Family Law

Family Law (5)

Wednesday, 19 March 2014 21:09

Seperation Agreement

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What is a Separation Agreement?

Separation Agreements are legally binding contracts that resolve all of the legal issues arising out of a couple separating.

What is in a Separation Agreement?

Separation Agreements deal with the major issues arising out of a separation, namely, child custody and access, child support, spousal support, and the division of property. They also deal with many ancillary issue you might not have thought about, such as insurance, future changes in financial circumstances or with the children, and dealing with future disputes between you and your current spouse.

Do I need a lawyer for a Separation Agreement?

Yes. Separation Agreements are complex contracts that require very precise wording and attention to detail for them to be held up in Court.

What is Independent Legal Advice?

Independent legal advice means that a lawyer has taken the time to find out about the details of your situation, advised you of the law and how it is applied to the specifics of your situation, and explained to you what is in your Separation Agreement and ensured that you understand it.

Independent Legal Advice is NOT required for Separation Agreements to be valid. However, it helps ensure that Separation Agreements do not get attacked in the future. You do not want your spouse going to Court several years from now and asking the Court to throw out your Separation Agreement because they claim they did not understand what they were signing. Independent Legal Advice helps protect against this sort of thing happening.

Do I need a Separation Agreement before my divorce?

Normally, yes, the Court wants to make sure all of the legal issue are resolved prior to granting a divorce. It may be possible to separate the divorce from the remaining issues, but that is a complex procedure if your spouse does not agree to it.

Consultation

A 1 hour consultation to review the facts of your particular case can be obtained for a cost of $250.00. The purpose of a consultation is to provide a preliminary assessment of your case and potential legal options. Please call us at (613) 544-1482 to arrange your consultation.

Wednesday, 19 March 2014 21:06

Property Division

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How Property Is Divided Upon Separation

The increase in value of a couple’s assets during their marriage is divided equally between them when they separate. Important: It is not the actual assets that are divided, but the “value” of the assets, which are divided.

Calculating Your Net Family Property

The starting point for dividing property is for each spouse to calculate his or her net family property. To do this, you first calculate the value of all of your assets on your date of separation. From that amount, you then deduct the value of all of your liabilities on your date of separation. Next, you deduct the value of all the assets you had on the date you married. You also need to deduct the value of certain items that are not considered family property, such as life insurance proceeds, gifts from third parties, inheritances and personal injury awards or settlements. Finally, you add the value of all your liabilities on the date of your marriage. This figure is known as your net family property.

After You Have Calculated Your Net Family Property

After you have calculated your net family property, the spouse with the higher net family property is required by law to pay his or her spouse an equalization payment. The equalization payment is half of the difference between the two spouses net family properties. The equalization payment ensures that both spouses have equal net properties at the end of the marriage.

The Matrimonial Home

The matrimonial home is treated differently from other property in two ways.

First, unlike other property, if you owned the matrimonial home on the date of marriage, you do not receive a credit for it when you separate. (Note that if you have been married for less than 5 years, you can ask for an unequal division of net family properties if this creates an unfair result).

Second, it does not matter who has their name on the papers for the house, both spouses have a right to live in the matrimonial home.

The Items That Are Not Included In Net Family Property Calculations

As mentioned above, there are certain items such as life insurance proceeds, gifts, inheritances, and personal injury awards that may not have to be included in your net family property. To exclude these from your net family property, you must have kept these items separate from your other property, and be able to trace these funds from the day you received them. The only exception to this is again, the matrimonial home. You must include the value of a matrimonial home in your net family property even if you used proceeds from one of the above listed items to help pay for your home.

Reducing Your Equalization Payment

In almost all cases, you must pay the full amount of money to equalize your net family property and your spouses net family property. A Court will typically only reduce the amount of your payment if it finds the calculated payment would be unconscionable. It is rare that a Court will find this. A Court might reduce the equalization payment if you can prove that your spouse was reckless with family assets.

Business Value

If you own a business, the value of the business will need to be calculated, and this value will need to be included in your net family property. Normally, a business valuer will need to be hired to do a valuation of your business. This can be an expensive and complicated process, depending on the complexity of your business.

Pensions

Pensions are included in the Net Family Property calculations. The value of the pension for the years of the marriage will need to be calculated. A request of the pension administration must be made pursuant to The Pension Benefits Act.

Degree Or Licence

Courts have decided that your degree or professional licences are not to be valued and included in your net family property. However, if your spouse may be supported you while you were going to school for your licence or degree, your spouse may be granted spousal support by the Court.

