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YOUR QUESTIONS ANSWERED

NOTICE TO READER: The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Steven Benmor.

Support

Who pays child support?

A parent who does not have day-to-day care and control of the children usually will be responsible for paying child support. The amount is based on that parent's income and on the extraordinary expenses of the children.

Am I paying too much child support or receiving too little?

Since the enactment of the Child Support Guidelines in 1997, the monthly amount of child support is primarily based on the income of the non-custodial parent, the number of children in the family and which province the children reside in. Tables are published that set out the amount that the non-custodial parent must pay to the custodial parent. The table amounts are for the children's ordinary expenses such food, clothing and shelter. For example, a non-custodial parent of two children in Ontario who earns $40,000 per year will pay to the custodial parent a table amount of $570 per month. The custodial parent's income becomes relevant where the children have special or extraordinary expenses such as daycare, extracurricular activities or private school tuition. In that case, the parents share these costs in proportion to their incomes.

Will I be required to pay spousal support?

This is a complex question. In answering it, there are three questions that need to be considered. Firstly, is a spouse entitled to support? Secondly, what is the amount of support that should be paid? Thirdly, what is the duration that support should be paid for? When determining spousal support, the judge requires that each spouse file a sworn financial statement which contains a monthly budget. This way, the judge can see the total monthly income and expenses of each spouse. The judge will consider the financial need of the spouse that requests support, the financial ability of the other spouse to pay support and the standard of living that the spouses maintained before separation.

May I stop paying child support because my spouse will not let me see my children?

No. Child support is to provide the children with food, clothing, shelter and the necessities of life. It is not appropriate to deprive children of this because the other parent has acted unreasonably. There are other remedies available such as a change in custody or access, or a motion to find the other parent in contempt.
 

When does child support end?

Child support is paid as long as the child is a dependent. Usually, a dependent child is one who is under the age of 18 years. In some instances, child support may continue past the age of 18 years if the child is not financially self-sufficient because of an illness or disability or because the child is going to school full time.

Do I have to pay child support if the pregnancy was not planned?

A New Mexico appellate court ruled that a man who unknowingly fathers a child because his partner told him that she was using birth control could not argue Contraceptive Fraud to avoid paying child support. In the court decision of Wallis v. Smith (New Mexico Court of Appeal, 22 P. 3d. 682 (2001)), the father of the newborn child alleged that the mother told him she was using birth control when, in fact, she was not. He argued that she committed Contraceptive Fraud. The trial court dismissed the lawsuit, finding that it was against public policy to accept this argument. The appellate court upheld this ruling. The court relied on the child support laws of New Mexico and held that it had no jurisdiction to recognize Contraceptive Fraud as a ground for relieving a father from his obligation to pay child support.

Do I have to pay child support if I learned that I am not the biological father?

This very issue was addressed by Mr. Justice Allan Boudreau in the Nova Scotia Supreme Court decision of Peters v. Graham (N.S.J. No. 452 (November 15, 2001)). The court ordered that a man whose wife deceived him into believing he was the biological father of twins for ten years pay child support, albeit at a reduced amount, since the children have two other fathers. Gregory Neil Peters argued that he should not have to pay support because he was misled by his ex-wife, Lisa Anne Graham, regarding the children's paternity. The father stated that he would like to continue having a close relationship with the children, however, not as a father, but as a friend. The lawyer for the ex-wife argued that the decision should emphasize the best interests of the children and not focus on the actions of the parents. Under the Child Support Guidelines, a judge has the discretion to order a spouse or former spouse who is not a biological or adoptive parent, but who stands in the place of a parent, to pay child support.

Can I collect child support if the payor is in the U.S.?

The Family Responsibility Office is the agency of the Government of Ontario that is responsible for enforcing the payment of support for Ontario residents.

Provided the court order, marriage contract, cohabitation agreement, paternity agreement or separation agreement is filed with the Family Responsibility Office, the support will be enforced and collected on behalf of the recipient.

When the Family Responsibility Office receives a support order or agreement, it monitors and collects support payments by garnishing the support from an income source, such as an employer, and then sending the payments to the recipient.

On July 15, 2002, the Government of Ontario and the Government of the United States established an arrangement for the reciprocal enforcement of support orders. This new arrangement between the Family Responsibility Office in Ontario and the Federal Office of Child Support Enforcement in Washington, D.C. permits Ontario residents to have their child and spousal support orders enforced no matter where the payor resides in the United States (including American Samoa, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands.) It also enables residents from all 50 U.S. states to have their support orders enforced in Ontario.

O. Reg. 207/02, made under the Reciprocal Enforcement of Support Orders Act, amends O. Reg. 140/94 to include this new arrangement.

Is a woman who earns a salary of $68,000 per year and is financially independent still entitled to ongoing spousal support from her ex-husband?

In the 2003 case of Allaire v. Allaire, the Court of Appeal of Ontario decided that there was no error in law in awarding indefinite spousal support to the wife after a 30-year marriage even though she was financially self-sufficient. The wife was awarded $2,500 per month in spousal support.

