Understanding the various laws surrounding child-related issues in divorce is important for any parent considering or experiencing the divorce process. The Ontario laws and regulations surrounding child custody will directly impact your family’s future, while the nuances of child support and spousal support agreements will play a major role in contributing to or detracting from your financial stability.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: Family Lawyer – Gene C. Colman. For over 35 years, Gene C. Colman has been providing trusted legal guidance to clients facing the complexities of the family law system in Ontario and worldwide. He is trained in mediation and values alternatives to divorce litigation, such as collaborative family law. Learn more at www.complexfamilylaw.com.
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Read the Transcript of this Podcast Below.
Let’s get started with child custody issues. How do the Ontario courts determine child custody issues and what factors apply?Colman: First and foremost, the court is going to consider what is in the best interest of each individual child. There is no particular cookie cutter approach, but the statutes and the case law directs us to certain factors. I will go through just some of them.
The love, affection, and emotional ties that a child has with each parent and the ties the child has with extended family. The courts will consider all the persons that were involved in the child’s care and upbringing, and that’s where grandparents come into play very strongly, especially if they live with the parents. If the child is old enough, the court wants to know what the child’s views and preferences are. That doesn’t mean the child gets to decide at age 12, as some people think, but rather the child’s voice is heard and taken into consideration. It’s important to look at the length that the child has lived in a stable home environment. If the case comes before the court and the parents are already separated, and one parent has been moving around a lot and one parent is stable, that’s going to be very important for the court.
Is one parent likely to be granted sole custody? How does it work?
Colman: Generally, courts don’t like to upset the status quo too much. If the parents have been separated for some amount of time—there’s no magic number—and the child has been with one parent with the approval of the other, then courts are likely, not always, but likely to leave the situation as it is. However, that’s only one factor and you can’t say only one factor in any particular case is going to have swayed the vote. There are many other factors. You need the advice of an experienced family law lawyer. You need to get your whole story out and let that lawyer help organize your case in such a way that it will be persuasive, whether you are mediating or in the collaborative law process or before a judge.
If the couple is not married, but they are common law and wish to separate, who gets custody of the children in that case?
Colman: Most of what I’ve said so far applies in that same situation. We have a provincial statute, the Children’s Law Reform Act, that outlines the main factors involved, and that applies to common law spouses. I would say it used to be, many, many years ago, that the mom would be the default parent. You find that to some extent today, but if dad has been a very involved parent, and has been what we call the primary caregiver or the primary parent, then chances are dad will obtain custody. In dealing with the previous question, let’s not focus on a winner‐take‐all situation. Joint custody or shared parenting is a viable option for many parents and that certainly needs to be investigated and
Is the trend now for shared parenting or joint parenting, as opposed to sole custody?
Colman: I think so. I’m told that one of my colleagues in Vancouver that there seems to be a passive presumption that, all things being equal, we’re going to have both parents involved and there will be some sort of shared parenting regime, including shared decision making where appropriate and where the parents are able at least to minimally communicate.
Some judges in Ontario are very much in favour of having a shared parenting or joint custody regime, and some are more resistant. Hopefully the judges, mediators, and lawyers that are dealing with these issues are more trending towards shared parenting, and that’s what I perceive. Of course, as you indicated in the introduction, because of my background in this movement I am biased. I am advertising my bias, but even those lawyers and other people involved in the process that are sceptical about shared parenting recognize that keeping both parents involved in the lives of their children makes for better outcomes for the children.
Gene, I work with family lawyers across Canada and the United States and it seems like the curve is going towards more shared parenting than the other way. I’m in agreement with you that that’s the trend.
Colman: I would just like to add that there are a number of states in the United States that have a rebuttable presumption in favour of equal shared parenting, with Arizona being one example.
If one spouse wants to move out of the province or country with the child, can this be stopped by the other spouse?
Colman: Yes, it can. In those precipitous situations, where one parent gets word that the other has tickets to go to some other country tomorrow without a court order, then you can apply to the court on an emergency basis and obtain an order restraining that move. Where it’s not urgent, if the parent who has the child most of the time says, “I’ve got this great job opportunity out in Edmonton and I’m going to go if it’s okay with you,” and the other parent says that it really isn’t okay with them, then they can try to mediate it. They can try a collaborative law approach and they can try arbitration where there’s basically a private judge, or they can go to court and have someone make the decision for them.
