By Lorne J. Fine
It's not easy being a paying parent without primary custody. While you're continually called on to ensure the financial security of your children, your relationship with them may sometimes suffer at the whim of an ex-spouse who has turned them against you. So what can you do when the parent with legal custody has cut you off from your children? You might think your family lawyer now has an excellent argument for casting off - or at least reducing - your child payments, while throwing the burden back on your ex-spouse for their shoddy treatment of you.
But you'd be wrong.
In Ontario, child support payments are governed by the Federal Child Support. These Guidelines work to ensure that a child of the marriage continues to enjoy a "fair" standard of living upon separation and divorce. Surprisingly for some, the Guidelines do not work to "punish" a parent for misconduct against the other parent in child custody cases. On its face, that might not seem fair, particularly in instances where the payor parent without legal custody is actively being isolated by the custodial parent.
At times, even the courts have expressed frustration at this state of affairs. As the judge in the British Columbia decision of Robinson v. Domin noted:
The significant factor, in my view, which makes the application of the Guidelines somewhat unfair in these unique circumstances is the denial of access to the children since the time of separation of the parents... As far as I can determine, however, there is no provision in the Guidelines for reducing the [child support payments] for this reason.
The reason for this state of affairs lies in the fact that child support is the right of the child, not the parent. Since the Federal Child Support Guidelines are meant primarily to serve the best interests of the child, Parliament and the courts have determined that to punish a recipient custodial parent through a reduction of child support would effectively work to punish the children who depend upon that support. In this respect, the battle over custody and visitation rights is deemed to have no effect on the obligation to provide child support.
But what if the child receiving the support is more mature - say, over the age of majority (18 years of age in Ontario)? Well, then, your family lawyer might very well indeed have a winnable argument for you. The child support guidelines do, in fact, distinguish between children over and under the age of majority. According to the Guidelines, where a child is over the age of majority, that child may no longer be considered a "child of the marriage" if they have withdrawn themselves from the charge of the parents for a variety of reasons, including the ability to provide for themselves. And if they're no longer deemed to be a "child of the marriage" according to the Guidelines, the parents are released from the obligation to provide child support payments.
As described by the judge in the Ontario case of Pohlod v. Bielajew:
The jurisprudence that holds that the failure of a child to maintain a relationship with one parent might disentitle the other parent from receiving child support for that child refers to "mature" children. Generally the child concerned has been a college or university student who may have some other sources of income but who expects a parent with whom the child refuses to have a relationship to contribute to the costs of the higher education for the child.
In recent child support cases, courts have tended to relieve the payor parent of their obligation to continue making child support payments when that parent has been rejected by the adult child for no apparent reason. So, in the end, it's not a case of what is fair for the payor parent who has been denied their visitation rights by a spiteful spouse with legal custody. For children under the age of majority, the determining factor for the courts is what is in the best interests of the child - and knowing that fact ahead of time will save you a great deal of unnecessary litigation expense down the line.
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This article is presented as general information only, for your enjoyment and curiosity, and should in no way be relied upon or considered as legal advice. The author does not, and cannot, warrant that this information will be of benefit to you in any way, as only your family lawyer will be in a position to offer you the appropriate legal guidance and supervision that you may require in circumstances specific to your child support case.
Lawyer Bio:
Lorne J. Fine is a Toronto family lawyer with extensive experience in divorce, child support, and custody cases. He heads up a boutique Toronto family law firm whose associate family lawyers provide customized and personal legal services for their clients. His web site may be found at www.TorontoDivorceLaw.com.
Toronto area residents may reach Mr. Fine for a free initial consultation at lfine@torontodivorcelaw.com or at (416)661-2066
http://www.torontodivorcelaw.com
Saturday, March 6, 2010
Step-Parents and Child Support Payments
By Lorne J. Fine
You've been married for years to a woman whose child is not your own, and now you're contemplating a divorce. You're aware that the child's biological father is on the hook for child support payments, and you're likely figuring that you can go your own way, secure in the knowledge that your financial obligation to the child ends with the marriage to their mother.
