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

I have four children and my wife is pregnant. Children are the focus of our lives. The first three are from my first marriage. I remember feeling very worried about how they would do when we separated. I did some research at the time and did my best to make it work for them. I can report that they are thriving in spite of their parents' divorce. 

Nancy Parker is this month's guest blogger. She offers some excellent advice for parents going through divorce so you can help your children thrive too. Below is her article and here is her website: 

There are a lot of innocent victims in a divorce. Many times that includes the divorcees as well as the family and friends but if there are children involved they are the most innocent victims of all. They tend to take on most of the blame as well. I don’t know why but children almost always think that the demise of mom's and dad's relationship is their fault. In their minds someone has to be at fault and if no one else will take the blame they will. It could never be mom or dad's fault, because they are perfect.

When I was very small I thought my mom and dad were perfect, that they knew everything, and that they would never allow anything bad to happen in my life. As I got older I kept seeing things to make me question those ideals. It was truly devastating for me to find out that my parents were not superhuman. After the initial shock of finding this out I learned to love them for who they were. Because despite the fact that they weren’t perfect I realized they loved me the best they knew how and that they were doing the best that they could.

It is hard for children to understand that their parents are just people, people who do not always have it all together. Somehow in their young minds they think that to become a parent means you are some kind of a superhero or that you are closer to God than other people. The reality is far from that. Many parents not only do not have it all together but do not even know where the “all together” store is to buy it! As you have all heard many times before, parenting is the most important job anyone could have because you are molding other lives and there are absolutely no degrees required.

Then divorce comes and lands smack dab in the middle of our already not great parenting. We are struggling to deal with a marriage, our children, a job, extended family, and friends, and then along comes divorce. We are still dealing with all those things plus a failed marriage, grief, hurt, anger, resentment, fear, anxiety, and on and on. Where does this leave the children? People say kids are resilient and they will bounce back. If things are handled right this is a possibility but there are no promises. How many of us actually handle it right when we ourselves are so emotionally compromised? But this is what we must do because we love our children.

As I stated above about my folks, when I realized that my parents were not perfect but I knew they loved me and were trying the best they knew how, I learned to love them for who they were. Here is the key to helping your children get through a divorce: love them the best way you know how and talk to them as much as possible about what is going on. Not the gory details mind you, just give them something to help them understand. If you do not then they will come up with unbelievable ideas of their own usually pointing the blame at themselves.  This is not where the blame needs to rest and we need to let them know.

If you are overwhelmed with the divorce, if it is not a civil time between you and your soon to be ex spouse then you need to appeal to the other parent based on their love for the children in keeping it civil. If that is not possible then you should get help from family and friends. If you are passing the children back and forth between each other then send a trusted family member or friend to deliver the children or be at the door when the other person comes. If you need some time to sort out your thoughts then you need to talk to your children and let them know how much you love them and tell them you need alone time to think. Ask a family member or friend that the kids know and trust to take care of them for a few days. Keep things as normal as you can. Try not to turn the children’s lives upside down because yours is. It is hard enough for them to lose the day to day presence of one parent so do your best to remain calm and mature for their sake. After all, we are the adults. We are teaching our children self control so we must practice what we preach.

Keeping children on the same schedule is important. They need to be able to see the same friends and family members just as always. If they are close to a member of the other parent’s family then do not take that away from them unless that family member is not handling the divorce well. As much as it depends on you however, do not take these relationships away from the children. Try your best to keep things status quo in their lives. Above all keep letting them know how much you love them. But in turn, do not start giving them “things” instead of your time and love. They do not need the things; they do need you and the other parent. Whatever you do, do not use the kids as leverage to manipulate the other person. These are your children, not pawns in a game of chess.

Counseling is always a good idea if you think things are not going well with your children. Family counseling is a good way to start so that you can all talk about how you are feeling and get some new perspective from an unbiased third party. This is also a good place to express your feelings that perhaps you were not able to sort out when talking to your children at home. It is good if both parents are involved, not at the same time of course but every other session. The children need to know that both of you care about what they feel and that you are both still going to be there for them. If one or all of the children seem to be guarded or unresponsive then you can have the counselor try a one on one to see if they can get to the bottom of their feelings. Sometimes other family members can help the children to express how they feel. Once you have found out how they feel do not respond in a defensive posture! They are telling you how they feel, it is not wrong that they feel that way. You can talk to them about their feelings and do your best to alleviate their fears and concerns but do not reprimand them for their feelings. You may never hear another feeling again and these are not the desired results.