My general advice for those who want to remove a child from Ontario and go elsewhere is to come up with a creative but practical plan that will keep the parent left behind fully involved in the lives of the children. If you do that, maybe the parent left behind will recognize the wisdom of the move. Don’t just take off, that’s no good. The courts are very severe with parents that use self‐help to change jurisdictions.
Let’s talk about child support, the exchange of money. How does an Ontario court determine what the child support should be and who should get it?
Colman: There are two statutes dealing with child support—one federal and one provincial—but both have regulations under them called the child support guidelines. The child support guidelines have attempted to simplify child support. Let’s say the parent that does not have the children 40 percent of the time—normally called the access parent—earns $50,000 per year and there are two children. We have a chart and we look to see where two children intersect with $50,000 and that gives us a base amount. For the base amount, it’s pretty straightforward. There are extra expenses called special or extraordinary expenses, or called section seven expenses because of section seven of the guidelines that deal with them. Those are shared in accordance with the percentage of incomes of each parent. The section seven expenses include daycare if it is needed for a spouse to go to school or work, and it would include medical expenses over and above $100, and all sorts of other expenses.
What happens if somebody remarries and possibly has more children? Will the child support agreement or order change in anyway?
Colman: In some situations, you would be able to get a change, but the trend that I’ve seen since the child support guidelines established in 1997 is that courts are reluctant to give you a reduction just because you went and made more children.
There are situations where people have successive relationships. If a parent is paying child support for family A and has a new family that they also split from, then family B would also receive child support. That parent is going to be paying more for two children in one family and two children in the other family then if he or she had four children with the same family. We want to be fair to all the children and we want to be a fair to the payor as well, but the fairness to the payor is trumped with fairness to the children. On the other hand, a payor may not be able to pay the amounts. The amounts are premised on one family and that’s how they are calculated. When you remarry or re‐partner and have more children, whether you split with them or you’re still with them, you still have to support them. Plus, you still have your first family to support; it can become very financially onerous. There are no easy answers to these questions. If the listeners would like to refer to my website, there is an article about this particular problem.
Can the amount that a spouse pays for child support change over time in Ontario?
Colman: It certainly can. Of course, if your income changes then your child support should change. Additionally, if your child becomes 18 and goes to college or university, then different factors are going to apply. It’s not as simple as I stated previously. If there are three children and one child is no longer eligible for child support because he or she works and is no longer in school, there are means of changing the child support and there are even institutionalized means in the family law rules where you can do it on consent.
Let’s move on to spousal support or what most people would refer to as alimony. How do courts determine spousal support issues and what sort of factors does the court consider?
Colman: Let’s look at the Divorce Act and summarize the factors that go into spousal support without giving a whole law school lecture. We are going to consider the conditional needs and other circumstances of each spouse including—here’s the important part—the length of time that the spouses were together.
Secondly, the functions performed by each spouse during the time they were together and whether they’ve made any agreement or arrangement relating to support. We’re considering the length of time, functions performed, and any agreements, but we have to keep in mind the general objectives of spousal support. We have to recognize any economic advantage or disadvantage of each spouse that arises from the marriage itself and the breakdown of the marriage. We have to apportion between the spouses any financial consequences arising from the care of the children over and above child support. Yes, you have to pay child support, but here it’s worked into spousal support as well.
Thirdly, we want to relieve any economic hardship arising from the breakdown of the marriage, and that is a needs based argument. Finally, you want to promote economic self‐sufficiency of each spouse within a reasonable time. That’s basically the statutory framework and applying all those factors can be quite complicated at times. What did the federal government do to make it more simple? They hired two very eminent law professors to come up with guidelines called the Spousal Support Advisory Guidelines, with the emphasis on advisory. I said that child support guidelines have the force of law, because their regulations are under the statute. Spousal Support Advisory Guidelines, also called SSAG or SAG, don’t have the force of law, but we have a research paper that tells us how we should order spousal support. It tells us what the range of spousal support should be based on the incomes of the parties and other factors, and it tells us the suggested duration of spousal support.
Those professors looked at literally thousands of cases, sent the factors into a computer, and came up with interrelated mathematical formulas that give us these ranges in terms of spousal support amount and duration. They say in their research paper that these advisory guidelines are only to be used to double‐check your independent analysis based on the case law and based on your assessment of the case. We look at all the factors and come up with a number based on case precedent. They’ve tried to mathematize the process and suggest that we might want to check our results against the Spousal Support Advisory Guidelines.
