By Jack Pantalone

This newsletter is based on the assumption that there is no Cohabitation Agreement or Marriage Contract in place, setting out how household contents are to be divided upon a breakdown of the relationship.

For separating couples, in addition to all of the other issues that they often times are faced with and have to address, there is often an issue as to how their household items and contents will be addressed and treated between them.

The first point is to distinguish between household contents and personal belongings.

Clearly, each spouse is entitled to retain his and her own personal belongings upon a breakdown in their relationship. For instance, the wife is entitled to keep her own sporting equipment and jewellery, and the husband is entitled to retain his tools, etc.

This does not mean that these items are not accounted for, for equalization purposes. In other words, even though each spouse is entitled to retain his or her own personal belongings, these belongings may have a significant dollar value, which will have to be included in their net family property for equalization purposes. For example, if the wife’s jewellery has a fair market value of $20,000 as of the date of separation, she will certainly be entitled to retain this jewellery; however, she will have to include it as property owned by her on the date of separation for equalization purposes.

For non-married spouses (common law spouses) the equalization scheme under Ontario’s Family Law Act does not apply. Therefore and absent a trust claim in the interest of the property owned by the other, each common law spouse is entitled to retain his and her own property, free from any claim by the other spouse. For common law spouses, there is no “equalization process”, and each spouse is entitled to his and her own property, without any claim by the other spouse (again, absent a trust claim).

Household items and contents are generally considered to be jointly owned property, owned by both spouses regardless of whether one of the spouses actually purchased a particular item. A stereo system purchased on one’s credit card during the marriage, for example, is commonly considered to be jointly owned property.

There are different ways to deal with the issue of household contents and items, at marriage breakdown.

DIVIDE IN SPECIE (EQUALLY): Firstly and most commonly, household items and contents can simply be divided in specie. This means that the household items and contents are divided equally between the spouses, such that each spouse feels that he or she has received a fair share of the items, having regard to their overall dollar value. In such event, the household items and contents are left out of the equalization process, as each side would be deemed to have received approximately an equal value of the household contents.

If they want to divide the items in specie, there are a few different ways to go about doing so. First, the parties can themselves agree on how the items will be divided (who gets what). They both get the items that they really want to have, and simply agree to treat this division as a set-off. Second and if the parties cannot agree on who gets what items, a comprehensive list of items can be constructed by both parties and, upon a flip of a coin, the parties take turns choosing items until all of the items on the list have been exhausted. Third, a less common method is for one of the spouses to create two mutually exclusive lists (both lists combined containing all of the items), and for the lists to be presented to the other spouse, who then gets to choose one of the lists. This method ensures that the spouse creating the lists will do so in such a way that there is more or less an equal value to both lists, otherwise running the risk that the other spouse will take the more “valuable” list!

DIVIDE AND ADJUST: Rather than dividing the items in specie and treating them as a set-off for equalization purposes, a second way to deal with the items is for the spouses to divide the items unequally, and to have this unequal sharing of the items reflected in the equalization process. For instance, if the wife received approximately $5,000.00 of household contents, such would be noted in her net family property. If the husband received $3,000.00 of the contents, this would be noted in his net family property. For equalization purposes, the wife will be deemed to have received $2,000.00 more in household contents than the husband.

In such instance, it may be necessary to retain the services of an appraiser/auctioneer, to provide an estimated fair market value of the household contents and items. Generally and in such event, spouses are shocked at how low a value is attributed to their household contents. The reason for this is that the household contents are appraised at their “garage sale” value, not their replacement value, purchase price, or insured value.

SELL EVERYTHING: If the parties are unable to agree on a division of these joint items, the parties can simply proceed to court for determination. However and  if the parties end up proceeding to court, undoubtedly the judge will simply order that all of the contents be sold, with the net proceeds of sale divided equally between the parties. This is really the last resort for the spouses as, once again, both spouses will end up receiving a fraction of the replacement cost of these items, once they are sold and the proceeds divided equally between them.

In the end and as difficult as it may be, the spouses are best off dividing the items between them, and either treating the items as having been divided in specie,  or agreeing on the necessary adjustment to be made to their respective net family properties in order to reflect the fact that the items were divided unequally. Sentimental value of items aside, this is clearly an issue where the cost of arguing over “who gets what” will very quickly outweigh any financial benefit that is derived from being able to retain the items in dispute.

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.

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.

By Jack Pantalone

In Western culture, most often a marriage proposal is accompanied with an offer of an engagement ring. Engagement rings are symbols of the love, devotion, commitment and fidelity a couple shares.