During the first eight years of their marriage, the wife supported the husband while he obtained two university degrees. As a result, the husband became a successful hospital administrator, earning approximately $180,000 per year. The wife had hoped to pursue a university degree, however, this ambition was put aside so that they could start a family. Because she put aside her career ambitions early in the marriage, the wife was unable to pursue careers that required a university degree. The judge concluded that the wife suffered an economic disadvantage as a result of the marriage. The court stated that it was more appropriate to look at the choices the spouses made during the marriage and the economic consequences of those choices. The award of spousal support was designed to compensate the wife for the likely permanent economic result of having to postpone her university education, and to adjust for the economic disparity between the two households, based on the spouses' prior standard of living.

Do you still have to pay child support if you share custody of your child with the other parent?

The Child Support Guidelines state that there is a presumption that one parent pays the other parent child support according to the payer's annual income and the "table" amount. [To see the child support tables, go to www.benmor.com, Links, Federal Child Support Guidelines]

For example, a non-custodial father of 2 children who earns $40,000 per year would pay a table amount of $570 per month. But a family court judge is given the discretion to deviate from the table amount and reduce the amount of child support payable if the payor has the children in his or her care for 40% of the time during the course of a year. The discretion is based on section 9 of the Child Support Guidelines.

Because there is no formula that can be applied in an equitable way in all circumstances, this discretion has caused confusion.

In the 2002 decision of Contino v. Leonelli-Contino, the appellate court set out guidelines for considering a deviation from the presumption that one parent pays the other parent child support according to the payor's annual income and the table amount. The appellate court stated that there is a presumption in favour of the table amount. However, the parent seeking a deviation may establish on clear and compelling evidence that a reduction in child support is in the children's best interest, and also based on the circumstances, as described in section 9 of the Child Support Guidelines.

What is the Ontario government doing to collect unpaid support?

MPP Sandra Pupatello, the new Minister for Community and Social Services, is scheduled to announce today (February 6, 2004) her plan to crack down on deadbeat parents who do not pay their support.

The Ministry for Community and Social Services operates the Family Responsibility Office (FRO), whose mandate is to ensure that support payments flow properly from payors (people who make the support payments) to recipients (people who receive the support payments.) The Family Responsibility Office receives every support order made by a court in Ontario and enforces the amounts owed under the order. It also enforces private written agreements that include child or spousal support terms. Private written agreements can include separation agreements, other domestic contracts and paternity agreements. These types of agreements must first be filed with the Ontario Court of Justice, the Superior Court of Justice (Family Court), or their predecessor courts before they can be enforced by the FRO.

The Family Responsibility Office has the legal authority to collect support payments and arrears and to take the following enforcement actions against those who do not meet their responsibilities:

The new measures are to include:

Time will tell whether or not the Ontario government acts on its promises to collect the $1.2 billion in monies owing for child support in Ontario.

What can a spouse be entitled to after an 18 month marriage?

Half a million dollars.

In the 2003 case of Tauber v. Tauber, the Court of Appeal of Ontario agreed with the trial judge that a lump sum award of $500,000 in spousal support to the wife was reasonable.

The spouses were only married for 1½ years and had one child. Before the marriage, the wife worked as a stylist and earned $60,000 per year. The husband earned $2½ million per year and had a net worth of $20 million.

The husband argued that, given the very short length of the marriage, the wife was not entitled to spousal support, and if she was entitled to support, she should receive monthly support for only three years. However, the court decided that the wife's earning capacity was impaired by the marriage, by her parenting responsibilities and by the breakdown of the marriage. The court decided that the wife's career continued to be affected by her parenting responsibilities, while the husband's career was not affected. Since separation, the wife had been living in rental accommodations and had been forced to move almost annually. The court decided that this lump sum payment would enhance the wife's economic self-sufficiency by allowing her to purchase a home, which would in turn offer the child more stability. The court ruled that, given the husband's means and the parties' lifestyle, the award was not so far beyond what was reasonable.

Do you have to increase your child support when your income rises?

In the 2003 decision of Walsh v. Walsh, the wife asked the judge to order her ex-husband to pay a shortfall of child support in the sum of $43,000 for the past few years because his income rose.

In 1997, the court ordered her ex-husband to pay child support pursuant to the Child Support Guidelines based on an income of $175,000. In 2002, the wife discovered that her ex-husband’s income ranged between $214,000 and $376,000 per year for the past few years resulting in a shortfall of approximately $43,000, which her ex-husband should have paid in child support.

The court held that her ex-husband knew that his child support obligation was based on his income, but chose not to disclose his income voluntarily. In the court’s view, he could not now hide behind the defence that the children should not have the benefit of his increased income for this period because his wife did not request his income tax returns until 2002. The ex-husband was ordered to pay the entire shortfall in child support within 45 days.

Can a support payor take early retirement?

The Ontario Superior Court of Justice was asked to address this very question in the September 30, 2003 case of Moffatt v. Moffatt. After the couple separated in 1997, they entered into a separation agreement that placed their two children with the mother. The father was a teacher and earned $63,000 per year. In June 2001, he took advantage of a temporary window of opportunity and chose to take early retirement. He accepted the converted value of his teachers’ pension in the sum of $526,026.63 and left the workforce.

