What? You moved away with the children!

Jill and Jack have been arguing for quite a while now.  For Easter, Jack took the children on holidays to his family in Toronto.  On Easter Monday, Jack sent Jill a text message saying the children would not be returning home that night as he had decided to permanently move to Toronto with the children in order to be closer to his immediate family.  Jill is in a state of shock and her first instinct is to call the police and charge him with kidnapping! All Jill wants is to get the children safely home as quickly as possible. Does Jack have the right to move out of town without telling her?

 

While Jack may certainly move, he cannot do so with the children and most importantly without speaking with Jill who has legal options available to her.  The very first thing that Jill should do is to IMMEDIATELY speak with a family lawyer as in custody matters of this kind, acting with all speed is absolutely crucial.  Every hour and every day that Jill delays in taking court action works against her chances of getting back the children quickly.

 

Under no circumstances should Jill consent to Jack’s removal of the children or sign any agreement that deals with custody and access matters until she and her lawyer have reviewed it.  Similarly, nor should Jill say or write anything to Jack that could be interpreted as agreeing with his removal of the children from the family home.  Jill will also be required to start an urgent court proceeding against Jack for the children's return. Custody proceedings are very fact-specific and to save time and legal fees, Jill will need to provide her lawyer with the following information:

 

1. the family’s background (names of the parties and their children, dates of birth, length of relationship, employment, income, etc.);

 

2. Short timeline of the main events leading up to Jack's removal of the children;

 

3. List of family members, daycare providers and friends who can help her care for the children if the court orders their return to the family home;

 

4. why it would be in the children’s best interest to be in your care until the matter is sorted out, and;

 

5. what access, if any, do you propose the other parent to have.

 

The reason for the parent's moving is irrelevant to the court unless it helps to determine the parent's ability to provide for the children's needs. When making parenting decisions, the courts sole concern is the child’s best interest – what are the child's needs and the ability of each parent to satisfy those needs. Of course, the relationship that the child has with each parent will also be examined. Courts do not like to introduce instability into the children’s lives, nor do they want children to remain in environments that leave them vulnerable to emotional and physical harm. Thus, the trend in the Ontario courts has been to disallow the removal of the children from their family home if there is no compelling reason to show that such a move is in their best interests. In Jack’s case, for instance, the court could order for example that he return the children to Jill or have the police apprehend him and return the children to Jill.

 

Moving away with the children without proper discussion and agreement between both parents will not only disrupt the children’s lives, it will create lots of fear and unnecessary anxiety. Speaking to a family law professional and with the other parent before making such a move is a must!

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.

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).

 

Child Support – Why should I support my wife’s shopping addiction?

Following many discussions, Jack and Jill have finally agreed for Jill to have the children in her primary care (equal to 70% of the time) and Jack, because of his work obligations and difficult schedule, will have them in his care every second weekend including one or two evenings in between (or 30% of the time).  As a result of this arrangement and because he earns a substantially higher income than Jill, Jack’s monthly child support payment will increase.  Jack is concerned about Jill’s love for shopping. While he financially supported it during the marriage, Jack is convinced that a good chunk of the child support he will pay will not be spent on the children. Jack spoke to colleagues at work who used all sorts of strategies to reduce their child support payments. He wonders whether he should have insisted to have the children 50% of the time and whether it was a good idea to accept the long-awaited promotion handed out to him at work, resulting in a higher income… and higher child support payments.

Both of these options are not advisable.  Firstly, a parent should never make parenting decisions based on financial considerations (i.e. with a view of reducing child support).  The court would readily see such a decision for what it is and the parent would lose credibility before the court (or a mediator).  Decision-making authorities assess parenting arrangements based on what is in the best interest of the children, and nothing else.  Rights and obligations regarding children are the same whether you are married or living in a common law relationship.

In the same way, it is a terrible idea for a parent to take steps to quit a well-paying job or to voluntarily reduce his/her annual income to avoid paying child support.  If a court finds that the payer parent has voluntarily reduced his/her income, it may impute an annual income that is greater than the one shown on the income tax return.  The amount of the imputed income will be based on what the court believes the payer parent has the capability to earn.  Following the court decision, that parent will be obligated to pay the higher basic child support amount imputed.  

Many payer parents are concerned with the way basic child support is being used by the recipient parent. While this may be frustrating in some circumstances, the payer parent has no control over the money once it has been paid to the recipient parent. What payers need to understand is that basic child support is not meant to cover strictly expenses that directly benefit the children themselves (such as food and clothing).  It also serves to cover expenses which benefit the children indirectly (although it also has the effect of benefitting the parent as well), such as the mortgage and utilities (for the home in which the children live), the car (which is used to travel them around) and, yes, even the brand new porch…

The payer parent should also keep in mind that in the Federal Child Support Guidelines, basic child support amounts vary for each Canadian provinces and territories and are set based on the amount that an individual parent, with a specific income, is expected to spend to provide for his/her children.   It is simple, the higher the income, the higher the child support amount will be.  Although a payer parent may feel that it would be « cheaper » not to pay child support and to have the children half the time instead, let’s remember that raising children is extremely expensive (many little things, which you may not think about, result in considerable costs when pulled together; haircuts, school lunches and activities, birthday parties, toys, personal care items and, yes, those LuLu Lemon pants…).  In the vast majority of cases, the basic child support amount will not be sufficient to cover that parent’s share of the children’s expenses (both direct and indirect) and the recipient parent will often have to modify his/her current standard of living to support the children financially.

For more helpful information about basic child support and or extraordinary (special) expenses, subscribe to our full library of recorded programs (Study Box) at

www.familylawinabox.com.  (click here to be directed to our Study Box)