Let love be the reason for everything you do. This is from the Bible and is not only spiritual but practical advice for everyday life, not only in a divorce but for everything and everyone. If your main goal is to do whatever you do for the good of others then you are on the right track. Think back how you felt as a child: your anxieties, fears, needs, and desires. What could someone have done to help you? Did you have misconceptions growing up? Sometimes we forget what it was like to be young because the cares of this world strangle that innocent part of our life out. Be kind, loving, and gentle. Treat your children the way you want to be treated. They are people with valid feelings and they will grow into whatever kind of adult you train them to be. Love is the key. Don’t let your emotions cloud your mind so much that you forget who you are. Your children will stick by you and love you all the more if they realize you are doing the best you know how and that you absolutely love them no matter what. Stay strong and hold on. This time in your life will pass and you and your children can grow and be better off than ever before. That is if you do everything you do for their good and with lots of love.

Author Bio

Nancy Parker was a professional http://www.enannysource.com/ and she loves to write about wide range of subjects like health, Parenting, Child Care, Babysitting, nanny background check tips etc. You can reach her @ nancy.parker015 @ gmail.com

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More and more children are no longer able to leave home when they become adults, or are returning home to live with their parents even after completing post-secondary education. There are fewer "empty nests" these days.

There are many reasons for this new trend. What is alarming for divorced parents is that in Ontario you cannot get child support for an adult child living at home unless the child is unable to obtain employment because they are ill or are in school full time. The adult child who is under-employed and is a costly boarder does not warrant child support. So, if your child returns to your home after graduating from university and  is only able to get a job at McDonalds, you are stuck paying the bills. 

We have several articles dealing with the issues of child support, custody, and the sharing of expenses on our website. But, alas, there is nothing about seeking child support for the under-employed adult child sleeping in your basement. Sorry. There is no relief for you. 

 Here is an interesting graphic about the impact of adult children living at home. Thanks to www.CollegeAtHome.com for this graphic. It is amazing! 

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Below is a fantastic graphic about the cost of kids. I have four of them and can say, without a doubt they are expensive and worth every dime. They truly enrich my life. 

Created by: EarlyChildhoodEducation

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Brenda Shapiro, a lawyer in Florida, submitted the following article to me about how in the USA there are provisions for wealthy parents to pay money into trust funds for their child as child support. We don't have such statutory provisions in  Ontario, Canada but I really like the idea. In Brenda's example, a young wealthy father, perhaps an elite professional athlete, could be ordered to pay some money into a trust fund for their child so as to provide future security. What a great idea! 

Although we don't have legislation that would allow a judge to order this, we certainly could set up a trust fund by agreement. 

Thanks Brenda..... Here is Brenda Shapiro's blog entery. 

Protect the Children of 'Baby Mommas'

By Brenda Shapiro, Esq.

When a young girlfriend of a professional athlete, musician or other celebrity gives birth, she joins the growing number of “baby mommas” in South Florida and the nation. While these women in their teens or early 20s come from very different social and economic backgrounds, they would all like their children to have a secure financial future.

The fathers have different goals. Even if he has a good relationship with the baby momma and contributes to his child's care. Fathers live in the fast lane focused on career and endorsement contracts. They buy every boy toy imaginable including cars, jewelry, multiple residences, boats, planes, et al. spending their new wealth freely.

For most of these fathers, marriage to the woman who gave birth to their child is unnecessary. They hope to avoid a host of legal and financial complications. And there are other fathers who try to distance themselves from the situation, forcing the baby momma to file a paternity suit to establish her child’s rights.  

Today, a professional athlete might have a three-year contract for $5 million, $10 million or more per year. That's a big chunk of change for a young man in his early twenties whose life has suddenly changed. He is in the media spotlight and constantly being told he's a star.  He is pursued by money managers, who promise to manage the financial and investment side of his life, who may or may not have his interests at heart.  

Few professional athletes think ahead about what will happen to their money after their peak earning years come to an end. Only a handful of pros like Magic Johnson and Shaquille O’Neal or celluloid stars like Brad Pitt have been able to harness their skills and celebrity status to find success in the business world. Yes. Angelina Jolie is a baby momma.

