Child Support

Child Support

One of the major issues at separation is how much child or spousal support will be paid from one spouse to the other.  This can often become very contentious between separating spouses as it can greatly impact both of their finances.

The Family Law Act (“FLA”) recognizes that each parent has an obligation to provide support for the children in accordance with the Child Support Guidelines, and that spousal support should recognize each spouse’s contribution to the relationship (see ss. 33(7) and (8) of the FLA).  This is to ensure that there are fair provisions to assist a spouse to contribute to their own support after the relationship ends.

Both types of support can be paid to married AND Common Law partners.  See our previous blog post regarding the differences between Married and Common law partners to learn more here.

This post will focus on child support.  See our next family law post for information on how spousal support is determined.


Child Support

Courts generally consider child support non-negotiable.  This is a right of the child and can be enforced strictly to ensure that children are properly taken care of.  This child support is meant to cover things like food, clothes and other essentials for the child’s well-being.  Additionally, parents can be required to split extraordinary expenses or s. 7 expenses.  These can be payments for things like after school programs or health related expenses.

Child support is determined by:

  1. The number of children;
  2. The province or territory where the paying parent lives; and,
  3. The paying parent’s before tax annual income.

These factors help us determine the “table” amount of child support to be paid.  A very rudimentary and approximate formula used to determine this support amount is to pay 10.8% of your monthly Gross income for one child (“the initial amount”).  If you have multiple children, you multiply the initial amount by the following approximate amounts:

  • 1.6 for 2 children
  • 2.1 for 3 children
  • 2.5 for 4 children

Of course this only gives you a ballpark figure and is not completely accurate as the factors in the formula are slightly adjusted as income changes.

For a more accurate answer, follow this link and plug in your details to determine what child support could be paid from one spouse to the other.

As of the date of this post, and according to the calculator provided in the link above, a parent living in Ontario with an annual income of $60,000 and 2 children would pay $915.00 per month in child support.

This takes into account the fact that both children reside in the same home.  If a parent has multiple children with multiple partners who all live in different households, you restart the calculation for each household.  As an example, using the above facts again, a father paying support to two different mothers would pay $556 per month to each mother, rather than $915 split between them both.

Considering that child support is the right of the child and necessary to ensure they are supported throughout their development, it is understandable why courts are so strict in enforcing the table amounts of support.  However, child support can change depending on certain factors.  Generally, child support is paid to the parent who has the child the most.  Yet should this residency arrangement be that one parent has the child 40% of the time and the other parent has the child 60% of the time, then child support payments can be reduced.

Another reason why child support could be reduced is as a result of the paying parent suffering an undue hardship.


Undue Hardship

S. 10 of the Federal Child Support Guidelines provides a means for parents to apply to change the set amount of child support if the parent or a child in respect of whom the request is made would suffer undue hardship.

Circumstances that could cause a spouse or child to suffer undue hardship can include:

  1. responsibility for an unusually high level of debt incurred to support spouses and children prior to separation or to earn a living
  2. unusually high expenses in relation to exercising access to a child
  3. a legal duty under a judgment, order or written separation agreement to support any person
  4. a legal duty to support a child, other than a child of the marriage
  5. a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability


Is there a deadline for Apply for Child Support?

There is no limitation period for applying for child support that has been ordered by a court or that was to be paid as a result of a written agreement.  The problem arises when parents attempt to apply for child support without any court order or agreement in place.  Under s. 31(1)  of the FLA, every parent has an obligation to pay support for a child of the relationship if the child is:

  1. Unmarried;
  2. A minor;
  3. Enrolled in a full time program of education; or
  4. Unable by reason of illness, disability or other cause to withdraw from charge of their parent.

So generally, if the child is over 18 and self-sufficient, it is very unlikely that a court would make an order for child support.

The parent may be successful in a claim for retroactive child support.  The general rule is that retroactive child support can be ordered back to three years before the child support recipient can prove that they asked for child support, or that child support should be changed.  Keep watch on our blogs for a future post related to the topic of retroactive child support for more details.