Conventionally, the woman’s ring is presented as a “betrothal” gift by a man to his prospective spouse while he proposes marriage or directly after she accepts his marriage proposal. It represents a formal agreement to future marriage. Rings can be bought by the man, the woman, the couple together, or by each partner for the other.

Betrothal rings were used during Roman times, but weren’t generally revived in the Western world until the 13th century. The first well-documented use of a diamond ring to signify engagement was by the Archduke Maximilian ofAustriain imperial court of Vienna in 1477, upon his betrothal to Mary of Burgundy.

However, engagement rings didn’t become standard in the West until the end of the 19th century, and diamond rings didn’t become common until the 1930s. Now, 80% of North American women are offered a diamond ring to signify engagement.

In addition to being symbolic, engagement rings are expensive! A “rule of thumb”, apparently, is that a bridegroom should spend approximately 10% of his total annual salary on his fiancée’s engagement ring.

Not surprisingly, therefore, if an engagement is broken off and the couple do not end up marrying, often times a dispute arises as to who gets to keep this valuable ring.

A gift is a voluntary transfer of property from one individual to another, made gratuitously to the recipient. Three elements must be present; delivery, donative intent, and acceptance. It is generally free of any conditions, strings or “consideration”.

Clearly, an engagement ring is given in contemplation of marriage. In this respect, proceeding with the actual marriage can be viewed as a condition on which the ring is given. However, if a gift cannot be conditional, how can the bridegroom require its return, if the engagement is broken off?

This issue is not dealt with under any legislation, such as the Family Law Act, or the Divorce Act. Rather, it is a common law issue, one that has been dealt with by the courts on many occasions.

Cases have held that, in spite of the fact that a gift cannot be conditional, a donor can nevertheless legitimately require its return if the condition is not fulfilled, in that the engagement is broken off prior to the wedding; however, the issue is dependent upon who breaks off the engagement.

If the donor (the bridegroom) decides that he does not want to proceed with the wedding and cancels the engagement, the bride is entitled to keep the ring. If, on the other hand, the bride is the one who initiates it and breaks off the engagement, the ring must go back to her former fiancé.

Of note is that the reason for the wedding cancelation appears to have no relevance; if the bridegroom discovers that his wife-to-be has been unfaithful and angrily breaks off the engagement, he is not entitled to the return of the ring.

Another issue that arises with respect to engagement rings, is whether the ring is included as property to be equalized between the spouses if, after they marry, they end up separating.

An engagement ring is property and, as such, is to be included as property owned by the wife on the date of separation, for equalization purposes. However, if the engagement ring was given to her by her bridegroom prior to marriage, it is also pre-marital property, which is deductible from her net family property. Therefore and unless the engagement ring has increased in value from the date of marriage to the date of separation, there is no benefit to the husband by having the wife include the ring as property owned by her on the date of separation. Although she will include the value of the ring as property owned by her on the date of separation, she will then turn around and deduct its value as property owned by her on the date of marriage.

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.

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.

By Jack Pantalone

Historically and as a general rule of thumb, both child development professionals and legal professionals (lawyers and judges) took the view that there should be no overnight access to a non-primary parent (usually the father) for children under three years of age and, for sure, for children under two years of age.

Based on concepts such as continuity of care, attachment theory, and bonding, we (legal and mental health professionals) tended to accept that, at least for children under two years old, these children were too young to handle that much time away from their primary parent, their mother. The prevailing thinking was that frequent but shorter visits were age appropriate for these infant children.

Recent child development research, however, has led lawyers and judges to re-think the issue of parenting for infant children, and courts are now frequently awarding generous access – including overnight access – for children under the age of three.

The concept that very young children can be bonded and form attachments to multi-caregivers, has gained favour in the eyes of psychologists and by the courts.

There have been two diverseperspectives of what is age and developmentally appropriate for very young children of divorced families. The first body of research supports the assumption that very young children need a primary and stable attachment to their mother – one primary parent. However, there is a second body of research that places greater importance on children having a father or father figure, and takes a family systemsperspective by looking at the full network of relationships surrounding the children. The assumption of this second body of research is that the functioning of mother, father and other caregivers with their children, are all significantly inter-related.

Certainly, the present era of daycare has taught us that an infant/child can thrive under multiple care taking conditions, so long as each is stable, emotionally available, coherent, and sensitive to the child’s development andpersonal needs, and so long as each is comfortable for the various caretakers involved. The research collected with respect to children living under these conditions rebuts claims that suggest that infants are better off under the sole or exclusive care of oneperson, rather than many.

