The 1985 Divorce Act is a federal mandate that changes the rules by which a court assumes jurisdiction for divorce petitions. This Act not only establishes jurisdiction, it also sets a new standard for grounds of divorce, creates the option to file a joint petition for divorce, and establishes set procedures for when a divorce decree becomes effective.

A court in the province of Ontario has jurisdiction over divorce proceedings if one or both spouses have resided in Ontario for at least twelve months preceding the filing of the divorce petition. Following the divorce, requests for variation of the divorce decree may be made to any court in the province in which either spouse resides, even if it is not the same court where the original divorce was granted.

Under the Divorce Act, the only ground for divorce is marriage breakdown. Marriage breakdown can be demonstrated in cases where:

• The spouses lived separately for at least one year prior to the divorce judgment
• The spouse against whom the divorce is sought (i) committed adultery or (ii) treated the other spouse with physical or mental cruelty of a kind to make it intolerable to live together

Where the grounds for divorce is marriage breakdown based on one year of separation, the time of separation begins on the date the spouses began living apart. During the time of separation, either spouse may make an application for divorce at any time, even before the spouses have been living apart for one year, but the divorce is not granted until one year has passed. During the one year period of separation, if the spouses resume cohabitation for a period of more than ninety days, the calculation of the one-year period will begin anew, following the last date of separation.

Under Section 11 of the Divorce Act, certain activities will bar the grant of a divorce. Such activities include:

• Collusion between the spouses
• The parties fail to make support arrangements for the marital children
• A divorce has been sought on cruelty grounds but there has been no condonation or connivance

The Divorce Act introduced the option to file for divorce jointly. Using a joint petition, the spouses can claim divorce based upon the breakdown of the marriage when the spouses have been living apart for at least one year. Such petitions may include claims for spousal support, child support, child custody and child visitation. If the spouses wish to simplify the process even further, one spouse may file for divorce and the other spouse can agree not to respond to the divorce petition, thereby creating an uncontested divorce and eliminating the need for the spouses to appear in court.

Spouses who reconcile prior to filing a divorce petition, or who reconcile prior to fulfilling the one year requirement for living separate, are still married and must do nothing to maintain their marital status. If the spouses attempt to reconcile and begin to cohabit during the one year requirement for living separate, the waiting period for divorce starts over if the spouses cohabit for more than ninety days. The purpose of this ninety-day reconciliation period is to permit the spouses to repair the marriage without penalizing them if the reconciliation is unsuccessful.

Negotiation is the process through which the spouses negotiate a favorable settlement agreement. During the negotiation process, the two parties essentially compromise, with each side offering certain allowances in exchange for other provisions that they wish to include in the property settlement agreement.

Mediation is another alternative to litigation that allows spouses to quickly resolve their differences and come to a settlement agreement regarding their property, children, and support issues. During mediation, a professional, non-partisan mediator facilitates conversations between the spouses to assist them in coming to a reasonable agreement.

Once a settlement has been reached, whether through mediation or through negotiation, the parties will express their agreement in a written separation agreement. This agreement will then be presented to the court and incorporated into a divorce judgment that makes the agreement more easily enforceable.

Under the Divorce Act, a divorce judgment becomes effective thirty-one days after it is granted. In certain circumstances, the court may shorten the thirty-one day requirement if the parties agree to the shortened period and agree not to appeal the judgment. However, a certificate of divorce certifying that the judgment has taken place is not made available under thirty-one days after the judgment was entered. Such certificates are required to remarry.

The Divorce Act also covers corollary issues such as spousal support, child custody, child access and child support. Corollary relief is any relief sought that is separate from the actual divorce. Such relief may be sought by the petitioning spouse in the petition for divorce, or by the responding spouse in a counter-petition. The divorce itself may be severed from the corollary relief sought, so that a summary judgment for the divorce may be obtained even though the parties are unable to agree on issues such as child custody and support. Additionally, while the divorce is being finalized, either spouse may petition for interim corollary relief, such as interim orders that grant custody of the children to one parent while the corollary issues are being resolved.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Child support consists of monthly payments made by a non-custodial parent to the custodial parent for the support, maintenance, and care of a child. Both parents have the obligation to provide financial support for their children and, once a child’s parents separate, the non-custodial parent has a duty to pay child support to the custodial parent.