So, what does short-term earning curve mean financially for baby mommas and their children?

First, the new mother is entitled to child support, based on guidelines established by state statute. Those guidelines are designed to meet the immediate needs of the child – not the mother. And unless the child requires special medical or developmental care, the monthly cost of providing food, shelter, clothing and day care is going to be relatively small compared to the father's high income.

Paying child support usually poses no immediate problem for the high-earning father – at least until the contract comes to an end. Then the financial picture will probably change dramatically. There may be no money left for the child, since the flow of funds has been drastically reduced and the many assets are now liabilities without cash flow to pay the debt.

In light of this all-too-familiar situation, statutes should be revised to address "Good Fortune" child support. Good fortune child support recognizes the long accepted principle that children who are dependent on their parents should share in their parents' wealth. It does not require a lifestyle analysis. Instead of little league baseball or soccer, it allows the court to consider the special benefits available to the wealthy; little league baseball and soccer, swimming lessons, horse-back riding, ballet, music lessons, tennis lessons, private schooling, tutoring et al. It would create the opportunity to order irrevocable trust funds established for each child. The trust funds would be funded from the difference between reasonable child support and the statutory guidelines based upon the parents' net monthly income. An athlete earning millions a year will not notice the contributions needed to fund a college education or career training in the future. Placing the fund under the management of a disinterested third party, preferably a bank trust department selected by the parties or appointed by the court, can help assure that those dollars will be available as the child grows into adulthood.

Putting a court-ordered trust fund in place today provides the child of a baby momma with long-term financial security. Long after the father’s income disappears, those funds will be available to give his son or daughter a better opportunity in life. It's the right thing to do – for all parties.

Brenda B. Shapiro, Esq.

Attorney Brenda B. Shapiro provides legal counsel to clients on family law matters, including prenuptial and postnuptial agreements, divorce, child custody, access and time-sharing, post-dissolution, domestic violence, and grandparents’ rights. She established the Law Offices of Brenda B. Shapiro, LLC in 1994, where she is managing partner. She is also a founding director of the Collaborative Family Law Institute. For more information, www.bbshapirolaw.com. 

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Determining income is the first step toward determining the proper level of child support and spousal support. This is easy to do for employees. We just look at line 150 of their personal income tax return. The challenge is determining the proper level of income for those people who are self-employed or are employed by a corporation they solely own. 

Self-employed people often write off various expenses for tax purposes that have a personal component to them. For example, the monthly costs of the cell phone might be written off as a business expense but that cell phone may also be used for personal calls. Some self-employed people will write off meal expenses, some of which are with family members or friends. Those meals are really of a personal benefit and not considered a legitimate expense for determining your income for support purposes. As a result, the portion of the expense that are of a personal nature are added back to the self-employed person's income for determining support. Since taxes are not paid on this income, it must be grossed up to take into account the taxes that are normally paid on it.

For those people who are the sole owners of the shares of a corporation, the issue is whether there is a legitimate reason for the earnings to be retained by the corporation. For example, a corporation that has to make major capital purchases periodically may have good reason to retain their earnings. They will need them to buy new equipment or other capital and will need the money. On the other hand, if a corporation is retaining earnings as a tax savings shelter for its only shareholder and there is no legitimate business reason to retain the earnings, some or all of the retained earnings can be added to the shareholders' income for the purpose of determining his or her support obligation. 

These are often complicated cases. There has to be a careful analysis of the business and the purpose for the earnings being retained. We sometimes use an outside expert such as an accountant or business valuator who has experience looking at these issues. 

If we are working through these issues using the Collaborative process, both parties might jointly retain an expert to help determine whether some or all of the retained earnings should be considered income for determining support obligations. This is better than the court process where both parties retain experts who fight it out. 

Once we have determined both party's incomes, we put the numbers into our computer and determine the likely range of support appropriate. It's easy once we have the incomes. 

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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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Do you remember the day you separated? How did it happen? Was a note left or an email sent to say it's over? Maybe a text? Maybe it was a screaming match? Maybe it was just a sad mutual realization that your marriage was over?

Regardless of how it happens, the date of separation is a painful memory, whether you are the one leaving or the one being left. 

