Showing posts with label child support. Show all posts
Showing posts with label child support. Show all posts

Wednesday, August 09, 2017

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday August 9, 2017.

Today we are talking about Family Law.


The amount of child support payable by a non-custodial parent is strictly governed by the Child Support Guidelines. The Guideline tables establish basic child support obligations and are based solely on the payor’s income, number of children, and province of residence.

In addition to the basic child support payable under the Guidelines, additional amounts may be payable to cover special and extraordinary expenses incurred for a child’s daycare, medical care, education and extra-curricular activities like hockey and ballet. These additional expenses are shared by the parents in proportion to their respective incomes
For more information on Employment Law, Family Law, Wills, Estates, and Estates Litigation, visit our website at http://www.wiselaw.net.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, May 03, 2017

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday May 3, 2017. Today we are talking about Family Law.





The amount of child support payable by a non-custodial parent is strictly governed by the Child Support Guidelines. The Guideline tables establish basic child support obligations and are based solely on the payor’s income, number of children, and province of residence.

In addition to the basic child support payable under the Guidelines, additional amounts may be payable to cover special and extraordinary expenses incurred for a child’s daycare, medical care, education and extra-curricular activities like hockey and ballet. These additional expenses are shared by the parents in proportion to their respective incomes.

For more information on Employment Law, Family Law, Wills, Estates, and Estates Litigation, visit our website at www.wiselaw.net.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, April 12, 2017

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday April 12, 2017.

Today we are talking about Family Law.


The Child Support Guideline Table Look-up is a free tool to calculate child support payable according to the Canadian Federal Child Support Guidelines.

The table look-up allows you to determine the base amount for child support by inputting your annula income, number of children, and province of residence.

For more information on Employment Law, Family Law, Wills, Estates, and Estates Litigation, visit us at www.wiselaw.net

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Thursday, February 23, 2017

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

Wednesday, February 01, 2017

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday February 1, 2017. Today we are talking about Family Law

For more information on employment law, family law, and wills, estates and estates litigation, visit our website at www.wiselaw.net.

A video posted by Wise Law Office (@wiselaw) on

The Child Support Guideline Table Look-up is a free tool to calculate child support payable according to the Canadian Federal Child Support Guidelines.

The table look-up allows you to determine the base amount for child support by inputting your annual income, number of children, and province of residence.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, January 04, 2017

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday January 4, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on


The amount of child support payable by a non-custodial parent is strictly governed by the Child Support Guidelines. The Guideline tables establish basic child support obligations and are based solely on the payor’s income, number of children, and province of residence. 

In addition to the basic child support payable under the Guidelines, additional amounts may be payable to cover special and extraordinary expenses incurred for a child’s daycare, medical care, education and extra-curricular activities like hockey and ballet. These additional expenses are shared by the parents in proportion to their respective incomes.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, December 21, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday December 21, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on

In difficult custody cases, a Court may request that the Office of the Children’s Lawyer (OCL) become involved to investigate and make recommendations to the Court or to provide legal representation for a child.

The OCL is an Ontario government agency that employs lawyers and social workers. It works to provide independent information to the Court about a child’s needs, wishes and legal interests.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, October 26, 2016

Separation and Your Children's Education

BY RACHEL SPENCE AND SIMRAN BAKSHI


With school now back in session, what better time is there to consider how best to co-parent with
your former spouse regarding your child(ren)’s education:


What are best practices when co-parenting and communicating about school for young children?

Your child's school can actually facilitate the process of ensuring both parents are involved in their child's education.

We would strongly recommend speaking with your child's teacher, main office or principal to inform them of your child's living arrangements and the terms of your separation. It is particularly important to ensure that the school is informed of any communication requirements, so that both parents are kept in the loop where appropriate. As well, educators benefit from knowing at least the general terms of your child's residential schedule as it relates to school pickups and drop-offs.

School officials are accustomed to single-parent and blended families. They will quite often have specific procedures available to assist you with communications.

For instance, where informed, school officials can often help to ensure that school newsletters and picture order forms are sent out to both parents, and may further accommodate separate parent-teacher meetings if necessary.