Mr. Justice Campbell decided that the father, by choice, had become intentionally under-employed as described in section 19 of the Child Support Guidelines. The court decided that the father made a decision to benefit himself and himself only. Because the father was only 54 years old when he took early retirement, and because he had an ongoing obligation to his two children, his decision had a significant negative impact on his two children.

The father was ordered to pay child support for his children in the amount of $929 per month based upon an attributed income of $70,200 per year that would continue up to the date when he otherwise would have been entitled to retire.

Are the Child Support Guidelines fair to the access parent?

In 1997, the federal and provincial governments of Canada decided to create a uniform and consistent approach to determining how much child support was to be paid by one parent to the other after they separated. This decision resulted in the creation of the Child Support Guidelines which include tables that set out the exact amount of child support that is to be paid by the access parent to the parent that has custody of the children.

The Guidelines' stated objectives are to establish "a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation…and to reduce conflict and tension between spouses by making the calculation of child support orders more objective." However, a significant void was left in this law. Specifically, the Guidelines treated all access parents in the same way when in fact there are many different economic consequences to access parents.

To illustrate this by way of an example, consider Joe, Mike and Bill. They are all separated. They each have two children who reside with their ex-wives. All three men earn $50,000 per year. According to the Guidelines, each man must pay $700 per month in child support for both children. On its face, this may seem fair. However, Joe is completely estranged from his children and does not have any relationship with them. Mike visits with his children every other Saturday afternoon for five hours. Bill has the children with him each and every weekend from Friday night to Sunday night.

As you can see, each one of these fathers spends varying amounts of time with his children and, as a consequence, spends varying amounts of money on the children during their time together. However, all three fathers are treated in the exact same way economically.

One of the only few options available to an access parent is to seek a reduction from the table amount if the children are in his care for at least 40 per cent of the time. But this does not help Joe, Mike, or especially Bill, who truly does incur significant expenses to exercise access to his children every weekend. His expenses include an extra bedroom, furniture, clothing, toys, sporting equipment, groceries, meals, and recreational costs.

There are many access parents who have been complaining about the inherent unfairness of the Guidelines and how this unfairness directly impacts the quality of care that they are able to provide to their children during access times. They complain that the Guidelines have caused the exact opposite response to their objectives. Access parents such as Bill have found that the Guidelines have ignored the importance of the relationship between the children and the access parent by making money—not the quality of the relationship—a priority. This has invariably caused conflict and tension between spouses, which the Guidelines were supposed to reduce.

Can you sue for custody and support of your pet?

Maybe.

On December 17, 2004, in the Ontario case of Warnica v. Gering, Mr. Justice Timms dismissed Christopher Warnica’s claim for shared joint custody of a pet dog named Tuxedo. In that case, the judge stated that courts should not be in the business of making custody orders for pets. Although the judge acknowledged that pets are of great importance to human beings, Mr. Justice Timms stated that some people go to extraordinary lengths to preserve that relationship. That is why Mr. Justice Timms ultimately ended Mr. Warnica’s case.

As for pet support, in the Alberta case of Boschee v. Duncan, [2004] A.J. 677, in addition to seeking $1,500 per month in spousal support, the wife claimed $200 per month to support her husband’s St. Bernard dog. The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that a St. Bernand dog costs more to maintain and feed than the usual smaller variety. The judge hearing this case ruled that $200 per month was a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay pet support.

When it comes to the Canada Child Tax Benefit, which separated parent is entitled to it?

Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit. The benefit is a tax-free monthly payment for children under the age of 18 and is intended to help families with the cost of raising their children.

In situations involving separated or divorced parents, CRA pays the benefit to the parent who resides with the child and who primarily fulfils the responsibility for the care and the upbringing of the child. According to CRA, this is generally the mother, and therefore in situations of separation or divorce, CRA presumes the mother to be entitled to the benefit.

In cases where both parents claim the benefit, CRA will conduct a review to determine which parent qualifies for the benefit. If it is determined that the child resides with both parents, CRA will pay one parent for six months and then rotate the payments to the other parent for the next six months.

Details of this and further information can be obtained at the CRA website at www.cra-arc.gc.ca or by calling toll free 1-800-387-1193.

What is new with how Canada Revenue Agency pays the Canada Child Tax Benefit and the GST/HST Credit where parents share custody of their child?

In the past, the legislation only allowed one parent to receive the benefit in each month. In situations where the child’s parents were separated and the child resided almost equally with each parent, Canada Revenue Agency developed a shared eligibility policy that recognized that there could be two eligible individuals for the same child. Under that policy, in shared custody situations, the Canada Child Tax Benefit would be rotated between the two parents on a six-month basis. That is, one parent would collect the benefit for 6 months and the other parent would collect the benefit for the next 6 months, on a rotated basis.