I remember my "date of separation". It was over seven years ago but the memory of that day remains vivid in my heart and mind today. Each year, when the anniversary of it comes around, I cannot help but think of how dramatically my life changed since the date of my separation. 

From a lawyer's perspective, we need to know the date of separation for three main reasons. This first reason is we use it to determine the equalization of property. Here is an article about the equalization process.  Secondly, you can obtain a divorce one year after your separation. The clock starts ticking from the date of separation. Lastly, if support is owed, it likely will begin from the date of separation. 

You can still be living under the same roof but considered separated so determining the date of separation can sometimes be difficult. 

Property Issues

Some times the date of separation can have a huge impact on the equalization of property. I remember one client who had some shares in a business. If he used one date, he would owe his wife about $10,000 related to the value of his shares. If he used a date three months later, he would have to give her $30,000, because the value of the shares had rapidly increased over that three month period. 

The reverse is sometimes true. You might prefer an earlier date because the value of your spouse's asset was much higher than it is at a future date. This certainly has been the case recently with some businesses and real estate investments that have been dropping in value. 

The value of jointly owned assets is less relevant because any increase in value or decrease in value from the date of separation is shared. 

Divorce

Although it is possible to get a divorce on the basis of adultery or physical/emotional abuse, the vast majority of people seek a divorce simply on the basis of a one year separation. It is easy and does not involve any blame. 

Support

The date of separation is relevant to support issues too. Support is owed from the date of separation unless there are other payments being made in lieu of direct support payments. 

Here is an article about child support and another one about spousal support. 

Determining the Date of Separation

If there is some ambiguity about the true "date of separation", the law says you should look at the circumstances of the parties. For example, when did one of the parties communicate their intention to end the marriage to the other; when did the parties start to hold themselves out to family and friends as being separated; when were finances separated; when did sexual relations stop; when were chores were no longer shared; when did the parties physically separate (two beds or two homes); when did the parties stop doing social activities together such as eating meals together or attending events together. This is not an exhaustive list but gives you an idea of the factors taken into consideration.  You don't have to have all of these factors to say there has been a separation. It just depends. 

If you are not sure which date to use, consider whether it will impact the bottom line. Maybe compromising on the date is better than fighting over it if the impact is fairly small. 

Regardless of what date is called the Date of Separation for the property and support issues, no doubt there will be a day you will always remember as the day you knew your marriage was truly over. Perhaps that is the "emotional date of separation". That date is important because it marks the beginning of the healing process. It is the first day of the rest of your new life. 

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In Ontario, child support can be changed if there is a change in circumstances such as a change in income or a change in residence of the children. Here are the steps. 

The first step is to determine the payor's income. (The "payor" is the person who has the children less than 40% of the time and is paying child support.) For employees, use line 150 of the income tax return. If they have recently changed jobs or your income has changed, you have to use the actual present income.

If the children are with each parent more than 40%, different rules apply. This is called "Shared Custody". Here is an article that explains the process. 

If the payor is self-employed, determining her or his income can be more complicated. Here is an article for you.

If you have  "Split Custody", child support is calculated differently. "Split Custody" means that each parent has one or more children residing primarily with them. For example, Dad and Mom have three children. Frankie and Tommy live primarily with Dad and see Mom every second weekend whereas Suzy lives primarily with Mom and sees Dad every second weekend.  

Here is how you calculate child support if you have split custody . 

If the children are with one parent more than 40% of the time, then the other parent pays according to the Child Support Guidelines. It is a grid that prescribes the amount of support to be paid.

To look up the amount of child support according to the Guidelines, go here.  

When you look it up, you  have to ensure you are using the correct grid for the province where the payor lives, the payor's income and the number of children. It's pretty easy to look up.

In addition to the base amount of child support according to the grid, if your children have "extraordinary" costs related to extra curricular activities, these costs are shared in proportion to the gross annual income of the parents.

For example, if your child is on an elite competitive swim team, competing in swim meets across the province and receiving coaching, the costs of this sport will be shared but if your child is just taking some swim lessons at the YMCA, the costs are not shared. The recipient of child support is to pay the costs of the swim lessons from the child support.

In addition, the cost of medical expenses, the after-tax cost of daycare, summer camps and post secondary education costs are among the costs shared. There are other costs that are considered "extraordinary" and are shared.

