As discussed in the previous blog on child support, child support is generally seen as a non-negotiable support payment in the eyes of the court. However, there are ways to alter child support payments. This can be done through either a shared custody arrangement (see our blog post here), or by proving undue hardship.
S. 10(1) of the Federal Child Support Guidelines (the “FCSG”) provides an outline for how to approach an argument for undue hardship and also provides that either spouse may apply for it. Just remember that whoever makes the claim has the onus of proving the claim (see caselaw Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.)).
S. 10(2) of the FCSG provides the circumstances that courts will recognize as causing undue hardship:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
As can be seen, the language here demonstrates that there must be a SIGNIFICANT type of burden placed on the spouse advancing the argument for undue hardship. Even if the court agrees that there is undue hardship, they must still factor that with s. 10(3) of the FCSG which provides that the application must be denied if the court is of the opinion that the household of the spouse claiming the undue hardship is of a higher standard of living than the household of the other spouse. It is not just hardship that must be proved, but UNDUE hardship (see Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)).
This means that all persons who reside with the spouse would likely have to be involved in the investigation as to whether there is an undue hardship; meaning their financial information would likely have to be produced.
See below for examples from caselaw regarding undue hardship:
Undue Hardship established:
Trebilcock v. Trebilcock, 2012 ONCA 452
- Father appealed an order for lump sum child support of $150,000 – this support was based on his income of $75,000 which the Father contested
- Mother made a claim for undue hardship and was successful
- Mother was disabled, raising the children, children were reaching post-secondary education age, and she was on social assistance
- Mother also received no support from the father since 2001
- Father had received a large inheritance and dissipated a portion of his assets
Schaan v. Schaan,  B.C.J. No. 61 (S.C.),
- split custody between the parents
- mother made claim for undue hardship
- she was unemployed, blind, and her expenses exceeded her income
- additionally, it was expected that her rent would increase in the near future
Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),
- father applied for variation of child support
- each party had one child in their care
- the Child Support Guidelines (“CSG”) indicated that the mother should receive $60 instead of the $200 she was receiving
- mother claimed undue hardship for daughter who was living with her
- father didn’t see daughter often, mother had to take unpaid time from work due to daughter’s health problems
- court found that mother would suffer undue hardship if only paid the guideline amount as the standard of living in her household was lower than that of the father’s
Undue Hardship NOT established
Ignacy v. Ignacy, 2005 CanLII 44413,  O.J. No. 5264 (S.C.J.)
- mother had custody of both daughters
- sought child support higher than CSG provided due to undue hardship or in alternative an order for spousal support
- Her gross income was $66,640 and father’s was $127,286
- Court rejected her claim arguing that CSG amounts were not to be lightly interfered with
- No allegation that children were not properly clothed or fed, no physical or emotional problems requiring extra time and expense to mother
- Disparity in household income existed, but it was not significant
- Mother did receive spousal support
Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)
- father applied to have child support varied on basis that bother children were no longer dependent
- mother argued she would suffer undue hardship if order was varied
- claimed she would have to sell home, her costs were increased due to father’s failure to exercise access and that children would suffer
- court ruled that although there was hardship, it was not UNDUE hardship
- ultimately the court reasoned that they would be awarding her spousal support instead of child support
Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)
- Father sought a reduction in child support since he had just started on long-term disability benefits
- Mother had no employment income
- court ruled that since the CSG does not take into account the recipients income, that fact alone was not enough to create undue hardship
- court found there were no circumstances that made the Mother’s situation exceptional in this case
- Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.).
- Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)
- Trebilcock v. Trebilcock, 2012 ONCA 452
- Schaan v. Schaan,  B.C.J. No. 61 (S.C.),
- Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),
- Ignacy v. Ignacy, 2005 CanLII 44413,  O.J. No. 5264 (S.C.J.)
- Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)
- Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)
This post is provided for the purposes of legal information only and is not to be construed as legal advice.
One fear that some parents may have is whether their LGBTQ status might affect their rights when it comes to Custody and Access. Thankfully, this is not in and of itself a ground to refuse custody or access to a parent as the case law below will demonstrate.