On March 4, 2010, the Minister of Finance Jim Flaherty announced that this policy will soon change. To improve the allocation of child benefits between parents who share custody of a child, the new budget proposes to allow two eligible individuals to receive the Canada Child Tax Benefit, Universal Child Care Benefit and GST/HST Credit amounts for each child in a shared custody plan. The amount of the Canada Child Tax Benefit, Universal Child Care Benefit and GST/HST Credit payments will be equivalent to each eligible individual receiving one-half of the annual entitlement that they would receive if they were the sole eligible individual, paid in monthly instalments over the year.

It is anticipated that this change will apply to benefits payable after July 1, 2011.

Any questions about this policy change may be directed to the Canada Revenue Agency at 1-800-387-1193 or 1-800-959-1953 or at http://www.cra-arc.gc.ca/bnfts/fq_lgblty-eng.html

How will the 2010 Federal Budget announced on March 4, 2010 change the policy for the payment of Child Tax Benefits and the GST/HST Credits where parents share custody of their child?

The legislation only allows one parent to receive the benefit in each month. However, in situations where the child’s parents are separated and the child resides almost equally with each parent, Canada Revenue Agency recently developed a shared eligibility policy that recognizes that there could be two eligible individuals for the same child. The new policy provides that, in such shared custody situations, the benefit is to be rotated between the two parents on a six-month basis. The logic was that benefit eligibility should follow the child. Thus, where the parents are equally responsible for the child’s care and upbringing, then each parent should be eligible for the benefit. For administrative reasons, Canada Revenue Agency is not able to rotate the eligibility on a monthly basis. Canada Revenue Agency is not obligated to respect court orders that make provision for a different arrangement. The only legal authority for determining benefit eligibility is the Income Tax Act and its definition of "eligible individual."

Any questions about this policy change may be directed to the Canada Revenue Agency at 1-800-387-1193 or 1-800-959-1953 or at http://www.cra-arc.gc.ca/bnfts/fq_lgblty-eng.html#q1

Can a parent be forced to pay child support going back in time ?

Over the years, 'retroactive child support' had become such a contentious issue that 4 different separated couples recently brought this issue to court, then to the court of appeal and then to the Supreme Court of Canada.

In the 4 cases of D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, on February 13, 2006, the highest court considered different fact scenarios to determine if a parent can expect a judge to order the other parent to pay child support for a past period of time, possibly resulting in a large sum of child support arrears.

In the case of D.B.S. v. S.R.G., the parents had 3 children in the course of their 10 year common law relationship. Shortly after the couple separated, the parents shared custody of their children and neither paid support to the other. In 2003, the mother sued the father for retroactive and ongoing child support. The first judge awarded the mother ongoing support, but no retroactive child support because their household incomes were approximately the same and because the father had contributed to the children's support after separation. Furthermore, this judge was not satisfied that it would benefit the children to make an award of retroactive support. The mother appealed this decision. The court of appeal reversed this decision and sent the case back to the first judge to determine the retroactive sum owed by the father. The father appealed to the Supreme Court of Canada.

In T.A.R. v. L.J.W., the parents had 3 children in the course of their common law relationship. Following their separation, the children lived with their mother. The father paid child support in the sum of $150 per month. This was later increased to $300 per month. The mother returned to court asking for an increase to the amount of child support and, more importantly, retroactive child support. She was awarded child support in the sum of $465 per month. However, her request for retroactive child support was dismissed. The judge considered a few factors including the financial hardship that such an award would cause the father based on his meager income, the fact that the father had honoured his support obligations throughout, and the fact that he had incurred substantial expenses in exercising access rights to his 3 children. The mother appealed this decision. The court of appeal reversed this decision and sent the case back to the first judge to find a creative solution to the issue of retroactive child support. The father appealed to the Supreme Court of Canada.

In Henry v. Henry, the parents of the 2 children resided with their mother after separation. The father was ordered to pay $700 per month in child support. Although the father increased his support payments, the amounts he paid were substantially lower than required under the Federal Child Support Guidelines. Unbeknownst to the mother, the father's income had increased dramatically since the divorce. At the same time, the mother was experiencing financial difficulties. When he was asked, the father refused to provide financial assistance to the mother. When the mother sought a court order for retroactive child support, she was granted retroactive child support for a period of 6 years. The majority of the court of appeal upheld the decision. The father appealed to the Supreme Court of Canada.

In Hiemstra v. Hiemstra, the parents were divorced in 1996. The 2 children lived with their father, and the mother paid child support. Later, when one child moved in with his mother, child support payments ended. By February 2004, the mother was supporting both children. She then applied to the court for retroactive child support. The judge held that this was an appropriate case for an award of retroactive child support. The court of appeal upheld the decision. The father appealed to the Supreme Court of Canada.

On July 31, 2006, the decision announced by the Supreme Court of Canada demonstrated that all 7 judges agreed that rules were required for the determination of the issue of retroactive child support.

The highest court allowed the appeals in D.B.S. v. S.R.G. and L.J.W. v. T.A.R. by restoring the first judge's decision. That is, the mothers' claims for retroactive child support were dismissed.

