Family Law Blog

Can My Spouse Divorce Me Before I Get Permanent Resident Status? Will I Be Deported?

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A globe I created as an icon.


Family law is an area of law that frequently implicates issues arising in other areas of law – immigration in this case. Your question raises both family law and immigration law issues, and I will do my best to outline both areas.


Ontario Family Law Podcast

55- Can you get divorced in Canada?

For your husband to seek a divorce, there are certain conditions that must be met. Foremost, the marriage must be recognized as valid; a Canadian court will not grant a divorce related to a marriage that is not considered legal in Canada. As well, one of the spouses must have been ‘ordinarily resident’ in the province in which they seek the divorce for one year prior to the application. That means (for example) that for your husband to apply to an Ontario court for a divorce, he must have been ordinarily resident in Ontario for a year prior. You can read this blog, where I further discuss what it means to be ‘ordinarily resident’ for family law purposes.


In Canada, there are three grounds that could entitle you to a divorce. However, the most common ground is living separate and apart for at least one year. This is a legal test, and the fact that you and your spouse are not in the same country does not necessarily mean that you are living separate and apart. Many married couples live in  different regions (e.g. soldiers deployed to another country) and so the important question to ask is whether a stranger observing you and your wife would think that you are married. Perhaps you used to visit her frequently and no longer do, or you no longer speak on the phone. It is always best to consult with a family lawyer to determine whether you are eligible for a divorce, especially in unique situations such as yours.


Ontario Family Law Podcast

26 - Immigration Law Consequences of Separation/Divorce

If you and your husband are eligible for a divorce, there are three types in Canada. The first is a joint divorce. This is where one spouse files an application for divorce with the consent of the other spouse. The second is an uncontested divorce. This is where one spouse files an application for divorce, and the other spouse does not file an “Answer” within the time limit. This allows the spouse seeking the divorce to get a divorce order without the other spouse being able to contest it. The final type is a contested divorce. This occurs where one spouse files for divorce, and the other spouse does not agree with the terms of the divorce, such as property division or spousal support. In such cases, the other spouse will file an “Answer” and the divorce will proceed as a family court proceeding. You should watch this video where I explain the family court process, which applies to contested divorces.




When spouses get divorced, there are a number of ‘corollary’ issues, such as division of family property, spousal support and child support that you and your spouse must resolve. If there are children, a judge will not grant a divorce unless there are concrete plans in place for the support of the children. You should watch this video on divorce and children and listen to this podcast explaining the law on spousal support. In any case, it is important to speak with an experienced family law lawyer about these issues, as if they are not dealt with properly, it can end up costing you a lot of money.


As far as the immigration consequences of a potential divorce, the best answer one can give without having further details about your immigration status is: it depends. The best advice I can give you at this point is to go see an experienced family law lawyer and bring all your immigration documents – a good lawyer will be able to glean from your documents exactly how a divorce will affect your immigration status.


On the limited facts that have been provided, the best answer that I can give is that it depends on the basis on which you have status in Canada now. If you came to Canada as a sponsored spouse or partner, then your status in Canada is dependant on you maintaining that status. If this is the case and your permanent residency application is based on your spousal status, then most likely the divorce would entail you having to leave Canada. In such cases, for you to continue the application may amount to immigration fraud, as you are trying to gain a status in Canada that is not based in truth. As well, there may be conditions attached to your current status in Canada, such as having to live with your spouse for a certain period. If the divorce means that any of the conditions are no longer met, you may be forced to leave Canada. However, if your immigration status is not tied to your relationship (e.g. you are in Canada on a temporary resident permit or work visa), a divorce should not have any effect on your status. In such cases, your immigration status is independent of your marital status and the consequences for each do not overlap.


This podcast, featuring an immigration lawyer, has a more complete explanation of  the significance of separation and divorce when your immigration status is pending

Guide to the Basics of Ontario Family Law Best Seller


To learn even more about the law of divorce in Canada, 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 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.

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Guide to the Basics of Ontario Family Law Available on Kindle
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Paperback available from:

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Obviously, there is a lot at stake if you separate while immigrating to Canada.  You need to get the help of lawyers immediately to avoid not only being deported, but also losing the ability to make claims against your spouse.  Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).  Where necessary, we will involve an immigration lawyer in that consult.


