Can I adopt my partner’s child?

Jill's friend, Joyce, has been with her spouse Robert for over 12 years now.  Robert has a daughter, Jenny, who is 14 years old.  Joyce is the only mother that Jenny has ever known, since her own mother (Robert’s 1st wife) passed away when Jenny was only a year old.  Joyce wishes to formalize her role as Jenny’s parent and is thinking about adopting her, though she is uncertain as to whether it is possible (after all, Jenny has a birth mother) and if so, what the steps are. 

In Ontario, it is common for new partner to adopt the child(ren) of their new partners, born from a prior relationship.  It is most common when the other parent has passed or is completely absent from the child’s life.  This process is called an “adoption by a relative or stepparent” and has its own unique legal process.  In fact, it is the only legal means through which a partner can become the true legal parent of his or her partner’s child. 

To qualify for the relative adoption process, the adoptive parent must either be:

• a step-parent

• a grandparent

• an aunt or an uncle

• a great-aunt or a great-uncle

Further, the relative adoption process is only available when the adoptive parents are residents of Ontario and the child resides in Canada.

What is different and often appealing about the adoption by a relative is that it does not affect your existing relationship with your child. It simply causes your partner to become a legal parent of the child as well. If alive, the consent of the other birth parent will be required although a judge may allow the adoption without the parent's consent in some exceptional circumstances (i.e. if the parent is dead, cannot be located or for some other reason if the best interests of the child would be promoted by waiving consent of the other parent).  It is also interesting to note that a child who is 7 years of age or more must consent to the adoption for the adoption to proceed.

Once the adoption order is made, the adoptive parent has deemed to be the parent of the children and is granted the same rights and obligations as any other parent in Canada or the world. 

Surrogacy in Canada

Jack’s sister, Jannika, and her husband Bill always wanted to have a child. They have now been trying for more than 5 years, but nothing seems to be working. A good friend of theirs, Rachel, who already has 3 children, has offered to carry their child. Jannika and Bill are really excited at the idea of having a close friend carrying their baby. The plan is for Jannika and Bill to provide their gametes (sperm and egg) and for Rachel to act solely as a carrier. Rachel will be carrying the baby without compensation. They are thinking of going through an agency to carry on with the project.

There are two types of surrogacy: commercial and altruistic. In Canada, “commercial surrogacy”, which sees surrogate mothers receive money for carrying a couple’s child, is illegal. Likewise, it is also illegal for would-be parents seeking a surrogate to advertise that they are willing to pay a woman for the service. However, it is legal to reimburse a surrogate for the expenses she incurs as a result of the pregnancy. This is what is called “altruistic surrogacy.

The expenses that an altruistic surrogate mother may incur and can obtain reimbursement for, include:

•  Medication
• Maternity clothes
• Travel costs
•  Pre-natal supplements and vitamins
•  Loss of work if bed rest becomes necessary

Though it is illegal to compensate a surrogate mother for carrying a child, surrogacy is still a very expensive process. According to the surrogacy support website Surrogacy in Canada, the typical cost for a gestational surrogacy varies between $32,000 and $76,000. These costs take into consideration the in-vitro fertilization, the expenses before and during pregnancy as well as the legal expenses. Since not many young couples have that kind of money, it is more and more common for them to enter into “underground” surrogate arrangements, thus avoiding the need to go through an agency and allowing them to use other methods of fertilization. A child is always a wonderful gift of life, but you may end up with a different deal than what you bargained for, during the pregnancy and after the baby is born.  Surrogacy is a complex process so before you have recourse to it, you should absolutely seek legal advice to fully understand  the rights and obligations that result for all parties involved. 

School is about to start! Can I move with the children in a few weeks?

Jill has a new spouse who lives in Kingston. They have been in a long distance relationship for two years and Jill is ready to move on with her life and move in with him.  Jill has had primary custody of the children since the separation (Jack has them every other weekend as well as every Tuesday and Thursday, from after school to 8 p.m.), and feels that since she has all the parenting responsibilities, she should be able to take the children with her.    After all, Kingston is only a two hour drive from Ottawa, and Jack has not been consistent in taking the children with him every Tuesdays and Thursdays due to various work commitments.  However, when Jack heard that Jill wanted to move the children to Kingston, he went through the roof! He told her that he would not consent to the move and that he would take whatever action is necessary to stop her. Time is pressing, as Jill has committed herself to the purchase of a home in Kingston and school starts in September. However, she knows from speaking with a friend that it can take months, if not years, for a family case to be heard by the court and a final decision made by a judge. She wonders if there is a quicker way to proceed…

The court process is usually long and issues such as the relocation of children away from one parent (called a “mobility case”) are very hard to decide fairly without a full hearing by way of a trial. However, in situations of urgency like Jack and Jill’s, the court can be asked to make an interim order allowing the children to move, before a trial is held.  The proceeding is called a “motion” and the mobility issue may be determined by a judge based on written evidence only (affidavits), if the circumstances justify it.

 

In the context of an interim mobility motion, the judge will try to determine what is in the best interests of the children, from the perspective of the children (and not the parents) The relocating parent will have to establish that there is “compelling circumstances” justifying the move on a temporary basis, and that there is a “strong probability” that he/she will be successful at trial. However, when the evidence provided by the parties does not show a clear trial outcome in favour of one parent,  it is very unlikely that the motion judge will authorize the move on an interim basis.  As such, moving with the children away from one parent is not a last minute decision to be made.  It is important to plan ahead to avoid heated and costly court battles!

Why does my ex need to see my income tax return?