In the cases of Henry v. Henry and Hiemstra v. Hiemstra, the Supreme Court of Canada dismissed the appeals and granted retroactive child support.

In arriving at these decisions, the majority of highest court ruled that parents have an obligation to support their children in a manner commensurate with their income. The judges stated that this obligation, and the children's right to child support, exist independently of any statute or court order. The total amount of child support owed will generally fluctuate based on the payor parent's income. Thus, payor parents who do not increase their child support payments to correspond with their incomes will not have fulfilled their obligations to their children.

The majority of highest court ruled that child support orders should provide parents with the benefit of predictability and a degree of certainty in managing their financial affairs. The parents must continually ensure that their children are receiving an appropriate amount of support. In situations where the payor parent is found to be deficient in his or her support obligation to the children, it will be open for the judge to change the sum of child support payable and even make a retroactive order. The consequence will be that child support amounts that should have been paid earlier will become immediately enforceable.

The highest court stated that under the federal Divorce Act, a judge will not be able to make a retroactive award if the child no longer fits into the definition of 'child of the marriage', as defined in section 2.

Each case will be decided on the basis of its particular facts. The judge should consider the reason for the recipient parent's delay in asking for child support, the conduct of the payor parent, the past and present circumstances of the child, including the child's needs at the time that the support should have been paid and whether the retroactive award might entail financial hardship.

Once the judge determines that a retroactive child support award should be ordered, as a general rule, the award should be retroactive to the date that the recipient parent notified the payor parent that child support should be paid or increased.

The Supreme Court of Canada ruled that the limit of the retroactivity should not be more than 3 years.

Although the final decision regarding the 4 cases was unanimous, the minority view of the court was that parents have a free standing joint obligation to support their children based on their ability to do so, and this obligation creates a right in the child. Because the child's right to support varies with changes in the parents' income, the child's entitlement to a change in support should not be limited to the date of notice. So long as income changes, the presumption is that the change in child support should start from the date of such change, not when it was disclosed or discovered. The support obligation is dictated by the increased income, and not by blameworthy conduct. In the same way, the recipient parent does not need to demonstrate that the failure to pay child support resulted in financial hardship for the child. The group of judges in the minority felt that there is no reason to deprive children of the support that they are entitled to by imposing an arbitrary 3 year limitation period on the amount of child support that can be recovered.

What is the Ontario government doing to collect unpaid support (...the saga continues)?

I previously reported that, on February 6, 2004, the Minister for Community and Social Services, announced the Ontario government's plan to crack down on deadbeat parents who do not pay their support.

The government's Family Responsibility Office (FRO) receives every support order made by a court in Ontario and enforces the amounts owed under the order. It also enforces private written agreements that include child or spousal support terms. The FRO has the legal authority to collect support payments and arrears and to take enforcement action against those who do not meet their responsibilities, such as garnishing income tax refunds and employment insurance benefits, reporting the payor to the credit bureau, seizing the payor’s bank account or assets, suspending the payor’s passport, seizing lottery winnings, suspending the payor’s driver's license and, as a last resort to collect the unpaid support, by taking the payor to court and asking for a term of imprisonment.

With a budget of nearly $50 million, the FRO enforces support obligations on behalf of approximately 185,000 families in Ontario. According to the Family Responsibility Office’s records, as of March 31, 2006, over $1.3 billion in support arrears remained uncollected - including almost $200 million owed to the Government of Ontario as a result of social assistance (welfare) payments made to families of delinquent support payors.

On August 9, 2006, the Ontario government's Ombudsman found that the FRO dropped the ball in collecting delinquent child support.

The Ombudsman is an officer of the Ontario Legislature and is independent of both the political process and government administration. (The Ombudsman can be reached at 416-586-3300 or at www.ombudsman.on.ca).

The Ombudsman focused on the case of one father who lost $2,422 in child support arrears for his son - which the FRO should have collected for him from the mother’s sale of a property. FRO failed to consult with the father when it registered the Writ of Seizure and Sale in the wrong name of his former wife. The Writ was issued in the name of his former wife, as it appeared on the court order for child support, but she had since remarried and used a different name to register title to her property.

The Ombudsman stated that “this case reflects the very malaise which is all too prevalent among government bureaucrats... administrators have taken a wooden view of their rules and obligations and forgotten that they are dealing with real people.

The Ombudsman did not sugar-coat his criticism of the FRO when he reported that “the FRO was content just to sit back and lead the support recipient on. It neglected its fiduciary responsibility and displayed a cavalier attitude towards an individual it was duty-bound to serve...those charged with the enforcement of support orders must accept that they have a duty to act in the best interest of those who the support was intended for.

The Ombudsman made recommendations including that the FRO pay $2,422 in compensation to the father - which represents the amount which he could have collected from the sale of his former wife’s home if the Writ had been enforced. He also recommended that the FRO change its policy and procedures so that support recipients are advised of the possibility that a Writ may not be enforceable if the support payor has changed his or her name or uses a different name. This would allow the FRO to attempt to obtain an amended court order and new Writ. In addition, he recommended that legislative changes be considered to ensure that Writs of Seizure and Sale can be more effectively and efficiently enforced when support payors, who are in arrears of child support, change their name or use different names.