The specific amount of child support to be paid is set by the Child Support Guidelines and depends on the gross income of each parent, the number of children involved, and the province in which the parents live.

Often, a child may have special or extraordinary expenses, such as childcare, medical or educational expenses, that must be paid by the child’s parents in proportion to their respective incomes. Accordingly, the non-custodial parent may be required to pay more than the amount set by the Child Support Guidelines to cover these additional expenses. The non-custodial parent is required to pay the determined child support regardless of any decisions made concerning child visitation.

Child support arrangements are monitored and enforced by the Family Responsibility Office (FRO), a governmental agency responsible for ensuring that families are given the financial support that they are entitled to receive. The FRO receives all support orders issued by Ontario courts. Once the FRO receives a divorce decree and/or support order, it contacts both the payor parent and the parent receiving the child support payments and provides them with a case number and personal identification number to use in communications regarding their support order.

Typically, support payments are made through an employer who will deduct the amount of payments from each paycheck and send the money to the FRO. The FRO then sends these payments to the custodial parent receiving child support. If there is no employer, the payor parent can send payments directly to the FRO, which will then send the payment to the recipient parent. Payments can be made to the FRO using the following methods:

• Telebanking
• Online banking
• Pre-authorized payments from a bank account
• Checks or money orders

Once the FRO receives a payment, it will be sent to the recipient parent within 48 hours. Payments can be made to recipients either by direct deposit to a bank account or by mailing a check to the parent’s address.

If the payor parent falls behind in his or her child support payments, the FRO will first attempt to come to an agreement with the parent where past due payments are paid in installments. Such an agreement is referred to as a Voluntary Arrears Payment Schedule (VAPS). Regardless of whether a VAPS has been agreed to, the FRO can collect past due payments from tax refunds due to the parent and can issue a writ of seizure and sale against the parent’s property to pay off the arrears. If the parent fails to pay off any arrears, the FRO may also take the following actions:

• Reporting the incident to the credit bureau
• Garnishing the payor parent’s bank accounts
• Suspending the parent’s driver’s license
• Suspending passports and other federal licenses, such as a pilot’s license
• Taking the payor to court to collect on the past due payments

Typically, child support cannot be an amount less than that required by the Child Support Guidelines . However, in certain instances, the courts may permit a reduction in the amount of child support paid. Such circumstances include:

• Undue hardship
• When the child has reached the age of 18
• Where there is shared custody

Undue hardship occurs when there are circumstances that cause hardship for one of the parents and that parent has a lower standard of living than the other parent. Examples of circumstances that may cause undue hardship include: unusually high costs associated with access to a child or a legal duty to support another person. When undue hardship is demonstrated by the payor parent, the court may reduce the amount of child support to an amount that is reasonable based upon the discretion of the court.

If the child support agreement, or court order, was entered into prior to May 1, 1997, the payor parent can deduct child support payments on his or her income taxes and the parent receiving the child support must claim the payments as income on his or her income taxes. If the child support agreement, or court order, was entered into after May 1, 1997, the child support payments are not deductible for the payor parent and the recipient parent is not required to pay taxes on the payments.

Under the Child Support Guidelines, there is no set termination date for child support. Normally, child support is paid as long as the children are enrolled in school on a full-time basis. This includes primary school, college and post-secondary education. Once a child reaches the age of 18, however, the child’s income may be examined to determine whether the amount of child support should be altered.

For more information on child support, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

The amount of money that a non-custodial parent owes the custodial parent for the maintenance and support of their mutual children is determined by the Child Support Guidelines, adopted by the Federal Government in 1997. These guidelines apply to couples entering into a divorce agreement, under the Divorce Act, as well as to couples who were never married, or are entering into a separation agreement without getting a formal divorce, under the Family Law Act. The guidelines must apply whenever a parent seeks to alter current support arrangements, unless both parents and the judge agree that another arrangement is reasonable or the judge feels that the guidelines would be unfair if applied to a particular situation.

A Child Support Table sets out the specific amounts of child support to be paid. This amount depends on the:

• Gross income of the payor parent
• Number of children covered by a child support order
• Province and territory in which the parents live

The gross income of the payor parent is that person’s annual income prior to taxes and deductions. To demonstrate gross income, the payor parent typically presents a statement of income to the judge presiding over the child support case. However, sometimes a judge will not accept a statement of income. This often occurs when the parent:

• Fails to provide the required information
• Is purposefully unemployed or underemployed
• Is self-employed or fails to report the proper amount of income on tax returns

In these instances, the judge will use an amount of income that is based upon the parent’s work history, past income, and education.