Jack has been paying child and spousal support to Jill for over a year now, pursuant to a temporary agreement reached between them in mediation based on what they anticipated to earn in 2013.  Jack recently completed his 2013 income tax return, which confirms that his actual income for that year was higher than he had anticipated.  He wonders whether he has an obligation to tell Jill about his higher income.  The last thing he wants is for her to find out that he is making more money and, as a result, that he needs to increase the monthly support payments he is making!  

 

Normally, final separation agreements (or court orders) which contain child support obligations will provide that parties have to exchange their income information each year.  This is because the law (Child Support Guidelines) specifically says that child support may be varied each year to reflect any changes in the parents’ income.  The change does not have to be important: as a payor’s income fluctuates, so does his or her child support obligation. Thus, the importance for parents to exchange income information each year.

This is not necessarily the case for spousal support.  Usually, an ex-spouse’s obligation to pay spousal support is based on the income that the parties earned at the time of their separation.  To subsequently vary a spousal support agreement or court order, the person requesting the change  must show that there has been a “material change in either party’s circumstances” since the making of the agreement or court order.  A significant change in one’s income may (and I say “may”) justify a change in spousal support. Other circumstances justifying a variation of spousal support could include a payor’s retirement; the support recipient moving in with a new spouse; the termination of a child support obligation; a change in employment for either party; or any other such change affecting either parties’ financial situation.  Since there is no inherent right to vary spousal support each year, there is normally no positive obligation imposed on the ex-spouses to exchange their income information yearly.  However, the ex-spouses have an obligation to disclose any “material change in one’s circumstances” when it arises. As always, if the parties cannot agree on the new support amount, they will need to seek the variance through a court order.  

Could a parenting coordinator help us?

Jack and Jill have been able to reach an interim agreement about parenting issues and the care of their two children.  Unfortunately, this has not stopped them from fighting about the kids. From Jack’s perspective, Jill is completely inflexible in her thinking and she refuses to follow the agreement with regards to access, consent to travel with the children, payment of the children’s expenses and so on.  Jack wonders what is the point of having an agreement if he needs to run to his lawyer and take legal action every time Jill does not follow the rules.

In high-conflict separations or divorces, parenting issues may arise frequently even if the parents have signed a comprehensive parenting agreement. Going to court every time a dispute arises is both untimely and expensive.  However, “Parenting Coordination” could be your best option to manage those day-to-day disputes in a timely and cost-effective manner.

How does parenting coordination work?  A Parenting Coordinator is a neutral person to whom parents can turn to when they cannot agree on matters relating to their children. The Parenting Coordinator is usually a psychotherapist, social worker, family lawyer, counsellor or mediator who has a significant expertise in parenting and divorce conflict management and who has obtained a Parenting Coordination certification. The Parenting Coordinator is hired by the parents (by contract) or appointed by the family court (on consent of the parents).  His/her role is to help parents come to a successful resolution of ongoing disputes as they arise between themselves. If the parents are unable to resolve the dispute, the Parenting Coordinator is empowered to impose a decision on them. In other words, the decision of the Parenting Coordinator must be followed by the parents, as if ordered by a Court.

While the cost of the Parenting Coordinator is assumed by the parents equally (or as otherwise ordered by the Parenting Coordinator when required to impose a decision on the parties), that cost is, without a doubt, cheaper than the cost of two lawyers and months of court proceedings to resolve the dispute!  Most importantly, the matter will be resolved very quickly (sometimes in a matter of days) as opposed to taking several months through the court process.  Keep in mind that, according to a wide body of research, while separation and divorce may be a hard transition for children, in the end, it is parental conflict that is the most harmful to children.

He should pay for my lawyer’s fees!

Jill is really frustrated.  Jack has failed to provide the financial documentation she needs to determine his “true” income for support purposes.  As a result, Jill’s lawyer has recommended that she obtain a court order forcing Jack to provide the information.  Since it is Jack who is refusing to comply, Jill feels that he should be responsible to pay for all the legal fees associated with this court proceeding. However, Jill’s lawyer made it clear that although she will make the request, the final decision is within the judge’s entire discretion.  The judge may, or may not, make an “award of costs” forcing Jack to pay some or even (more rarely) all of Jill’s legal fees. 

 

The number one frustration encountered by a client in a separation process is when he/she is obligated to pay an important amount of legal fees to start a court proceeding just to compel an ex-spouse to do things that he/she should have been doing readily and willingly (i.e., providing financial disclosure, paying child support, paying their share of joint debts, signing a consent to travel abroad with the children, etc.). In Ontario, the court process is designed to promote settlement discussions between the spouses.   Thus, to move the matter towards settlement, the spouses have the obligation to participate in various types of conferences (i.e., case conference, settlement conference, and trial management conference) before they can proceed to adjudication processes (processes where evidence is presented to the judge and the judge imposes a decision on the parties).  While a conference is a less costly settlement oriented process than an adjudication process, judges do not usually award costs in the context of those conferences, unless it is very clear that one party has abused the process. 

 

As a result, it is important to understand that before engaging into a court proceeding (conference or adjudication), you must be able to pay for all the legal fees stemming from the process as you may, in the end, only be able to recover a slim portion from your ex. Court should always be the last alternative in a separation process because the cost of the process may very well exceed the benefit that you gain in the end.

Should you try to make Christmas perfect?