Tax Consequences On An Equalization Payment

Equalization payments are not taxed. However, often as part of an equalization payment, various property transfers are made. There are special tax rules that allow RRSPs to be transferred between spouses as part of a divorce settlement so that there are no tax consequences. As well, often one spouse will be purchasing the other spouse’s share of property say, for instance, a cottage. There are tax rules that allow for the postponement of any capital gains tax, which the parties may elect to use, if they can agree on this.

Property Acquired After Separation

Your spouse is not entitled to a share of any property you may have acquired after your separation.

Equalization Payments Are Only For Those Who Were Married

Under legislation in Ontario, Canada you are not entitled to an equalization payment unless you were married to your partner. However, if you did not marry, you may still be entitled to a portion of your partner’s assets. You can file a claim for something called “unjust enrichment or “constructive trust”.   A Court may find that you have a valid interest in your partners assets and rule that you are entitled to compensation because you helped acquire them during your time of cohabitation. This is a very complicated area of the law.

Wednesday, 19 March 2014 21:01

Spousal Support

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Spousal Support Basics

In general, if one spouse earns more money than the other spouse, he/she may have to pay alimony, which is known in Canada as spousal support. There is no set formula for the amount of spousal support, although there are a set of non binding spousal support guidelines that judges and lawyers follow. Despite this, spousal support is decided on a case-by case basis, and there is a lot of variability in the results.

Gender

Officially, spousal support is not based on the gender of individuals. Men and women alike have to pay spousal support, although generally more men than women pay spousal support. However, the Court will not look at the sex of an individual and base their decision on that factor.

How Spousal Support is Determined

There are a number of factors that are considered in determining that amount of spousal support, including the parties assets, incomes, ages, health, standard of living, ability to be self-sufficient, contribution to each other’s career, length of marriage, and more.

Basically, a judge will review all of the economic factors that affect each party, with particular emphasis on the effect of the marriage and the divorce on the parties financial circumstances, then try to apportion the family income in a fair way between spouses.

There are also spousal support guidelines that guide judges in the exercise, but they are non binding on the judge.

How Long Must One Pay Spousal Support

For longer-term relationships, as well as in cases where the parties have children, the Courts generally do not place a time limit on spousal support. This does not mean you will need to pay spousal support forever or that you will receive spousal support forever. It just means that Courts do not want to engage in an exercise of gazing into a crystal ball too many years ahead to see what each spouse’s financial situation will be in the future. If you or your spouse’s financial situation changes materially, for instance when you retire, it is always open to you to go back to Court to end spousal support or change it to a different amount of spousal support.

In short-term relationships where there are no children, particularly when the couple is young spousal support is normally time limited.

A type of spousal support order that is becoming more common is known as a “review order.” Under a review order, the Court will order that the amount of spousal support can be reviewed after a certain number of years. This gives you the opportunity of going back to Court to modify your spousal support order without the necessity of showing that you or your spouse’s financial situation has changed. However it is not a guarantee that spousal support will be changed, a review order simply opens the door to allowing a Court to looking at the spousal support situation again.

Review orders for spousal support are commonly made where one spouse is out of the workforce, but is expected to get back into the work force, particularly after some training or education.

The Unfaithful Spouse

Infidelity has no effect on spousal support. It does seem unfair to pay a lot of money each month for the rest of your life to someone who spent their time having affairs while you spent it advancing your career. However, divorce, child custody, child support, spousal support, and property division are all no fault in Canada.

Is Spousal Support Tax Deductible?

Yes it is.       

Temporary Spousal Support, Interim Spousal Support & Permanent Spousal Support

Temporary or interim spousal support is spousal support awarded after separation but before divorce. This amount of spousal support is just a quick and rough amount determined to tide the spouses over until the divorce and more detailed analysis can be made. When the divorce is granted, spousal support is made final. However, the reality is that the amount of interim or temporary spousal has a great effect on the final order of spousal support; often the two are the same.

Spousal Support Guidelines

Determining the correct amount of spousal support is more of an art than a science. There are Spousal Support Guidelines in place to help make this determination.

The Spousal Support Guidelines are simply recommendations, not rules. However, judges generally follow them and the Courts have stated that if a judge awards an amount of spousal support that is significantly different from the Spousal Support Guidelines, the judge must give reasons why this is the case.

To calculate what the Spousal Support Guidelines requires, you need to use special software that family law lawyers and judges will have access to.

