Setting Up or Updating Child Support Online in Ontario

BY RACHEL SPENCE, LAW CLERK

Wouldn’t it be amazing if you could avoid going to Court to update or set up your child support payments?

The Government of Ontario has made that an option for some, by setting up a user-friendly site found here.

It's important to first note who cannot use this process:

• If either parent or child lives outside of Ontario
• If any children are over 17.5 years old or married
• If there is split or shared custody of the child(ren)
• If the parent/caregiver who currently pays or will pay for child support:
• is self-employed
• earns more than $150,000 or less than $10,800 annually
• earns cash income
• is a partner or majority shareholder of a business
• earns most of their income as a landlord or seasonal worker (e.g., employed in snow removal, fishing or landscaping)

What will you require before setting up or updating your child support online?:

• Social Insurance Number or Temporary Tax Number
• Current mailing address for the other parent/caregiver
• Contact information for the person responsible for the payroll at your workplace (if you're the person who currently pays or will pay child support)
• An electronic copy of your current Court Order or Separation Agreement, or information from your current Notice of Calculation or Recalculation
• If you did not file your taxes last year, you will also require either:
• 3 most recent pay stubs, or
• Your most recent statement of income from employment insurance, social assistance, a pension, workers compensation or disability payments.

What is the process for setting up or updating your child support using this site?

• There is a non-refundable $80 fee for each parent, each time the service is used (this may be waived if your household is considered low-income, you can note this in your application)
• You then go to the website and click the blue button "set up or update child support" and from there you will be taken through an array of questions to complete your Application.
• The Responding party to your Application will be notified by mail once the Application has been submitted and has 25 days to respond.

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Bogus Clergyman Creates Marital Limbo

BY SIMRAN BAKSHI, LAWYER, WISE LAW OFFICE

Imagine waking up one morning to discover that your spouse may not actually be your spouse, as far as the law is concerned.

In what can only be described as "un-frikin-believable", a Peterborough couple has come to learn that the wedding officiator they found on Kjiji was not actually authorized to perform their marriage. To add insult to injury, they realized this only after the would-be officiator completely botched their ceremony (If you're looking for a good laugh, the wedding ceremony has been captured on video).

This strange set of circumstances raises an interesting question: Is a marriage valid in Ontario if it is not properly officiated? To the happy couple's good fortune, the answer appears to be a qualified yes. In accordance with Section 31 of the Marriage Act:

Marriages solemnized in good faith 

31.  If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. R.S.O. 1990, c. M.3, s. 31; 2005, c. 5, s. 39 (5).

So what does this actually mean?

First and foremost, the parties must not be "under a legal disqualification to contract such marriage". In other words, they must meet the essential legal requirements of marriage which include capacity, consent, age, monogamy, ability to consummate marriage (yes that still exists!), and non-consanguinity (basically, you can't marry your sibling or anyone else you are closely related to).

Other than that, so long as the parties show good faith and an intention to be married in accordance with the laws of Ontario, their actual non-compliance may be overlooked. So for example, if you fail to get a marriage license because you genuinely believe you do not require one, the validity of your marriage may still be upheld. If however, you deliberately fail to get a marriage license to access a benefits program or deceive your unsuspecting partner, well now that's another story.

It's important to note, a factor that is expressly considered by the Courts is whether the parties represent themselves as a married couple. While this is reflected in the requirement that they "live together and cohabited as a married couple", the Courts do recognize that practicalities may require spouses live separately.

Nonetheless, this couple's marital journey will now require a detour to Ontario Superior Court, where they must apply for an Order to formally validate their marriage. Only then will they emerge from matrimonial limbo in the eyes of the law.

So at the end of the day, all is not lost for the happy couple. While their wedding may have been a "train wreck" (to quote the groom himself), they can rest assured that their marriage will be recognized in Ontario...well eventually.

- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

The Post-Secondary "Child:" Guidelines Need Not Apply

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

Once a child reaches his or her eighteenth birthday, the age of majority, the question of whether that child is entitled to support becomes highly fact-driven and contextual. 

As J. D. Payne and M.A. Payne note in their text, Child Support Guidelines in Canada, 2012,:

Once a child attains the age of majority, the child is no longer presumptively entitled to support. The onus falls on the applicant [in this case the mother] to prove that an adult child who is pursuing post-secondary education is entitled to support...