In closing, the Ombudsman stated that “it is evident that a cultural change is required in the way that the Family Responsibility Office views its role. Its passive hands-off approach must be replaced by a proactive, common sense, and good faith attitude towards support recipients.

Is private school a necessary expense to be paid by a non-custodial parent?

Mr. Justice DiTomaso was faced with this question in the July 6, 2006 case of Nitkin v. Nitkin that was argued at the Newmarket courthouse.

Robert Nitkin is the estranged father of the 3 children that he had with his ex-wife Michele Nitkin. The children are now 18, 15 and 12 years old. Since August 2005, they have lived with their mother and stepfather in Albuquerque, New Mexico.

Mr. Nitkin continues to pay over $60,000 per year in child support - which is the Table amount according to his income of $350,000 per year.

Amongst the many claims made by each parent, Ms. Nitkin sought a court order that her ex-husband also pay for the children’s private secondary school costs in New Mexico. Mr. Nitikin's argument was that this expense was neither reasonable nor necessary since public high schools in Albuquerque, New Mexico have an excellent reputation. Mr. Nitkin also argued that when they first separated they agreed that he would be responsible for private school tuition for elementary school only.

The judge decided that the expenses claimed by Ms. Nitkin must be necessary in relation to the children’s best interests. He found that there was no evidence to suggest that private school met the needs of the particular children in question and that there was no evidence that the children’s needs could not be met in the public school system. The judge stated that the mere fact that the children had attended a private primary school in the past does not mean that it is necessary for them to continue in a private secondary school.

The judge was persuaded that the public school system in Albuquerque is of an excellent reputation and that the Nitkin children would benefit and flourish in that environment.

In the end, Mr. Justice DiTomaso ruled that the claim for the children’s private school was neither necessary nor reasonable.

Can child support be based on support that the child's father receives from his parents?

On April 23, 2007, the Ontario Court of Appeal answered this question.

Their answer was unanimously "No".

In this case, Stephanie Bak and Mark Dobell had a 13 year old daughter named Jacque-line. She had various disabilities. Her mother Stephanie was an artist who earned less than $10,000 per year. She managed her and Jacqueline's expenses with assistance from her mother and other family members.

Mark suffered from severe personality disorders, leaving him unable to maintain employ-ment. His behaviour improved with therapy, but his ability to work did not. Despite this, he paid Stephanie child support of $117 per month.

Mark's father (Jacqueline's grandfather) paid for Mark's day-to-day expenses and bills. Mark's father also purchased a home for him to live in.

Stephanie made an application to the court to increase the child support sum to $2,300 per month by asking the court to attribute to Mark an annual income of $164,479 based on the lifestyle he led from money he received from his father, Jacqueline's grandfather.

She introduced evidence from a chartered accountant who estimated Mark had an income equivalent to $877,970 between 1998 and 2005 based on the financial contributions that Mark received from his father.

Although the trial judge accepted Mark's father's evidence that he gave money to Mark out of a sense of obligation and to prevent Mark from being a burden on the taxpayer, he de-clined to treat these gifts as income and noted the Mark's father should not be required to indirectly pay support for an obligation that was not his responsibility.

Stephanie disagreed and appealed this decision to the Ontario Court of Appeal.

On appeal, it was decided that the gifts from Mark's father and his lifestyle could not be in-cluded in Mark's income for support purposes. The gifts did nothing more than support Mark's basic lifestyle, and Jacqueline's grandfather had no obligation to support her as this was Mark's obligation.

Is a parent required to pay child support for a child who is in jail?

Mr. Justice Hambly believed so. His reasons are found in his decision in the March 19, 2010 case of Cochrum v. Lyons.

That case dealt with the Lyons family. Wallace and Lisa were married in 1988. They had two children together, Laura (age 20) and Luke (age 17). Wallace and Lisa separated in 1997. The issue in this case was whether Wallace had an obligation to pay child support to Lisa for Luke.

On February 27, 2009, Luke was placed in a juvenile detention center. Lisa kept a room for Luke at her home, visited him regularly while he was incarcerated, purchased clothing for him and deposited spending money into Luke’s account. Luke was released to Lisa’s care on September 18, 2009.

So the question was: did Wallace have an obligation to pay child support to Lisa for Luke from February to September, 2009 ?

Mr. Justice Hambly applied first principles stemming from the Divorce Act. He found that Luke was a “child the marriage”, as defined by the legislation, because Luke had been, throughout this time, under the care of Lisa and had not withdrawn from her charge – even though he was incarcerated.

Is there an “America’s Most Wanted” of defaulting support payors?

The Ministry for Community and Social Services operates the Family Responsibility Office (FRO) whose mandate is to ensure that support payments flow properly from payors (people who make the support payments) to recipients (people who receive the support payments).

The FRO receives every support order made by a court in Ontario and enforces the amounts owed under the order.  It also enforces private written agreements that include child or spousal support terms such as separation agreements.