Here is roughly what you can expect (based on a paper by MacKinnon J and Murray)

  1. Where no child support is being paid, the recipient spouse’s income was 36.6% to 44.5% of the family’s net disposable income (income less tax, CPP & EI).
  2. In cases of shared or split custody the family’s net disposable income is divided approximately equally between the two spouses.
  3. When one child is living with the spousal support recipient, the recipient typically receives 45-50% of the family’s net disposable income.
  4. When two children are living with the spousal support recipient, the recipient typically receives about 55% of the family’s net disposable income.
  5. When three children are living with the spousal support recipient, the recipient typically receives about 60% of the family’s net disposable income.
  6. When the children are in the care of the spousal support payer, the custodial parent typically keeps about 60% of the family’s net disposable income. The spousal support recipient usually receives what would be given if there were no children.
  7. For higher incomes (family incomes of over $150,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower.
  8. For lower family incomes (family incomes below $50,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower, as there is simply not enough money to go around.
  9. If the spousal support recipient is not making good efforts to earn an income, normally a lower amount of spousal support will be ordered.
  10. If the spousal support payer does not voluntarily start paying spousal support right away, usually a higher amount of spousal support is awarded. Conversely, voluntarily paying spousal support right away normally results in a lower amount of spousal support being awarded.

Some important things to note about the amount of spousal support awarded:

  1. For higher incomes (family incomes of over $150,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower.
  2. For lower family incomes (family incomes below $50,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower, as there is simply not enough money to go around.
  3. If the spousal support recipient is not making good efforts to earn an income, normally a lower amount of spousal support will be ordered.
  4. If the spousal support payer does not voluntarily start paying spousal support right away, usually a higher amount of spousal support is awarded. Conversely, voluntarily paying spousal support right away normally results in a lower amount of spousal support being awarded.

The Limit for Spousal Support

It is important to keep in mind there are time limits that apply to the issues of spousal support. If a claim is not made properly then such a claim could be potentially barred.

Wednesday, 19 March 2014 20:59

Child Custody

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Best Interest of the Child

Child custody issues are always determined with one primary goal in mind, “what is in the best interest of the child?”.

Different Types of Child Custody

There are four different types of child custody in Canada. The first one is sole custody whereby one parent alone has custody of the child. Another type of custody, joint custody, is where both parents share custody of the child. A third type of custody is shared custody. In this case, both parents have joint custody of the child and each spends at least 40% of the time with their child. One final type of child custody is split custody. This is a rare type of custody. Split custody takes place when one parent has custody over some of the children while the other parent has custody over the others. Courts are quite hesitant to award custody in this manner as they don’t want to split up brothers and sister.

Access (Visitation)

Access (also known as visitation) is the time the non custodial parent can spend with his or her children. Only in matters where there are serious concerns about abuse or parenting abilities will a Court refuse to allow visitation rights or limit access to the child. In such cases, the Court may decide that supervised access, which often occurs in the presence of a social worker, is the best thing to order.

Along with visitation rights to the child, the access parent is automatically allowed by law to inquire about their children’s health, education and welfare.

Primary or Principal Residence

The primary, or principal, residence is one where the child lives. In other words, this is where the child spends most of his/her time. For example, parents may have joint custody of the child but the child may spend the majority of the time with the mother or father, thereby having his/her primary residence with that parent.

Wednesday, 19 March 2014 20:05

Child Support

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Paying Child Support                                                                                   

If you are the non-custodial parent or if your child does not reside primarily with you, then you are required to pay child support.

The law views child support to be a right of your children. It is not a right of the parents. The money is intended to be there to contribute to your children’s care and maintenance. The support is payable to the custodial parent or parent with te primary residence of the child.

Once parents are living in different residences, an obligation to pay child support automatically arises, regardless of whether there is an agreement or Court order to pay child support.   

Retroactive Child Support

As a practical matter your child support obligation will only commence when you and your spouse physically separate, so long as you continue to pay your share of the household expenses while you’re living under the same roof as your spouse.

In awarding child support, a Court normally will not go back more than a year before child support was originally requested, unless there is a good reason to do so (for instance, there was difficulty in locating the child support payer).

Child Support Amount

The amount of child support you are required to pay is determined based on tables that are a part of the Child Support Guidelines.

The two primary factors in determining the amount of child support you must pay is your annual income and the number of children you are paying child support for.

Calculating Income

A potentially contentious issue in many child support cases is exactly how much income the person paying support is earning. This is a primary concern when the person paying is self-employed.

One confusing aspect of income when it comes to child support, is whether net or gross income should be used-the answer is the gross income. For most people, this will be the figure you entered on line 150 of your T1 General Tax Return.