The first question that is normally asked is whether the child can still be considered a child of the marriage.  

Canada's Divorce Act defines a “child of the marriage” as:

The child of two spouses or former spouses who, at the material time, 

(a) is under the age of majority and who has not withdrawn from their charge, or 

 (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

Once it is determined that the child over the age of majority is indeed a “child of the marriage,” the next question becomes whether the Guideline table amounts are applicable, having regard to the “means, needs, and other circumstances of the child” as well as the “financial ability of each spouse to contribute to the support of the child.”

Pursuant to s. 3(2) of the Guidelines, the court must decide whether the usual Guidelines approach is appropriate and is permitted some discretion in departing from the standard Table amount:

AMOUNT OF CHILD SUPPORT 

Child the age of majority or over 

3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is 

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or 

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

Wesemann v. Wesemann, a 1999 British Columbia Supreme Court ruling, sets out a four step test that determines the appropriate model to be applied for the support of a child over the age of majority:

Step 1: Determine whether the child is a "child of the marriage" as defined in the Divorce Act.

Step 2: Determine whether the approach of applying the Guidelines as if the child were under the age of majority is challenged. If it is not challenged, determine the amount payable based on the usual "Guidelines" approach.

Step 3: If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not challenged, the usual Guidelines amount applies. 

Step 4: If the usual Guidelines approach is inappropriate, it is necessary to decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

In Gagnierv. Gagnier, [2003] O.J. No. 2183, the court noted that if the circumstances of a child over the age of majority closely resemble that of a child under the age of majority, it is likely that that usual Guidelines approach would be appropriate.  Therefore, if the child continues to reside at home with one or both parents, earns little to no income, and is generally dependent on others for support, then the usual Guidelines approach will probably be followed.  However, if a child over the age of majority resides away from home in order to attend a post-secondary school in another city, or, that child earns a sustainable income and shows self-sufficiency, the usual Guidelines approach may not be applicable. 

In this case, the child, Matthew, was nineteen years old when he left home in Ottawa and began attending Queen's University in Kingston on a full time basis. He was found to be “a child of the marriage.” As the mother challenged the Guidelines approach, the judge proceeded to Step 3 of the test.  The judge found that it would be inappropriate to apply the usual Guidelines approach to a determination of child support for the following reason:

The costs of attending university in another city are significantly greater than attending university while living at home. In addition, Matthew does not have a job or a significant income.

In applying Step 4 of the test, the judge found: “Considering all the circumstances of this case, I find it is reasonable that Matthew contribute $7,000 towards his university expenses from employment income, scholarships, student loans or gifts leaving a balance of $8,700 to be apportioned between the parties.”

In arriving at those two specific figures, the judge conducted a thorough analysis of Matthew’s reasonable needs, with respect to both post-secondary and personal expenses.  Given the judge’s finding that Matthew was a “bright, capable young man” he concluded that it was reasonable that he make a contribution towards his own education to help defray the costs of his education.  It was estimated that he could earn approximately $5,000 during the summer months through full-time employment and could apply for student loans to make up the rest.

The finding in this case is echoed in many other judicial decisions wherein the courts have found it appropriate for children to make reasonable contributions towards their education expenses. With the rising costs of post-secondary education and children taking longer to leave the nest, courts strive to create a balance that apportions the obligations of support fairly among all parties, and that includes the parents as well as the child. 

- Ana Kraljevic, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Paternity Testing in Ontario: Perhaps Damned If You Do, But Certainly Damned If You Don’t

Paternity testing, in most cases, is requested in applications in which child support is sought from a putative father, necessitating a declaration of parentage under sections 4 or 5 of Ontario's Children's Law Reform Act.  Biological parentage, however, is but one of the factors that create an obligation to support a child in light of policies that have long recognized that support is the right of the child, not the parent.   

The laws governing the right of the child to receive financial support contemplate a host of scenarios that preserve and safeguard this right, with the best interests of the child trumping any other competing consideration.  For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrably stepped into the stead of a parent. 

The wording of Section 31 of the Family Law Act, R.S.O. 1990, c. F-3, as amended, expressly imposes this legal obligation to support children who are not blood relations:  A parent has an obligation to provide support for his or her child. The child support obligation extends to a biological child, an adopted child, or a child to whom a person has demonstrated a "settled intention" to treat as a member of his family.  

