as described in this podcast or on this page.  In addition, parents may have to contribute tospecial and extraordinary expenses on top of child support.  But, it is important to remember that your spouse's income for child support is the total of all income, so both employment and spousal support count.  This video on child support covers many of the important things you need to know.


Book - Guide to the Basics of Ontario Family Law
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Where there is no spousal support, or not much. that does not mean a parent will be let off child support.  Section 19(1)(a) of the Child Support Guidelines allows a judge to “impute” income to a parent who is not working as much as he or she could be. What that means is that a judge can order that a parent pay child support based on what that parent could be making rather than what the parent is actually making.  Judges do not like parents who quit their jobs to avod supporting their kids.  In those cases, judges figure out what the maximum amount the parent could be making and base support on that.  This is where a lot of parents get into torubel and fall behind because the order for child support is based on a higher income than the parent actually earns.  It is never worth it to quit a job to get out of child support becasue of the judge orders full support based on a higher income, the parent can end up in jail when he or she fails to pay. 

It is also important to remember that spousal support is tax-deductible to the payer and taxable to the recipient, unless it is paid as a lump sum.  Child support is not tax deductible or taxable.

You can get a lot more information about spousal support, child support, and all the law involved (as well as information on most other Ontario Family Law issues) by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version. You can learn a  more about the family court process in general by watching this video or listening to these podcasts (iTunes version here).  But, to makes sure you are doing the right thing, and the support amount is right, it s always best to speak with a good family law lawyer. 


To discuss your case with Certified Specialist in Family Law, John Schuman, who is an expert in child support issues, call 416-446-5869, email him, or use the form below. We answer all inquiries promptly.


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What Happens to Child Support When a Child Graduates High School in January and Starts Univeristy in September?

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by Ira Marcovitch, Articling Student

Child Support in Ontario is governed by a combination of the Family Law Act, the Divorce Act and the Child Support Guidelines, all of which create an obligation on a parent to support a child, be it a ‘child’ under the Family Law Act or a ‘child of the marriage’ under the Divorce Act.   For married or divorced parents, the Divorce Act and the Federal Child Support Guidelines apply all across Canada.  This page applies to parents in Ontario and married parents in Canada.


Unlike many jurisdictions in the United States and abroad, the entitlement to child support does not end when a child reaches 18 years of age. See the article Child Support Does Not End at Age 18 for a full explanation of how judges deal with child support for children over the age of 18. You can also listen to this podcast covering child support in university and other large children's expenses.   As well, inthe video Do I Have to Pay Child Support, sets out the general rules regarding the payment of child support.

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10 - Child Support - Who Pays and How Much?


In Canada, child support can continue past the age of 18 in two circumstances: where the child is disabled such that they remain dependant on their parents (this only applies to children of married parents); or where the child is enrolled in a full-time program of education. Where a child is enrolled in a post-secondary program, their educational or tuition expenses may qualify as special and extraordinary (or “section seven") expenses. This means that a payor parent will have to contribute to post-secondary expenses such as tuition, residence costs, textbook costs and other expenses in proportion to their income. 

   

Despite the gap in a child’s education, if she has been accepted by the university, she remains ‘enrolled in a full-time program of education.’ As set out in the page, Child Support Does Not End at Age 18, some judges disagree as to whether children over 18 years of age in a ‘victory lap’ year of high school continue to be entitled to support. However, it appears that if the extra semester or year is necessary to enter into a paricular post-secondary program that the child wants or to gain credits, it is likely that the extra semester and necessary gap will not disentitle a child to child support. But that does not mean that a child who takes a “break” instead of a “victory lap” is not longer entitled to child support. As far as the tuition related expenses, payor parents will continue to be under the obligation to pay for university costs despite the relatively short gap.


If the child is over 18 years old, and has stopped attending school full-time, then child support can stop during the “gap” but would resume after the child returns to school full-time.   The expectation is that the child would find temporary employment to contribute to her living expenses during that time.  Although, in those circumstances, many children chose to stay in school and not work during the gap.  There is no break in child support when a child is out-of-school for the summer but intending to return to school full-time in the fall.

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


Child support does not end for children under 18 unless they have withdrawn from parental control, which essentially moved out on their own and become self-sufficient.  That is not the case for a child waiting to go to university.

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Cases of child support for children after high school are more complicated and the particular circumstances of the parents and the child play a large role in determining whether and how much child support should be paid. These are cases where getting a consultation with an excellent and knowledgeable  family lawyer, is really important to determine how the law applies in your case. To get in touch with Certified Specialist in Family Law, John Schuman, who is an expert in child support issues, call 416-446-4036, email him, or use the form below. We answer all inquiries promptly.


To learn even more about child support, for kids over and under 18, and for kids with special expenses, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 eBook for Kindle or Kobo or as an iBook for iPad, iPhone or Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right  (below on mobile devices) to find lots more articles on child support.


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