If you are self-employed, there will be an attempt to determine what your “true” income is rather than using your income for tax purposes. This is because often self employed people structure their compensation in ways that are advantageous for tax purposes, but do not properly reflect the income they have available to help their children.

So, for instance, if you are self-employed and you are leaving money in your corporation each year to reduce taxes, the money you leave in your corporation may be included in your income for purposes of determining the amount of child support you should pay. Similarly, if you are deducting home office expenses, these amounts may be added back to your income for the purpose of calculating child support.

The judge will also consider amounts the corporation pays to people at non-arm’s length (such as family and friends) and how these amounts affect the corporation’s pre-tax income.

There is a section of the Child Support Guidelines that provides the judge with powers to “impute” income to a spouse in several different cases. These include when that spouse is exempt from federal and provincial income tax, as well as non-residents who live in countries with lower income tax rates than Canada’s.

A judge can also impute income when a spouse is (or is thought to be) hiding income, is intentionally unemployed or under-employed, or receives a majority of income that is taxable at lower rates, such as dividends or capital gains.

Judges are also given broad power to decide whether expenses deducted from income are “reasonable.” This power allows then to disregard expenses, even if they are considered legal under Canada’s Income Tax Act.

Judges can also examine the payer’s income over the past three years to determine a “pattern of income.” From this pattern, the judge can set the payer’s income at a level deemed reasonable to account for any fluctuations that seem out of place.

Income Fluctuations

If your income fluctuates, you can request that the Court examine your income carefully to determine a reasonable average income, which can then be used along with the Child Support Guidelines tables to provide an appropriate child support figure.

The Court will examine your income tax returns (and any other documentation and financial records it deems appropriate) to determine a pattern of income. Additionally, this will help account for any major fluctuations that may occur from year to year.

Overtime and Bonuses

Generally, overtime is included on your T4 and entered on line 101 of your T1 General federal income tax return. As such, it is included in your calculation of income.

You can request that the Court examine your pattern of income over the past three years to ensure that the income used for calculating your support payments is not too far off of your usual or average income over a three or five year period.

Paying More

The amount of child support in the child support tables is just a base amount. In addition to the table amount, the Court may add amounts for special or extraordinary expenses.

Special or Extraordinary Expenses

Many different expenses can be considered special and extraordinary, and it really depends on the unique needs of your child or children. In general, these expenses include:

  1. Child care or daycare expenses required by the custodial parent’s employment, disability, or education program;
  2. Health related expenses, such as cosmetic surgeries, orthodontic work, psychological counselling, physiotherapy, speech therapy, drug costs, glasses or other vision aids, and hearing aids if necessary;
  3. Extended health and dental care premiums;
  4. Educational aides, tutors, and other special assistance for primary and secondary school students as needed;
  5. Post-secondary education costs (college, trade school, or university); and
  6. Any expenses for school, religious-based, or other recreational activities.

The after-tax cost of these special expenses is shared between the two parents in proportion to their incomes. The after-tax aspect is important as many special expenses, such as child care expenses, are also tax deductible.

Paying Less

Undue hardship exists when there are factors that make it difficult for you to pay the table amount of child support. The factors must somehow arise out of the relationship itself, such as debts incurred to support your family before you separated, unusually high access costs to visit your children, or a legal obligation to pay child or spousal support to someone else.

In addition to this, you must also show that paying the table amount of child support would mean you have a lower standard of living than your ex-partner.

In addition, the Divorce Act does recognize some special circumstances that may also result in less child support being ordered by a judge. Circumstances such as transfer of property or investments may reduce your child support as the transfer may be considered financially in lieu of child support payments. For instance, you may gratuitously transfer your share of the matrimonial home to your spouse so that your spouse can remain there with your children. In this case, you would most likely be entitled to a reduction in child support.

Another reason to pay a lesser amount of child support is if you and the other parent have shared custody. Shared custody means that both of you have custody, plus you each spend approximately equal amounts of time with the children. Note that shared custody does not automatically entitle you to reduce your child support payments. You must show that your increased costs of parenting the children for more time, and the other parent’s decreased costs of parenting the children for less time merits a decrease in child support.

In making an order for child support that is less than the table amount, it is required by law that the judge include a written statement detailing the reason why a lesser amount is being paid.

Summer Stays

If you are the parent paying child support and your child or children stay with you for an entire summer, you are still required to pay child support during the summer. The reason for this is that the custodial parent still has a lot of the normal expenses for raising the children even though the children are not there for instance, maintaining a larger home and car.

However, there may be mitigating circumstances that help you out with these payments. The so-called “40 percent” rule is one way that you can reduce your payments. If your children are with you for 40 percent of each year, approximately 146 days, then you might qualify to be considered for “shared custody.”