Last year was the first Christmas after the separation.  Although the holidays went fairly well given the circumstances, Jill is feeling the pressure of making Christmas perfect.  The children are asking for an IPOD, and IPAD, and IPHONE, an XBOX just to name a few big ticket items on their wish list. Jill earns a lot less money than Jack and cannot afford the luxurious gifts he buys the children.   She also feels guilty that she will not spend Christmas morning with the kids and thinking of the loneliness is just overwhelming.   She knows that she has to stick to the budget and that money does not buy love. However, when it comes to the children Jill usually overspends.  

 

In preparation for Christmas Jill made a list of 5 goals she will try to respect during this holiday season:

 

1.  Make a list of gifts. Set a budget and stick to it.  Shop early – avoid last minute temptations and overspending. 

 

2.  Talk to the children and Jack about Christmas and New Year arrangements well in advance – good planning and realistic expectations can prevent frustrations and disappointment.

 

3.  Remain flexible during the holidays - avoid disagreements, dramatic people and uncomfortable conversations after all “it’s the season to be jolly”.

 

4.  Enjoy myself – spend quality time laughing with family and friends, the support of loved ones can provide strength to move past a difficult situation.

 

5.  Remain positive – Choosing to learn from this hurtful life experience can help you grow into a stronger, wiser person.

 

I work for my-self and don’t earn much income!

Jack is self-employed as a human resource consultant for various companies and organizations in the Ottawa area, a business he started to operate when he was laid off from his long-time position with the federal government. As a self-employed business owner, Jack is able to enjoy freedom and many tax benefits that are not available to “regular” employees.  However,  being self-employed also means that he must bear the risks associated with the ups and downs of market demands and fluctuating annual income that “regular” employees do not have to assume. That is what he responded to Jill when her lawyer had the nerves to suggest that his income was actually higher than the amount he declared in his annual income tax return.

Jill’s lawyer had no intention to insult Jack, or to insinuate that he was defrauding Canada Revenue Agency.   For the purpose of determining the annual income required to calculate both child and spousal support, the court is not limited to the revenue declared by  a tax payor in his or her income tax return.   In fact, the tax and other financial benefits flowing from being self-employed, being the sole owner of your own company or living in a country with much lower tax rates (to name only a few) can and will be taken into consideration and will often result in the court attributing a higher income than what is reported on line 150 of the income tax return.  This is because the child and spousal support guidelines (those tables, charts and software that determine how much support is payable) are based on income earned by “regular” employees who are subject to source deductions and less flexible taxation rules, and who must pay for personal expenses with after-tax money.  This is not the case for self-employed people who usually also  enjoy the following (non-exhaustive) benefits;

• paying for personal expenses (such as car expenses, cell phones, meals and entertainment, travel, etc.) through their businesses, thus allowing them to pay with “before-tax money”;
• leaving important sums of money in their company, for reinvestment or future use; 
• investing through their company with “before-tax money”; and
• receiving income as dividends, which brings about a lower taxation rate.

As a result, when assessing a self-employed payor’s income judges and lawyers must look beyond the income tax return to avoid comparing  apples (“regular” employee payors’ income) with oranges (self-employed payors’ income). 

I need closure!

Jill wants to have the home transferred to her name.  She knows that it is over with Jack and she’s chomping at the bit to build a new life.  She feels that Jack is purposely dragging out the separation process in an attempt to wear her down and get a sweeter financial settlement.  Her biggest fear is to settle too quickly and end up living from pay check to pay check.  

Here are 3 common mistakes people make when negotiating a settlement:

1. Insist on keeping the home you worked hard for or that you like so much
Often, the matrimonial home can be more of a liability than an asset especially when you are living on a single income.  It is important to make a list of all the monthly expenses before making this big decision.  It is also recommended to add 25% to your current monthly budget because with time, you will need extra money to get the roof repaired, a new fridge and stove, a lawn mower, new furnace etc.   In the end, it may make more financial sense to sell the home and move into a smaller, more affordable property such as a condo, an apartment, or a smaller bungalow where the maintenance is taken care of or less costly.  Emotionally, it may also make sense to start fresh in a home more suited to your family’s current needs.

 

2. Get bogged down in the “I want” war
Too many separated spouses fight over possessions they want such as furniture, antiques, and knickknacks while losing the big picture in the process.  As a result, lots of time and money are wasted in petty battles.  Fighting over minor possessions just makes negotiations on the important issues, like the home, parenting issues and support (child and spousal), more difficult and lengthy.  It is important for you to become a savvy negotiator.  Make a list of the things that you absolutely want.  Also include in the list some of the items you are willing to let go.  Then “compromise” on the non-essentials and make it look like a win-win situation!

 

3. Be overly anxious to get closure or be afraid to be ridiculed by your ex
Too many people rush into settlement because they are seeking closure.  Others are afraid to be ridiculed by their ex and do not stand up their ground.  Sometimes the desire for closure or the refusal to speak up means the difference between a comfortable life and a marginal one.  Get involved, understand how the law works, ask questions and make sound decisions.  Remember that a piece of paper will not give you closure. Only time and working on yourself can do that. 

Should I go back to school as an adult student?

Jill is always struggling to make ends meet and she does not really like her job.  More than anything else, she hates to be financially dependent on Jack.  Since the separation, she is longing for a new exciting career with a higher income and better advancement opportunities.  Her greatest challenge is juggling home life, work and school.   Jill’s parents have agreed to help her out with the children during the school year.  However, they have a well-deserved retirement and Jill does not feel comfortable with imposing her family responsibilities on them.    Jill wonders if she should go back to school part-time or full-time, where she will take the money, the energy and the time to tackle this new life project. 

