Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

Guest post by our lawyer John Ewen

People will often say to me when I first meet them for a consultation “My ex and I are trying to figure out a fair amount of child support, but we’re stuck. Do we just use the Table?”

As with many questions about the law, the answer is: “It depends”.

The ‘Table’ refers to the table of Federal Child Support Guidelines. This is essentially a big chart that shows what payments parents make based on their income level and the number of children they are paying support for.

When Child Support is Paid

But when do you use it? The answer is, when children are considered to be residing ‘primarily’ with one parent (60% of the time or more), the law assumes that parent is bearing most of the costs of raising the children.

The idea behind the Table is to determine an amount the other parent (who has the children less than 40% of the time) should pay to make their ‘fair contribution’ to those costs of raising the kids.

But what happens if the children reside more than 40% of the time with both parents? How is child support determined then? Do we still use the Table?

Well, the answer is yes, but often times the Table amount is modified (reduced). This reflects the fact that when children live with both parents more than 40% of the time, they really have two homes, often with similar expenses (both homes need groceries for the kids, beds, furniture, toys and so forth).

Both of those households will have expenses in raising the children. That’s why having one parent pay the full Table amount in this situation isn’t always fair. To find out how child support is calculated in this situation, go to this article. 

How Do We Count 40% ?

Okay, so we know there is a threshold of 40%, and if your children live with you more than that, it’s ‘Shared Custody’ – child support is dealt with differently than the Table.

But who determines what 40% really means? How do we count it?

A lot of people ask me this. I get questions like:

“My children spend 3 days a week with me – 3 days out of 7 days in the week is 43% - isn’t this Shared Custody?”

“My kids spend more waking hours with me than with their other parent. That meets the test, right?”

“Whose custody are they in when they are at school or activities? If at the end of the day they are sleeping over at my house, isn’t all of that day considered time with me?”

The answer is, there is no clear answer! Different lawyers and Judges determine Shared Custody in different ways. Some Judges count only where the child puts their head down to sleep at night, some count the hours spent with each parent, some include school time or time spent at extracurricular activities, some just count the actual time spent at that parent’s home.

Many cases are disputed very far in our Court system because of this ambiguity. The Ontario Court of Appeal released a decision in 2005 called Froom v. Froom. This was an appeal from a Trial Judge’s decision to a higher Court.

The father had won at the Trial level because the Judge found he met the 40% threshold based on the number of days his children resided with him. On the appeal though, it was acknowledged that if the Trial Judge had counted the hours, and not days spent with the Father, he would not have met the 40% (and so would have paid Table support).

But the Court of Appeal upheld the Trial Judge’s decision – they said that there is no universally accepted method for determining the 40%. They said the Trial Judge’s method (counting days instead of hours) was consistent with what many Judges do – try to avoid rigid calculations and instead look at the bigger picture.

What does this mean for the rest of us? It means there is no right or wrong way to calculate the 40% rule. If you and your spouse are not able to reach an agreement on whether you have Shared Custody, a judge may have a lot of discretion to in deciding it.  

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Introducing my new son: Liam Galbraith. 6 lbs 12 oz. 21 inches. Happy and healthy.

I am 47 years old and have 4 sons aged 19, 16, 13 and just a few days old. Ten years ago, I could not have imagined how my family has changed. At that time, we were "mom, dad  and three sons". Now, we have new titles: ex-wife, ex-husband, step-son, half-brother, step-mother in addition to  mom, dad, sons and  brothers... oh and "step-grand mother", "step-great grandmother" and more! The list of titles has become quite long.

I have mixed feelings about these titles.

After I separated, it was important that I be very clear that only two people could use the titles "Mom" and "Dad" in our family, regardless of any significant others that came into our lives. I guess I felt a bit insecure about some new-comer trying to usurpe my role as father. Now, I am not as concerned with these titles; I know that our boys know in their hearts who is their mom and dad regardless of any new partners. But, I guess I like the title and would not want to share it. 

