The process of separation and divorce can be overwhelming and confusing. At MyOntarioDivorce.com, we always encourage our clients to prioritize the needs of their children above all else. This is the same attitude taken by the family courts. In matters of custody and support, the court will opt for whichever arrangement holds the most benefit and least disruption of the status quo for the children. Here are some frequently asked questions regarding children and divorce:

My spouse and I can’t agree on arrangements for our children. Can I still get divorced?

In many cases, no. If reasonable arrangements have not been made for the children, it is a barrier to divorce, meaning the court may refuse to issue a divorce order until they are satisfied with the arrangements.

Remember, you must determine custody and access arrangements before you can determine child support. Child support is affected by the percentage of time each parent has the children and the lifestyle to which the children are accustomed.

My spouse and I want to separate but not divorce. How do I determine support payments?

In situations where the federal Divorce Act does not apply, look to your provincial Family Law Act. The FLA also offers child support guidelines, which are generally the same as the federal support guidelines, though in some cases the provisions other than the tables are slightly different.

I need child support and my divorce is nowhere near being settled. What can I do?

You can bring an application for corollary relief. In order to bring an application, you must answer YES to the following questions:

• Do you have a child?
• Is this a child of the marriage?
• Under/Over the age of majority and still dependent?
• Does the court have jurisdiction to make the order you’re seeking?

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

Sincerely,

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

In certain cases, a person who is not a biological parent of a child may be deemed to be a parent in the eyes of the law, and therefore may be responsible for the financial support of the child. For example, a step-parent who has been involved in a child’s life may be responsible for supporting that child in case of a separation or divorce.

The following are some of the questions considered by the court in determining whether a parent-child relationship exists:

• Does the child participate in family activities in the same manner as the biological children?
• Were the children all treated the same?
• Were financial provisions made for the child? (For example, were the child’s expenses paid for out of a joint bank account?)
• Does the parent in question discipline the child?
• Does the parent in question represent to the child, family, or others, either implicitly or explicitly, that they are a parent to the child?
• What is the nature of the relationship with the absent biological parent?

The court will look at the specifics of the situation and nature of the relationship between the alleged parent and the child to determine if that person is in “locis parentis” (factors as noted above). The child’s perspective is important, but is not definitive. Ultimately, a non-biological parent cannot unilaterally terminate a parental obligation once it has been established.

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

Sincerely,

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

You may already be familiar with the Child Support Guidelines. But did you know that child support can still be payable when your child is no longer a minor? As long as the child is considered a “child of the marriage,” support may still be payable for post-secondary expenses. This concept has more to do with dependency than age, and the determination is fact-driven. Courts will consider the following factors in making this determination:

1. Whether the child is in fact enrolled in a course of studies and whether it is full-time or part-time course of studies;

2. Whether or not the child has applied for or is eligible for student loans or other financial assistance;

• An adult child is expected to contribute toward his or her education to the fullest extent possible through bursaries, scholarships, student loans, or summer employment.

3. The career plans of the child (i.e. whether the child has some reasonable and appropriate plan);

4. The ability of the child to contribute to his or her own support through part-time employment;

• Courts will almost always require a student to contribute, through their own earnings, to the cost of their maintenance.

5. The age of the child;

• In one case, a 23 year-old student pursuing his doctorate was considered a child of the marriage.

• In another case, a 19 year-old student who had chosen to live on her own was found not to be under the charge of either of her parents and not a child of the marriage.

6. The child’s past academic performance and whether the child is demonstrating success in the chosen course of studies;

7. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and

8. At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

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

Sincerely,

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

“My spouse doesn’t want to get divorced. Does that mean the judge will refuse to grant me a Divorce Order?”

In Canada, the majority of divorces are granted on a no-fault basis, on the grounds that the parties have been living separate and apart for a minimum of 1 year. In very rare cases, a judge may refuse to grant a divorce if it becomes clear that one or both of the spouses have deceived the court in some way. The following are acceptable reasons for a judge to refuse to grant a divorce:

Collusion: When you work with your spouse to lie to the court, either in an affidavit or through your testimony. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce.

Connivance: When one spouse encourages the other spouse to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.

Condonation: When you have forgiven your spouse for his or her adultery or cruelty. If you have forgiven your spouse, you cannot later use your spouse’s adultery or cruelty to claim a divorce.

Insufficient Child Support: Before granting a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of the children.

(If you haven’t already done so, be sure to read our post on child support and why you should ALWAYS pay it!)

Instances of a judge refusing to grant a divorce are few and far between. Generally, as long as you and your spouse have satisfied the 1 year separation requirement, there is little that can stop your divorce from being granted.