Your family lawyer, however, may take a different view of the matter.
In Ontario, the child support obligations of a step-parent are governed by Section 5 of the Federal Child Support Guidelines. That section sets out the following:
Where a spouse against whom an order for the support of a child is sought stands in the place of a parent for the child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent's legal duty to support the child.
That section has been relied upon by step-fathers in child support cases where the mother has called upon the step-father to provide child support payments for her children. In general, the child support guidelines require that the courts first calculate the parent's income, and then establish a pre-set amount - known as a "table amount" - that determines the parent's ongoing child support obligations on a monthly basis.
For spouses standing in the place of a parent - known as in loco parentis - section 5 of the child support guidelines has been used by child support lawyers to argue that a step-parent should pay less than the table amount in the appropriate circumstances. Basically, in child support cases, the courts are given a broad discretion to determine what constitutes "appropriate circumstances".
The liability of all parents for child support is considered to be joint and several - meaning, that if one of the parents reneges on their portion of the child support payments, the other parent (or parents, where a step-parent is involved) may be called upon to remedy the deficiency in order to ensure that the child enjoys a "fair" standard of living. As the Federal Child Support Guidelines are primarily concerned with the best interests of the child, issues of fairness for the other parents seldom come into play, particularly in family cases where the child's standard of living is at stake. What is "appropriate" under the circumstances really depends on what arrangement works best to ensure that the child's accustomed standard of living is secured.
And then there is the issue of apportionment of child support payment obligations between the natural parents and the step-parent. In general, the courts proceed first by determining the full guideline amounts for each of the natural parents. Then the Court considers the guideline amount for the step-parent. If the "piling" of all three amounts result in a total child support payment that is well over what could be reasonably considered to support the child's standard of living, your family lawyer may very well use section 5 of the child support guidelines in order to argue that it is not appropriate under such circumstances for the step-parent to pay the table amount.
But what if the child, while residing with his mother and step-father, was accustomed to living under a higher standard of living than he was while under the care of both his natural parents when they were married? The British Columbia court in Varga v. Varga weighed in with the following comment:
Where for example the step-parent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guideline amounts, a court might find it appropriate to make an order against the step-parent that is designed to provide the higher standard, or something approximating it, 'on top of' the other parents' support.
In other words, the step-father, in such circumstances, might be called upon to "top up" the total amount of the child support payments in order to bring the amount to a level consistent with the child's latest standard of living. Moreover, where one or both of the natural parents are unable to pay any support, the step-father might very well be called upon to pay the full Guideline amount of support for that child.
In the end, how the judges in these child support cases exercise their discretion will depend on the circumstances - as ever, guided by the governing concern for the best interests of the child.
_____________________________________________________________________
This article is presented as general information only, for your enjoyment and curiosity, and should in no way be relied upon or considered as legal advice. The author does not, and cannot, warrant that this information will be of benefit to you in any way, as only your family lawyer will be in a position to offer you the appropriate legal guidance and supervision that you may require in circumstances specific to your child support case.
Lawyer Bio:
Lorne J. Fine is a Toronto child support lawyer. Mr. Fine's boutique family law firm provides personalized and devoted attention to clients dealing with sensitive issues of divorce, custody, and child support. His web site may be found at Toronto area residents may reach Mr. Fine for a free initial consultation at lfine@torontodivorcelaw.com or at (416)661-2066.
You've been married for years to a woman whose child is not your own, and now you're contemplating a divorce. You're aware that the child's biological father is on the hook for child support payments, and you're likely figuring that you can go your own way, secure in the knowledge that your financial obligation to the child ends with the marriage to their mother.
Your family lawyer, however, may take a different view of the matter.
In Ontario, the child support obligations of a step-parent are governed by Section 5 of the Federal Child Support Guidelines. That section sets out the following:
Where a spouse against whom an order for the support of a child is sought stands in the place of a parent for the child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent's legal duty to support the child.