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


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What rights and responsibilities do parents and adult children have to each other?

elderly parent


This is a very broad question, and one that can be answered from a variety of perspectives – legal, moral, etc. However, I will try and provide a narrowly focussed, family-law based answer to your question. As a caveat, when I refer to ‘adult children’, I refer only to those children that are beyond the age of majority and who do not suffer from a condition that prevents them from withdrawing from their parental charge. There are different rights and obligations that arise when a child is over 18 but is prevented from being independent as a result of a disability or enrollment in a full-time education course. If you are (or are a parent of) a person over the age of 18 who continues to require support because of education or disability, you should speak to a good family lawyer who can explain how your particular situation can affect your legal rights.  To understand why you should speak to a lawyer, check out this webpage on child support for children over 18 years old.


When a child reaches the age of majority, the bulk of the parental rights and obligations viz their children no longer apply. There is no automatic entitlement to child support, although it can continue in the situations listed above. A parent no longer has custody of child past 18 (unless the child lacks mental capacity and must remain in a parent’s care, although that is now under substitute decision maker rather than custody/access laws), and likewise a parent cannot exercise ‘access’ to a person over 18 as courts lose their jurisdiction to make custody and access orders for a person over 18. At this point, the child is free to spend their time with whichever parent they choose.


With respect to the rights and obligations of children viz their parents, there are a few. Under section 32 of the Family Law Act, children who are over the age of majority (and who have withdrawn from parental care) have an obligation to support their parents where necessary. However, there are two conditions attached – the parent must have ‘cared or provided support’ to the child, and the support is limited to the extent to which the child can provide. This is a rarely litigated section of the Family Law Act, but there have been historical cases where impecunious parents have received orders for support from their grown children.


While they are not technically ‘rights and responsibilities’, the common-law has developed rules governing the relationship between parents and adult children in some situations. One of the most common is the transfer of property. When an adult transfers property to a minor child, the transfer is presumed to be a gift, unless contrary evidence can be proven. When an adult transfers property to an adult child, it is presumed to be a loan and that the child will pay the parent back. These issues commonly arise in the context of property division, where an adult spouse owns property jointly with their parent or the parent has transferred property to their child, which may form part of that spouse’s net family property. Many people enter into these transfers with their ageing parents as an estate planning measure and do not realize the family law implications. If you or your spouse owns property with their parent (or adult child), you should speak to a family law lawyer about how to best protect your rights.

Guide to the Basics of Ontario Family Law Best Seller


To advance your family law rights, contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

Availed on the iBookstore
Guide to the Basics of Ontario Family Law Available on Kindle
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To learn even more about the rights of parents and children, get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.   You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about child support, children’s rights, marriage and divorce. 


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


Contact Us: 

  

Now That I’m 18-Years-Old, Can I Sue My Parent For Back Child Support?

adult child looking for money

The payment of child support is one of the most common areas of contention arising from the breakdown of a marriage or familial unit. In Ontario, child support is governed by a combination of the Divorce Act, the Family Law Act, and the Child Support Guidelines. As a first step, you should listen to this podcast which explains the general rules for the payment of child support, such as who pays, how much and for how long.

While the common belief is that child support ends at 18, this is not always the case. As I explain in my article Child Support Does Not End at 18 and in the video below, the obligation of parents to support their children can continue past the age of majority in certain circumstances. In Canada, child support will continue past the age of 18 in two circumstances:

  1. Where the child has a disability, such that they remain dependant on their parents and cannot gain employment that is sufficient to support themselves; or
  2. If they are enrolled in a full-time program of education. This means that the child is still enrolled in high school past their 18th birthday, or have enrolled in a full-time college or university program. There is a debate between judges as to whether students taking a ‘victory lap’ in high school would qualify for support and, if such is your case, you should speak to an experienced family law lawyer.


It is also important to remember that after the age of 18, the child support tables no longer presumptively apply. Most judges will still use them as the starting point to determining the quantum of support; however, they are given more latitude to order an amount that suits the particular child’s circumstances.


Ontario Family Law Podcast

10 - Child Support - Who Pays and How Much?