Life Insurance Requirements

Life insurance, with the other parent as beneficiary in trust for your child or children, is normally required in a child support agreement or Court order.

This is to protect your children in the unlikely event that you should pass away prior to your child support obligation ending. It is normal for both parents to obtain life insurance, even the parent who is not paying child support.

If the specified insurance was not purchased, and you should pass away, then your estate would still have a child support obligation.

Extended Health and Dental Benefits

Your child support agreement or Court order will normally require you to provide extended health or dental benefits for your children if these are available to you at a reasonable cost through your employment. Just remember that the premiums required for these benefits are not considered a part of your child support payments.

Taxation of Child Support

The tax status of your child support payments depends entirely on when you negotiated your child support agreement or when the Courts issued a child support Court order. After May 1, 1997, your child support payments are not tax deductable. On May 1, 1997, new Child Support Guidelines were brought into effect that cancelled a previous tax deduction.

In the case of agreements or Court orders made before May 1, 1997, the payer is able to deduct the child support payments from his or her total income. The payee is then required to claim the child support payments as income, and pay the applicable federal and provincial income tax.

If your agreement or Court order was made before May 1, 1997, you are covered by a grandfather income clause, which allows you to continue to deduct child support paid from his or her income. If you or the other parent would prefer or agree to use the new tax system, then you have the option of petitioning the Court to have the tax status of your current agreement or Court order changed to match the tax status set out in Canada’s Child Support Guidelines (or updated to reflect the Guidelines amount).

Use of Child Support

Parents have concerns that the money he or she is paying toward child support is not being used properly. Unfortunately, once the order for child support payments is in place, you have absolutely no control over how the child support is used.

The Court presumes that since the custodial parent is responsible enough to care for the child or children, he or she is also responsible enough to apply the child support payments appropriately in caring for the child or children.

The only part of child support payments that must be specifically directed are the special or extraordinary expenses.

Access Denied

Another concern for parents is that he or she will be denied access to their child but still be required to pay child support. There are absolutely no circumstances under which you can unilaterally stop paying child support, even if you are being denied access to your children.

Only a judge has the power to decide whether you should stop paying child support.

Visitation Denial

You cannot deny visitation just because you have not received child support payments, even if you have not received child support payments for several months. You are still required to comply with the terms of your access order.

You can get help from the government and the Courts to collect your child support. The Court has the power to very the terms of an access order when child support payments are not being made and there are significant arrears.

Unmarried Parents

You are responsible for child support for any child you have had, whether you married the other parent or not.

If the child’s paternity is disputed, you may be required or request to take a biological test to determine if you are the father.

Paying in Cash

It is inadvisable to pay your child support in cash. There would be no record of the transaction. You will then be vulnerable to a claim for the other parent that you never actually made the child support payment at all, unless a written receipt was obtained.

Generally, you can arrange for your bank to transfer funds directly to your spouse’s account, or you can provide a series of post-dated cheques each year. Either of these methods will ensure that you have an adequate record of the child support you have paid.

Spousal Support

If you are paying spousal support in addition to child support, you can deduct the amount of spousal support paid from your total income before your share of any special and extraordinary expenses is calculated. Similarly, the other parent would add on the spousal support they are receiving in calculating their share of any special or extraordinary expenses.

However, you may not deduct spousal support payments from the income used to determine your basic child support payments.

Child Support for Adult Children

If you are paying child support for an adult child who has left home to attend school, the amount of child support payable is left to the judge’s discretion. However, there are generally two different ways that child support payments are calculated in this situation.

The first is that you may be required simply to pay the amount shown in the table for your child, plus your share of a limited amount of the child’s expenses-normally, tuition, textbooks and residence.

The other method of calculation is to prepare a budget for all of the child’s living expense when away from home. This would include not only tuition, textbooks and residence, but all food, travel expenses, and more. You and the other parent would share the payment of this budget in proportion to your incomes. In addition to this, you would be required to pay a fixed monthly amount, often half of the table amount of child support, to cover the other parent’s fixed expenses, such as the child living there during holidays and the summer, as well as maintaining a house year round that’s large enough to accommodate the child.

Remarriage

If you are involved in a new relationship, you do not have to fear paying more child support based on your new spouse’s income, unless your current child support order includes an “undue hardship order to be re-examined if you get involved in a new relationship”.

If this re-examination occurs, the Court will compare the standard of living of both households, including the income of both spouses. The Court will be looking to determine whether you household still has a significantly lower standard of living than your ex-spouse’s.