Speaking with a legal representative about the support issues involved in your specific situation is a great way to ensure you can plan for your future.  Contact Rabideau Law to see how we can help you.

Estate planning for Separated Couples – reasons to get your will done or re-done

In Ontario, simply being separated from your spouse and not obtaining legal divorce may put your estate plan in jeopardy. Section 17(2) of the Succession Law Reform Act (“SLRA”) provides that for parties that have obtained legal divorce, any reference to a former spouse in an individual’s will is revoked and the will is construed as if the former spouse had predeceased the testator (party preparing the will). This is helpful due to the simple fact that after divorce, there is clearly a shift in interests and priorities and the law protects you in this regard. However, unlike the provision protecting those who obtain a divorce, there is no similar provision in a situation where spouses are just separated. That being said, it is a common misconception to believe that if you are separated, your ex-spouse will not inherit anything.

In fact, where spouses are separated (assuming no update to the will) and one party passes away, the surviving spouse maintains his or her entitlement under the will. The result is not much different if there was no will to begin with – the separated spouse may still qualify under the definition of a “spouse” under the intestacy rules.

A simple example may serve to bring the point home: if you have separated from your spouse (and not obtained a divorce) and own property jointly, the property may pass to the former spouse automatically. A visit to the lawyer’s office can prevent this from happening so that your portion of the property passes on to whom you intend. This may be to provide for your children, your siblings or even your new common law partner.

Along with preparing or revising an existing will, upon separation, one must ensure they update their insurance policies, registered plans, and any pensions. Further, unless you want your separated spouse to be able to make your property and personal care decisions, you must attend to preparation of your power of attorney documents as well.

Since separation can drag on for some time, individuals need to ensure they take a close look at their assets and related estate documents to avoid unintended consequences.

The above serves as general information only and is not to be relied on as legal advice. Please contact your lawyer for your specific circumstances.

Separation and Divorce

Clients often contact our office inquiring whether we can assist with their divorce. In these cases, one of the first questions I always ask is how long they have been separated for.  If they tell me they’ve only been separated for a few months I inform them that they can’t get divorced unless one of the following things occurs:

The Divorce Act (“DA”) requires that there be a “breakdown of the marriage” under s. 8(2).

This means that:

  1. You live separate and apart for one year;
  2. The other spouse has committed adultery; or
  3. One spouse has treated the other with physical or mental cruelty.

If you meet one of the criteria above then you can get a divorce. If you are separated, you can start an application for divorce at any time, but the court will not grant you the divorce until you have been separated for one full year.  The DA even has a section on how to determine that period of separation under s. 8(3) The basic requirements are that the spouses have an intention to separate and that they do not try to reconcile their relationship for more than 90 days.

Keep in mind that divorce only applies to married spouses; if you are common law then you only need to be separated in order to effectively terminate the relationship. See our previous blog post covering the difference between common law and married spouses.

Even if you start the divorce application, the divorce does not actually take effect until 31 days after a Judge provides a judgment granting the Divorce (see s. 12(1) of the DA).  Furthermore, s. 11(1)(b) of the DA states that a divorce will not be granted until the court is satisfied that reasonable arrangements have been made to support the children of the marriage.

A divorce or annulment is the only way to end a marriage.

You won’t NEED any formal documentation to show that you are separated, however it is HIGHLY recommended that you get a separation agreement drafted to protect your interests.

Adultery and Abuse

The “separated for a year” rule does not apply if there is a breakdown of the marriage resulting from adultery or abuse. If a person is relying on adultery or abuse as a reason for the breakdown of marriage, s. 11(1) of the DA makes it clear that there can be no collusion, condonation, or connivance on the part of the spouse bringing the application.

This means that the spouse bringing the application for divorce cannot accept the behaviour or conspire to orchestrate the adultery or abuse. Also, the spouse committing the adultery cannot use it as a reason for the breakdown of the marriage.  However, the court will grant the divorce if it is their opinion that the public interest would be better served by granting the divorce.

The DA also provides a definition for collusion.  Here, collusion means an action taken directly or indirectly by a spouse applying for divorce to subvert the administration of justice.  This includes an agreement or conspiracy to fabricate, or suppress evidence to deceive the court (see s. 11(4) of the DA).