Recent child development research indicates that very young children, including infants under three years of age, are capable of developing multiple important attachments and that frequent transitions do not work well when parents are in conflict.

A review of this body of research concludes that very young children can enjoy overnights with the non-primary caregiver, even if he/she is under three years of age, provided that both parents are nurturing and interested caregivers and that there is no conflict between the parents. The research establishes that the distress of infants and toddlers often relates more to erratic schedules, than to overnight transitions. Further, a child’s distress or anxiety with respect to overnights is often attributable to a mother’s distress or worry being passed on to the child.   

Overnight access to a non-primary parent for infants or toddlers is now routinely being ordered for infants over six months of age. Courts appear to be no longer willing to simply restrict overnight access to a parent based on the age of the child alone. There is an abundance of case law and research supporting the theory that parenting schedules ought to be designed and ordered to ensure meaningful parenting time for both the primary and non-primary parent, in an attempt to maintain appropriate and meaningful relationships between young children and both parents.

So, is your case an appropriate one for overnight access or even shared parenting with respect to a child under the age of three years? 

What appears to be crucial is that there will be continuity of care within and between the two homes, ongoing communication about the continuity of care and routines either by a written journal, e-mail or telephone, and a built-in reviewperiod to address the concerns of the other parent in case the overnights are not working for the particular child.

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.

By Jack Pantalone

Although both the Family Law Act (for non-married spouses) and the Divorce Act (for married spouses) specifically permit the payment of a lump sum for spousal support. However and in an Ontario Court of Appeal decision of Mannarino v. Mannarino, the Court noted that lump sum spousal support was only to be awarded in very unusual circumstances, where there was a real risk where periodic support would not be paid and that lump sum spousal support should not be awarded and that lump spousal should not be awarded to effect a redistribution of property in guise of support, or where it would be unfair to deprive the payor of the ability for a variation of spousal support at a later point in time.

In the recentOntarioCourt of Appeal case ofDavisv. Crawford, the Court essentially re-visited this issue.

Davis involves a common-law couple who separated after 23 years of cohabitation, when they were 66 and 64 years of age. In this case, the trial Judge noted that the woman was deprived of any claim for property, because the parties were not married. However and as the Judge noted, that did not mean that the man’s assets should not be available for a support order, if the woman was otherwise entitled to spousal support.

Having regard to their respective financial circumstances, including their respective incomes, the trial Judge awarded a lump sum spousal support payment in the amount of $135,000.00.

The Court of Appeal confirmed the trial Judge’s decision and noted that a lump sum spousal support award should not be made for purposes of re-distributing assets. Nevertheless, a lump sum order can be made to relieve against financial hardship and the real question that the trial Judge must ask himself/herself, what is underlying purpose of the order.

The Court of Appeal noted:

• “Most importantly, a court considering an award of lump sum spousal support must weigh the perceived advantages of making     a lump sum award in the particular case against any presenting disadvantages of making such an order.
• The advantages of making such an award will be highly variable and case-  specific.  They can include but are not limited to: terminating ongoing contract or ties between the spouses for any number of reasons (for example: short-terms   marriage; domestic violence; second marriage with no children, etc.); providing  capital to meet an immediate need on the part of a dependent spouse; ensuring  adequate support will be paid in circumstances where there is a real risk on non-payment of period support, lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive support.
• Similarly, the disadvantages of such an award can include: the real possibility that the means and needs of the parties will change over time, leading to the need for   variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating  an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.
• In the end, it is for the presiding judge to consider the factors relevant to making a            spousal support award on the facts of the particular case and to exercise his or her   discretion in determining whether a lump sum award is appropriate and the   appropriate quantum of such an award.”

In summary, the Court of Appeal did not endorse the submission that the lump sum spousal support awards must be limited to very unusual circumstances; however, they agreed that most spousal support orders will be in the form of periodic payments.

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.

Mediation and/or Arbitration, and Parenting Coordination 

By Jack Pantalone

In my last newsletter, I summarized the court process, while emphasizing the importance of trying to resolve disputes out of court.

It remains puzzling to me how many cases proceed to court. Family courts across the province are backlogged with cases, most of which should not have even proceeded to court in the first place. Most litigants cannot afford it, yet they nevertheless each pay their lawyer large sums of money to litigate on their behalf.