Here are four tips that can make an adult student life a bit easier:

1. Get Financial Help - Unless you have won the lottery or received an inheritance, money is the number one issue for adult student returning to school.  Ask your school for the various scholarships, grants and loans available in Ontario.   Often the applications must be sent several months prior to the beginning of the school year.  Make your budget, understand the debt repayment options available, as well as, the interest rates.  No sense accumulating a $50,000 debt that you will only pay off in 25 years!  Plan this out while you are at the negotiation table with you ex.  For example, you could try to negotiate a lump sum spousal support payment (one larger payment now rather than lower monthly instalments over a longer period of time).  You could also  ask for higher support payments but for a shorter period of time than the law would allow, which would give you the extra cash flow you need while attending school. 

 

2.  Plan study time in your busy schedule - Unless studying becomes your full-time job, you will have to juggle studies, children, and (maybe) a new relationship.  Managing your study time will be pivotal to your success.   Decide what hours/days you need. Making a date with yourself will help you stay focused and disciplined when something comes up during that scheduled time. Try to negotiate with your ex a parenting plan (access schedule) with the children that will give you the time you need to study.  You ex could be more than happy to help out with the children if, in the end it, your income is larger and you become less financially dependent on him or her.

 

3.  Reduce Test Anxiety – It is sad but true, with age and a surcharge of family responsibilities, our memory is not what it used to be when we were young and carefree students.  No matter how hard you study, tests are usually stressful.  Try to organize a special parenting arrangement with your ex during the weeks when you have exams.  School schedules are usually fixed a year in advance.  This gives you ample time to sort out, in  advance, a parenting arrangement for those weeks.  Being organized is the first way to reduce test stress, manage your anxiety and avoid last minute study cramming. When all fails, remember to breathe!

 

4. Create your support system -   Getting help from friends and family will be crucial during this very stressful and hectic time of your life.  Many schools offer group help and day-care facilities.  Friends and family may be more than happy to take the children for a meal and to special activities to help you out.  Don’t be shy and ask for help.  Get ideas from other adult students in your group. You might be surprised to see how many other single parents return to school and how resourceful they are when it comes to organization, household management and child care arrangements!

I want my divorce! What is the difference between separation and divorce?

Jack has had it.  If there was ever any possibility that they would reconcile, any such hopes have come to an end when he heard that Jill had retained the services of a lawyer. Jack has told Jill that he wanted a divorce, to which Jill has replied that he would get it “when he faced up with his responsibilities as a father and a husband!”.  Jack wonders if he needs Jill's consent to get a divorce.

 

When two spouses part ways, it is very common to hear them say that they “want a divorce”.  However, in a separation process the divorce itself is really just a legal formality that will put an official end to the marriage. Getting to the point where you can get a divorce is what takes so long and can be very difficult because in most cases you will want to settle all issues by way of a separation agreement.  Getting such an agreement through mediation, collaborative justice, lawyer-to-lawyer negotiation or a court process is your first step. When an agreement is signed, you then know what your rights and obligations towards your ex and your children will be in the future.  When all issues have been settled, getting the divorce is truly just a "paper process" which, while it still requires court intervention (the divorce can only be granted by court order), will not require the spouses to attend court and will not involve months of legal debates.  If you have been separated for one year and all issues have been settled in a separation agreement, you are entitled to obtain a divorce order with or without your ex’ consent.

 

This said, there is really no difference between being separated (once a final agreement has been signed by both parties) and being divorced, except for some of the following differences:

1. If you are divorced, you can get remarried (something you cannot do if you are not divorced).

 

2. If you are divorced, you may no longer qualify as a beneficiary under your ex-spouse’s health plan or pension plan (although certain health plans allows it in certain circumstances).  Some pension plans also require that you obtain a divorce order to prevent your ex to obtain, upon your death, your pension plan benefits.

 

It is common to see couples that never get a divorce and only have a separation agreement.  There is no difference in the eyes of the Canada Revenue Agency between a separated or divorced individual.  Often times, people are emotionally exhausted and simply do not want to engage any further legal costs getting a divorce until someone decides to get remarried.  For many people, however, getting a divorce is necessary to cut the emotional ties to their ex and many people get their divorce immediately after having signed their separation agreement. So ultimately, getting a divorce is, more often than not, simply a question of personal choice.

If I have to see you in court honey, you’ll have to pay my legal fees!

Jack and Jill have been trying to settle their separation issues by themselves for a couple of months now. Jill is getting frustrated with Jack because he does not seem to take their separation seriously.   She does not see any other options than to retain a lawyer and go to court.  She is convinced that once they go to court the judge will tell Jack what he needs to hear.  But when Jill finally met with her lawyer, she was a bit surprised by (and disappointed with) her lawyer’s comments and reluctance to engage into a court action.  She wonders if she hired the right lawyer…  In fact, Jill’s lawyer has explained to her that the court process is not only very time and emotionally consuming, it will also be very costly.  However, Jill is convinced that she will win hands down on all issues and that, in the end,  Jack will be responsible to pay for all her legal fees.

 

Many separated couples believe that going to court is the only way they can get someone to pay attention to what they are saying. They believe that they are right, the other spouse is wrong and that the court room will be the venue where the winner will take it all.   But legal fees to get there are a very important aspect to consider when making the decision to resort to the judicial system.  While a court may order the “losing” spouse to pay part of the other spouse’s legal costs to prepare and attend court, it is highly unlikely that the judge will order that ALL costs incurred be paid back to the “winning” party.   In addition, considering that most cases eventually settle out of court (less than 3% of all family court cases end in a trial, where costs orders are made), opportunities to get the big fat cost order are very rare.