It’s not clear to me how, but the courts of appeal have stated that it is an error in the law not to refer to the SSAG when ordering spousal support. It is simply an academic advisory research paper, but this what the courts of appeal have said, including the Ontario Court of Appeal. I find the SSAG to be helpful, but in some cases I am amazed by the print out because I know that’s not the way cases are going now. It really is beyond the scope of most lay people. I would encourage people to try to read the SSAG to try to understand what I’ve stated better. However, to apply the SSAG practically and to determine whether the SSAG are giving you a fair amount of spousal support and a fair recommended duration, you really need an experienced family law lawyer.
What might cause somebody to be denied spousal support? Are there factors that would be included there?
Colman: Under the Ontario Family Law Act, we have a very interesting provision that is not found in the Divorce Act. The Ontario Family Law Act says that we can consider an obvious and gross repudiation of the relationship. I don’t want to go into the terrible things that it could be, but it has to be something pretty extreme to get denied. Many, many years ago, if a woman engaged in an extramarital affair, she might have been denied spousal support. That is no longer the case, of course. Spousal support is based on the factors that I outlined earlier and if you fall within those factors, then you will have spousal support.
Some people think that remarriage of a spouse cancels the spousal support, but it doesn’t necessarily. The nature of the spousal support that was ordered in the first place is important. Was it based simply on means and needs? If it was to compensate somebody for the roles they assumed during marriage and the person remarries, then spousal support can continue. If the person remarries someone with a lot of money, that might have a certain effect. If someone remarries someone that is poor, it’s not likely to have much of an effect.
If one spouse loses their job after the divorce has been granted, can they go back to modify the order to include spousal support when spousal support has been amended in the initial agreement?
Colman: If spousal support has been omitted and the order or agreement is silent as to spousal support, then it is possible to go back. If spousal support was signed off on with a full and final release, there are some cases where a person is able to make modifications. Those are cases with pre‐existing separation agreements where they signed off on spousal support, but there wasn’t independent legal advice or there wasn’t complete financial disclosure. Or if the agreement itself was not in accordance with the general principles of the Divorce Act, then courts have reopened the issue. That might then raise the question of what’s the good of a separation agreement? I have taken the position that it’s fine to have a separation agreement, but you want to have a court order as well. Once the agreement is made, assuming it is made with full disclosure, independent legal advice, and was conducted in a fair and open fashion, you want that to be final. It is possible to go back, but it is an uphill battle at times.
If a spouse loses their job after the divorce was granted, that was unforeseen presumably. However, the payor or spouse can definitely ask that the support be reduced until such a time that they can bring their income back up to what it was.
We’re going to end by talking about the enforcement of support. Could the non‐payment of spousal or child support be enforced by an individual or would they need to seek the help of a lawyer?
Colman: In Ontario—and indeed in the other provinces and territories—we have an organization, the branch of the Attorney General Ministry called the Family Responsibility Office, that is statutorily mandated to collect child support and spousal support. Every court order is automatically filed with the FRO, so you don’t have to do anything. This government agency enforces support. They have very effective means at their disposal and are able to collect the support, or at least from people who are employed or those who are self‐employed and pay voluntarily. It’s very good from the perspective of the support recipient, because she or he receives the support on a regular basis. It’s very good for the support payor, because someone is independently keeping a ledger of what’s being paid so we’ll get rid of any arguments based on cash payments. You pay the FRO and it’s very easy that way. Also, when an order is made, you can set up for an automatic deduction from your bank account. If you don’t do that, the FRO will come in and take it off your wages. When you get the final package from the FRO, most lawyers advise that you fill out the form to take it out of your bank account every month without involving your employer. There’s a ledger kept.
If the support payor is not regularly employed by a third party or if they’re self‐employed and don’t voluntarily pay, then the FRO can go after them, too. The FRO has various means, such as cancelling passports, cancelling driver’s licenses, ceasing bank accounts, putting a lean against any land owned—and all of this is done free of charge for the support recipient. In particularly complex cases where the FRO has not been able to accomplish anything and you know what there is to accomplish, you are free to withdraw from the FRO and hire a lawyer to enforce. Of course, that costs money. I see the FRO system as one that is very good for support recipients and has certain advantages for support payors as well.