Canada Legal .com Articles

Video: What Does the Family Responsibility Office do?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

… Lets’ widen the question, this is the second caller who has mentioned this agency called the Family Responsibility Office. And there’s a lot of other people than Mary and Robert who don’t know what that is. The Family Responsibility Office is the office of the Government of Ontario. So they are the Office that collects the child support. Whenever a court order is made in [the province of] Ontario for the collection … for the payment of child support, a copy of the order goes to the Family Responsibility Office who then takes whatever steps are necessary to collect, including the garnishing of income from the source. … One way or another there must have been either a written agreement or a court order field with the Family Responsibility Office. … You want to get out of that obligation. If you don’t want the employer to garnish it from your wages and you don’t want the F.R.O. to pursue the collection of that money from you, you need to go and amend, change the court order that created that obligation. … Depending upon who’s side I’m on for, I either want the kind of agreement that Robert’s ex-wife got or I want to get out of the kind of agreement that Robert is facing … (click here for more)

Video: What If a Parent Does Not Disclose the True Income?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

… Now as for him claiming low income, under Section 19 of the Child Support Guidelines, if you can convince a judge that he is either intentionally unemployed or intentionally underemployed or that he is not making full disclosure of his income, a judge has the power to disregard what he says about what his income is and order him to pay child support on an amount that the court will impute, which is another way of saying ascribing or pretending his income could be. So a person can come to court and say, “My income is $800 a month.” But the judge can say, “I don’t buy that. I’m going to determine that your income is $3000 a month because you have the capacity to earn $36000 a year and pay child support on that.”

Video: Can You Get Retroactive Child Support?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

The Supreme Court of Canada handed down a desicion on the question, “Can you go back in time? Can you get child support for a period prior to now?” Usually you go to court, you ask for child support from today forward but in your case you’ve got a significant question about can you go back in time and get the judge to order him to pay child support going back in time. So my recommendation is if you were to go to the website … if you were to go to a government website called www.canlii.org and you were to go to the Supreme Court of Canada website and just type in DBS — that’s the name of one of the four cases. You can read the Supreme Court of Canada decision on that question.

Video: What is Covered by Support?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Support general means, and we use the word “support” like “child support” or “spousal support” or “parent support”, it’s providing financial assistance to the person that needs you to cover their cost of living. [Host: So is that something that is pre-discussed and put into a document prior to marriage or is that something that is visited afterwards?] It’s an interesting question because some people want that to happen. Some people will say, “Look, we’re getting married, or we’re going to get married, or we’re going to have kids, we’re going to live together and have kids, and so I want to make an agreement that says if we have kids this is what my financial exposure is. I don’t mind supporting you when we’re together but when we split up, I don’t want to have to pay more then “$X amount” per month because I want to be able to continue my life independently.” Well the law says that the courts, the Courts of Ontario, will not respect that sort of agreement. In other words, you can’t bargain away, or negotiate, before the kids are born, or even if they are born but before you split up what’s going to be paid to the kids down the road. … (click here for more)

Video: How Much Child Support Should a Self-Employed Parent Pay?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Most peole who are self-employed either have their own financial statement that their bookkeeper or accountant will prepare towards the end of the year, after the end of the year of course. Or alternatively when you look at your income tax return, your T1 General, there is this document for those people that are self-employed called Statement of Business Activities where it lists the gross income and then it lists line by line what the expense are. And that’s where we as laywers examine that, in conjunction with accountants and say, well this person who is a painter who had gross revenue of, say for example, $75000, but here it says they spent about $7500 on meals. Well does a painter need to spend $7500 on meals in order to earn that revenue or is that painter simply writing off all of their out-of-home food expenses? And so the law says that you can … (click here for more)

Video: What are the Different Types of Custody?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

[types of custody: sole custody, joint custody, split custody, shared custody] Let’s start with the word “custody”. Let’s talk about the noun and then we’ll talk about the adjective. So custody means where the children live and who makes the decisions regarding the children’s lives. So now let’s talk sole custody. The child lives solely with one person and solely that one person makes all the decisions regarding the children’s lives … Most common in situations where people split up, particularly where there has been a hightened conflict around the separation. And I’ll tell you why, and the best to answer that question why is sole custody more common in situtions of conflict is when we define what joint custody means. Joint custody is where the children primarily live with one parent but the two parents together discuss, co-operate and colaborate upon major decisions regarding the children, whether it’s schooling choices, or extra-curricular activities, or religious issues. So the questions gets asked, “Why would people agree to joint custody if …” (click here for more)