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

Sincerely,

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

As you know, at MyOntarioDivorce.com, we aim to provide you with the tools to self-represent and manage your separation or divorce with minimal lawyer involvement.

Our clients contact us at various stages of the process, but some of the most common inquiries our lawyers receive relate to Separation Agreements. Read on to see our answers to some of your Frequently Asked Questions.

Do I need a Separation Agreement?

If you and your spouse have children, property, or a disparity in income, a Separation Agreement is crucial. It will set out how you and your spouse will deal with custody, division of property, support payments and any other issues, ideally before problems arise.

 What needs to go into my Separation Agreement?

The beauty of a Separation Agreement is that it can be whatever you want it to be. There is no official court-approved Separation Agreement template, which is a good thing because it allows you to draft an Agreement that works for your specific situation.  That being said, the key elements a strong Separation Agreement should address are custody, access, support (spousal/child), property division, and equalization payments, if applicable.

How do I draft a Separation Agreement? I can’t afford a lawyer.

We recommend that you make use of our Separation Agreement software at MyOntarioDivorce.com. It is a comprehensive program that will prompt you to answer all of the questions we’d ask you if you were in our office, paying us to draft your Separation Agreement, and- it’s FREE! It will take some time for you to complete it, but the result of your hard work is a cohesive Separation Agreement that you can print from your home computer. While the software may raise issues that you don’t need to address in your Separation Agreement  (for example: you may not have children), it may also remind you of issues you need to address.

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

Sincerely,

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

While you’re arguing with your ex over property, custody, and support payments, your children will be on an emotional roller coaster
of their own. It’s easy to get caught up in your own distress over your divorce, but remember that your children need your help to understand and cope with the idea of their parents no longer being married.

At MyOntarioDivorce.com, we encourage you to consider the needs of your children above all else. Here are some tips to keep in mind
as you guide your children through the divorce process.

1. Acknowledge that this is a difficult time for everyone and encourage your children to express their concerns and ask questions.
2. Explain that your family is changing, but that it’s still their family.
3. Stress that your divorce has nothing to do with your children and that you and your spouse still love them.
4. Be honest about how the divorce and/or custody arrangements will affect their lives (For example, how they will spend holidays, birthdays, etc.).
5. Validate their feelings of concern, sadness, or anger.
6. Enrol them in counselling and make sure they have someone to talk to if they are upset.
7. Never badmouth your spouse to your children. This is called “parental alienation” and the courts do not take kindly to it.
8. Try to keep the lives of your children as stable as possible. If your situation allows for it, the parent who will have custody of the children should stay in the family home, or live close by so the children don’t have to switch schools. Being in familiar surroundings with peers and support networks can help alleviate some of the stress that your children will experience as a result of your changing family.

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

Sincerely,

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

In our first post on the Family Responsibility Office, we gave you a general overview about the FRO and what it can do for you.  This follow-up post is meant to be a cautionary tale of sorts; a reality check for those who might not take their support obligations seriously.

If you are a payor who has failed to meet your support requirements, the FRO may take any of the following enforcement actions against you:

• garnishing your bank accounts
• garnishing money you may be entitled to receive from the Government of Canada (for example: income tax refunds, employment insurance benefits, Canada Pension Plan benefits, and Old Age Security benefits)
• reporting you to the credit bureau
• suspending your driver’s licence
• suspending your Canadian passport or other federal licences (including a pilot’s licence, as well as maritime and navigational licences and certificates)
• placing a lien on your personal property
• issuing a writ of seizure and sale for property you own
• reporting you to your professional or occupational organization(s)
• seizing your lottery winnings, and
• starting a Default Hearing, which could result in up to 180 days of jail time.

Child Support is owed even by payors who have declared backruptcy. It will accrue and the FRO will deal directly with the Trustee in Bankruptcy.

If that’s not enough to convince you, the FRO also has the authority and ability to post information about you online.

If you have not made a support payment in the last six months and the FRO has exhausted all options to find you, they may post personal information about you on goodparentspay.com.

Goodparentspay.com is a section on the FRO website. Its purpose is to ask the public’s help in locating a defaulting payor.

FRO may post the following information about a defaulting payor:

• photograph
• name
• physical description (height, weight, hair, and eye colour)
• approximate age
• last known address
• usual occupation/trades, and
• language(s) spoken.

Before posting information, the FRO obtains consent from the support recipient.

The public can provide tips and information anonymously by e-mail, telephone, or letter.

If you are a payor who has fallen behind in your support payments, it is important to contact the FRO as soon as possible at 416-326-1817 or toll-free at 1-800-267-4330. They will assist you in working out a payment plan. The sooner you address any issues with missed payments, the better.