 

In addition, it is not because a party wins in court the he/she will necessarily get his/her legal costs paid by the loosing party. In deciding whether a party should be responsible to pay for the other’s court costs, the judge will look at different factors such as: Were the parties reasonable?  Did the spouses make reasonable efforts to settle the case?  Did one of the parties fail to accept a reasonable offer? Did one spouse act in bad faith? Did one spouse pursue unrealistic claims? and the list goes on and on…

 

So no one should ever go to court thinking that they will win it all, or thinking that the other party will have to pay their legal fees.  When making the decision to go to court, you need to start from the premise that any and all legal fees paid to your lawyer will be on you, and that you will be lucky if at the end of the day a judge orders your ex to pay some of them.  This is why it is so important to make sure that you have tried every possible way to settle out of court before you chose this very lengthy and costly avenue.

All I need from my mom and dad after divorce

It is almost the end of the school year and the children have been coming home with their backpacks full of assignments that they completed in class with their teachers.  As Jack is sifting through the pile of papers on the kitchen counter, he found a wrinkled piece of paper written by his teenage daughter entitled: “All I need from my mom and dad”.   This is an assignment that was completed in English earlier in the year.  It broke Jack’s heart… Here’s what it said:

 

« All I need from my mom and dad »

•   I need both of you to stay involved in my life on a daily basis.  Please write emails, text me, make phone calls, and ask me LOTS of questions about school, my friends, my interests, my fears, my dreams and ambitions.  When you do not stay involved, I feel like I am not important and that you do not care about me anymore.
•   When you say you will visit me, make sure you show up because I feel so sad and lonely and often I feel the rejection over and over again.  I just want to spend time with you!
•   I want and I need to love both of you.  Please support the time that I spend with each of you and also with my step-parents.  If you act jealous or upset, I feel like I need to take sides and love one parent more than the other. 
•   Stop making me the messenger!   Communicate directly with my other parent. I often feel like the bearer of bad news and my stomach is in knots until I deliver the message. 
At my age, I don’t need this constant stress.

•   Always remember this:  I want both of you to be a part of my life on a daily basis. I count on my mom and my dad to raise me, to teach me what’s important, and to help me when I have problems.  I want to confide in you but before I do that I need to be constantly reassured that I can TRUST you and that you ARE there for me at all times!

As a parent, it is normal to feel uncertain about how to support your children during – and especially after – your divorce because often you simply do not know what to say to them.   Being a step-parent is even harder because you seem to be living in this grey zone – should I hug his/her children?  Tell them I love them?  Although they are not the parents, often step-parents are more involved in the children’s daily lives then the access parent.   The divorce is a transitional time that cannot be without some measure of hardship, but you can powerfully reduce your children’s pain by making their well-being your top priority.   If your children do not live with you primarily, do not fall into the trap of buying your children’s love with presents.  Give them the gift of time…

 

In the end, no matter their age and no matter the circumstances, all children want the same thing from their parents and step-parents such as reassurance, a listening ear, stability, routine and structure.  But most of all, children want to be part of a family that loves them and shows them every day by being present in their lives.  They want parents and step-parents to participate in their activities, to give them hugs and high fives and to take the time to cook and enjoy a nice family diner.  Simply said, your children need your presence more than your presents!

Why should I stress with work and let you relax at the spa!

Jack’s work environment has changed considerably lately and he feels lots of pressure to work excessive hours with short timelines.  He is currently experiencing health issues and his doctor has asked him to explore the possibility of taking an early retirement.  His employer has made it clear that hiring temporary help is out of the question.  Jack is seriously considering his doctor’s suggestion but wonders if, by taking an early retirement, his monthly support payments to Jill would be reduced or terminated.  After all, why should he stress with work while Jill spends his money relaxing at the spa!

 

If Jack is retiring for the sole purpose of reducing his support obligations, a court may impute him a higher salary than his retirement income, and calculate his support obligations based on what he used to earn before he retired.  This same principle applies to a payor who intentionally reduces his/her income to avoid paying support.   However, if Jack’s decision to retire is deemed reasonable (because it was prompted by medical reasons or some other « reasonable » cause), then his support payments may be reduced or even terminated.  In that case, the courts would look at many factors, including the following two important principles:

1. The nature of spousal support - Spousal support is an important and necessary means to share the financial impacts of separation which sometimes go well beyond the payor’s retirement.  In deciding whether or not the support obligation should be modified once the payor retires, the court will consider the nature of the support received by the recipient: (i) was the support ordered to compensate a spouse who stayed home throughout the marriage and who, as a result, did not have the opportunity to advance his/her career and earn a reasonable income? or (ii) was the support meant to alleviate a financial need, where a spouse  is unable to meet his/her personal monthly needs?  When support is based on compensation, the courts have often concluded that a spouse is considered to have been fully compensated by the time the payor retires.  However, when the support is based on needs, the courts have at times extended the obligation to pay beyond retirement. 

2. The “double dipping” principle -  The court will consider whether or not the payor’s pension was divided at separation through an “equalization payment” (the payment made between married spouses after a separation ensuring that each spouse ends up with assets of equal value for the period of the marriage).  If the pension was already divided as part of the property settlement agreed to by the spouses at separation, the court will try to avoid « double dipping ».   In other words, the court will avoid dipping again in the same source of funds (i.e. the pension) when granting support, unless the recipient has a significant need that cannot be addressed otherwise. 