The Separation – Living Separate and Apart

In order to be separated, courts need to see that you are living “separate and apart”.

But what does this mean exactly?

There are a few factors that courts will consider regarding whether or not two persons are actually separated. Simply saying you’re separated may not be enough.

Factors courts will consider to determine if you are separated include the following (see paragraphs 37-47 of T.R. v A. K, 2015 ONSC 6272)

  • Is there a physical separation, (Note that this doesn’t have to mean spouses live in separate houses)
  • An intent of ending the marriage/relationship
  • Absence of sexual relations
  • Level of communication between the spouses
  • Are there joint social activities
  • Meal patterns
  • What chores are being performed between them
  • How do others view their relationship

Keep in mind that this is not an exhaustive list as courts can consider other factors.  Also, you don’t need to meet all of these factors in order to be considered separated.  What needs to occur is that courts see a physical separation and that you both are seeking to pull out of the marriage (or common law relationship). What is important is the INTENTION to separate.

Does the date of separation matter?

The actual separation date or valuation date as defined in s. 4(1) of the Family Law Act is an essential part of the separation process.  The valuation date is the date from which all values related to property and support are calculated from.  As an example, a valuation date in the winter versus one in the spring or summer could affect the value of the matrimonial home and how much is to be distributed between the parties.  This is why it is crucial to seek out a family lawyer to advise you of your rights and responsibilities to ensure that you and your family are properly protected.

Keep an eye out for future blog posts discussing issues related to property.

Patent vs. Latent Defects and Caveat Emptor

With multiple offers being common place in the real estate market, many buyers are being forced to submit firm offers on properties that they barely have seen and not had the opportunity to inspect. Some sellers are taking advantage of this opportunity and are offloading themselves of properties that have had defects and deficiencies.  Thus, it is important that buyers understand the maxim, “buyer beware” (or caveat emptor), applies when purchasing real estate.

I am often contacted by purchasers, after the fact, about a defect that only came to be discovered after closing. In such instances, it is important to understand what the law states about defects. Defects are regarded as being of two kinds, latent or patent.

Patent defects are those that can be discovered by a reasonable inspection and ordinary vigilance on the part of the purchaser. With respect to these kinds of defects, the ordinary rule is caveat emptor.

A vendor has no obligation to disclose a patent defect because a purchaser should have discovered the defect or deficiency, regardless of whether or not the purchaser had an inspection completed. However, if the vendor attempted to hide or conceal a patent defect then such action may be considered fraudulent and the purchaser may have a claim against the vendor, which they could pursue in the courts.

Latent defects are those which could not be discovered by a reasonable thorough inspection before completing the purchase. A vendor has a duty to disclose latent defects and if they fail to disclose such hidden defects they may be construed as misrepresenting the state of the property and such action may give rise to the purchaser having a claim against the vendor.

It is important to note that if a seller takes steps to make an inspection impossible, not including multiple offers, or misrepresents the condition of the property, if asked, the buyer will have a claim against the vendor which could be pursed in the courts.

However, if the buyer became aware of a latent or patent defect before closing and decided to complete the purchase, regardless, they will have lost their ability to pursue their claims in the courts.

Probate and Estate Administration Tax

When acting as a prospective estate trustee in Ontario, it is often necessary to apply to the court for a certificate of appointment of estate trustee. Although it is commonly referred to as “probate”, the certificate of appointment is essentially a validation of a will or, in a scenario where no will exists, an authorization for the estate trustee to manage and distribute the estate of a deceased person.

This certificate may be required in circumstances where the deceased owned real estate or held assets in accounts for which various offices and institutions require the court’s validation. In fact, most financial institutions or land registry offices want to be certain of the appointment in order to avoid being wrapped up in any litigation in the event that money or assets are transferred to the wrong parties.