Therefore, if a male has been providing financial support to a child who he mistakenly believes is his, for any number of reasons, and can be shown to have met the test of demonstrating a “settled intention” he will be liable to pay support.  His belief that he is actual biological father is often based on the same set of circumstances which create a presumption of paternity in law.    

Section 8 of the Children's Law Reform Act set out factors that establish a presumption of paternity. 

8.  (1)  Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:

1. The person is married to the mother of the child at the time of the birth of the child.

2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.

3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.

4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.

5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. R.S.O. 1990, c. C.12, s. 8 (1).

However, even if one of the circumstances set out in section 8 of the Children’s Law Reform Act can be shown to exist, it is just one factor for the court to turn its mind to.  The Court will look at the totality of evidence in exercising its discretion to recognize paternity as well as its accompanying legal implications.  Therefore, any factor establishing a presumption of paternity is rebuttable in the light of all the evidence.   

If a putative father is contesting paternity and the applicant seeking child support wishes to remove any doubt about parentage, the wisest course of action may be to apply for leave to obtain a paternity test.

Section 10(1) Children's Law Reform Act, R.S.O. 1990, c. 12, as amended, provides as follows:

• 10.(1) On the application of a party in a civil proceeding in which court is called on to determine a child's parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. 2006, c. 19, Sched. B, s. 4

Obtaining a paternity test may not only be a wise course of action for a party seeking contribution for her child, but it can also provide peace of mind to the putative father before he commences any payments and shows any conduct establishing a loco parentis role.  Since the court can presume that a putative father is the biological father if he refuses to take a paternity test, and the evidence he adduces is insufficient to rebut the presumption, the Children’s Law Reform Act effectively removes any incentive to refuse testing by reserving the right to make an adverse inference in any event. Thus, a party contesting paternity should undergo testing to provide the clearest proof that would rebut the presumption established by any of the factors listed in s. 8 of the Children's Law Reform Act. The case of R. v. S. [1988] O.J. No. 2788 is an example of what a wise investment a paternity test would have been to the Applicant, Mr. R. 

In 1982, a court order was made that compelled Mr. R. to provide support to a child born out of wedlock to Miss S.  The mother, Miss S., assigned the payments to the Ministry of Community and Social Services.  Four years after the order was originally issued, Mr. R. obtained leave to have Miss S., the child, and himself, submit to blood tests in order to ascertain parentage.  As a result of these tests, it was conclusively determined that Mr. R. could not be the father of the child, and, consequently, an uncontested declaration of non-paternity was issued in the Supreme Court of Ontario.

Mr. R. filed two motions with the court. The first was to rescind the  original support order, while the second motion was for an order to recover the monies Mr. R. paid pursuant to the 1982 order. Mr. R. sought reimbursement from COMSOC of the sum of $2,080, a figure which was not disputed.

The court granted an order rescinding the original order for support, but held that there were no legal grounds for recovery of the monies already paid out.  It was clear that there was never a proper factual basis for the support order and therefore a credible basis for retroactively discharging the original support order made.  The judge nonetheless held he had no jurisdiction to make an order directing the repayment of support paid pursuant to the original order.  “By discharging the order today, the legal embarrassment is lifted, but if I cannot order the return of the support paid, Mr. R. will find little solace in the situation.”

“Discharging an order retroactively does not include an inherent statutory power to correct inequities which may arise when the order is discharged. The Family Law Act does not confer upon me a power to order COMSOC to repay to Mr. R. the sum of $2,080 which he paid as support for a child whom we now know not to be his. I therefore deny Mr. R.'s second motion.” Moreover, as a judge of the Provincial Court (Family Division), he concluded that he lacked the jurisdiction grant equitable relief, a power then reserved to the Supreme Court, the former District Court and the Unified Family Court pursuant to Section 109(3) of the Ontario Courts of Justice Act.

Therefore, while the Court may certainly sympathize with parties who have paid support on mistaken grounds, often for lengthy periods of time, it will not necessarily be able to order repayment of support.  Early paternity testing can eliminate this risk, and provide greater certainty to parents, and ultimately the child, from the outset.

- Ana Kraljevic, Toronto

Visit our Toronto Law Office website: www.wiselaw.net