Posts

Child Custody and Access Introduction

One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children.  Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?

These questions are related to custody and access and this post will focus on those issues alone.  Child support issues are covered in our previous post here.

There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).

But what is the difference between custody and access? Are they not the same thing?

The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child.  This can include decisions on things like: education, religion, and health care.  It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.

Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.

When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA.  These include:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.

 

Custody

S.20(1)  of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA.  What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child.  However you do not lose access rights.

Parenting decisions post separation can be approached in multiple ways.  These can include the following:

Joint Custody
With this, both parents must agree on major decisions regarding the child.  This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children.  The parents may even choose to divide the decision making responsibilities.  For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.

Sole Custody
One parent makes all the important decisions regarding the child.  They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent.  Usually, if there is sole custody the other parent has access.

Split Custody
Each parent has sole custody of one or more children.  This is a rare solution for custody as courts generally do not like to separate siblings.  This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with.  With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.

Shared Custody
This term is usually confused with joint custody.  This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion).  You can have shared custody whether or not you have joint custody.  With shared custody, both parents have the child for at least 40% of the time.  Essentially, the child’s time is split evenly between the parents.  This type of arrangement can also impact how much child support is to be paid (see child support post for more details).

Access

Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child.  This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.

Types of access include the following.

Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible.  This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.

Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised.  This can cover things such as: holidays, long weekends, birthdays and so on.  You can also identify where access will take place and who will pick up and drop off the children.

Supervised Access
This may be required if one of the parents demonstrates the following behaviour:

  1. Substance Abuse;
  2. Domestic Violence;
  3. Parental Alienation.

The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker.  This kind of access is generally only done on a temporary basis.  If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.

No Access
This is an extreme result where a parent might not be able to access the child at all.  An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.

Other custody and access issues

A parent cannot refuse access to the other parent unless there is a court order to that effect.  If a parent does refuse access to another without proper justification, that parent may be found in contempt of court.  If that behaviour continues, the parent refusing access could suffer serious ramifications.

Child support and access are two different things.  A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access.  It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.

Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement.  See our post on separation agreements to learn more.

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.

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.

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.