Moreover, teachers and educators can be wonderful at issue spotting, where a child is struggling to come to terms with a separation or divorce, so long as they are made aware of the family background.


Can I attend at school events on non-access days?

Generally speaking, parents are both welcome to attend at special events hosted at the school, even if they may fall on non-access days. You should consult with your lawyer, however, as to any restrictions that may be applicable in your specific circumstances, to school event attendance.

If you are not on good terms with the other parent, particularly where you are or have been involved in highly contentious divorce or separation proceedings, it is always a good idea to maintain a respectful distance from one another at such school events. Sometimes it may even be well worth considering whether the attendance of both parents may cause your child to experience unnecessary stress, and anxiety.

Other than for special school events, it is not typically recommended that parents attend at the child's school on non-access days, unless specifically authorized to do so, as this can cause conflict unnecessarily and possibly be seen as interfering with the access schedule you've established.


How Do I Share Back to School Expenses?

Many schools will provide a child(ren) with a checklist within the first few weeks of the school supplies required during the year.

To the extent that some of these expenses may be considered "special and extraordinary", it may be appropriate that some of these costs be apportioned between the parents based on their relative income.

Many of the more typical back-to-school items, however, are generally paid by the parent with whom the child has primary residence, with the non-residential parent contributing by paying child support.

You should consult with your lawyer if greater clarity is required about the respective obligations of you and the child's other parent to contribute to these expenses.


I want my child(ren) to attend at College or University one day, how can we ensure that we have enough savings between us?

An RESP is an excellent way to start financially planning for your child’s future education.

Spouses can be joint subscribers on an RESP, and can continue such arrangements in the event of a separation and/or divorce.

Individuals who are already divorced cannot jointly open an RESP together. In such circumstances, each parent may set up his or her own RESP. It should be noted that the total contributions made by each parent to their respective plans for the child(ren) are still subject to the same aggregate contribution limits.

While the plan is being set up for the benefit of your child(ren)’s education, only the subscriber has authority to request withdrawals from the account. What this means in practice is that while your former spouse may set up an RESP for your child(ren), he/she will direct if and when withdrawals are to be made from his/her account.

Many separating spouses specifically outline their intentions regarding RESP's in a Separation Agreement, which will also typically address when and how payments by parents for education expenses are to be made.


What are issues to consider for older children attending at University?

Firstly, its important to note that child support may continue to be payable for an adult child who has not withdrawn from the charge of his or her parents, which is typically the case for a child is enrolled in a full-time post-secondary program.

Factors considered by the court in determining whether child support is payable, and the quantum of support include: whether the child is eligible for student loans and financial assistance; the reasonableness of the child’s career plans; the child’s ability to contribute to his or her education him/herself; educational plans made by the parent’s during their relationship; and the nature of the relationship between the child and his or her parents.

Expenses associated with post-secondary education, such as tuition, books and boarding will be considered to be “special and extraordinary”, and subject to contribution by both parents’ in proportion to their relative income capacity. Your child may also be required to contribute to the cost of his or her post secondary education.

It is important that you and your former spouse start by communicating with your child(ren) about what their plans for post-secondary education may be.

Do they intend to live at home, on campus or off campus? What are their transportation needs? What budgets are available? Will they be applying for OSAP student loans or other student financing?

Will they be pursuing part time employment? How much do they budget for books and daily living expenses? Where do they plan to stay during school breaks and the summer?

Once you are aware of your child(ren)’s educational goals, and have some idea of costs, you can then determine how these costs are to be divided between you, your former spouse, and potentially your child(ren).

It is recommended that you consult with a lawyer over such matters to get a better idea of your respective legal obligations for your child(ren) post-secondary education.



- Rachel Spence and Simran Bakshi

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

Thursday, October 13, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Thursday October 13, 2016. Today we are talking about Family Law.


A video posted by Wise Law Office (@wiselaw) on

The Child Support Guideline Table Look-up is a free tool to calculate child support payable according to the Canadian Federal Child Support Guidelines.

The table look-up allows you to determine the base amount for child support by inputting you annual income, number of children, and province of residence.