"Step-mom" is a loaded term. It seems to go along with the term "evil" as a result of some nursery rhymes. It is not a title we regularly use. My kids call my wife by her first name. But, if a teacher or someone just meets my wife and looks quizzically at her, wondering how such a tiny, young French-Canadian woman could have such huge, teenage boys, my son might say "oh... she's my step-mom".  One teacher said in response "Oh. I see. Parents are getting younger and younger every year!" We had a chuckle.

The title "ex-husband" or "ex-wife" also has negative connotations. Perhaps it comes from the natural inclination to find blame with someone, or maybe it just feels so exclusionary - like we are just part of the past. We may not be married but we still parent three sons together so communicate regarding parenting decisions almost daily. In a way, she's still part of my family. So, I usually introduce her as "the mother of my boys" - because that also describes our ongoing parenting relationship. (Hmmmm with the arrival of Liam, I may have to alter that introduction a wee bit!)

Liam has three "half-brothers". I too have a half-sister but you would never know it. She's "my sister". To me, the term "half" suggests she is half sister and half something else which begs the question "what's the other half?" In fact, my sons did not know she is technically my "half-sister" until my father's funeral this past May. To me, she has always been and will always be my sister. Period.

Titles help others understand the complicated nature of our family but they don't tell you anything about the state of the relations. Sometimes "dad" means "source of all wisdom and humour" but lately I think it may mean "embarrassing old goof". Either way, I know my boys love me deeply, even if they prefer I sit in another room occasionally! .... Whatever.... 

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There is a new website for kids whose parents are going through a divorce. It's called Changeville.  It teaches kids what happens when their parents separate in an entertaining, online way. The tour says "A walk through Changeville will tell you what to expect and help you deal with all the different feelings you might have and along the way there's all kinds of fun games and activities!"  

Legal words and how kids are looked after is explained on Legal Street. On Break Up Street, kids learn what can happen during the process when their parents are going through rough times. There also is a section where kids can create some art.

What a great tool for kids.

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Every parent going through a divorce wants to minimize the emotional pain and struggle for their children. The challenge is recognizing that your child  is suffering and then knowing what to do. Suzy Yehl Marta, an expert on children going through divorce, offers some advice.

Suzy, a divorced mother of three boys, gave up the security of her three jobs to do something she knew in her heart had to be done for our youth who were grieving a life-changing loss.  She established Rainbows, now the world’s largest nonprofit organization dedicated solely to helping families cope with loss. Over the last 27 years, Rainbows has served nearly 2.5 million youth throughout Canada, the United States and 17 countries. Suzy has conducted 100+ media interviews and her book, Healing the Hurt, Restoring the Hope, was published to help guide youth through times of divorce, death or crisis. For more information about Rainbows go to their Canadian website www.Rainbows.ca or the US site www.Rainbows.org. 

Suzy has answered some questions about how to support your children through your divorce. 

1. If a child’s performance at school begins to suffer, how can a parent best deal with this? How can it be prevented in the first place?

The school is a great resource for parents and too many are embarrassed to reach out and ask for help. Discussing the divorce with the child’s classroom teacher and school counselor will help create a safety net when a parent is not around. As a result, parents will be informed on how their child is doing academically and socially. Undoubtedly, your child will be hurting from the family changes and it will show up in school, but over time and with support, the child will incorporate the changes into their life. It is extremely helpful if kids have structured opportunities to talk with other kids who are experiencing the same changes in their families. A program like Rainbows offers support groups for kids in their communities at no cost to the family. 

2.  What are the main behavioral issues children going through a divorce may exhibit? How can these be identified quickly and be dealt with?