 

Spousal support is a very complex area in family law and the payor’s retirement can add to the  complexity.  If retirement is a factor to be considered in your situation,  you  must consult a lawyer to ascertain your options and the impact your retirement may have on your financial situation.   Prior to meeting with your family law professional, take the time to understand the basic concepts of spousal support to use your time with your lawyer more efficiently (Knowledge is power and time is money!).  Visit our website at www.familylawinabox.com and listen to our program on Spousal Support (click here).

She’s seeking sole custody? Is she trying to alienate me from my kids!

Jack is furious that Jill is seeking sole custody of their two children. He regards himself as a father who has always been involved with his children, and believes that he has much to offer his kids, both in terms of decision-making and in terms of the time they spend together.  Jack views Jill’s actions post- separation as an overt attempt to cut him out of the children’s lives, and “alienate” them from him. But is this the proper use of the term, “parental alienation?”

A parent who engages in alienating behaviour deliberately and actively campaigns to estrange his or her child from the other parent. Specifically, an alienating parent will talk negatively about the other parent or treat that parent disparagingly in the child’s presence; he or she may tell false stories and lie about the other parent directly to the child. Such parents will not allow their children to speak openly about the other parent in positive terms, or relate positive experiences they have had with the other parent. Moreover, alienating parents may subject their children to interrogation immediately following their return home from access visits, or create divided loyalties by refusing to allow the child to wear clothing purchased by the other parent or bring gifts home from the other parent.

 

Such behaviour on the part of the alienating parent typically occurs over extended periods of time. In response, a child who is alienated will consistently express negative feelings about a parent, or outright reject a parent, for reasons which are unjustified given the child’s past relationship with that parent and given the rejected parent’s conduct itself.

Courts must assess allegations of parental alienation on an individual basis, in order to determine whether a child’s fear or rejection of a parent is reasonable and justified given the circumstances of that particular case.  Was this child previously abused by her parent? Does the parent routinely miss or cancel access visits? What type of relationship did the child have with her parent prior to separation? If a child has valid reasons for exhibiting fear of his parent, or if there is a history which explains why the child refuses to attend access visits or engage with his parent, then it is inaccurate to claim that the child is alienated. If, on the other hand, a child who used to enjoy a loving and meaningful relationship with her parent is now truly fearful of that parent, or outright hostile toward that parent, then parental alienation may be at issue.

The court’s role in custody and access cases is to determine what is in the child’s best interests; it is not the court’s objective to reward or punish parents for their behaviour. Therefore, how courts respond to cases where parental alienation exists is not uniform. In certain cases, reunification or reintegration counselling may be recommended; a complete change to the existing custody and access regime may be ordered. In other instances, courts may find that to order any change to the status quo would cause further harm to the child.

So if you believe that your ex-spouse may be engaging in an alienating behaviour, don’t jump to conclusions.  Seek the assistance of a mental health professional who will be able to guide you through this process and make proper recommendations as to an intervention plan which may, or may not, involve hiring a lawyer.

Just ask the Taxman and you shall receive money!

Tax filing season is here again. Jack knows that tax deductions and exemptions reduce the amount of income on which he has to pay tax, in contrast to a tax credit which means a dollar-for-dollar reduction in the actual amount of the tax that he has to pay.  Although Jack pays child support for the two children, he cannot deduct the amount from his income.   However, the monthly spousal support he pays Jill is a deductible amount.   Jack knows that he will owe the Taxman money again this year and as a good Canadian citizen he will pay his dues.  However, he is also looking at ways to keep money in his pockets as he would love to buy a pontoon boat which would make his summer vacation with the children so much fun. 

Here is a list of some child tax benefits and credits that might be available to you from the federal and Ontario governments:

1. Child Tax Credits - This federal credit can save you up to $329 for each child under the age of 18.

 

2. Canada Child Tax Benefits - The federal CCTB is calculated for July to June yearly and could bring in to a low-income family with two children up to $555 in additional savings.   If Jill and Jack shared custody of the children (50-50 or 70-30), the CCTB would be divided equally but since both kids reside with Jill (70-30), she is the only parent eligible to claim the CCTB.  In Ontario, depending on your income, you may also be eligible to claim the Child Care Benefit and the Child Care Supplement. 

 

3. GST Credit:  This federal tax-free quarterly payment helps individuals and families with modest income offset all or part of the GST that they pay.  To receive the GST credit you have to apply for it every year.

 

4. Child Fitness and Art Tax Credit – At the federal level, for each child under 16, parents may claim a tax credit of up to $500 registered in a sport like ballet, hockey and soccer and another $500 for artistic and cultural activities, like art or music lessons.  In addition, the Ontario government offers the Children’s Activity Tax Credit where you can claim up to $526 in eligible expenses and get up to $52.60 back for each child under 16.  You can receive up to $105.20 back for a child with a disability who is under 18.

 

5. Universal Child Care Benefit – The federal UCCB provides families with $100 per month for each child under the age of 6 or $1,200 per child, per year.

 

6. Eligible Dependant – If you were a single parent during 2012, you may be able to claim an eligible federal dependent tax credit for one of your children which is equivalent to claiming a dependent spouse.  However, whether or not you receive spousal support you are entitled to this credit.  In the case of Jack, since both kids reside with Jill, he may not claim them.

 

7. Child Care Education – Child care expense can be claimed to the federal government when you hire a babysitter or put your child in a daycare or summer camp to enable you to go to work (or attend school).  If you enrolled your child in a fitness program or summer camp, which operates during the hours you are working, then you must first claim the cost as a childcare expense.