11 - Child Support's Special and Extraordinary Expenses

If you have a parent that  has never paid support, and you are still entitled to child support, you may be able to make a claim for retroactive support.  Things are very different once you are no longer eligible for on-going support as the law presumes that when that happens the court has lost the jurisdiction to order retroactive support. There are some judges who have held that retroactive support may be awarded notwithstanding that the support recipient is no longer eligible to receive ongoing support. However, there are very limited situations in which a court could order retroactive support for a child who is no longer eligible for support. Thus far, the case law as reviewed by Justice Sherr in in B(PM) demonstrates that this may be possible in the following circumstances:

  1. Where the application for retroactive support would have been brought within time but for blameworthy conduct on the part of the payor spouse;
  2. In variation proceedings where there is an existing order and an established support obligation under the Divorce Act
  3. In motion to change proceedings where there is an existing order and an established support obligation under the Family Law Act.

In the last two categories, there must have been a support order in place, but the amount was inadequate.  Only the first criteria applies when there was never a support order in place.


These categories are not fixed or definite, and a court has significant discretion whether to allow an ‘out of time’ retroactive support claim or not. In light of your age, it is important to talk to a family law lawyer immediately to determine if a retroactive support claim can be made.


When a claim is made for retroactive support, there are four factors that the Supreme Court, in a case called DBS, said that judges must consider. These are: 

  1. the reason for the recipient parent’s delay in claiming support;
  2. the conduct of the payor spouse;
  3. any hardship occasioned by a retroactive support order, and;
  4. the past and present circumstances of the child.


If you are planning to make a claim for retroactive child support, it is very important that you speak with an experienced family law lawyer. Unlike present and future child support (which is mandatory), a judge has discretion whether or not to order retroactive child support. It will depend on how strong an argument you can make based on the DBS factors.  This requires intimate knowledge of the law, as well as experience in litigating these claims.  This page gives an overview of the law of retroactive child support.


Judge considering a retroactive child support order

If you are no longer entitled to receive on-going child support, then courts will almost never order retroactive support.  The only time that the court may consider ordering child support where the child is no longer a child entitled to child support is where there was some reason why it was impossible for the parent or child to seek support and they are continuing to suffer economic hardship as a result of the other parent’s failure to pay support or to knowingly pay inadequate support.  Where the custodial parent made a conscious decision not to seek support when the child was entitled to support and that parent could have pursued support, the court will not order back child support. To have any chance of success with a claim for retroactive child support after child support is no longer payable, you need a really exceptional family law lawyer on your side. 

Guide to the Basics of Ontario Family Law Best Seller


To advance your child support case, contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

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


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


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


Contact Us: 


My Ex Is Exposing Our Child to Multiple New “Partners” - What Can I Do?


Child being exposed to multiple new step parents

Relationships take many forms, some healthy and some not. Unfortunately, many parents enter into relationships that can have a damaging effect on their children without thinking twice about it. Fortunately, there are a number of steps that one can take when they feel that a parent’s behaviour is inappropriately affecting their child, both in family court and in child protection court.


Family Court (Cases Between Separated Parents)

Ontario Family Law Podcast

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

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

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

Depending on the age of the child, it may be possible to get an order through the family court varying your current custody and access arrangement to minimize the time that the child spends with a parent in the presence of that parent’s ‘new family.’  There are several factors that judges consider when deciding child custody and access cases.   One of the factors that the judge must consider is the permancy and stability of the family unit in which the child will be spending time.  If your ex has multiple partners coming and going, and is adding siblings who may or may not stay around, this will seriously impact on what type of time the judge allows  your child to spend with your ex.


If you were divorced, the applicable statute is the Divorce Act; if you weren’t, it is the Children’s Law Reform Act. Under either of these statutes, a court may make an order specifying a custodial and access arrangement that is in the best interests of the child. You should listen to this podcast and watch the video below where I explain the various custodial and parenting arrangements available in Ontario and when judges will order each. 



