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.

The children are finally 18, can I stop paying child support?

Jack’s brother, Sam, has twin daughters (Melany and Stephany) who will soon be 18 years old and who continue to live primarily with their mother since the separation. The adult girls have just graduated from high school.     Melany has been working in retail since she is 16 years old and in light of the career opportunities offered by her company she has decided for the time being to work full time in that industry and not pursue her post-secondary studies.    As for Stephany, she aspires to become a doctor and has been accepted to university.  Following the completion of her bachelor degree in sciences, she hopes to enter medical school to pursue her dream.    For the next three years, both girls intend to continue living with their mother   Sam wonders whether he still has an obligation to pay child support after the girls turn 18.

Child support does not necessarily end when a child turns 18.  Normally, child support will continue to be paid for an adult child if he/she enrolls into  a post-secondary study program or if the child is unable to support himself/herself as a result of a disability or illness.  When a child pursues a college or university education the child support obligation will usually end when the child receives his/her first post-secondary degree, although there are exceptions.

To the extent that the obligation to continue to pay child support exists, the monthly amount of support must be determined. This is where things get a bit more complicated.  Normally, if a child lives at home with one parent while pursuing his/her studies, the basic child support amount that was payable prior to the child turning 18 will likely continue to be payable after that date (this amount is set by the Federal Child Support Guidelines, based on the payor’s income). This makes sense since the “custodial” parent will have to continue to maintain a home for the child and to assume his/her day-to-day expenses (i.e., transportation, food, clothing).    However, if the child movesaway from home to attend school (normally 8 months out of 12), then the way child support is calculated would be different as we would have to take into consideration the child’s needs outside of the parent’s home, the reduced costs to the recipient parent when the child is living away from home and the child’s own ability to contribute to his or her living and school expenses.

In addition to paying the basic child support amount, the paying parent (such as Sam) would also have an obligation to contribute his/her share of the child’s extraordinary expenses.  These would include a portion of the child’s tuition fees, books and other school expenses, to the extent that the child is unable to cover all of those expenses with student loans, grants or their own income.

 

Although it may appear that child support obligations will never end, just remember that you are a parent for life.  In the end, giving your child a chance at living a successful and financially independent life (hopefully sooner rather than later…) is what you are here for in the first place, isn’t it?

I want my share in your business!

 

Jill’s sister has been living in a common-law relationship with her boyfriend for 11 years.  They have two children together, they own a home jointly and they have invested in a rental property through a company belonging to her boyfriend.  In all aspects (except for the very expensive wedding), they are like a married couple.  As of late, things have been rocky in their relationship and her sister has sought Jill’s guidance with regard to their rental property. She thought that since Jill is going through a separation herself, she would know the answer to her questions. However, Jill herself was married and she wonders if the same rules would apply to common law spouses.

 

The answer is NO. When it comes to property rights, things are very different for common law spouses than for married spouses. If you are married, Ontario laws very specifically set out how your family property is to be shared.  The rules are clear and will be strictly followed by lawyers and judges (unless you and your spouse agree to share your property differently).  However, this property division scheme does not apply to common law couples in Ontario.

 

It does not mean that non-married spouses have no legal remedies when it comes to property. To rectify what courts often saw as a terrible injustice, Canadian courts have created some legal principles which, if some conditions are established, allow common-law spouses to share in the value of a property owned by the other spouse following a separation. The main legal principle applied by Canadian courts to split assets between unmarried spouses is called “unjust enrichment”.

 

In simple terms, “unjust enrichment” may be established when one spouse made a contribution (financial or otherwise) towards the acquisition, maintenance or improvement of an asset (for instance a piece of property) which is owned by one spouse only, resulting in a financial benefit for the other party, to the first party’s detriment.  In the case of Jill’s sister, it would be profoundly unjust if she did not get to share in the value of the property held in her boyfriend’s company name given that they contributed an equal amount of money and efforts towards its purchase and maintenance.

 

This said, proving unjust enrichment can be quite a challenge sometimes, and the cost of making this claim before a court of law can be out of reach for many people.  For that reason, prevention is always better than cure, and many of the challenges associated with unjust enrichment claims can usually be avoided from the outset with careful family planning through cohabitation agreements and other legal contracts. For more information about this subject listen to our program:

 

«Protecting Your Finances: Marriage Contracts and Cohabitation Agreement (“prenupts”)»  http://www.familylawinabox.com/info/study_box.php

Spousal support? Are you kidding me??

Jack and Jill both met in university.  During their last two years of university, Jack and Jill moved in together and married a few months after graduation.  The couple were advancing in age and as Jack was making a decent salary that could support the family.  They then decided that Jill would stay home with the children until they were in school. But Jill never truly started her career.  She is working part-time for the local television station, which gives her time to attend to all of the children’s medical and extracurricular needs. Her annual income is not sufficient to be self-supporting. Jill is completely discouraged especially in this time of recession where no one is hiring and all of her friends are being laid-off.   Jill has been told by her lawyer that after 13 years of marriage she would most likely be entitled to spousal support.  Jack disagrees stating that it was Jill’s decision to stay home while he worked his butt off all these years to support the family. 

 
Unlike child support which is calculated according to a specific amount set out in the Federal Child Support Guidelines, spousal support is not set in stone.  If the parties disagree on the amount to be paid, or for how long, the court will be required to make a decision and they have much discretion in setting those parameters.  The following factors, among others, will be considered: 

- The number of years during which the parties have lived together;
- The parties’ respective income;
- Whether the couple still have dependent children;
- The parties' age as well as their physical and mental health;
- The parties’ standard of living during the relationship;
- The parties’ current assets and financial means, including what they are likely to earn in the future;
- The capacity of the recipient to contribute to his/her own support, by working or otherwise, and the amount of time it will take him/her to achieve self-sufficiency;
- The payer’s capacity to pay support; and
- Whether or not the recipient has helped the other spouse to build a career or a business.

 

In general, the duration of spousal support can vary from 0.5 to 1 year of support for each year the couple has cohabited together (note that it is the years of cohabitation that count, not the years of marriage).  In certain circumstances, such as when a couple has cohabited for more than 20 years, the support may be payable for an “indefinite” duration.  This means that the support will continue to be paid until an important change occurs (such as remarriage, retirement, important change in income, etc.).

The right to ask for spousal support is automatic for married couples. With regard to common law spouses, it varies from province to province.  In Ontario, you can only ask for spousal support if you have lived together for 3 years continuously, or if you have a child together and live in a relationship of some permanence. The same factors (as listed above) are relevant for married and common law couples.

For more helpful information about spousal support or the rights of common law spouses, subscribe to our full library of recorded programs (Study Box) available 24/7 at www.familylawinabox.com (click here to be directed to our Study Box).