Visit the Child Support Guideline Table Look-Up online for more information.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, September 21, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday September 21, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on

In addition to the basic child support payable under the Guidelines, additional amounts may be payable to cover special and extraordinary expenses incurred for a child’s daycare, medical care, education and extra-curricular activities like hockey and ballet. 

These additional expenses are shared by the parents in proportion to their respective incomes. 

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, September 14, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday September 14, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on

The amount of child support payable by a non-custodial parent is strictly governed by the Child Support Guidelines

The Guideline tables establish basic child support obligations and are based solely on the payor’s income, number of children, and province of residence.


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Thursday, August 04, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Thursday August 4, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on

The Spousal Support Advisory Guidelines (SSAG) assist Ontario Courts in determining the amount of spousal support payable by a spouse. Unline the child support guidelines, the SSAG's are not binding upon the Courts.

Ontario's Courts, however, are required to consider the SSAG's and to provide reasons for any decision that does not follow them.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, July 20, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday July 20, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on

In difficult custody cases, a Court may request that the Office of the Children’s Lawyer (OCL) become involved to investigate and make recommendations to the Court or to provide legal representation for a child.


The OCL is an Ontario government agency that employs lawyers and social workers. It works to provide independent information to the Court about a child’s needs, wishes and legal interests.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, June 22, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday June 22, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on


The Child Support Guideline Table Look-up is a free tool to calculate child support payable according to the Canadian Federal Child Support Guidelines.

The table look-up allows you to determine the base amount for child support by inputting your annual income, number of children, and province of residence.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Friday, January 31, 2014

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

Thursday, January 16, 2014

Intentional Under-Employment - Judges Tell Payors "Get a Real Job!"

When will Ontario's courts impute income to a parent for the purpose of calculating his or her child support obligations?

Section 19(1)(a) of the Child Support Guidelines grants the court the right to impute income to a parent if deemed appropriate to do so under the circumstances.  For example, the court may impute income to a payor parent above and beyond his or her reported earnings if the evidence indicates that the parent is intentionally under-employed or unemployed.  The decision of whether to impute income is guided by the consideration of the following factors: the age, education, experience, and skills of the parent as well as the parent’s past earning history and the projected quantum of income the parent could potentially earn if he worked to his capacity. 

A three-step test for imputing income was enunciated in the case of Drygala v. Pauli, 2002 Carswell Ont 3228 (C.A.):  
  1. The first step is to ascertain whether the father is intentionally under-employed.  The onus to establish this is on the parent seeking to impute income.  
  2. If the answer to this question is answered affirmatively, the second step is to ask whether the intentional under-employment is by virtue of the reasonable needs of the child or the reasonable educational or medical needs of the payor parent.  The onus to establish this second part of the test falls on the payor.  
  3. If the answer to this second question is no, the third and final step is to determine the amount of income that should be imputed.
The case of Rodrigues v. de Sousa, 2008 ONCJ 807 highlights the fact that the determination of what quantum to impute is highly discretionary and each case turns on its own individual and unique set of facts.  

For example, in Rodrigues, the court unequivocally found that the payor father was under-employed. 

Background:  

The parties lived together from 1992 until September 19, 2005 and had one child together.  At the time when the mother made a motion for interim child support against the payor father, he was sixty years old.  The mother took that position that the court should attribute income of $100,000 to him in light of his notable work history and credentials.

The father was an experienced life insurance salesperson and financial advisor and was employed in those fields since 1973.  From 1990 to 1998, he worked for Standard Life as a branch manager.  At the time that he left this company, he earned over $150,000 per annum.  He subsequently began working for Edward Jones as a financial advisor.  In 2002, he incorporated his own business, called Previdente Financial Corporation, which sold life insurance policies and RRSPs.  He worked nowhere else but this business since 2002.

The father also held the following certifications: Certified Financial Planner, Chartered Life Underwriter and Chartered Financial Consultant. For the past three or free years, he earned less than $2,500 in self-employment income according to his income tax returns.   Prior to the motion, he was paying child support pursuant to an interim order based on an income of $15,828.  At the motion, the mother entered into evidence a transcript from a discovery that was conducted.  The transcript revealed that during the past six years, the father had applied for only one job. 