The FRO has the legal authority to collect support payments and arrears and to take enforcement action against those who do not meet their responsibilities, such as garnishing wages, income tax refunds and employment insurance benefits, reporting the payor to the credit bureau, seizing the payor’s bank account or assets, suspending the payor’s passport, seizing lottery winnings, suspending the payor’s driver's license and, as a last resort to collect the unpaid support, by attending court and seeking a term of imprisonment.

In addition to its standard enforcement mechanisms, the FRO launched a more innovative and aggressive approach to tracking down defaulting support payors.

The FRO now posts information such as the defaulting payor’s name, photograph, physical description, approximate age, last known address and occupation on www.goodparentspay.com.

In effect, the FRO has created an “Ontario’s Most Wanted” list of defaulting
support payors.

The individuals posted on this website are registered with the FRO, have not made their support payments and cannot be found.  Photographs and information about these missing defaulting support payors will only be added to the website after all other means of locating them have been unsuccessful and it has been at least 6 months since the payor made his or her last support payment.  The website is ultimately a plea to the public to help the FRO find missing defaulting payors so that it can enforce support and reduce the amount of support arrears that remain uncollected.

All information provided to the FRO is confidential and can be provided anonymously.  The postings are made under the authority of sections 61 and 61.1 of the Family Responsibility and Support Arrears Enforcement Act and sections 42(1)(c) and (e) of the Freedom of Information and Protection of Privacy Act.  A support payor can request to have his or her information removed from this website if he or she contacts the FRO to update his or her address and income source, as the objective of the website is to locate the missing support payor.

The purpose of this effort is loud and clear and is embedded in the website’s very name – Good Parents Pay.  The public is given an opportunity to help Ontario children and families by assisting the FRO find missing, irresponsible parents who have defaulted on the payments owed to their children.

Were the Child Support tables changed ?

The On December 31, 2011, the federal government introduced new tables for the amount of child support to be paid each month.

The first tables were introduced on May 1, 1997. These tables were subsequently amended on May 1, 2006.  This is the third set of tables in 14 years.

This change will impact hundreds of thousands of families throughout Canada where one parent pays to the other parent child support under these tables.  In some cases, the child support payor will experience a reduction in child support. In other cases, the child support recipient will be able to collect a greater sum in child support.

For example, under the old tables, a non-custodial parent earning $21,300 would have paid $182 per month for one child.  Under the new tables, the amount is $170 per month, a reduction of $148 per year.  Conversely, under the old tables, a non-custodial parent earning $75,000 would have paid $1,098 per month for two children.  Under the new tables, the amount is $1,105 per month, an increase of $84 per year.
 
The new tables can be found at http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp

It is important to note that the 2006 tables must still be used to determine child support owed before December 31, 2011.  However, the updated tables should now be used to calculate child support payable from December 31, 2011 onward.

Will child support be reduced if the payor is fired from his job ?

If child support is supposed to be calculated based on income, then it is reasonable to assume that if a person’s income is reduced because of job loss, then child support should also be reduced.  But in the case of Aboagye v. Sakyi [2012] O.J. No. 575, Mr. Justice Sherr ruled that if an employee is fired, he cannot avoid child support based on his own misconduct.

In this case, the parents had four children aged 13, 11, 9, and 4 years.  The father worked full-time at two different jobs for at least two years prior to the parties' separation. He had worked as a forklift operator for one employer since 1996, and as a machine cleaner for a second employer since 2007.  The father's Notice of Assessment for 2009 showed that he earned a gross income of $62,500.  The father left his second job as a cleaner at the end of June 2010. He continued working as a forklift operator.  The father did not pay any child support until the fall of 2011 and accumulated over $17,000 in child support arrears. The father earned $50,755 in 2012.  In court, the father testified that he was fired just three days before the trial began. He stated that he was given vacation pay, but no severance payment. He claimed that this dismissal was wrongful and he planned to sue for wrongful dismissal.  The mother testified that the father was a liar and that he conspired with his employer to engineer his job loss for this case.

The father’s employer stated that the father was warned twice about poor performance and was dismissed for cause. The employer listed reasons for his dismissal that included:

  1. not following company policy for signing loading lists and work orders;
  2. using his cell phone during company time;
  3. using his cell phone in the loading area and inside loading containers;
  4. being frequently late and absent;
  5. accepting money from customers to perform additional services during company time; and
  6. damaging company property.

The court held that if the employer was justified in firing the father, then the father cannot use his dismissal as grounds for reducing support.  Where the loss or reduction in employment income is the result of one’s own actions or misconduct, the support obligations will not be reduced or cancelled.  Moreover, the court stated that if the father is correct that he was wrongfully dismissed, he will likely receive a significant income-replacement award.

In the end, the court imputed to the father an income at $41,000 per year, and was ordered to pay child support based on this amount.