Video: What is the Responsibility of the Custodial Parent?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Peggy is writing to us and saying she has been the one carrying all the of weight regarding her child since birth. The child is now twelve and a half years old, and she’s in a new relationship, and this new partner that Peggy is with plays more of a role in the child’s life than the child’s biological father. And Peggy in her email even uses the word “Disn*yland dad” which is a word that you often times hear in family law circles about the “Disn*yland Dad”, the dad that picks up the kids on Saturday morning, takes them to see the movies or … does fun things with them, drops them off at the end of the weekend or the end of the day. And the heavy lifting, the homework, the changing, the cleaning, the home organization, the extra-curricular activities is borne by the other parent. So Peggy in her email is asking, “What does custody mean in a situation like that?” … Well the short answer to that is … (click here for more)

Video: What Does Custody Really Mean?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

One of the first questions in the separation process is, “What are we going to do with the kids? Where are they going to live?” And that’s where the word “custody” comes up. So it’s not uncommon for people to say, “Okay, look, we’ll split up but I want to share custody of the children.” And the idea behind that is that the word “custody” means where the children live, who has control over the children’s lives. No parent wants to divest themselves of their role and their responsibility in their child’s life. … The children that are under the age of ten where their voice is not very loud, and even if they could voice their wishes, people don’t give as much weight to it. So usually find the high conflict custody cases involving children from the age … from the newborn age up until the age of ten where the children’s wishes are not very vocal, certainly not very clear to understand. So for example, if a four-year-old says, “I want to live with my Father.” Is that because when the … (click here for more)

Video: Can You Control How Child Support is Spent?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Look, here is a situation where a couple split up. Dad is paying Mom child support. Dad expects that the money that Dad pays to Mom for child support is going to be used by the Mother to appropriately care for the child. So what happens in a situation where the Father sees the children and sees that the money that the Mom is otherwise collecting in child support she’s not using for the children she’s diverting for other causes. So that is a situation where the Father could certainly ask for proof as to where the money is going. If there is a question about the Mother’s ability to properly parent the children and Dad says, “Look, you know, I’m paying child support but I don’t see Mom holding up her side of the bargain.” This may very well be something that goes back to the topic of custody. May be Father is in a better position to provide for the children. … You have some serious reservations about the way that your [ex-wife] is carrying for the children. A) You should certainly consider writing her a letter or an email … (click here for more)

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

What is Mediation?

Mediation is a process whereby the spouses jointly retain a professional Mediator to help them reach an agreement that they are both comfortable with. Usually, only the spouses, without their lawyers, will meet with the Mediator. The role of the Mediator is to help the spouses arrive at their own agreement. The Mediator’s role is not to give an opinion or force one spouse to accept the other spouse’s terms. It is certainly not the role of the Mediator to give legal advice.

Even when the spouses decide to mediate their issues, it is most advisable for each spouse to have a lawyer provide him or her with legal advice.

Do both spouses have to be in the same room for Mediation?

The better the communication between the spouses, the more successful Mediation can be, because the spouses will each actively participate in the Mediation process. However, when the spouses are unable to deal directly with each other, Mediation can still be useful. In this case, the Mediator may start by meeting with both spouses to discuss the objectives of the Mediation and then separate them so the Mediator can meet with one spouse at a time, in different rooms. The Mediator can then shuttle between the two spouses to mediate an agreement.

Now that I have decided to separate from my wife, what is the process to settle all our outstanding issues regarding our children, support and property division?

Before a spouse can decide upon the process, he should obtain legal advice to determine what his Family law rights and obligations are. This is very important because the next few steps that he takes can permanently affect the outcome of his case and the legal obligations that he will assume. At this critical stage, each spouse should immediately obtain legal advise from an experienced Family lawyer.

Can you please list the different methods used to settle the outstanding issues?

Once the issues that need to be settled are identified and each spouse has obtained legal advice, the spouses may negotiate, mediate, litigate or arbitrate the outstanding issues. That is, the spouses may negotiate an agreement amongst themselves or instruct their lawyers to negotiate an agreement on their behalf. The spouses may agree to retain a Mediator to assist them in reaching an agreement, or one spouse may decide that it is necessary to obtain a Court Order and, therefore, decide to litigate. Alternatively, the spouses may decide to submit their issues to binding Arbitration.