There is a separate table for each province and territory in Canada . If both parents live in the same province, the table for that province applies. If the payor parent lives outside of Canada , the table for the province of the payee is used. If both parents live in Canada , but live in separate provinces, the table that applies is the one for the province where the payor parent resides. For instance, the Child Support Guidelines are applied if the payor parent lives in Ontario and the other parent lives elsewhere. Each table has slightly different figures, primarily dependent upon the standard of living in that particular area.

There are certain instances where a different amount of child support can be set. Increased amounts of support can be provided in instances where a child has special expenses, such as special education, childcare or medical needs. Likewise, decreased amounts of child support are permitted in instances where the payor parent demonstrates undue hardship.

Special expenses are those that are necessary because they are in a child’s best interests. Examples of such expenses include:

• Childcare expenses
• Medical insurance premiums
• Healthcare needs that exceed $100 and are not covered by insurance, such as orthodontic, prescription drug, counseling, or hearing aid costs
• Extraordinary expenses for primary and secondary education
• College tuition expenses

The parents may agree as to how special expenses, both current expenses and future expected expenses, are to be paid by the parents. Such an agreement must be reasonable in relation to the incomes of the parents and the family’s past spending patterns. If the parents cannot agree as to how special expenses are to be divided, a mediator can assist the parents in coming to an agreement, or a judge can be asked to make a decision for the parties.

Sometimes, the non-custodial parent may be financially unable to pay the amount of child support required in the Child Support Guidelines. In such situations, an alternative child support amount is determined either by agreement of the parties or by a judge.

To determine whether a parent is experiencing undue hardship, courts use two questions:

• Are there circumstances that could cause undue hardship for the parent?
• Does the parent claiming undue hardship have a lower standard of living than the other parent?

Circumstances that could cause undue hardship include:

• Unusually high debts resulting from supporting the family prior to separation
• Unusually high costs associated with access to a child
• Legal duty to support another person, including another child or another person who cannot support themselves due to illness, disability or another cause

Even if there are circumstances that could cause undue hardship, the parent requesting a deviation from the guidelines must also demonstrate that the standard of living in his household is less than that of the other parent.

The amount of support provided to a child may be reduced if each parent maintains partial custody of the child. Three instances of such arrangements exist:

• Shared child custody
• Split child custody
• Hybrid child custody arrangements

Shared child custody is a situation where a child spends equal time with each parent. The Child Support Guidelines define shared child custody as each parent having custody of the child at least 40 percent of the time. Shared custody child support is determined by a number of methods, such as the:

• Set-off method – determine the guideline amount for each parent and subtract the lower amount from the higher amount
• Revised set-off method – use the amount determined by the set-off method and then apply the percentage of time the child actually spends with that particular parent

Either of the above methods can be agreed to by the parents, or the revised set-off method can be applied by a court.

Split child custody exists when there is more than one child, and at least one child resides with each parent. Child support in this case depends on the income of both parents. Under the Child Support Guidelines, each parent is essentially charged support for the children living with the other parent, and the parent who owes more money must pay the difference in child support.

Hybrid situations often arise when there are three or more children and the custody of the children is split. For instance, one child may reside with the mother, one child may reside with the father and custody of the other child may be shared. Calculating child support in hybrid situations is often the most complicated.

For purposes of child support, a “child” may be the natural child of a parent or, in some instances, a step-child that a parent has treated as his or her own. If you raised a spouse’s child as your own, and later underwent a divorce, you may be responsible for providing support for that child. When determining whether a child was intended to be treated as one’s own, the court applies the following factors:

• Age of the child when the payor and child began living together
• Whether the child receives support from his or her natural parent
• The number of years that the child and payor have cohabited
• Whether the payor disciplined the child or claimed the child for income tax purposes
• Whether the child referred to the payor as a parent

While no one of these factors is dispositive of the issue, tax returns where a child is claimed as a dependent, cohabiting with a child who is under three years of age and references to the child as a son or daughter are all strong indications that there was a settled intention to treat the step-child as a natural child.

Under the Child Support Guidelines, there is no set termination date for child support. However, the Guidelines do specify that, once a child reaches the age of 18, that child’s income may be examined to determine an appropriate amount of support and the court may vary this amount in its discretion. Oftentimes, courts will continue child support in instances where children pursue post-secondary education.