As mentioned in our last post regarding conduct that can affect custody or access, what courts will want to see is whether the conduct of the parent impacts the best interest of the child.
What courts will do is consider a parent’s LGBTQ orientation among other factors to make a determination about a person’s ability to parent. They will look at whether that orientation actually affects the healthy development of the child. The Courts in Bezaire v Bezaire had the following to say at para 18 of the decision:
“In my view homosexuality, either as a tendency, a proclivity or a practised way of life is not in itself alone a ground for refusing custody to the parent with respect to whom such evidence is given. The question is and must always be what effect upon the welfare of the children that aspect of the parent’s make up and lifestyle has, and it will therefore be a question of evidence in that very case as to whether what has been shown to exist has or may tend to have effects adverse to the welfare of the children.”
In addition to this, the court in Re K states the following:
“There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents.”
What we can see from this is that courts are very clear in stating that sexual orientation alone is no ground in and of itself that negatively impacts on a person’s ability to parent their children, meaning that LGBTQ parents are recognized as equally capable as heterosexual parents when it comes to decisions regarding custody.
The same principles apply when courts make decisions regarding access to children. Again, the courts are going to make a determination on whether a parent’s LGBTQ orientation, as well as other facts, affects the child’s best interest.
For example, the courts in Templeman v Templeman found that an openly gay lifestyle was not a reason in and of itself to restrict access or require that it be supervised. In Templeman, psychiatric evidence was produced that showed conclusively that the father had a strong loving bond with his children, and that his gay lifestyle posed no risks in harming his children.
- Bezaire Bezaire (1980), 20 R.F.L.(2d) 358 (Ont.C.A.);
- Re K (1995), 15 R.F.L. (4th) 129 (Prov.Div.):
- Templeman v. Templeman,  W.D.F.L. 233, 2 A.C.W.S.(3d) 294 (B.C.S.C., Dec. 22, 1986).
This post is provided for the purposes of legal information only and is not to be construed as legal advice.
I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.
Let’s look a little closer at what this actually means.
First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).
24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).
Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).
The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.
Let’s take adultery as an example. Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage. What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child. Therefore it was not a relevant consideration when determining custody or access.
Relevant Parental Conduct
When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access. These initial relevant considerations could include, but is not limited to:
- Who has been making the decisions for the child?
- How often does the child see each parent currently?
- Who prepares the food and clothing for the child?
- Who arranges after school activities etc?
Adjusting Terms of Access
After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.
To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:
- the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
- the non-custodial parent’s punctuality, attendance and behaviour on access visits;
- the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
- the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
- the non-custodial parent’s sensitivity to time limitations on the visit.
Sample Case T.(R.R.) v. T.(G.)
In T.(R.R.) v. T.(G.), the father was denied access because he:
- Repeatedly showed up for visits drunk;
- Left multiple threatening messages on the mother’s answering machine;
- Acted inappropriately during his access visits;
- The children didn’t want to visit with the father; and
- The children were in a better emotional state when they did not see the father.
Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.
As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child. See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.
- Somerville v. Somerville, 2007 ONCA 210,  O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
- (R.R.) v. T.(G.),  O.J. No. 2453
- Montgomery v. Montgomery,  O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]
Legal Disclaimer that this is information only and not to be construed as legal advice.
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.
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:
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.
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.
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.
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).
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.
This may be required if one of the parents demonstrates the following behaviour:
- Substance Abuse;
- Domestic Violence;
- 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.
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.
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.
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:
- The number of children;
- The province or territory where the paying parent lives; and,
- 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.
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:
- responsibility for an unusually high level of debt incurred to support spouses and children prior to separation or to earn a living
- unusually high expenses in relation to exercising access to a child
- a legal duty under a judgment, order or written separation agreement to support any person
- a legal duty to support a child, other than a child of the marriage
- 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:
- A minor;
- Enrolled in a full time program of education; or
- 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 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:
- Are married to each other, or
- 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:
- Continuously for a period of not less than three years; or
- 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;
- Unjust Enrichment;
- Quantum Meruit;
- Constructive trust; or
- 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.
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.
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