If your child is demonstrating troubling behaviour after spending time with their other parent, a court may determine that any access that your ex is going to have must be supervised or that it not be around your ex’s ‘new family’. However, you will have to present demonstrable proof that the troubling behaviour is linked to ‘damaging’ experiences your child is having while visiting their other parent. This will most likely involve a letter or report from a qualified professional attesting to the impact of your ex’s behaviour on your child. In other cases, the Court may order the involvement of a parenting professional, who can assess you and your ex’s ability to parent, and make recommendations to the court as to what the access and custody arrangements should be.  Watch this video to understand what is evidence in family court and how to present it to the judge:



Before heading off to court, it is important that you understand the court process and know what to expect and what you will have to do in court. You should listen to these podcasts (Part I, II, and III) where I explain how family court works and what to expect when going to family court. You can also watch the video below.



Child Protection Court (The Children’s Aid Society Is Involved)

If there is a risk that your child is being exposed to sexualized behaviour or is otherwise at risk of emotional harm while exposed to anyone, but especially a parent, there may be child protection concerns, which would involve the Children’s Aid Society. If this could be the case, you should speak to an good family law lawyer with experience in child protection matters, and soon. These cases can have unimaginable consequences on parents and families, and it is necessary to speak with a good lawyer early.


If your former spouse is exposing your child to inappropriate sexualized behaviour, and this is having an impact on your child, one option is to make a referral to the CAS. If the CAS gets a tip that a child is being exposed to a polygamist relationship and he is demonstrating ‘damaging’ behaviour, they will investigate. If the CAS finds anything to substantiate the complaint, they may apprehend your child and place the child in your care. Depending on the severity of the allegations and the proof, the CAS may decide that the offending, potentially harmful, parent can only see the child in a supervised, public setting.


While CAS tips can be a powerful tool in correcting inappropriate behaviour, there is significant potential for unintended consequences. Once CAS opens an investigation, they are not quick to close it.  When a Children’s Aid Society becomes involved, it investigates the whole family.  Investigations can often be widened to investigate both parents (often as a result of the ‘guilty’ parent’s bad-mounting).  In almost every investigation, the child protection worker will interview your child to find out what is going on in both homes.  The child protection worker will also want to interview you and it is important you prepare for that interview so that the children’s aid society does not become more concerned about you than your ex.  If you and your ex do not get along, the children’s aid society will be concerned that you are exposing your child to a haremul level of conduct that requires the agency to intervene. The CAS must satisfy themselves that the child is not at risk of harm before they can withdraw from your family.   In such cases, it is very important to speak with a family lawyer who can help you to get the CAS on your side and keep it that way.


Guide to the Basics of Ontario Family Law Best Seller

The most important thing to parents is the safety and well-being of your children.  You need to do what is necessary to protect them, especially if your ex is exposing your child to a harmful environment.  Contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


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

To learn even more about child custody issues, children’s aid society cases and how family court works, as well as tips to keep out of trouble while giving your children the best protection possible, get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast. You can also use the search on the right to find lots more articles about child custody, support and divorce.

 

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


Contact Us: 




I Have Been Charged With Domestic Assault - What Happens Next?

police-lights


Domestic violence is a serious issue, and one that is treated as such by both the criminal and family courts in Ontario, though there are different consequences in each. While it is recommended that you seek advice from a criminal lawyer with regards to the criminal consequences of the charge, I will provide a general outline of what to expect in your circumstances. However, I can tell you with some specificity what could happen in the family law context.


The Criminal Context

While I am not a criminal lawyer, many of the family law cases that I handle have related criminal proceedings. It is not uncommon in the breakdown of a relationship that allegations of domestic violence are made and criminal proceedings are initiated as a result.


If this is your first court appearance, then this is known as ‘set-date’ court and very little will happen substantively. Given that you have been charged with what appears to be one count of simple assault, your case is most likely in the Ontario Court of Justice. If this is the case, your first appearance will be before a Justice of the Peace, where the Crown prosecutor will give you your disclosure (if you haven’t received it already), which is a package of the police notes, witness statements and any other documents that the Crown may use against you. The Court will then set a return date, which is the next date that you will come back to court.


You should arrive at least 30 minutes before your appearance and speak with duty counsel first. They provide summary legal advice to people on their court date and can provide more detail as to how your first appearance will work. If you have already spoken to a criminal lawyer before your first court date, your criminal lawyer may already have a plan in place for your case.