If you are a support recipient in need of enforcement assistance, The FRO website has a wealth of helpful tips and information to help you obtain your support payments. Visit their website to find out more on how to get started.

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

Sincerely,

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

If you’re in the process of separating or divorcing, you may have heard about the Family Responsibility Office, commonly referred to
as “FRO.”  FRO is part of the Ontario Ministry of Community and Social Services.

FRO collects, distributes, and enforces child and spousal support payments. It assists support recipients in Ontario to recover the support payments they are entitled to by enforcing court-ordered support responsibilities. They work to flow payments from the person who pays the support (the payor) to the person who is entitled to it (the recipient).

What does this mean for you?

If a court has ordered that you are to receive child support or spousal support and the payor neglects to pay, the FRO has the legal authority and responsibility to enforce payment of the amount owed.

FRO has enforcement agreements with every Canadian province and territory, as well as 31 countries, including the United States, across the globe. This means that the FRO can help enforce support payments even if the payor lives in a different province/country than the recipient. This is particularly helpful in today’s multicultural society, where some spouses choose to return to their country of origin following a separation or divorce.

Every year, the Family Responsibility Office:

• handles more than 180,000 cases;
• represents nearly 400,000 people; and
• collects about $650 million in support payments.

If you are a payor who has fallen behind in your support payments, it is important to contact the FRO as soon as possible at 416-326-1817 or toll-free at 1-800-267-4330. They will assist you in working out a payment plan. The sooner you address any issues with missed payments, the better.

If you are a support recipient in need of enforcement assistance, The FRO website has a wealth of helpful tips and information to help you obtain your support payments. Visit their website to find out more on how to get started.

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

Sincerely,

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

In Canada, child support is determined by the Federal Child Support Guidelines. The amount of child support you’ll pay is dependent on your income and the number of children you are supporting. The Guidelines provide a minimum, known as the “Table Amount,” which is the automatic minimum. To determine the amount for your particular situation, you can consult the Child Support Tables, or simply input your information into Justice Canada’s Child Support Calculator, found here.

If your income is over $150,000, a judge may order you to pay more than the Table Amount in child support. This can be for a number of reasons, the most common being to keep your children in the lifestyle to which they have become accustomed. Child support payments above and beyond the table amount are determined on a case-by-case basis.

Despite the fact that Child Support quantums are crystal clear in Canada, there are sadly many parents who fail to pay the required amount out of inability or animosity toward their ex-spouse. Refusing to pay is never the answer. Courts do not look kindly on it,
and your children will be the ones to suffer.

In 2011, a New York judge took an unusual approach to dealing with a “deadbeat dad” who had been delinquent with child support payments for his two daughters to the tune of $14,000.  Calling the violation “egregious,” the judge opted not to jail the father, but to put restrictions on his discretionary spending until the arrears had been fully repaid. The restricted items included cigarettes, cell phones, television, internet service, movie tickets, jewellery, magazines, and newspapers.

When it comes to supporting your children, your relationship with your ex-spouse is inconsequential. As parents, you both have a responsibility to ensure the well-being of your children, and to make the separation or divorce process as easy on them as possible. Your kids are your responsibility. Do the right thing.

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

Sincerely,

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

In Canada, most divorces are granted on a no-fault basis. This means that a judge may grant you a divorce without you having to prove that your spouse violated the marriage contract, leading to the breakdown of the marriage.

A no-fault divorce is quicker, easier, and less expensive than a fault-based divorce. This is why the majority of divorces are granted on the grounds of the spouses living separate and apart for 1 year, as opposed to the fault-based grounds of adultery or cruelty. A no-fault divorce system allows you and your spouse to apply together to have the court declare the breakdown of the marriage without having to present evidence (or worse, pay lawyers thousands of dollars to present evidence).

The no-fault system severely limits the ability of a Respondent spouse to challenge the Application. If you’re the Applicant, this is good for you because once you have satisfied the court that you have established grounds for divorce by living apart for 1 year, your spouse cannot stop you from obtaining a divorce. On the other hand, if your spouse is the Applicant and you want to reconcile, there may not be anything you can do to stop the divorce from being granted.

It is always preferable to resolve as many issues as you can with your spouse before resorting to litigation. Work with your spouse to create a comprehensive Separation Agreement that addresses custody, property, and support issues (try our FREE Separation Agreement software at MyOntarioDivorce.com), then apply to obtain a simple divorce. Take advantage of the no-fault system and save yourself a lot of time, money, and frustration.

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

Sincerely,

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