 

8. Medical Expenses – Save your receipts whenever you buy glasses for your children or take them to the dentist as you may claim them at the federal level.  If you have a group health insurance plan at work, then only the portion that is not reimbursed is available for you to claim.

 

9. Child Disability Benefit - The federal and provincial governments provide child disability benefits.  If you believe your child is eligible for this benefit, ask your doctor or occupational therapist to complete a Disability Tax Credit form.

 

10. Tuition Tax Credit  - The federal government offers textbook amount and scholarship and bursary exemptions.  Also, if your child attends a university or a private school, you may claim the applicable tax credits from the Ontario government. 

 

Find out more information about Tax Benefits and Credits by visiting the section in our ToolBox (click here). 

Ask your lawyer for tax receipt and save money!

It is now tax season and Jill has made an appointment with her accountant to finalize her yearly income tax return.  Since Jill needed every penny she received in spousal support to make ends meet, she did not listen to her lawyer’s recommendation to set aside in her savings account 25% of the total income paid by Jack.    She is now extremely stressed and wonders how much money she will need to return to the taxman.  After speaking with her friend Susan, who has gone through a divorce a few years ago, Jill may have found a silver lining that may help her reduce the amount of income tax she owes.  As explained by Susan, all Jill needs to do is ask her lawyer for a tax receipt indicating the total amount of the legal costs she incurred to either:

• establish the amount of support payments (child and/or spousal);

• collect late support payments;

• increase support payments (child and/or spousal);  and/or

 

• defend against a request by the payer (Jack) to reduce established support payments. 

If you are a recipient of child and/or spousal support, you can deduct, in your income tax return, the legal fees incurred to obtain, collect or increase support as well as defend a claim for the reduction of such support.  The legal costs incurred by a recipient to resolve any other issues such as property and parenting cannot be deducted.  Unfortunately, if you are the payer of child and/or spousal support, you cannot claim legal costs incurred to establish, negotiate, or contest the amount of support payments.

 

Your lawyer, if asked, will be responsible to prepare the tax receipt and determine the amount of legal costs you spent in the year to deal with the support issues mentioned above. So if you believe that some of the legal fees you incurred this year qualify as a tax deduction, don’t forget to ask your lawyer for a receipt!

Four crucial rules to help you win your case in Family Court

Jack has just been served with divorce papers (in lawyer’s terms, that’s a court application in which Jill is seeking a divorce, sole custody of the children, support, and many other things).  Stressed, Jack has not wasted one minute to immediately set up a meeting with his lawyer, and together they have discussed a strategy on how to respond to the court case, and how to behave now that the matter is before the court. As Jack will soon find out, there is rarely a quick and easy divorce (unless you have been separated for many years, all issues have been resolved and the only thing asked of the court is to finally grant the divorce).

The road to obtaining a final court order can be very long, time consuming and stressful.  Without your ongoing help and input, your lawyer’s power to obtain what is rightfully yours is significantly diminished.  You are the only person who knows the facts of your story inside out and as such, you are key to your lawyer’s ability to win your case.  If you do not behave properly during the long months it will take to bring the court proceeding to an end, you may be giving your ex-spouse what he/she needs to have the upper hand at the end.

Here are four simple – but ho! so very important – rules to follow to make the court proceeding much easier for your lawyer, yourself and the children:

1.      Keep a journal.  Keep a journal of all the important events taking place post-separation. Your former spouse may say things to you, or act in a manner that will need to be relayed to a judge down the road.  Memory is a faculty that forgets easily especially in times of extreme stress and crisis.  Keeping a detailed written record of these occurrences will serve as a helpful reminder at trial and will also enhance the credibility of your oral testimony since it was written at the time the events actually took place.

2.      Start collecting important documents. Going through a court process means presenting to the court all of the evidence it needs to make a fair decision about each disputed issue in your case.  For that to happen, you must provide the judge with all the relevant evidence supporting your position.  As soon as you separate and even before you separate, start collecting all of the necessary documents such as bank statements (confirming your debts and assets), income information, relevant contracts, business records, emails, letters, medical reports, expense receipts and so on.  Make photocopies of ALL documents that you think may be of importance, you never know when you will need them (we have an excellent program on gathering relevant documentation in our Study Box: Find out more (click here).

3.      Be polite and to the point in email contacts and refrain from using social media to vent your frustration. More especially if children are involved you will likely have to continue to communicate with your former spouse after you separate. If you must communicate with him or her, be polite and to the point. There is nothing more damaging to your case than your former spouse bringing emails or Facebook messages he or she received from you showing how angry, mean and denigrating you have been. Further, if you are seeking custody of your children, you need to show the court that you can effectively communicate and cooperate with your former spouse for the sake of your children.

4.      Be as reasonable as possible and maintain your credibility at all times.  This might be the most important tip you are given here.  It will be a long time before you are actually standing in the witness box telling your story.  In the meanwhile, the judge will only be able to assess your credibility by listening to what your lawyer is saying about you or by reading written materials prepared by your lawyer on your behalf.  Since they cannot really assess credibility (this means being able to tell whether you or your ex is lying) in those situations, they will give a good hard look at your actual actions:  Who has cut the other from the health plan coverage?  Who has maxed out the joint line of credit?  Who is refusing to pay his/her rightful share of the mortgage?  Who is asking for the sky, the moon and the stars as a starting settlement position?  It is said that your past behaviour is often a good indication of your current and future behaviour.  Think of how you want to be perceived and if you don’t like the current story, just change it positively. 