What is Neutral Evaluation?

Other than Mediation and litigation, other methods that are available to settle the outstanding issues are Neutral Evaluation, Arbitration and Mediation/Arbitration. Neutral Evaluation is a process whereby the spouses jointly retain a professional evaluator, who is usually an experienced Family lawyer, to provide a formal opinion of the probable outcome of the issues presented to the evaluator. This process usually involves the participation of the spouses and their lawyers. The lawyers present the evaluator with a brief that consists of each spouse’s position, the relevant evidence and the legal authorities that he or she relies on. The purpose of Neutral Evaluation is to assist the spouses and their lawyers to overcome an issue that prevents the case from moving forward. For example, one spouse may believe that spousal support should be paid for a period of no more than 5 years, while the other spouse believes that spousal support payments should not end. In Neutral Evaluation, unlike Mediation, the evaluator is specifically retained to provide an opinion and the reasons for that opinion.

What is Arbitration?

Other than Mediation and litigation, other methods that are available to settle the outstanding issues are Neutral Evaluation, Arbitration and Mediation/Arbitration. An Arbitration is a process similar to litigation. The Arbitrator hears the evidence of each spouse, and the arguments made by each spouse’s lawyer, and then delivers a written decision that is as enforceable as a Court Order. An Arbitration is a formal process conducted under the Arbitration Act which requires the Arbitrator to comply with certain procedures. As opposed to the long wait to get a trial date in court, spouses who agree to submit to Arbitration jointly select an Arbitrator, sign an Arbitration Agreement and schedule a date for the hearing. Arbitration and the decision rendered by Arbitrator are usually kept confidential. The cost of Arbitration is either shared by the spouses or, if they wish to give the Arbitrator the power to award costs, the Arbitrator may order one spouse to pay the other spouse’s costs of the Arbitration.

What is Mediation/Arbitration?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are Neutral Evaluation, Arbitration and Mediation/Arbitration. Mediation/Arbitration is a dispute resolution method that is a hybrid of Mediation and Arbitration. There is a debate as to the propriety of a professional acting as both a Mediator (who does not give an opinion or decision) and an Arbitrator (whose only role is to give a decision). Mediation/Arbitration is prohibited by the Arbitration Act, however, the spouses may specifically waive that prohibition. In Mediation/Arbitration, the Mediator/Arbitrator first attempts to settle the issues through Mediation. Mediation may turn into Arbitration if the Mediator/Arbitrator determines that Mediation has failed. The Mediator/Arbitrator then ignores all the information that had been exchanged in the Mediation and hears the matter afresh as an Arbitration. The Mediator/Arbitrator cannot mediate while he or she is arbitrating and cannot arbitrate while he or she is mediating.

How can Mediation help us?

When a marriage ends, each spouse usually wants to resolve all outstanding issues as quickly and inexpensively as possible. But at the time of separation, there may be poor communication between the spouses. Although they may both want to resolve the same issues, they require a professional to assist them in arriving at terms that are fair and agreeable. A Family Mediator is a professional who will work with both spouses to facilitate a resolution of the issues that need to be resolved. Although many Family Mediators are lawyers by training, they do not represent either spouse. It is critical that each spouse retain a Family lawyer to be advised of his or her rights (before and during the Mediation process) and be provided with strategic advice. At the conclusion of a successful Mediation, the spouses will have arrived at terms of settlement that can be incorporated into a Separation Agreement. This is prepared by one spouse’s lawyer for review and consideration by the other spouse’s lawyer.

What are the different types of Mediation?

Before Mediation begins, the spouses will decide whether the Mediation will be open or closed. In open Mediation, the Mediator may be asked by either spouse to write a full report on what happened during the Mediation including the reasons why the Mediation was not successful. If the Mediation is not successful and the case proceeds to court, the report may be considered by the Judge. Also, the Mediator may be required by either spouse to testify in court. In closed Mediation, the information exchanged by the spouses is confidential. The Mediator’s report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed Mediation, neither spouse can compel the Mediator to testify in court.

What is the cost of Mediation?

Family Mediators operate as private businesses and are not regulated, therefore, their fees can vary. Some courts and community agencies offer Mediation services for fees that are charged according to the spouses’ incomes. A Family lawyer will be able to provide recommended names of Family Mediators and the availability of Mediation services through the courts and community agencies.