The application for probate also involves the payment of estate administration tax, or as commonly known as “probate tax” under the Estate Administration Tax Act. The amount payable for this tax depends on the size of the estate and the current tax rates are as follows:

  • For an estate valued less than $1,000, there will be no probate tax payable.
  •  For an estate valued up to $50,000, the rate is $5 for each $1000 or part thereof.
  •  For an estate valued at over $50,000, the rate is $250 (for the first $50,000) plus $15 for each $1000 or part thereof.

For example, an estate with a value of $240,000 will be required to pay $3,100 in estimated estate administration tax. A larger estate of $1,000,000 will attract $14,500 in estate administration tax.

For estate administration tax calculations, the total value of the deceased’s estate may include assets such as:

  • Bank accounts
  • Investments (bonds, trust units, stocks, etc.)
  • Vehicles and vessels
  • Real estate in Ontario (net of encumbrances such as mortgages)
  • Insurance proceeds (where proceeds pass through the estate)
  • All other property including business interests, goods, intangibles, etc.

There are some assets which flow outside the estate such as those which are held jointly or, pass by way of beneficiary designations. When considering estate planning, a number of steps may be taken to reduce probate fees payable. However, some of these options present other risks which need to be carefully assessed.

Along with the above, there are very onerous requirements placed on an estate trustee to not only manage and distribute the estate, but also to file a detailed estate information return to the Ministry of Finance within 90 days of obtaining probate. It is important to consult a professional to help you with estate planning or, administration services, to ensure you limit your exposure to potential liability. Should you require any assistance or, other estate related services, we would be glad to assist you.

Please note the above serves as general information and not legal advice and is not intended to be relied on as such.

CMHC Study – Examining Escalating House Prices in Large Canadian Metropolitan Centres.

CMHC, Canada Mortgage and Housing Corporation, just released a new study analyzing rising home prices in Canada, titled Examining Escalating House Prices in Large Canadian Metropolitan Centres.

CMHC posted about this report, stating “The report represents one of the most thorough examination of house price patterns ever completed in Canada and is the result of advanced, data-driven analyses and engagement with stakeholders and government partners.”

To review the document yourself, download it below:

Examining Escalating House Prices in Large Canadian Metropolitan Centres


Common Law vs. Marriage

Common Law and Marriage are often confused when it comes to the division of property and other rights and obligations upon separation. In order to know what you’re entitled to, it’s important to understand the distinction between these two terms so you can create the best plan for your future.

What may be confusing to some is the fact that the Family Law Act (“FLA”) has two definitions for spouse and that these two types of spouses are treated very differently upon separation.

Definition of Spouse in Ontario

Keep note that the definition of spouse and the rights that flow from that definition differ from province to province. This post is restricted to the definition of spouses and their rights in Ontario.

The first type of spouse is defined in s. 1(1) of the FLA and it means either of two persons who:

  1. Are married to each other, or
  2. Have together entered into a marriage that is voidable or void and in good faith

This includes marriages from anywhere else in the world.

The second type of spouse is found in s. 29 of the FLA.

Here, spouse means any spouse as defined in s. 1(1) (the married spouses) AND anyone that meets the following criteria:

Persons who are NOT married to each and have cohabited:

  1. Continuously for a period of not less than three years; or
  2. In a relationship of some permanence, if they are the parents of a child.

What is also important here is the part that says “cohabited continuously.” Consider the following example for a couple with no children:

  • Partners live together for 2 years starting January 1, 2015;
  • They then live apart for 7 months from January 1, 2017 to August 1, 2017;
  • Then they start living together for 5 more months starting August 2, 2017.
Start of cohabitation – 2 years Break in cohabitation – 7 months Restart of cohabitation – 5 months End of three years
January 1, 2015 January 1, 2017 to August 1, 2017 August 2, 2017 January 1, 2018


In this example, they would not meet the criteria of common law spouse as defined in the FLA.  They would have to live together for 3 more uninterrupted years from August 2, 2017 to August 1, 2020 to be considered common law spouses.

However, if this couple had children, then they would likely be considered common law.

How do these separate definitions of spouse affect me?

These two definitions mean that there are different property rights for a married spouse and a common law spouse. Under the FLA, married spouses have automatic property rights in addition to support rights.  This means they have rights to an equalization payment, property such as the pension, the matrimonial home, support payments, and intestacy rights.