Once you have determined the amount of child support, you can change the existing agreement by consent. If you can't reach an agreement, you may have to go to Court.

You are wise to speak to a lawyer to ensure you do the variation correctly. You can do either a Variation of Separation Agreement or a Variation of a Court Order. If is it not done correctly, it won't be legally enforceable. It is easy to do it with a little help from a lawyer. 

If you have to go to Court, we can help. We frequently meet with clients and help them create all of the legal documents necessary to do a variation. It usually takes our lawyers about two hours to complete all of the documentation. Clients tell us this is a very good investment.

A lawyer can represent you in Court if you wish. Of course, having a lawyer at your side is best but it is costly. You have to weigh the costs versus the benefits.

In some cases, you can retroactively adjust child support. Generally, the Court will go back 3 years depending on the circumstances.

Much of family law is "shades of gray". Child support is more straight forward than many areas of the law. It really is not an issue that needs a judge to determine. With some legal advice, you should be able to resolve the amount of child support by agreement. If you are unsure, meet with a lawyer and get some advice.

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Can you imagine receiving a $150,000 per month, tax free? Karen Sala certainly could and sued Keanu Reeves hoping he would be ordered to pay that tidy sum to her. She was not successful.

A recent article in The Star declares that the paternity case against Keanu Reeves by Sala was dismissed by the Ontario Courts. According to The Star, Justice Graham declared that the allegations against Reeves were "so incredible" that no reasonable judge would accept them.  The judge said having a trial would be a waste of limited judicial time.

Karen Sala was seeking $3 million a month in spousal support and $150,000 a month in retroactive child support. She alleged that Reeves was the father of her four adult children.

It is remarkable that she pushed the case this far. DNA tests had been done which indicated that Reeves was not likely the father of the children. DNA tests cannot say with full certainty if somneone is the father but they are accurate 99.9999% of the time. Usually, that's good enough for the judges to dismiss the case as happened in this case.

As Ms A.J. Jakubowska notes in her blog, child support payments in Ontario are not tax deductible for the payor and the recipient does not have to claim them as income. Sala would have been able to pocket $1.8 million dollars per year, tax free, had she won her case.

How is the amount of child support determined? 

Child support payments are set in accord with the Federal Child Support Guidelines. For Ms Sala to have received $150,000 per month, she would have had to prove that Reeves' income was about $8.5 million annually. I guess that's possible...

As Ms Jakubowska, a Newmarket family lawyer, notes in her blog, spousal support is tax deductible to the payor and must be claimed as income to the recipient. So, if Sala had been successful, Reeves would have been able to deduct the spousal support from his income but not the child support.

Certainly there is an incentive to sue for child support when the stakes can be this high but DNA tests constitute a mountain too high to overcome. You can't just allege someone is the father of your children these days expect to get away with it. If you are lying, science will prove you wrong. How DNA tests work is a sample of hair from the father, mother and child are analyzed in a lab. The DNA of the child is compared to the DNA of the "alleged" parents to determine if paternity is possible. Courts like the certainty of DNA tests.  They normally end the case one way or another.

Ms Sala was tenacious. She persisted in court. She lost. Case closed. Next? .....

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Child support in Ontario divorce cases is determined by the Federal Child Support Guidelines. It's simple. You take your income as set out at Line 150 of your income tax return and look up your obligation according to the number of children you have. Voila. 

But... and this is important... if your children are with you more than 40% of the time (that's called "shared custody"), you can get a break on the amount of child support. Okay. Sounds simple. But how do you count the time: in hours or days or what? 

In Andrew Feldstein's blog titled, Toronto Family Lawyers' Blog, he summarized an interesting case called Froom vs Froom, which is supposed to help give us direction on how to "count time". The Court of Appeals of Ontario says, generally, you should just count "days". So, if the kids are with you 6 out of 14 days, then you have them 43% of the time, and you have met the threshold. You may pay a different amount of child support than prescribed by the Federal Child Support Guidelines.  

Unfortunately, the Ontario Court of Appeal also says if a judge counts hours or uses some other method to "count time" it can be acceptable. So, the Froom vs Froom decision doesn't resolve the uncertainty. 

The age old adage may now be "More time means less money".

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