Judge’s Findings:

The motion judge was clearly unimpressed with the father’s efforts to gain reasonable employment:“It makes no sense to me that someone with the father’s skills and experience would, for six years, choose to continue a self-employed venture that provides him with an income that would make him eligible for social assistance.  The one job application he referred to was only made in April of 2008.  His failure to seek employment in these circumstances is unreasonable.  The first part of the test in Drygala v. Pauli is met.  I find that the father is intentionally under-employed.”  The court found that the second part of the test was not met as the father provided no evidence to support a claim that he was unable to work due to medical reasons.

When it came to the third part of the test and determining the appropriate income to attribute to the father, the judge found that the mother’s position was overreaching in light of his circumstances.  The mother filed into evidence reports published by provincial and federal governments demonstrating that the average annual income in the father’s line of work ranged from $70,000 to $110,000.  She argued that these figures were representative of the income that should be attributed to him.  The judge, however, was reluctant to impute this income to the father for a number of reasons.  First, it was found that this evidence should be treated with “considerable caution” in that it was unsworn hearsay evidence untested by cross-examination.  

There were practical considerations that militated against imputing income of a managerial level to a payor who had not worked in that post for many years and who, at his age, was unlikely to be hired by anyone at such a high starting wage.  Ultimately, the judge rejected the published figures and found that while the payor was indeed under-employed, he was reasonably capable of earning $45,000, either through his own employment venture or by procuring employment.   He deferred to the trial judge to adjust the temporary support order after all of the evidence had been heard and tested at trial.

Rodrigues demonstrates that the courts will not countenance parents shirking their ongoing obligation to support their children and, to that end, will ensure that child support orders reflect what the parent is reasonably capable of earning.  

- Ana Kraljevic, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Thursday, January 09, 2014

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
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Friday, September 30, 2011

This Week At The Ontario Court of Appeal: 11-09-27

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.  Commencing this week, Alim Ramji, a student-at-law with Wise Law Office, takes over the Court of Appeal beat. 

Beck v Beckett

The appellant, Brenda Beck appealed the judgment of Magda J. concerning child and spousal support under the Family Law Act, R.S.O. 1990.

Issues raised by the appellant:
  1. The amount of income imputed to the respondent, Daniel Beckett
  2. Entitlement to Child Support and Spousal Support
  3. The trial judge's decision to refuse to make an order for lump sum spousal support
  4. Leave to appeal the costs order made by the trial judge
Background

The appellant and respondent commenced living together in 1984. The parties were never married, but this was a traditional relationship.  They had two children together ages 21, and 19.  When their children were born, the appellant left her job at Woolco look after them.  The family's primary source of income was the respondent's full-time employment at General Motors (GM).  The parties separated in September 2006.

The respondent's annual income from General Motor's was approximately $73,000.00 and he had accrued a substantial pension of approximately $400,000.00 during the period of the parties' relationship.

A significant point of contention in this appeal was the respondent's decision to take voluntary retirement from GM in April 2007 at the age of 49.  The respondent received a severance package in the sum of $70,000.00.  He chose not to pursue further employment opportunities and instead decided to live off his pension benefits.

In October 2008, the parties sold their house for $480,000.00 and the appellant received $125,000.00 from that amount.  After the parties' sold their house, the respondent continued to not pay child or spousal support and discontinued paying the home expenses. The respondent's share from the house remained in trust pending the outcome of this proceeding.

The trial was scheduled to commence in May 2009 but was adjourned at the request of the respondent.  Roswell J. ordered that the respondent pay child support in the amount of $666.00 per month based on an imputed income of $73,000.00.

In 2010, the appellant's income was $48,118.00 and the respondent was earning $41,768.00 from his pension.