There is a rise in self-represented parties, litigants who represent themselves in court and, as a result, don’t have to pay their own lawyer to go to court on their behalf. A financial disincentive, however, still exists. Courts can and will impose costs sanctions against self-represented litigants. Therefore and even if a self-represented party is not paying for his or her own lawyer, this litigant can be ordered to contribute towards the legal costs of their spouse.

Again, out of court settlements and resolutions remain the most viable and appropriate options in the vast majority of cases.

MEDIATION

Mediation, which is a voluntary process, remains the most effective alternative dispute resolution mechanism in many cases. Closed mediation is more common than open mediation. Parenting mediators are mental health and/or child development professionals, who are retained to assist parents in negotiating terms of settlement on outstanding parenting issues. Financial mediators are usually lawyers, who mediate the financial issues of child and spousal support, and equalization of property. Financial mediators will often offer “comprehensive” mediation, dealing with both parenting and financial issues.

Separating couples who are seeking a Separation Agreement (or couples who already have an agreement or court order in place), can attend mediation at their own initiative, by contacting a mediator directly. Alternatively, they can be referred to mediation by their respective lawyers.

Please refer to the Mediation tab of my website, for more information on mediation and the mediation process.

ARBITRATION

Arbitration is similar to mediation, in that a neutral third party is engaged by the parties. The significant difference between the two, however, is that a mediator is a settlement facilitator who assists the parties in attempting to reach an agreement on the outstanding issues. An arbitrator, on the other hand, sits as a decision-maker. Through an Arbitration Agreement signed by the parties, the arbitrator is given a mandate to receive evidence from the parties and their witnesses (either in writing or orally), and has the authority to make a decision on the outstanding issues specified within his/her mandate.  The arbitrator’s decision is binding on the parties and, usually, the Arbitration Agreement provides that the arbitrator’s decision can only be appealed as a result of an error in law (the same as a judge’s decision).

The arbitration process is completely voluntary, and requires the agreement of both parties to proceed to arbitration. Some Separation Agreements include mandatory arbitration clauses in the event of a dispute, which may then require that the parties proceed to arbitration, rather than to court.

Arbitration also requires the cooperation of both parties. The parties must agree to and respect timelines and orders that are set by the arbitrator, as the process unfolds. Disclosure orders must be adhered to, for example. If one of the parties does not cooperate with the process, arbitration may be rendered ineffective.

Finally, arbitrators charge for their services, whereas judges don’t (other than the filing fees for court applications, the legal fees for your own lawyer and the possibility of being ordered to pay your spouse’s legal costs).  Arbitrators’ rates usually mirror lawyers’ rates and, therefore, an arbitrator’s fees can be quite expensive. Generally, the parties agree to share equally in the up front cost of the arbitration, with the arbitrator given the mandate to re-apportion costs at the conclusion of the hearing.

MEDIATION-ARBITRATION

A relatively new, emerging process, is mediation-arbitration, or “med-arb”, as it is often referred to. Med-arb is, as the name implies, a combination of mediation and arbitration. Again, a Mediation-Arbitration Agreement sets out the parameters of the process. Generally, it provides that the mediator/arbitrator will mediate the outstanding issues, in an effort to assist the parties in reaching a settlement. If the parties are unable to settle, the mediation process turns into an arbitration hearing, which empowers the mediator/arbitrator to make a decision on the outstanding issues. The philosophy behind the med-arb process is that a skilled mediator will be able to facilitate an agreement, thereby avoiding the arbitration hearing. This may be the first time that the parties have sat across the table from one another, and some preliminary discussion may in fact reveal that the parties are much closer to settlement than they expected, and that they are able to agree on some or even all of the outstanding issues.

PARENTING COORDINATION (PC)

Parenting Coordinators are health care professionals who assist parents in implementing terms of a Parenting Agreement or Court Order.

Parenting Coordination is a service for high-conflict couples who already have a court order or agreement in place, and who are experiencing chronic difficulties in resolving parenting issues between themselves. (Note that we are referring to cases where significant conflicts persist more than two years after the separation. Many separating couples exhibit high conflict in the early stages of separation, but usually those issues are resolved either as a result of an agreement or an interim court order.)

True high-conflict couples are different. These couples keep returning to their lawyers with issues that, from the legal standpoint, might seem inconsequential, including vacation plans, Christmas arrangements, pick-up and drop-off issues, children’s activities, or minor adjustments to the parenting schedule. But even when, on the surface, such issues seem relatively minor, there is always a risk that they might escalate to a point of crisis. For example, problems with access may turn into outright denial of access; or issues at pick-up and drop-off times might end up requiring police involvement. Some parents abdicate their responsibilities altogether, as in failing to make important decisions about which school their child should attend, for example.