For more information on child support, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

If you are currently undergoing divorce proceedings, a paternity suit or any other child custody hearings, it is important that you understand the different types of child custody arrangements and how they will affect the interests of your child.

Child custody determines which parent has control over and responsibility for the care and well-being of a child. The custodial parent not only lives with the child, but also has the right to make decisions regarding the child’s religion, education and medical treatment. There are four main forms of child custody:

• Sole child custody
• Joint child custody
• Shared child custody
• Split child custody

Sole child custody means that only one parent is awarded custody of the child and, except during permitted visitation, the child resides with the custodial parent.

Joint child custody means that more than one person, typically both of the child’s parents, share custody of the child, although such custody is not necessarily equal.

Shared child custody occurs where there is joint custody and each parent has equal custody of the child, defined as having the child reside with each parent for at least 40% of the time.

Split child custody is where there are multiple children and each parent has custody of at least one child.

According to the Divorce Act the primary consideration in determining custody and access is the “best interests of the child.” Although parents may feel that they have a right to their children, it is the child’s rights, rather than the parents’, that are determinative in child custody and child visitation decisions. This is a factor that should be kept in mind at all times during custody proceedings.

Joint custody arrangements are often the most beneficial if the parents have a relatively harmonious relationship, because it allows both parents to maintain responsibility for their child. The parent who feels that joint custody is not in the child’s best interest has the burden of proving why this is true. Because joint custody often requires cooperation between the two parties, courts are hesitant to award such custody in situations where the parents do not get along well, or where the arrangement may otherwise not be in the best interest of the child.

If the parents have joint custody, each parent is entitled to full parental rights, regardless of which parent resides with the child for a larger percentage of the time. For instance, both parents have the right to meet with the child’s teachers and doctors, access the child’s medical and school records, and make important decisions regarding medical procedures, religious upbringing and education.

In instances where there is sole custody, the non-custodial parent is awarded access to the child through pre-determined child visitation rights. Child visitation includes, not only the right to visit with the child at set intervals (such as weekly, biweekly, or semimonthly), but also the right to access the child’s medical, school, and other records. The primary difference between a custodial parent with joint custody and a non-custodial parent without custody is that the custodial parent is entitled to make final decisions regarding the child, whereas the non-custodial parent may only access records regarding these decisions, without making the ultimate decision itself. The parent with custody has a duty to provide such information to the non-custodial parent on a regular basis.

Child visitation rights are considered fundamental and access to a child will only be denied in extreme cases, such as instances where there has been substantial child abuse. Even if a parent is denied child visitation rights, he must continue paying child support. Additionally, if a non-custodial parent fails to make a child support payment, the other parent cannot simply deny visitation rights until payment is made.

If the parents are on agreeable terms, access arrangements can be left flexible. The child custody agreement, or court order, will simply state that the non-custodial parent will have “reasonable access” to the child. This allows the parents to create a flexible agreement that is convenient, and that can be altered if any of the surrounding circumstances change.

Fixed access simply states how child visitation will be carried out. The child custody agreement, or court order, will state the frequency of such visits, where they will take place, and how long they will last. While this is less flexible than the reasonable access arrangement described above, it creates clear guidelines that must be followed, particularly by parents who are unable to get along.

If there are concerns over how a non-custodial parent may behave around a child, a judge may order supervised access. In such cases, the non-custodial parent has visitation rights, but another adult must be present when that parent and the child are together. The other adult may be a relative, friend, or worker at a Children’s Aid center. This form of visitation is often ordered where there has been a history of drug or alcohol use, child abuse or kidnapping attempts.

Child custody disputes typically involve the biological or adoptive parents of a child. However, in some instances, another family member, such as a grandparent, step-parent, aunt, or uncle, may be granted custody. Under Ontario law, any person may apply for custody. However, it is more difficult for a non-parent to obtain custody of a child, and such custody will only be granted in extreme circumstances, such as where the biological parents are not fit to care for the child. As in all cases, the best interests of the child will be the focus of the custody proceedings.

In addition to rare situations where non-parents are awarded custody of a child, other family members, commonly grandparents, may be granted visitation rights, particularly if they are related to a non-custodial parent who has been granted limited or no access to the child.

For more information on child custody, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer