Archive for the ‘Child Support’ Category

Parental Alienation

Posted on: January 31st, 2012 by admin No Comments

Parental Alienation

By Jack Pantalone

Allegations surrounding “alienation” in Canadian courts have increased dramatically over the past several years, along with the responses and orders that judges have made, in dealing with parental conflict in this very difficult area.
The starting point in Canadian law for dealing with the relationship between a child and a non-custodial parent is the “maximum contact principle” of the Divorce Act:
 16 (10)…The court shall give effect to the principle that a child of the marriage  should have as much contact with each spouse as is consistent with the best  interests of the child and, for that purpose, shall take into consideration the  willingness of the person for whom custody is sought to facilitate such contact.
The maximum contact principle has two aspects. Firstly, the courts should ensure that there is as much contact with each parent as is “consistent” with the best interests of the child. Secondly, if one parent is thwarting contact between the child and the other parent or alienating the child from the other parent, that is an important factor in deciding whether to award custody to the parent who will facilitate contact with the other parent.
The first reported case using the term “alienation” was in 1989.
Over time, the concept of alienation progressed to the point where professionals were referring to it as “parental alienation syndrome”.

Recently, there has been controversy in the legal and medical worlds about whether parental alienation is a “syndrome”. The controversy seems to surround the issue as to whether it is appropriate to blame only one parent for family dysfunction.
Even the use of the term “alienation” has been questioned, with some professionals and judges preferring to use the term “estrangement”.
Nevertheless, whether it is referred to as a “syndrome”, as “alienation” or “estrangement”, or some other term, it is clear that it exists and, regrettably, that reports to it occurring following marriage breakdown, are on the rise.
Studies have concluded that where judicial intervention is required in order to assist parents and children in cases of this nature, it is important for the justice system to take an early and immediate response to cases where a child is resisting contact to a parent. Not surprisingly, earlier intervention is more likely to be successful, and a delay can result in the alienating parents escalating their behaviour if they are not confronted with a clear judicial response.
However and in responding to cases where there are problems with the relationship between a child and a parent, the court must be satisfied that the child is truly alienated, and not justifiably estranged from that parent (the distinction that is drawn between these two is whether the alienation is “rational” or “irrational”).
Further, there are cases in which a judge finds that there has been alienation, but concludes that any further attempt to enforce the relationship between the child and the rejected parent is more likely to harm, rather than help, the child.
Most often and before getting to the drastic stage of changing custody, judges are prepared to use mental health professionals to directly respond to alienation issues, by ordering therapeutic intervention with the explicit goal of re-establishing the child relationship with the rejected parent, while leaving the child in the custody of the parent who has alienated the child. In these cases of less severe alienation, counselling is most likely to be most effective when a judge persuades the parties of its value and the importance for a child having a positive relationship with both parents. However, counselling is unlikely to be useful if parties seem resistant to counselling, and are only attending the sessions in order to avoid contempt of court.
In the past few years and in cases of severe alienation, judges have been willing to transfer custody of a child from the alienating parent to the rejected parent, especially where counselling has been attempted and, as a result of the conduct of the alienating parent, has failed.
To be sure, judges have clearly struggled with the issue of whether custody should be transferred to the other parent, in cases of severe alienation. For example and in the case of A.A. v. S.N.A., the trial judge recognized that he faced a “stark dilemma” as to whether to leave the child with a “highly manipulative” and “intransigent” mother who would never permit her child to have any sort of relationship with her father, or to transfer custody to the father, who had little contact with the child for over a year. Despite the finding of alienation, the trial judge refused to award custody to the father due to a concern that “the immediate effect of that change will be extremely traumatic”. The British Columbia Court of Appeal reversed the trial judge’s decision, observing that:
The trial Judge wrongly focused on the likely difficulties in a change in custody –  which the only evidence on the subject indicates will be short-term and not  “devastating” – and failed to give paramountcy to the child’s long-term interests.
There were a number of breakthrough cases in Ontario starting in 2007, dealing with alienation.
In the case of L.(J.K.) v. S.(N.C.) Justice Turnbull of Ontario Superior Court of Justice received evidence from Dr. Richard Warshak, a licensed psychologist practicing in Texas, U.S.A. Dr. Warshak and Dr. Randy Rand founded the Family Workshop for Alienated Children, a structured and highly specialized program developed to assist families in which children have become so alienated from one parent and other relatives that they either refuse contact with the alienated parent or extreme reluctance to spend time with that parent.

The goals of the program are as follows:
a.) To facilitate, repair and strengthen the child’s healthy relationships with both parents;
b.) To help a child avoid being in the middle of his or her parents’ conflicts;
c.) To strengthen the child’s critical thinking skills;
d.) To protect a child from becoming pathologically alienated from a parent in the future;
e.) To help a child maintain balanced views and a more realistic perspective of each parent as well as him/herself;
f.) To strengthen the family’s ability to communicate effectively with each other and to resolve conflicts in a productive manner; and,
g.) To strengthen the parents’ skills in nurturing their children by setting and enforcing appropriate limits.

Dr. Warshak’s program consists of seven phases, which include gaining physical possession of the child, and transporting the child to the location of the intervention (a facility in Texas or California) where the child is oriented to the program. Contact is facilitated between the child and the rejected parent, the parent-child relationship if repaired, and the child is ultimately reintegrated back to his or her family, while either remaining with the previously alienated parent or returning to the rejecting parent (if appropriate).
In most cases of severe alienation, a child will not willingly accompany the alienated parent to the workshop. Therefore, a court must order that law enforcement agents or professional transport agents be used to safely escort the child to the program site. If a child is still unwilling to attend, the transport agents are able to use physical restraints to ensure the child’s safety, during transportation.
Through the use of audio visual materials, such as a DVD’s and slide shows tailored to the child’s developmental level, the child begins to understand how it is possible that he or she has developed an unrealistic and negative view of his or her parent. If and when, through the “repairing” phase, the child begins to relate positively to the former rejected parent, the workshop then provides tools for the parents and child to be able to deal with the inevitable conflicts which will arise once they return home together.
The repair stage of the workshop generally lasts from 3 – 7 days. Once completed, the “aftercare” stage begins, in order help nurture the newly restored relationship and solidify the positive feelings that have developed during the intervention stage.
Dr. Warshak’s workshop is obviously quite expensive, and is considered by many judges to be overly intrusive to a child’s privacy and wellbeing. Many opponents to the program have understandably claimed that it is a violation of a child’s rights, to force him or her (especially by physical force) to leave one parent’s care and attend a program in a different country.
In the case of Filaber v. Filaber (2008), Justice Van Melle ordered that custody of the children be transferred from the alienating father to the rejected mother, and ordered that the mother have the sole authority to pursue whatever remedy is necessary to transition the children from the current alienated state to a normalized and stable relationship with her, including participation in Dr. Warshak’s family workshop.
The recent case of Fiorito v. Wiggins (2011), is not only an excellent review of the topic of alienation, but it also involves one of the most proactive judicial steps that appears to have been taken by any judge in dealing with a high conflict custody case.
In Fiorito, Justice Harper of the Ontario Superior Court of Justice stated the following:

“I find that it is not necessary or helpful to engage in the controversy within the  clinical profession about the merits of concepts of parental alienation, realistic  estrangement, or family systems based “alienated child” approach. I do find that  the focus on the concept of parental alienation creates an environment that could  lead to narrow and limiting analysis of very complicated dynamics of family  interaction that must be understood in order to find a solution that has the best  chance of success. In this case, the pursuit of the label of PAS, diverted many of  the professionals.

The relevant inquiry by assessors should not be the search for a diagnosis or a  label. The relevant inquiry must be the critical review of the actions of the parents  as they impact on the children’s functioning and their needs. If emotional abuse is  a serious risk the professionals and the protection agencies must attempt to be  more specific as to the cause of the emotional abuse and be more specific as to  the depth of the negative consequences, both short term and long term on children  in each case”.

Cleverly, Justice Harper finds that all 3 children in this case are “in need of protection” as defined under the Child Family Services Act. This highly unusual step allows Justice Harper to make orders under that legislation, including the involvement of the local Children’s Aid Society (CAS). Justice Harper directs the CAS to act as a supervisor, overseeing the time-sharing arrangements between the parents. Further, he makes an order finding that the mother is in contempt of court, but puts her on probation and requires that the term of her probation be that she comply with all of terms of the custody and access order. If there is breach of the probation order, the matter is brought back before Justice Harper for submissions on sentencing. Justice Harper then makes a multi- directional order, as follows:
 “I make the following order:

1. Anna Fiorito is found in Contempt of the order of Thomas J. dated October 24, 2008 and the order of Quinn J. dated, March 5, 2010.
2. Pursuant to the Family Law Rules to enforce my finding of contempt I sentence Anna Fiorito to 6 months probation. The terms of her probation being that she shall comply with all of the terms of the custody and access order as set out below.
3. If there is a breach of probation the matter is to be brought back to me for submissions on sentencing for that breach.

 

a.) The mother, Anna, shall have custody of the three children under the supervision of the Society.

b.) This order shall be the subject of a review before me in six months to determine if any gains are being made. The expected gains to include:

i. The mother has transformed her present projection of the children’s father as a person to be feared to someone who is a safe and loving father who should be respected and trusted.
ii. The father has stopped any pursuit of having the mother designated as someone who has infused parental alienation syndrome into her children. He must recognize that my findings in these Reasons are findings that relate to the mother’s and his conduct and functioning, based on all of the evidence, that impact on the children’s needs and define each parent’s ability to meet those needs.
iii. The negative actions of one parent that lead to the negative reactions within the other parent must stop now.
iv. Both parents must work with the Children’s Aid Society and any therapist recommended by the Society in accordance with this order.


c.) The mother shall allow the Society to attend at her home without prior notice to her, and interview the children and supervise the custody.
d.) The mother shall not speak negatively about the father or his present wife, Sarah, and she shall promote the father, Jefferson, positively to the children at all times.
e.) The mother shall not permit the children to be subjected to any negative comments or actions of anyone that would negatively impact on the relationship with father and the children.
f.) The children shall meet with me immediately following my oral presentation of these Reasons to the parents. I will then present my reasoning to the children.
g.) The mother shall attend at a meeting with the children and me, immediately following my oral presentation of these Reasons to the parents and the children. She shall tell the children that she promotes the contact and the loving relationship they should have with their father and she will participate in whatever the judge sets out in his judgment in order to make this family work so that the children can have both parents for the rest of their lives.
h.) The Children’s Aid Society shall arrange for counselling for the children to deal with the emotional abuse, their distorted reality of their father and to promote the reunification of the children and the father.
i.) The Children’s Aid Society shall arrange for such counselling for the mother to deal with her anger and need to learn to communicate with the father in order to allow the children to have a positive relationship with their father.
j.) The father shall attend at a meeting with me and the children immediately following my separate meeting with the children and then the children and the mother. This meeting with the father, me and the children is to start the reunification of his relationship with the children and he shall tell the children that he loves them and will do whatever is necessary as the judge directs in order to have a positive loving and healthy relationship.
k.) The father shall attend counselling to deal with his negative perceptions and anger towards the mother and to learn communication skills in order to communicate with his children, given this six month period of transition to the goal of achieving a normalized relationship. The counsellor shall be arranged by the Children’s Aid Society.
l.) The father and the mother shall each produce reports from their respective counsellors detailing the progress, if any, in the father and the mother’s counselling. These reports are to be sent to the other side and filed in court no later than one week prior to the review of this matter.
m.) The parents shall sign any releases necessary for the Children’s Aid Society to receive any report from their counsellors and the children’s counsellors.
n.) The father shall have access to the children in accordance with the schedule below that is a stepped up transition access scheme:
i. The first access after the meeting with the father, myself and the children to outline this judgment to them shall be from 4 p.m. to 6 p.m., supervised at the Children’s Aid Society, on the first two Thursdays following the release of this judgment. At that access visit the father shall tell the children that his wife Sarah will never replace their mother. That he loves them in a way that will never change and cannot be compared to his love for anyone else. Sarah wants to have a close relationship with them but she too does not want to replace their mother.
ii. The father shall have access to the children on the Saturday following the second access visit at Glengarda Children’s Centre. This access shall be monitored by Glengarda. It shall commence at 10 a.m. and end at 1 p.m. The father’s wife Sarah may attend this access.
iii. On the Thursday following the Saturday access as above, the father shall have access to the children from 4:30 p.m. to 7:30 p.m. This access shall not be monitored. The father shall pick up the children and drop off the children at the children’s residence with their mother. The mother shall bring the children to the father and promote the access in a positive manner.
iv. On the weekend following the above Thursday, the father shall have access to the children, unsupervised at his home from Saturday at 10 a.m. to Saturday at 7 p.m. The mother shall deliver the children to the father’s residence and ensure their transfer to the father and promote the access in a positive manner. The father’s wife Sarah may be present during this access, The father shall return the children to the mother’s home.
v. On the following weekend the father shall have the children from Saturday at 10 a.m. to Sunday at 7 p.m. The mother shall deliver the children to the father’s home and the father shall return the children to the mother’s home.
vi. Following the weekend set out in (v) above, the father shall have the children during the week, on Thursday evenings with no supervision from 4 p.m. to 7 p.m. in each week. And on weekends form Fridays at 6 p.m. until Sunday evenings at 7 p.m. alternating from the weekend after the Tuesday set out in this paragraph.
vii. Neither parent shall take the children out of the province without the written consent of the other or further order of this court.
viii. The Children’s Aid Society shall provide a report to me once per month setting out the progress and describing the therapy and counselling that has been put into place pursuant to this order.
ix. Costs of this trial shall be reserved to me to the hearing of the review of this matter as provided in this order.

This is an excellent and comprehensive decision with a far reaching order, one which I believe that many judges will find appealing if resistant to make an order either transferring custody of a child to the rejected parent or forcing a child to attend Dr. Warshak’s workshop.
In the Fiorito case, Justice Harper was prepared to make a very thorough and detailed order in which he was prepared to remain involved in the case in order to ensure that the children’s relationship with the rejected father was restored. If more and more Judges are prepared to deal with these high conflict situations similarly, this will certainly help many rejected parents deal with the disastrous consequences of alienation.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.

 

Child Support for Children Over 18 Years of Age

Posted on: January 8th, 2012 by admin No Comments

Child Support for Children Over 18 Years of Age

By Jack Pantalone

Except in very limited circumstances, child support is payable by a support payor in accordance with the amounts set out in the applicable Tables of the Child Support Guidelines.

The exceptions to these presumptive amounts are set out in Section 3 (children over 18 years of age), Section 4 (incomes over $150, 000.00), Section 9 (situations of shared custody of children) and Section 10 (undue hardship).

Section 3 (2) of the Guidelines provides, as follows

Unless otherwise provided under these Guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is

(a) The amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be  inappropriate, the amount that it considers appropriate, having regard to           the  condition, means, needs    and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

In regards to Section 3 of the Guidelines, the most common scenario giving rise to a deviation from the presumptive amount (i.e., a situation where the court considers that approach to be inappropriate), is the case where a child is attending university or college outside of the city, or within the city that his or her parents reside, but not living at home.

Under the Divorce Act, a “child of the marriage” means a child of two spouses or former spouses, who, at the material time,

(a)    is under the age of majority and who has not withdrawn from their charge, or       

(b)    is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

“Other cause” has been defined to include a child continuing to be enrolled in school on a full-time basis.

It is clear, therefore, that under the Divorce Act, a child remains a “child of the marriage” for child support purposes, if the child remains dependent upon his or her parents, by virtue of being enrolled on a full-time basis in school, even if he or she is eighteen years old or older.

As long as a child remains enrolled in school on a full-time basis after his or her eighteenth birthday, the issue in these cases becomes whether the Table amount of support for that child should be reduced and, if so, by what amount.

In the Ontario Court of Appeal case of Park v. Thompson, the court agreed with the rationale for reducing child support during the academic year where the child is not living at home, as set out in another case, as follows:

“Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply Tables that are not designed with that living arrangement in mind. Furthermore, the Table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the costs of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child’s own ability to contribute.” [Emphasis added]

The Paras formula set out above refers to an approach whereby the parents and the child jointly attempt to calculate the child’s expenses while away from home (prepare a budget for the child), in order to determine the parents’ respective contributions towards the child’s expenses while living on his or her own.

During the school year, courts will commonly order that the parents pay their proportionate share of their children’s education and living expenses, which are the child’s special or extraordinary expenses (Section 7 expenses, as per the Guidelines). After taking into account the parents’ respective contributions towards these post-secondary expenses, courts will then determine any additional amount that should be payable to the recipient parent, to take into account any further expenses that he or she is incurring in order to maintain a home for the child, costs associated with return visits home, etc. Further, there may be incidental expenses (entertainment money, toiletries, etc.) to which only the recipient parent is contributing. These further expenses being paid by the recipient parent may justify an ongoing child support payment by the payor parent, to assist in the payment of these other incidental expenses.

There is obviously no hard and fast rule in determining the amount of ongoing support that should be payable in these situations. The bottom line is that each case is unique, and will be decided on its own merits. A parent who has to pay 80% of the post-secondary expenses associated with the child who is attending theUniversityofBritish Columbia, for example, may have few funds left over to pay additional ongoing child support to the recipient parent. Conversely, a parent who is paying 50% of the child’s post-secondary expenses to go to college in Kemptville (where the child may be returning home to Ottawa more frequently), may have to pay an amount closer to the full Table amount, to take into account the fact that the recipient parent is incurring greater ongoing expenses related to that child.

In regards to the summer months, courts routinely resort to the presumptive Table amount of support during the months that the child returns home from school, and treats the child’s summer earnings as part of the child’s contribution towards his or her education expenses in calculating the sharable post-secondary education expenses.

CONCLUSION

Child support continues to be payable for a child over the age of eighteen years, provided that the child remains enrolled in and attends school on a full-time basis. If the child continues to reside at home while attending his or her post-secondary program, full Table support will most assuredly be ordered, in light of the fact that the ongoing expenses related to that child have not really changed in any material way. If, however, the child leaves home to attend school, the general rule is that it is inappropriate to order the presumptive amount of Table support during the months while the child is away for school.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.

New Federal Child Support Tables Announced

Posted on: December 4th, 2011 by admin No Comments

New Federal Child Support Tables Announced  

By Jack Pantalone

 

The Federal Department of Justice recently announced changes to the Federal Child Support Guideline Tables, effective December 31, 2011. The amendments were registered on November 17, 2011, and will appear in Part II of the Canada Gazette on December 7, 2011.

It appears from the calculations that some of the table amounts have gone up, while others have gone down; it all depends on the province, income and number of children.

To find out whether you are affected by the new table amounts, please go to the Resources Page, and click on “NEW: JusticeCanada – Child Support Online Lookup”.  This will link you to JusticeCanada’s website, where you can use the online calculator provided by the Federal Department of Justice if you want to calculate a child support amount under the new tables.

Please be aware that these changes will not only affect the Child Support Guideline Tables, but will also impact spousal support calculations using the “With Child Support” and “Custodial Payor” formulae under Spousal Support Advisory Guidelines.

Unfortunately, in order for the new support amounts to apply to your case, you need to either enter into a new agreement with your spouse, or you need a court order. In other words, the new amounts will not be triggered “automatically”, and the Family Responsibility Office will continue to enforce support at the existing levels.

Therefore and unless you already have an agreement or court order which provides for an adjustment to support retroactive to January of each year, you will either have to wait until the applicable adjustment period as set out in your court order or agreement, or you will have to seek the consent of your spouse for an immediate adjustment to support.  

Please contact us if you would like us to assist you with these calculations and their impact on your particular situation.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.

 

Child Support Guidelines and the 40% rule

Posted on: November 15th, 2011 by admin No Comments

Child Support Guidelines and the 40% rule

(How is “40%” calculated?)

 By Jack Pantalone

Section 9 of the Federal Child Support Guidelines (the Guidelines), provides that:

s. 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Since the time that the Guidelines passed in 1997, there has been continual fighting between parents and debate within the courts as to whether a parent has met the 40% threshold. This has often resulted in the “cliff effect”, where the parent who is trying to reach the 40% threshold wants another day of access (or even a few more hours) to try to get him or her “over the cliff” to 41% of the time with the children.

The impact of establishing section 9 is significant; it can result in little to no child support being paid by one party to the other, if the parties’ incomes are relatively similar.

Some cases suggest that we take a “holistic” approach to the calculation of time, rather than a rigid counting of hours. It is clear that there is no universally accepted method of calculating time, with some judges preferring to look at “overnights”, and some judges counting “school time” as belonging to one parent or the other, in the calculation of time allotted to each parent. As the time is to be calculated over the course of a full year (as opposed to just the school year), there is also the question of what to do about “summer camp” time, and whether this should belong to one parent or the other (or neither).

The cases seem to be all over the map, with the majority of the judges trying to take a “holistic” view of calculating time. The difficulty is that a “holistic” approach is a very subjective one, and it results in different judges applying the same set of facts differently. As the Guidelines were intended to do away with subjectivity, in order to allow consistency and certainty, it is puzzling why the legislators did not more clearly define how time was to be calculated for the purposes of section 9 of the Guidelines.

Some cases suggest that “parental responsibility”, and not minutes or hours of a day is the primary consideration. Therefore, if a parent has a child from Wednesday night until Friday morning, he or she is responsible for the child from Wednesday until Friday morning (with the other parent “taking over’ from Friday morning onward) and, therefore, his or her time should run for that entire period, including the time that a child spends in school.

The parental responsibility approach appears to make sense. In some cases, however, it won’t. For example, in a case where a parent has the children several times each week after school, but the other parent is deemed responsible for the children during their school hours. In such a case and especially from a financial perspective, it hardly makes sense that the one parent should pay full Table child support just because the other parent is “responsible” for the child while the child is at school.

The courts will try hard to determine whether “physical custody” of the children is truly shared, even if a parent employs a nanny to care for the children during his or her time.

The bottom line is that the easiest cases are the ones where the parents share time with the children on an equal basis, whether it be “week on/week off” or some other equal time-sharing arrangement. The difficult ones are those where the children spend the majority of their time with one parent, and a lesser amount of time with the other parent.

If the 40% threshold is indeed met, only then does the section 9 analysis begin. I hate to say it, but the section 9 calculation doesn’t get any easier. Our Supreme Court of Canada case of Contino v. Leonelli-Contino is the leading case on section 9 calculations, once the 40% threshold is met. It is a confusing analysis of the three factors set out in section 9 (a), (b) and (c), above. Inevitably and in order to avoid long, protracted and expensive litigation, most parents end up settling the issue on the basis of the s.9 (a) set-off amount i.e., the difference between the parents’ Table amounts.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.

 

 

 

 

 

 

 

Child Support for Self-Employed Payors

Posted on: November 6th, 2011 by admin No Comments

Child Support for self-employed payors

(The million dollar question)

 By Jack Pantalone

As most everyone knows, child support in Canada is determined in accordance with the Federal Child Support Guidelines (the Guidelines), which came into effect on May 1, 1997.

Clearly, the purpose of the Guidelines was, in part, to provide certainty and consistency with respect to the determination of child support to be paid upon separation. Previously, there were wildly inconsistent amounts of child support being ordered in virtually the same fact situations, as judges struggled with assessing and determining parties’ financial circumstances, and the financial needs of the children.

Although some may question the fairness of some of the amounts of child support to be paid pursuant to the Guidelines in some specific situations (such as the significant child support awards in cases dealing with payors with extremely high incomes), I think that it is safe to say that the stated objectives of the Guidelines, as set out in section 1, have generally been achieved. These stated objectives are as follows:

1.     The objectives of these Guidelines are:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of boh   spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of  child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses  guidance in setting the levels of child support orders and encouraging settlement;  and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Predictability and certainty of child support awards is easily achieved in situations where children are primarily resident with a support recipient, and the support payor receives nothing but a base salary from his/her full-time employment. In such circumstances, support is easily calculated by reference to the child support Tables that form part of the Guidelines. A court is given very little discretion to deviate from the Table amount, in such cases.

Section 16 of the Guidelines provides that, subject to sections 17 to 20, a spouse’s annual income is determined by reference to one’s “total income” in the T1 General Form. One simply refers to line 150 on their tax return.

Section 17 of the Guidelines examines one’s “pattern of income” and allows the court to average a payor’s income over the previous 3 years, or to exclude non-recurring losses (such as a capital or business investment loss) in order to arrive at a fair determination of one’s income.

Section 18 of the Guidelines deals with a payor who is a shareholder, director or officer of a corporation, and points to the fact that monies held back in a corporation can be added to a payor’s income (for example, in the case of retained earnings).

Section 19 of the Guidelines allows the court to impute income to a payor, in certain circumstances. Essentially, this allows a court to find that a payor’s income is higher than declared if, for example, the payor is intentionally under-employed, or unreasonably deducts expenses from income. This will capture the situation where a self-employed payor is able to deduct from his/her income certain expenses for tax purposes (such as meals and entertainment, business promotions, etc). If a court finds that these are unreasonable deductions from one’s income, a court can add these expenses back into income for the determination of child support, even though the expenses are legitimately allowed by Canada Revenue Agency for tax purposes.

Section 20 of the Guidelines allows a court to determine, for child support purposes, the income of a non-resident. This addresses the issue of differing rates of income tax for individuals who reside outside of Canada.

Clearly, courts will scrutinize the declared income of self-employed individuals, in an attempt to determine one’s available income for child support purposes. Unreasonably deducted expenses, or income unreasonably held in a company, will simply not be allowed.

Another issue that sometimes arises with self-employed payors, is the availability of cash “under the table” income, which is not declared anywhere by the support payor. Often times when allegations are raised that a support payor is involved in cash transactions, the support recipient is unable to prove the existence or amount of such income. Rarely, for example, do such self-employed individuals issue invoices for work that they have rendered, or deposit the cash into their bank accounts (where it could otherwise be traced). The argument that “…I know that he earns money under the table, because he did it throughout our marriage” simply won’t be enough to convince the court that unreported income is being earned.

Therefore and in such situations it is important to establish the lifestyles of such self-employed individuals, in order to try to persuade a judge that the self-employed payor simply could not have acquired the assets or paid for such lavish vacations, on his or her declared income. Judges will readily impute income to a support payor whose lifestyle simply cannot be supported by his/her declared income.

CONCLUSION
All of this being said, the most common hurdle and challenge for support recipients, is the cost involved in both investigating and litigating these issues. It can be extremely expensive to litigate the issue of child support involving a self-employed individual. Often times, it involves retaining a forensic accountant to investigate the payor’s financial circumstances, in order to provide a neutral, professional opinion as to the payor’s true income. Unfortunately, the cost involved often outweighs the financial benefit achieved, and it is simply too risky to expect that court costs will be awarded to recover the costs associated with this litigation.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.