This practical advice may ultimately help you win your case in court.

Leaving the country with the children for March Break? Bring a Consent Letter!

Jill is planning to take a boat cruise with the children this March Break.  She is fed up of the cold winter, she is exhausted with the separation process and feels that a good family vacation would do some good.  Jack, however, does not feel the same way.  Jill has so far refused to cover her fair share of the mortgage and if she does not have money for that, she shouldn’t spend thousands on a luxurious vacation south. Jill doesn’t know what to do.  There is no way she can be in court before the scheduled trip and she is afraid that custom authorities will not let her through with the children if she does not have a consent letter signed by Jack… Or should she try anyway?

 

Traveling with children is always a challenge for parents, whether or not you are still together. If you travel with your children and the other parent is not part of the trip, you will need to get the other parent to sign a consent letter giving you permission to leave the country with the children.   A consent letter is normally required by customs whether you have sole custody or joint custody of your children.  It does not matter whether your custodial rights come from a separation agreement or a court order.  If you do not want any surprises at customs, make sure you pack your passport, the children’s passports and an original consent letter in the prescribed form.  The Department of Foreign Affairs and International Trade Canada provides an example of a consent letter that you may use to create your own letter.  For your convenience, you may access this consent letter directly from our FREE Toolbox (click here). However, it is advisable to have the consent letter notarized by a lawyer (or someone having authority to swear an oath such a doctor, legal assistant, city officials, etc.) to make sure that the validity of the other parent’s signature is not questioned by customs.

 

Most separation agreements provide that the other parent’s consent must be sought in advance, and that such consent cannot be unreasonably withheld.  But what happens if your ex-spouse refuses to sign the consent letter?  Unfortunately, this happens too often – but sometimes for very valid reasons (health or safety issues) but sometimes simply as a means to engage the other parent in conflict.  If your ex-spouse refuses to sign a consent letter for no valid reason, you may have to bring the matter to court to obtain the court’s authorization to travel with the children outside of the country.  If the court finds that your ex-spouse’s refusal was unreasonable, it can order your ex-spouse to pay for all of the legal fees you had to incur to obtain the court order.

 

This is of course an expensive – and extremely stressful – way to begin a vacation with your children.  You may also need to book an extra week of vacation just to recuperate!  To avoid these unfortunate situations and to keep having fun in the sun, make sure that your separation agreement or divorce order includes well-drafted and comprehensive travel provisions setting out clear expectations when traveling abroad with the children.

Who keeps the family pie?

Jill is hosting a girls’ night out at her house.  She starts talking about her divorce with Jack and explains that she’s entitled to “half of everything”. Her friend Sandy who also went through a divorce 5 years ago tells her that that’s not how it works.  “You divide the value, not the assets”, she says.  A discussion on the subject enfolds and Debra, who has lived in a common law relationship with Dave for 5 years wonders if she would be entitled to claim half of everything as well as a common law spouse. Kathy thinks so, since her cousin got half of her ex’ house after a lengthy court battle, but Carolyn is convinced that this is not the case. And everyone is confused.

 

The rules applicable to the division of family property differ significantly depending on your legal status (married or living in a common law relationship), and also on the province in which you live. In fact, each of the Canadian provinces has its own way of dividing family assets when a separation occurs, whether married of in a common law relationship.

 

For married spouses, there are many general principles that apply in all provinces. The most important one is that all provincial laws share a common goal: to divide equally – or at least fairly – between the two ex-spouses the wealth accumulated by the couple during the marriage.  The basic principle underlying the various provincial family property division schemes is that marriage is a financial partnership and it does not matter who paid for the assets, whether a spouse has contributed more than the other, or who is the actual legal owner of any given asset.  In Ontario, the value of all assets acquired by the spouses (jointly or individually) during the marriage will have to be shared between them. In other provinces, the assets themselves get divided. In some provinces, like British Columbia, the court has the discretion to divide a married couple’s family property the way it feels fair and equitable. In most provinces, however, the judge has no discretion and must abide by very strict rules to which there are many exceptions.

 

For common law spouses, the right to share in the other’s property – and the way property is to be shared – when a separation occurs varies from province to province. For instance, in Manitoba and Nova Scotia, common law spouses are given substantial rights to share in the other’s property after separation.  But in other provinces, like in the province of Quebec, common law spouses have absolutely no right at all to claim a fair share of the property acquired by the other spouse during the relationship.  In Quebec, what is yours is yours and what is mine is mine, so to speak.  In other provinces, such as the province of Ontario, common law spouses are presumed to have no right to share in the other’s property, but if very specific circumstances exist, courts will allow common law spouses to share in some or all of their spouse’s assets upon separation.  It is a myth to believe that you are entitled to half of your ex’s assets if you have lived in a common law relationship for more than three years!  When the parties cannot agree (as is often the case) on how to divide their assets, they will have to bring the matter to court and let a judge decide. This process is, as you know, very costly and (so far as common law spouses are concerned) very unpredictable.

 

Because the laws of each province are so drastically different when it comes to splitting this cherished family pie, it is extremely important to understand the regime that applies to your particular situation, in your particular province. Take the time to inform yourself and obtain proper legal advice BEFORE you move in with someone, get married, make a significant financial contribution or investment in joint assets or in assets belonging to your spouse.  Entering into a well written cohabitation agreement (common law spouses) or a marriage contract (marriage spouses) could avoid many heartaches and headaches.  Why wait until a separation occurs to find out that after all these years of emotional and financial investments, you are not even allowed to eat a piece of the pie…