Canada Legal .com Articles

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

Jurisdiction: Ontario (Canada)

“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 is 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.

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

Jurisdiction: Ontario (Canada)

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 2 children whom reside with their ex-wives. All 3 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 5 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 3 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% of the time. But this does not help Joe or 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 and 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.

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

Jurisdiction: Ontario (Canada)

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 2 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 2 children, his decision had a significant negative impact on his 2 children.

The father was ordered to pay child support for his 2 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.

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

Jurisdiction: Ontario (Canada)

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.

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

Jurisdiction: Ontario (Canada)

“What can a spouse be entitled to after an 18 month marriage ?” $500,000. Yes, 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 3 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.

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

Jurisdiction: Ontario (Canada)

MPP Sandra Pupatello, the new Minister for Community and Social Services, is scheduled to announce today (February 6, 2004) her plan to crackdown 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 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:

• collecting funds from federal sources (such as 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 licence
• taking the payor to court

The new measures are to include:

• up to $40 million on a new case-management computer system
• special teams dedicated solely to tracking down deadbeat parents and finding a way to get them to pay the money they owe
• providing parents owed support with Internet access to their file
• providing parents with a toll-free telephone number and to separate urgent calls from non-urgent calls – with the intention of alleviating the long waiting periods
• efforts to form alliances with credit card companies for access to information to track down deadbeats parents

Time will tell to see if the Ontario government acts on its promises to collect the $1.2 billion in monies owing for child support in Ontario.

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

Jurisdiction: Ontario (Canada)

The Child Support Guidelines states 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 payer 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 payer’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.

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

Jurisdiction: Ontario (Canada)

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 8 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 that 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.

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

Jurisdiction: Ontario (Canada)

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.

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

Jurisdiction: Ontario (Canada)

“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 for 10 years that he was the biological father of twins, 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.