Once your charge has been screened by the Crown (which may or may not happen before your first date), the Crown will indicate how they want to proceed with your case. If this is your first charge and there have been no allegations of violence since shoving your girlfriend, you may be eligible for ‘diversion.’ In these cases, the most likely outcome is that you will agree to attend a PAR (Partner Assault Response) program and, if you successfully complete it, the Crown will withdraw the charges. Another option is that you will enter into a peace bond, which is a Court Order that requires you to keep the peace for a certain time (i.e. not be arrested/charged) and can have other conditions. In cases of spousal violence, usual conditions are non-contact conditions and geographic restrictions, such as not being within a certain distance of the complainant.


In all cases, I would recommend that you speak with criminal lawyer about your criminal proceedings. If you cannot afford a lawyer, you may be eligible for legal aid. In all cases, you are entitled to speak with duty counsel on the date of your appearance – which I highly recommend. 

       

The Family Law Context

Restraining Orders

In regards to most family law issues that arise between people in a relationship (division of property, spousal support), rights and obligations only arise under the Family Law Act when the couple is considered to be ‘spouses’ in accordance with the definitions of ‘spouse’ in that Act. However, s.46(1) of the Act provides the power for judges to make a restraining order against anyone whom the injured party is cohabiting with – people do not need to be spouses or related to get a family law restraining order. You can listen to this podcast that explains family law restraining orders in detail, as well as other family court responses to domestic violence.


Under s.46(1), a court may grant a person a restraining order against a spouse, former spouse, or anyone with which that person cohabits if that person has reasonable grounds to fear for their safety or the safety of any child in their lawful custody. In interpreting what constitutes ‘reasonable grounds’ – courts have usually said that there needs to be more than a mere suspicion, but need not be objective proof in support of their fear. If the only alleged incident is from five months ago, and there have been no safety concerns since, a judge may not grant a restraining order. However, if a person continues to fear for their safety despite no recent incidents of violence, a judge may still grant the restraining order.


If your partner were to pursue a family law restraining order, she or he would have to file and serve you with a family court application. In cases where the restraining order is not urgent, the case will proceed like any other family law case. You can listen to these podcasts (Parts I, II, III) that explain the family court process and what to expect. In these cases, you will have the opportunity to argue your case before any order is made. If the need for a restraining order is urgent, a spouse can bring a motion without notice to the other party, and if the court feels that circumstances are urgent and a restraining order is necessary, the court can grant one without giving you the opportunity to argue your case beforehand.


The Family Law Act provides wide latitude to judges regarding the terms of a restraining order. They can order that the restrained person not contact the victim, not come within a certain distance of any place (such as a house or school) or any other provision the court feels is appropriate. This latter provision allows family court judges to attach any condition to the order that they feel is appropriate, which can mean non-contact with third parties or other case-specific conditions.


Like any other order, a restraining order can be made on a temporary or final basis. If the order is temporary, then it will end on a date specified by the judge or, more usually, continue until the next court date. If the order is final, it is indefinite. Persons who have gotten restraining orders or are subject to restraining orders can ask a court to change the conditions of the order. The normal rules to vary or change an order apply to restraining orders. If you wish to change the terms of a restraining order, you should speak to an experienced family law lawyer before doing so.


Concerns Regarding Seeing and Protecting Children

Ontario Family Law Podcast

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

27 - Domestic Violence- The Critical Information

28 - What to do when the Children's Aid Society Calls

If the domestic violence happened or is alleged to have happened in from of the children, then the consequences can be even more serious.  First, you can expect to hear from a children’s aid society, even if the violence was not directed toward the children.  The child protection worker will be worried that the children suffered emotional harm from witnessing the violence and that there may be an environment of power imbalance and control that is unhealthy for the children.   If a children’s aid society calls, it is critical that you prepare for the child protection worker’s visit.  But, because of the potential consequences, you should also speak to a child protection lawyer about your situation.  Also, keep in mind that the child protection worker will also interview the children about what happened.  


There can also be serious consequences with regard to your relationship with the children if they were in any way exposed to the violence.  Often, the criminal court orders will prevent you from having contact with the children.  In the best circumstances, that criminal court order will allow you to have contact “in accordance with a Family Court Order”, which means that the judge in your family court or divorce case can make an access order in your favour.