Law & Analysis of Key Issues:

Imputed Income

If the respondent were laid off, his income would drop below what he would be entitled to receive from his pension if he decided to take the retirement package that was offered by GM.  The trial judge accepted the respondent's evidence concerning these risks. He held that some income must be imputed to the respondent since he made no attempt to find any employment to supplement his pension income.  Some factors that were considered was that he was 53 years old with a Grade 10 education. Thus, the trial judge imputed an income of $19,760.00 per year for minimum wage work. Coupled with the respondent's pension income, this brought his total income to $61,528.00.

The appellant submitted that the trial judge erred in only imputing income to the respondent on the basis of minimum wage skilled employment.  During trial, the parties failed to adduce evidence about employment prospects in the Oshawa area.

The Court of Appeal found that the appellant's own evidence tended to support the trial judge's conclusion.  The only employment opportunities that the she was aware that might suit the respondent were mainly minimum wage positions. Therefore, the Court decided not to vary the order of the trial judge.

Child and Spousal Support

The trial judge found that the respondent was entitled to child support in the amount of $570.00 per month, but no spousal support was awarded because the appellant had 54.7% of the parties' net disposable income at that time. 

In regard to the parties' youngest child, the trial judge found that he lived with the respondent for 21 months from May 2007 to March 18, 2009. Therefore, the respondent was entitled to be credited for child support he should have received from the appellant in the amount of $7,438.00.  Taking into account the amount of child support that the respondent failed to pay for the months of April and May 2009, the respondent was to be credited with a net amount of $6,208.00. In its review of the trial judge's decision, the Court found that the trial judge failed to take into account that the older son was living with the appellant for the entire time post-separation and that both children lived with the appellant for some periods of time.

The Court of Appeal noted that the respondent failed to make any child support payments ($666.00 per month) in accordance with the the trial judge's order. The Court ordered that the respondent pay these child support payments out of the funds currently held in trust before the funds were to released to the respondent.

The trial judge declared that the appellant could apply for spousal support once the respondent was no longer obligated to pay child support for the youngest child.  The youngest child no longer was a dependent as of November 2010.  Thus, the Appeal Court varied the judgment to eliminate the order for child support and replaced it with an order for spousal support at the rate of $433.00 per month (mid range of the Spousal Support Advisory Guidelines). The spousal support award, retroactive to November 2010, was also to be paid from the trust funds.

Lump Sum Support Award

The appellant argued that there was a real risk that the respondent would not comply with an award of periodic support payment.  One reason for this belief was that the respondent did not pay a costs order made by Roswell J.  Secondly, he did not make any child support payments ordered by the trial judge. The trial judge refused to make a lump sum payment.  Reference was made to Davis v. Crawford, where in discussing the suitability of a lump sum payment, the Court noted that,

One important consideration is whether the payor has the ability to make a lump sum payment without undermining the payor's future self-sufficiency.  

The Court in Davis also stated that most spousal support orders will be in the form of periodic payments but a lump sum award can supplement an award of periodic support.

The Court of Appeal held that the unpaid costs order was relatively small and the respondent had otherwise complied with  previous court orders. The Court also found that once the respondent was permitted to gain access to the funds in trust, it is reasonable to believe that enforcing a periodic support order would not be an issue.

Costs

The trial judge found the respondent was successful on the appellant's claim for lump sum spousal support and his claim for retroactive child support for their youngest child.  Moreover, the trial judge felt the appellant's position on imputing income in the amount of $73,000.00 per year was "patently unrealistic" and "inappropriate". The respondent was awarded costs in the amount of $15,000.00.

The Court of Appeal found the trial judge's characterization of the appellant's position to be an error in principle and stated that it should not have been a factor in fixing costs of the trial.  Therefore, the Court  granted leave to appeal the costs award and reversed the costs Order, holding that the parties were to bear their own costs of the trial.

Disposition

Rosenberg J.A. allowed the appeal in part as follows:
  1. The order of child support was to be terminated as of November 30, 2010;
  2. The respondent was to pay to the appellant spousal support as of December 1, 2010 in the amount of   $433 per month;
  3. Term 4 of the Order requiring the appellant to pay child support arrears was deleted;
  4. Term 9 of the Order was varied to require that arrears of child support and spousal support payable by the respondent was to be paid out of monies held in trust before the funds were released to the respondent
- Alim Ramji, Toronto
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