Category: Child Support

If a child refuses to have a relationship with a parent and therefore repudiates the relationship with his or her parent, the question of whether that parent is still required to support the child is one of fact. To make this determination, a three-step analysis is applicable (Wegler v. Wegler; Caterini v. Zaccaria). First, is the person for whom support is sought a child of the marriage? Second, is the table amount in the Guidelines inappropriate? If not, then the Guidelines amount should be awarded. Third, if the answer to step two is “yes,” what level of support is appropriate? A parent who seeks to avoid or terminate child support on the basis of a mature child’s repudiation of the relationship has the onus of proving this defence. The onus is a high one. As part of this onus, the parent must show that they have made meaningful efforts to maintain a positive relationship with the adult child (Menegaldo v. Menegaldo). The focus of the analysis is whether there has been a “unilateral termination of the relationship” by the child (Caterini v. Zaccaria). In recent jurisprudence, courts may reduce, cancel, or suspend support to a mature child if that individual rejects a parent for no apparent reason, unreasonably refuses...

Family Law Issue The father in this family law case sought to reduce his child support obligation where he was terminated from his employment because of two criminal convictions. Facts In this family law case, the parties initially entered into a Separation Agreement dated June 1, 2005. In 2008, the father was charged with a drinking and driving offence. In 2009, the father was charged with another drinking and driving offence. As a result of these charges, the parties entered into an Amended Separation Agreement in April of 2009. Among other items, it outlined that the father pay child support to the mother based on an income of $70,941.00 based on the Federal Child Support Guidelines. In July of 2009, the father was terminated from his employment because of his criminal convictions. The father sought to vary his child support obligation in his family law proceeding as of the time he lost his employment. Conclusion & Analysis of the Ontario Court of Justice The Ontario Court of Justice determined that it would not vary the father's current child support obligation. The Court found that in order to vary an existing support order, there must be a change in circumstances since the...

Facts: In Fein v. Fein, a family law case, the grandparents funded the family's lifestyle and underwrote the grandchildren's education, health, welfare and upbringing generally. The grandparents directed decisions pertaining to issues of education, recreation, religious training and the moral upbringing of the grandchildren. They also provided the family with substantial amounts of money, which enabled them to enjoy a lifestyle beyond their means. When the parents’ marriage began to deteriorate, the grandparents withdrew their assistance from the mother and the grandchildren, and they suffered a dramatic decline in their lifestyle. Family Law Issue in relation to Child Support: According to family law, whether the mother was entitled to child support from the grandparents. Conclusion & Analysis of the Superior Court of Justice: The claim for child support could not stand against the grandparents. The Ontario Superior Court of Justice found that grandparents are not liable for child support of grandchildren where the grandparents do not live in the same house as the grandchildren & the grandparents have not established a parental role in relation to the grandchildren. The Court noted that it is not enough that the grandparents had played a very influential, controlling or interfering role in the family as a whole, or had been financially very generous towards...

Family Law Issue The Appeal in the family law case of de Somer v. Martin arises out of competing child support orders made in two jurisdictions, Ontario and Nancy, France. Facts In this family law case, the parties lived together in Toronto when their son was born. Shortly afterwards, the parties separated. They resolved all of the issues relating to family law. The parties' Agreement specifically made mention of the following: a. Ms. Martin, who was to have custody of the child, would be moving to France. b. The Canadian Federal Child Support Guidelines was to be used in order to determine Mr. de Somer's child support obligations. c. The parties did not want any court to change the terms of the Minutes of Settlement. Overview of Lower Court Decision In 2004, O'Connell J. on consent of the Mr. de Somer and Ms. Martin, granted judgment in accordance with the parties' agreement and ordered that the father, Mr. de Somer, pay child support in accordance with the Federal Child Support Guidelines. In 2007, Mr. de Somer brought a motion before the Ontario Superior Court for an order terminating his child support obligation in his family law proceedings on the basis that he had no income. The motion...

With respect to child support in Ontario, in family law, the parent with whom the child primarily resides is entitled to a basic or a Table amount of child support to compensate him or her for money spent on the day-to-day care of the child. The Table amount of child support in Ontario is determined on the basis of the income of the payor (the person who is paying support) and the number of children that he or she has. Ontario has a separate Table in order to determine this amount. In addition to the basic amount of child support in Ontario, you may have an obligation to pay for section 7 expenses for the child. According to section 7(1) of the Federal Child Support Guidelines, examples of some of these expenses include: Child care expenses incurred as a result of the custodial parent’s employment or illness; The portion of the medical and dental insurance premiums attributable to the child; Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist, or any other person; Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; and,...