Denial, anger, confusion and fear are the main causes of behavioral issues. Each child has a different story and relationship with divorce and we can’t assume that each child will respond in a similar pattern. Behavioral issues can range from drop in grades, being alone more often, or withdrawing from friends, sports and activities that they were involved in earlier. Some kids do not want to sleep alone, they are clingy or their appetite might change. Teens and young adults with built-up grief might turn to drugs and alcohol to temporarily forget the reality of the divorce.  If these changes become extreme or long lasting, the parent is wise to seek out a counselor who understands grief and the impact of divorce on kids A parent must take the time to work through their own grief, but also make sure that their children have a program to turn to like Rainbows, where support and love is still given. Compassion and willingness to make time for a child are the two most critical elements of helping a grieving child. The divorce of one’s parents is woven into each child’s personal history. While the divorce may be the best decision for the health of the family, it takes a long time for the children to recover. Parents need to have patience and understand that divorce impacts their children twice as much as their mom and dad. When the divorce takes place, not only does one parent move out, but both parents change and often remarry which creates even more change for the kids.

3. Other insights/advice on the subject?

Each parent has the power to add to their children’s lives and can help them develop into the best adults possible. As a parent, no matter what the situation is, it is critical to be dependable; children will begin to feel comfortable enough to talk to a parent about the most important decisions. Life will never be perfect and there many things that parents can’t predict or control, but that does not mean that a parent cannot instill a wonderful life for their child. Spending quiet time with each child every day will continue to make the relationship stronger. The parent should listen without judgment, letting the child feel the care

4.  How can a parent help his/her child’s best friend during a divorce?

The best way to help a child’s best friend is through compassion for the family. All too often, divorcing parents and their kids are shunned. Reaching out to the parents and offering assistance helps them realize they are not alone. Also, inviting the little friend over to spend time with your child and family from time to time can give the parents alone time to process their own grief, while taking stress away from the child. If the relationship with the child is close, asking how they are doing or setting time aside to listen is appropriate. What the child usually needs is the continued friendship of your son or daughter, a fun place to hang out, and perhaps an adult they can trust and turn to if the need arises.

Thanks so much to Suzy for her insight and thoughts. I fully support the work of Rainbows and in fact I am presently serving on the Board of Directors of Rainbows Canada. All children whose children are divorcing can benefit from Rainbows.

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 There is an interesting article in Mashable Social Media. It quotes David McCandless's research as to when people break up according to their status changes on FaceBook. Apparently Mr. McCandless looked at the status changes of over 10,000 people who claimed a break up or separation. It is a  very interesting article. Here are the results graphically: 

Mondays are popular. Christmas Day is not. Generally break ups occur just before major holidays. It looks like April Fool's Day is a popular day to end relationships. Even Valentine's Day sees many break ups. Interesting research. 

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Are you dreading the idea of having to tell your children that their parents are divorcing? Do you want to minimize the pain and confusion for your children?

I remember the day when my ex and I told our children we were getting a divorce. It was a sad day indeed. We got some good advice from some experts before we did it so we did it right. Suzy Yehl Marta is an expert and has some great ideas.

Suzy Yehl Marta, a divorced mother of three boys, gave up the security of her three jobs to do something she knew in her heart had to be done for our youth who were grieving a life-changing loss.  She established Rainbows, now the world’s largest nonprofit organization dedicated solely to helping families cope with loss. Over the last 27 years, Rainbows has served nearly 2.5 million youth throughout Canada, the United States and 17 countries. Suzy has conducted 100+ media interviews and her book, Healing the Hurt, Restoring the Hope, was published to help guide youth through times of divorce, death or crisis. To learn more, please visit 

the Canadian website at www.rainbows.ca or the website for the head office at www.rainbows.org  or join Rainbows on Facebook and Twitter at www.facebook.com/rainbowsforkids and www.twitter.com/rainbowsforkids. 

I fully support Rainbows and recently was asked 

to serve on its Board of Directors for Rainbows Canada. The head office for Rainbows Canada is 

in Barrie so it was a perfect fit. I was happy to accept the invitation.

Suzy answers some questions about how best to tell your children about your divorce. 

1.      What is the best way to inform a child about divorce? How do you explain the situation to them; and should this differ according to age? How much information should you actually give, and what should you perhaps leave out?