Common law spouses on the other hand, only have automatic rights to spousal support on separation under s. 29 of the FLA. This comes as a shock to some clients as they believe that simply living in the home is enough to guarantee rights to the home or any other shared property. This is only true in common law where both parties share property as joint tenants or tenants in common.

However, spousal support is not guaranteed like child support is. Spousal support is granted according to various factors, one of which is need (see s. 30 of the FLA).

Now that doesn’t mean a common law spouse can never claim rights to property out of the common law relationship and succeed; it just means they will have to seek one of the following alternative remedies;

  1. Unjust Enrichment;
  2. Quantum Meruit;
  3. Constructive trust; or
  4. Resulting trust.

These types of remedies are called “equitable claims” and usually involve litigating the matter in court in order to successfully receive the remedy.

Contact Rabideau Law’s caring and experienced staff for a consultation to see what legal options are available in your specific situation.

Rabideau Law 2018 Potato Blitz

We are proud to announce that we will be holding a Potato Blitz from February 1st-28th in support of House of Friendship.

What is a Potato Blitz?

Over twenty years ago, House of Friendship (HOF) Board Members decided to host a potato blitz in February to help meet the need for potatoes throughout the year in emergency food hampers and program meals. Today, the campaign raises potatoes and donations equivalent to 300,000 pounds of potatoes. Potatoes are used for hampers and meals, and donations are used to buy more potatoes.

This fun campaign kicks off with Don Cameron Potato Night with the Kitchener Rangers, when fans donate money and spuds at the door. It is followed by a one-day Supermarket Blitz on a Saturday at most local grocery stores, where volunteers invite shoppers to donate money and spuds.

And the campaign wraps up with a Community Potato Lunch hosted by HOF, at which guests enjoy a delicious offering of potato dishes (no tickets required – free-will offering accepted), and where we have the opportunity to thank many volunteers and sponsors. Over 200 volunteers roll up their sleeves to help campaign mascots Spuddy and Sweet Potato.

At Rabideau Law we will be acting as a drop-off point for donations, as well as holding our own contest within the office to collect the most potatoes!

Roger and Varun will be going head to head to see whose team can bring in the most potatoes. Varun won our annual Food Drive contest, will he win this one too?

 Why should you donate?

  • House of Friendship’s Charles Street Men’s Shelter houses up to 51 men per night
  • They send out over 28,000 emergency food hampers to local individuals and families annually
  • Over 550 men and women annually turn to House of Friendship’s addiction treatment programs
  • Over 120 kids from families living on low-income, play, learn and grow at House of Friendship’s summer camp each year.

Donations will be accepted at our office, 501-305 King St W, Kitchener.

If you have any questions, feel free to contact Kayla at

Joining Assets with Children

We recently came across an individual asking whether he could avoid the cost of preparing a Will by simply ‘joining’ all his assets with his children. Perhaps you may also have someone give you such an idea in order to skip the preparation of a Will because it’s “easier and cheaper to just join your accounts” than to visit the lawyer’s office.  

Interesting but misinformed.  

While joint ownership is often used as an estate planning tool in order to have assets transferred to the surviving owner (or simply for the sake of convenience) and avoiding the dreaded probate tax upon death, it has to be thought through to avoid unintended results.

Some questions that should be crossing your mind are:

  • Who is this account to be shared with?
  • Is the co-owner of the account one of your adult children?
  • What type of account is it (registered, non-registered etc.)?
  • Are there rollovers available so that there isn’t unnecessary tax burden on the estate?
  • Do you know the tax consequences that arise as a result of transferring a capital asset into joint ownership? 
  • Is the underlying intention to avoid probate tax?
  • Is avoiding probate tax worth the loss of control?
  • Is the true legal and beneficial ownership being transferred?

Some additional considerations may include the following:

In the event of your death, are you certain that Johnny will share equally with your other son, Bobby?  Maybe he will, maybe he won’t. Johnny may be in a financial strife and decide to use the proceeds out of this account thereby cutting Bobby short. What if Johnny’s facing creditor issues? Will creditors now be able to access the account? Do either of them have dependants (children, spouse) and how does all that factor in?