My spouse quit his/her job, and I believe that s/he did this so s/he would have to pay less child support in Ontario. What can I do about this? The amount of child support in Ontario that each parent is obligated to pay is determined by numerous factors as outlined in the Child Support Guidelines. These factors include but are not limited to: The child’s or children’s needs; The number of children; The income of both parties; and, The custody arrangements. Although it is not common, there are those who believe that by quitting their job, or deliberately reducing their income, they can minimize or completely eliminate their obligation to pay child support in Ontario. If a court believes that a parent is deliberately reducing his or her income to lower or to avoid child support payments, the Child Support Guidelines in Ontario provide the courts with the power to impute income to a parent. This essentially means that, despite what a parent's actual income is or what the parent's tax return states, the court can determine the level of income a parent has for child support purposes and order child support in Ontario based on this 'imputed' level of income. Situations...

In Tookenay v. Laframboise, 2015 ONSC 2898 a husband and a wife had separated after a seven-year marriage. They had two young children, being eight and four years old at trial in this case. The following issue came before Justice Newton on the issue of child support - when determining the father’s child support obligation, should an annuity he receives from a personal injury claim (settled when he was two years old) be included in determining his income for child support purposes? The father’s position was that the annuity should not be included in his income because it was intended to repair the damage he had suffered from an accident. Justice Newton found that the monies used from the settlement for ordinary expenses ought to be included as income. However, monies from the settlement, which were used for medical expenses or rehabilitation expenses should not be imputed to the father as income. Justice Newton ultimately finds that half of the monthly annuity payments were income. To learn more about child support and our team of lawyers at Krol & Krol, click here.

In the event that your former spouse has accepted the responsibilities of being a parent to your child from a previous marriage throughout the duration of your marriage, then the child may be considered to be a child of your current marriage. If the child is deemed a child of the marriage, then you have a right to ask your spouse to pay child support, even though he or she is not your child’s biological parent. In other words, if a judge rules that your former spouse acted as a parent to your child (or what is referred to as acting ‘in loco parentis’), then your spouse will be required to pay child support in accordance with the Child Support Guidelines. While referred to as "Guidelines," this legislation is mandatory. According to section 5 of the Child Support Guidelines: Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is an amount that the court considers appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child. However, you should be careful when asking for support payments from your...

Child support and spousal support obligations are a function of the payor’s income. Given this, some payors attempt to conceal or undervalue the income he/she earns. In those circumstances, the recipient of support may choose to bring a motion before the Court with respect to the imputation of income. In that case, the question is whether the payor is capable of earning more money and whether the payor is purposely under-earning with the intent to reduce their support obligations. However, in a situation where the payor of support has not been in the workforce for many years and has, thus, made no reasonable efforts to secure employment, can a Judge rule in his/her favor with respect to the issue of imputation of income? In the case of Toscano v. Toscano, 2015 ONSC 487, Justice Blishen dealt with similar circumstances and rules as follows: "Ms. Toscano was 46 years old at the time of trial, is in good health and has a Business Administration diploma. She had work experience both before marrying Mr. Toscano and with Talos Homes during the marriage. I recognize that Ms. Toscano has been out of the work force entirely for at least 13 years, and that her education and work experience continues to decrease...

At the outset, it is important to note that child support, pursuant to the Child Support Guidelines, is supposed to be recalculated on a yearly basis. On the issue of child support payments, the child is entitled to benefit in the payor’s post-separation increases income in the form of increased child support payments. In situations where there is an existing order and/or agreement, one would bring an application to vary the existing order and/or agreement. If the application to vary the existing order is granted, then the amount will be adjusted in accordance to the new income of your former spouse. The issue of a payor’s post-separation income increase and spousal support is less clear. Lawyers and judges alike continue to grapple with this issue. While this question usually arises during a review, it can also arise during the time of the initial order. The following are some general principles applicable to this issue: It would be incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the parties’ incomes at the time of separation is the only relevant income in determining spousal support. It is also incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the...