That section has been relied upon by step-fathers in child support cases where the mother has called upon the step-father to provide child support payments for her children. In general, the child support guidelines require that the courts first calculate the parent's income, and then establish a pre-set amount - known as a "table amount" - that determines the parent's ongoing child support obligations on a monthly basis.
For spouses standing in the place of a parent - known as in loco parentis - section 5 of the child support guidelines has been used by child support lawyers to argue that a step-parent should pay less than the table amount in the appropriate circumstances. Basically, in child support cases, the courts are given a broad discretion to determine what constitutes "appropriate circumstances".
The liability of all parents for child support is considered to be joint and several - meaning, that if one of the parents reneges on their portion of the child support payments, the other parent (or parents, where a step-parent is involved) may be called upon to remedy the deficiency in order to ensure that the child enjoys a "fair" standard of living. As the Federal Child Support Guidelines are primarily concerned with the best interests of the child, issues of fairness for the other parents seldom come into play, particularly in family cases where the child's standard of living is at stake. What is "appropriate" under the circumstances really depends on what arrangement works best to ensure that the child's accustomed standard of living is secured.
And then there is the issue of apportionment of child support payment obligations between the natural parents and the step-parent. In general, the courts proceed first by determining the full guideline amounts for each of the natural parents. Then the Court considers the guideline amount for the step-parent. If the "piling" of all three amounts result in a total child support payment that is well over what could be reasonably considered to support the child's standard of living, your family lawyer may very well use section 5 of the child support guidelines in order to argue that it is not appropriate under such circumstances for the step-parent to pay the table amount.
But what if the child, while residing with his mother and step-father, was accustomed to living under a higher standard of living than he was while under the care of both his natural parents when they were married? The British Columbia court in Varga v. Varga weighed in with the following comment:
Where for example the step-parent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guideline amounts, a court might find it appropriate to make an order against the step-parent that is designed to provide the higher standard, or something approximating it, 'on top of' the other parents' support.
In other words, the step-father, in such circumstances, might be called upon to "top up" the total amount of the child support payments in order to bring the amount to a level consistent with the child's latest standard of living. Moreover, where one or both of the natural parents are unable to pay any support, the step-father might very well be called upon to pay the full Guideline amount of support for that child.
In the end, how the judges in these child support cases exercise their discretion will depend on the circumstances - as ever, guided by the governing concern for the best interests of the child.
_____________________________________________________________________
This article is presented as general information only, for your enjoyment and curiosity, and should in no way be relied upon or considered as legal advice. The author does not, and cannot, warrant that this information will be of benefit to you in any way, as only your family lawyer will be in a position to offer you the appropriate legal guidance and supervision that you may require in circumstances specific to your child support case.
Lawyer Bio:
Lorne J. Fine is a Toronto child support lawyer. Mr. Fine's boutique family law firm provides personalized and devoted attention to clients dealing with sensitive issues of divorce, custody, and child support. His web site may be found at Toronto area residents may reach Mr. Fine for a free initial consultation at lfine@torontodivorcelaw.com or at (416)661-2066.
Tuesday, March 2, 2010
DATE OF MARRIAGE DEDUCTIONS
When completing a Financial Statement, you must list your assets and liabilities as of the date of marriage and the date of separation. I recently received a Financial Statement from the opposing party. They claimed a date of marriage deduction of approximately $1 million!!!! Obviously, the date of marriage deduction would reduce the Wife's Net Family Property, and thereby possibly increase the equalization payment that is owing to her from my client. In order to provde the deductions, the Wife would have to provide bank statements or provide a valuation as to the assets she owned on the date of marriage. If the Wife is unable to substantiate what she owned on the date of marriage, she will not be able to claim the deduction. The problem is most people, especially in long term marriages, are unable to substantiate their net worth as of the date of marriage. Most people do not keep bank statements for years. The banks will only keep them for 6 years. Perhaps on the eve of their marriage, people should make a list of their assets and liabilities as of the date of marriage, accumulate their supporting documentation. I hate to be a pessimist, but, it seems that you should hope for the best and plan for the worst.
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