Along with continuous changes in the law, the above are some of the questions one must seek answers to in relation to joining accounts. Other items that require attention when preparing Wills are registered plans, insurance proceeds payable upon death, joint ownership designations, assets owned under tenancy in common etc.

It is always a good idea to speak to a professional and have your situation reviewed. Contact Rabideau Law today and speak to one of our professional Wills and Estates Lawyers.

The Process of Getting a Separation Agreement Done

The Process of Getting a Separation Agreement Done

What follows below will be a general overview of the process for completing a separation agreement.  It begins by contacting our office and concludes with the completed separation agreement that is provided to the client.

Please note that this is not a precise account of how the process works, but merely a general guideline.  Each situation is unique. Furthermore, different types of agreements and different types of retainers with our firm necessitate varying approaches to this process.  Keep in mind that this process is not limited to just separation agreements, but can be applied to any kind of domestic contracts such as a cohabitation agreement or a marriage contract (and/or a prenup).

Step 1 – Initial Contact: A potential client contacts our firm by phone, email or in person, and we arrange an in office meeting with one of our lawyers for a consultation (click here if you would like to book a consultation, hyperlink to relevant part of website).

Step 2 – The Consultation: The potential client brings any relevant documents to the consultation so that we can determine what may be the best legal solution to their legal problem.  This consultation is an information session, and we are not hired at this stage to represent the potential client.

Step 3 – The Retainer (aka the Contract): If the potential client wishes to draft a separation agreement, we will draft a formal retainer (i.e. contract between you and the lawyer) that must be signed by the client and our firm before we begin any work. This document covers the type of legal services that the firm would provide to you.

Step 4 – Gathering Info: Once the retainer is signed by the potential client and our firm, that potential client is now our client.  We provide the client with a questionnaire that asks them to provide as much information as possible including things such as their finances, children, employment, assets and debts.

Step 5 – Drafting the Agreement: After the questionnaire is complete, the client provides it to our firm and we use that information to draft a separation agreement.   This can also include drafting financial statements.  We take this time to include the details from your questionnaire into the agreement, and include any specific terms or conditions that may have been discussed.  During this stage we may ask you for more information in order to effectively include all necessary items.

Step 6 – Reviewing the First Draft: Once the first draft is completed, we contact the client to review the agreement with them to see if any other provisions need to be included or removed.  This is to ensure that the agreement matches the client’s intentions and wishes.

Step 7 – Opposing Party Review and Negotiation: Once the first draft is approved by the client, we send a copy of the draft to the other spouse’s lawyer for them to review.  If any terms need to be adjusted, we contact the other lawyer to negotiate until all parties agree to the terms and conditions of the separation agreement.

Step 8 – Final Review and Execution: Once everyone is in agreement, we create a final draft copy of the agreement for your review.  We arrange a meeting where you attend our office and we review the final draft of the agreement in detail.  Should everything be in order, we execute the agreement by having you sign the agreement with a witness and date your signature.  This is done on multiple copies of the agreement, usually one for each party and one for each lawyer totalling 4 copies.  Once executed, the lawyer at our firm will sign an Independent Legal Advice Certificate (“ILA Certificate”).

Step 9 – Completion: We then provide all signed copies to the opposing party for them to sign, witness and date, and for their lawyer to also provide an ILA Certificate.  Once that is done, they mail two completed copies back to us and we provide the client with one completed separation agreement completing the process.

Typically this process takes about 2-3 weeks to complete.  This timeline is dependent on how much negotiation needs to take place in order to resolve all outstanding issues.  However, negotiating the details of your separation outside of court is a faster, simpler, and more cost-effective means of dealing with issues.

Should your spouse provide you with an agreement, we can discuss providing Independent Legal Advice services for you.  This would essentially reverse the roles of the parties in the process outlined above.

If you are looking to get a domestic contract drafted, feel free to contact our firm to see what legal services may be best suited to your particular needs.