Self-Employment Income in Family Law: To Deduct or Not to Deduct, That Is The Question

When the Child Support Guidelines (“Guidelines”) were introduced in 1997, the federal and provincial governments legislated that its purpose was “to reduce conflict and tension between parents or spouses by making the calculation of child support more objective.”  The idea was that separated parents could simply look up the income of the parent paying support, and the number of children supported, and this would easily determine the exact monthly dollar amount of child support payable.  This legislation was supposed to end the controversy, litigation and cost of determining the amount of child support.  Not so fast.

Although this intent became true for support payors who were salaried or hourly employees, there were many support payors who owned businesses and exercised discretion as to the income they reported to Canada Revenue Agency (CRA). 

According to Statistics Canada, over 15% of Canadians, or nearly 3 million people, are self-employed (Source: Statistics Canada, Labour Force Survey, April 2012).  In an era where nearly half of all marriages end in separation, it is understandable why protracted litigation persists over the determination of separated parents’ income and the concomitant support obligations.  Add to this the growing number of separating parents who are choosing to share custody after separation.  In such a situation, both spouses could be treated as support payors, thereby necessitating an inquiry into both parents’ incomes pursuant to section 9 of the Guidelines (shared custody).  Moreover, even if only one parent is the support payor and the other parent is the support recipient, the recipient’s income must also be evaluated for the purposes of proportionately sharing the children’s special and extraordinary expenses, including daycare, uninsured health care costs, private school tuition and university costs.

Indeed, the legislators were aware of this dilemma.  Even though section 16 of the Guidelines directs that annual income is determined by Line 150 of the payor’s income tax return under the heading “Total Income”, section 19(2) goes on to state that “the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.”  In other words, the fact that a business expense is legitimate for tax purposes does not mean that the same deduction is reasonable for support purposes (Cook v. Cook [2011] O.J. No. 4399). 

Chartered Business Valuators (CBV’s) have educated the bar as to the many methods they employ to ascertain the payor’s income for the purposes of calculating support.  These tools include:

-collecting, analyzing and reporting on the payor’s financial records including the business’ Financial Statements (if incorporated) and Statement of Business/Professional Activities (if a sole-proprietorship or partnership).  These records provide a good source of data that are used to add back to income any expenses deducted that were incurred for the owner’s personal benefit, deductions that are not provable, retained earnings and/or shareholder loans

-comparing and analyzing the family’s lifestyle costs versus their reported income to demonstrate that more income than reported must exist to support the family’s historical cost of living

-collecting records from other sources where the payor reported his/her income such as applications for loans, mortgages and credit, applications for government benefits and applications for life and disability insurance

-public data from Statistics Canada’s Wage Book and the Financial Services Commission Wage Table illustrating wage ranges

-public data for other similar businesses illustrating the range of income for the subject business

CBV’s do great work in the Family law arena ascertaining the true income of support payors and reducing the number of cases that proceed to trial.  For those cases that do reach trial, CBV’s can provide expert testimony to the court to assist in determining a party’s income. 

Ultimately, the very conflict and tension that the Guidelines sought to eliminate become revisited when a support recipient seeks to impute a higher income to a self-employed support payor.  Since most recipients cannot afford the cost of a CBV, the most common approach used by lawyers is to argue that certain expenses deducted from income were incurred for the owner’s personal benefit and, despite CRA’s decision to allow the deduction, should be added back to the payor’s income in order to calculate child support, as permitted under section 19(1)(g) of the Guidelines. 

Some judges will respect the findings of CRA and not impute income on the basis that the court should respect the right of self-employed persons to run their business as they see fit (Osmar v. Osmar 2000 CanLII 22530 (ON S.C.)).  Conversely, some judges will question whether particular expenditures ought to be allowed to reduce a support payor’s income and thereby reduce support.

How much will judges second-guess business owners as to their reported income and expenses ? The answer is case-specific. 

For example, in determining the income of a self-employed lawyer in Toronto, the court recently found that “car expenses, rent/home office, travel, meals/entertainment, phone/internet, insurance and legal expenses all represent examples of expenses that should be added back to income for support calculation purposes” (Ludmer v. Ludmer [2013] O.J. No. 699).  Not only are these amounts added back to income, they are then usually grossed up for taxes (Riel v. Holland (2003), 67 O.R. (3d) 417 (C.A.)).  In Ludmer, the court even admitted that “there is no scientific or absolute means of determining the right balance of expense deduction to gross revenue…but [the court] is required to determine an income level that fairly and reasonably reflects the compensation available to the respondent to pay support.” 

In cases such as these, counsel can best serve clients (both support payors and recipients) by forming an understanding of the accounting principles involved in business ownership and by knowing how to read and understand corporate financial statements and income and expense statements.  For the support recipient, this will assist counsel to ask the right questions  - whether in written form (under Rules 13 and 19) or during Questioning.  For the support payor, this will allow counsel to gather and assemble the supporting source documents to validate the reported income.  CBV’s should either be consulted or engaged in appropriate cases.

In the end, unless a settlement is reached, it is up to the court to determine a party’s income (and therefore support) based on what the parties can prove or cannot prove in the context of business deductions.

 

 

Other Questions Answered

 

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