There are several factors that judge have to consider in deciding what access children should have to their parents. However, in the case of domestic violence, section 24(3) of the Children’s Law Reform Act requires  that the judge also consider what violence committed against a spouse or parent, another member of the same household or a child, says about a person’s ability to parent.  Judges do not believe that such behaviour demonstrates good parenting.  The best a person convicted of domestic violence can hope for is that the judge will feel the actions did not impact on parenting. 


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However, where the alleged violence is serious, a family court judge’s biggest concern will be the safety of the children.  Until that safety is established, the Family Court Order for access can be very restrictive.Cases involving domestic violence, or allegations of domestic violence are very difficult and present lots of dangers.  If you are accused of domestic violence, you could lose your kids due to concerns about your behaviour.  If you are victim of domestic violence, you could lose your kids out of concern that you are not protecting them.  You could lose access to your home.  And, there is a danger of going to jail.  You need to get the help go a good criminal lawyer and excellent family lawyer right away.  Contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


New Kobo Logo

Paperback available from:

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To learn even more about child custody issues, child support, and how to deal with both of the inside and outside of court,  get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast. You can also use the search on the right to find lots more articles about child custody, support and divorce.

 

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


Contact Us: 

 

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Help! My Ex Is Withholding Access Unless I Pay Him Child Support


This is a terrible and fair situation and one that the law does not allow. But, if you are not paying appropriate child support, you may not get much sympathy from a family court judge, who may be the only person who can make sure you see your children. 


Becoming engaged in family law litigation is a stressful occurrence for anyone. Family Court is a complicated and unfamiliar process. You should listen to my podcast (Part I, II, III) about what to expect when involved in the family court process. You can also watch the video below about how to present a winning strategy in court. If you are responding to a claim for support or making a claim for custody or access, it is important to talk to an experienced family lawyer sooner than later. A good family law lawyer will help you draft your pleadings in a manner that  puts your best foot forward, and will greatly increase your chances of being successful with your claims.




Ontario Family Law Podcast

10 - Child Support - Who Pays and How Much?

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

In Ontario, custody and access, and child support are two discrete issues. One does not follow the other and a parent cannot deny access because the other parent is not paying child support or because that spouse wants increased support. To do so would essentially allow one parent to hold the child hostage for ransom. Judges do not like to see parents taking such self-help measures. As well, the right to access between you and your child is your child’s right and is not one that your spouse can unilaterally terminate or curtail. The fact that you have seen your child so infrequently is troubling and needs to be addressed. You should speak to a family lawyer right away about steps to ,are sure your child can spend time with you. Unless there are pressing reasons why you should not have access to your child, the current level of contact that you have with your child is wholly insufficient.  Although there are several factors judges consider when deciding child custody and access case, how much support a parent is paying is not one of them. 


If you have been consistently trying to have access with your child and your spouse is preventing you from doing so, a judge can order that the child be returned to your care. The applicable section is s.36(1) of the Children’s Law Reform Act. Under that section, if there are reasonable and probable grounds to believe that a child is being unlawfully withheld from a custodial or access parent, the Court can order your spouse to deliver the child to you. In such cases, it may also be appropriate to ask the court to vary the current custodial and parenting arrangements so that you play a larger role in your son’s life and your ex cannot continue to minimize this. You should watch the video below  explains the different custodial arrangements in Ontario and the situations where judges order each.




With regards to child support, it seems apparent that there needs to be an adjustment or reapportionment of child support. You should watch the video  below and listen to this podcast where I explain the general framework for child support in Ontario, including who pays to whom, how much and for how long.  If your ex owes you child support arrears and you owe your ex ongoing support, there may be a set-off, where any amount you owe for child support will be deducted from amounts that your ex owes you. 



If you already have a support order, and the dispute is over what the appropriate amount of support should be, watch this video on how to change a support order


Guide to the Basics of Ontario Family Law Best Seller


To learn even more about child custody issues, child support, and how to deal with both of the inside and outside of court,  get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast. You can also use the search on the right to find lots more articles about child custody, support and divorce.

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To learn the best strategies to protect your kids, and your relationship with them, contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


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