Informing the Child:

As soon as the decision to separate or divorce is made, both parents need to sit down with their children to discuss how the family will be changing. Having both parents present 

makes a statement that while mom and dad will be living separately, t

hey are still your parents and family issues are being handled together. This may not be true initially, but this can offer comfort to the children. If one parent refuses to participate, then the other must be emotionally strong in front of the children, not accusatory of their estranged spouse, and able to answer the questions an

d respond to concerns. I recommend parents to begin the discussion in a familiar setting that is free from distractions.

While this is 

a painful conversation to have with children, keeping the situation from them instills fear of the unknown and makes them believe that the two people they trust the most in the world are not truthful with them.

When talking with children, parents should consider their ages. Younger children require fewer details. I recommend parents stress again and again that the divorce is not their fault, it is a grown up problem. Over time weave into conversations as it will take hearing this more than once for the children to really “hear” it in their minds and hearts.

As parents talk through the changes, they should ask if the kids have questions or concerns. If there are questions that cannot be answered at the time, tell them so. Most children and teens want to know the logistics of where everyone will be living, how their lives will change, and how holidays and other celebrations will be handled.   In most cases, those decisions will not be known at this time. As the divorce process continues, it is wise to ask the kids for their thoughts or wishes. This allows them to feel included.

Does age matter?

With any significant event, age might not always be able to define the emotional maturity of the child. It also depends on the family’s ability to communicate and the event itself. No matter the age, the two people they love most in world do not love each other anymore and are ending their couple relationship. It is critical to assure children that mom and dad will always be their parents.  

Here are a couple examples on how different age groups usually are affected by divorce:

Birth to age 5: It is difficult for this age group to understand what divorce is and how it will affect their future and family. If there are other families they know who are divorced and handling it well, it is OK to use them as an example. Since this age group cannot grasp the concreteness of the divorce, they will seemingly recover quickly. As they mature though, the questions and concerns will surface and need to be addressed.

6 to 12 years old:  Children in this age group can easily be caught in the middle and struggle with loyalty conflicts. They also fear abandonment because they realize they cannot take care of themselves.  

13 to 18 years old: At this point in a teenager’s life, they are trying to separate from their family, but at the same time need the security and stability that family structure provides. Their reaction becomes complex and remains right below the surface. Parents need to be aware that they must never use their children as their sounding board, companion or confidant.                                                                                 

2. What questions should parents be ready to answer when talking to their child about divorce?

There are three important questions that children usually have that often are unasked.

·         “Did I cause this?”

o   Even though the child is often times reassured that they did not cause the divorce, they still get that sense of guilt, especially when the arguments of divorced parents often revolve around the children. Children like to believe that their parents are perfect and any mistakes or failures that parents make are canceled out and children quickly blame themselves for the divorce.

·         “Who will keep me safe?”

o   A huge fear that children have is that everything that they depend on will crumple. From an early age, children have the idea that security comes from two people taking care of them. This fundamental anxiety affects all children, especially adolescents.

·         “Is this going to happen to me too?”

o   Children worry that history will repeat itself when they grow up and marry. It is really important that parents let their kids know that everyone at one point in their life will stumble, but it’s so important to just try again. Turning the conversation into a positive discussion about marriage is critical, especially for teenagers.

Thanks so much to Suzy for her insight and advice. I agree with everything Suzy has said and would add to it that it is important to let your children know it is okay to love both mommy and daddy and that they will have time with both parents.

Experts tell me that you should not blame the other parent for the divorce or explain the details of why the divorce is happening. If asked, just say “This is not something I am willing to share with you. Just know it was not your fault.” I understand telling your children the details could cause some serious emotional damage to your children.

Lastly, repeat, repeat, repeat. Your children might be overwhelmed at first so let it sink in initially and then repeat your message until they really get it. I remember my boys saying “Enough Dad. We get it. It’s not our fault, its okay to love both you and mom and we are going spend lots of time with each of you. Okay?”

So… at that point I realized they had received the message loud and clear… and I went back to nagging them about doing their homework, cleaning up after themselves and “watch your language young man!” …. the normal stuff.

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