Traditionally, such clients would turn up at their lawyers’ offices over and over, and sometimes court involvement might be necessary. Parenting Coordinators (PCs) provide an alternative to that route. In the Parenting Coordinator model, chronically high-conflict couples may try to resolve their issues with the assistance of a mental health professional, rather than resorting to litigation.

The PC is like a “referee”, who can make binding decisions intended to implement the spirit and intent of an agreement or court order, rather than re-writing or substantively changing the agreement or order itself.

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.

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.

By Jack Pantalone

Fortunately, the vast majority of family law matters settle, without the necessity of the spouses having to initiate legal proceedings or step foot into a courtroom.

Occasionally, however, some matters do proceed to court. There are, for example, situations of urgency, where children are at risk, money is being withheld, the situation in the home is very tense and neither spouse will leave, etc. In these types of cases, emotions may be running too high to try to bring about an immediate and rational solution, and a judge’s intervention is necessary to bring resolution and stability to an otherwise chaotic situation.

There are also cases where, in spite of the spouses’ best efforts, they simply cannot bridge the gap between their respective positions, through their settlement negotiations.

Settlement negotiations require good faith, full and frank disclosure. They also require that both spouses proceed with the negotiations along a timeline that is satisfactory to both of them. If one of them significantly delays dealing with the issues, or is not honest in his or her financial disclosure, out of court settlement negotiations are unlikely. In such cases, the initiation of court proceedings results in timelines set by the court and the imposition of full disclosure. Court “deadlines” often times result in an unreasonable spouse all of a sudden becoming cooperative and focused on settlement.

Finally (but rarely), there are unique legal issues on which spouses may remain apart, and they (or their respective lawyers) feel that these issues should be determined by a judge, rather than through settlement discussions.

In my practice I try to exhaust settlement negotiations and, in most cases, I advise the initiation of legal proceedings as a very last resort. As I tell each and every client who is considering going to court, over 95% of cases that proceed to court ultimately settle prior to a trial, after several thousands of dollars are spent in the litigation process. The recovery of legal costs is never guaranteed, as the awarding and amount of legal costs is within a judge’s discretion. Only in the rarest of cases is there full recovery of costs.

As judges will often say, separated spouses have a proverbial pile of assets (some bigger than others). The spouses owe it to themselves and their family to try to preserve this pile as much as possible, and to share it in a fair and reasonable way. The more they litigate, the more that pile shrinks. The pile is passed on to their respective lawyers, as opposed to their children.    

In addition to the financial cost of going to court, the emotional cost and toil on a family can be overwhelming for “litigants”, most of whom have never even stepped foot inside of a courthouse. I am in court virtually every week, and I feel comfortable and confident with the process. I constantly remind myself that my clients are not quite as accustomed to the system as I am.

In Ontario, the family court process is governed by legislation called the Family Law Rules.

Unless you are seeking a variation of a final order or a Separation Agreement that has previously been filed with the court, legal proceedings are initiated by way of a court Application. The party initiating the Application is the “Applicant” and the other spouse is the “Respondent”.

Within an Application, the Applicant can claim various relief. For example, if married, you can claim a divorce along with other “corollary” relief, such as custody of children, support (child and spousal), and equalization of property.

Usually, the Applicant will set a court date at the time of issuing the Application at the Family Court counter at the courthouse. This initial court date (called a “hearing”) can either be a first appearance, or a case conference.

The Application must be served personally on the Respondent (the Application is hand-delivered), unless extraordinary circumstances exist, such as extreme urgency or the whereabouts of the other party are unknown.

If the Respondent is served withinCanadaof theUnited States, he/she has 30 days to respond to the Application, by serving an Answer and filing it with the court. Further, the Respondent may wish to make a claim of his/her own, in which case he/she serves and files an Answer and Claim by Respondent.

The first court hearing (either a first appearance or a case conference) is usually set for a date four to six weeks from the date that the Application is issued.

In very urgent circumstances (a situation of urgency or hardship), a judge can allow an early hearing (called a “motion”), in advance of a case conference. Case law has held that the rule allowing an urgent motion contemplates “an abduction, threats of harm, and dire financial circumstances”. Clearly, the test is very high and, in all but very few cases, the initial hearing will be a first appearance or a case conference.

A first appearance is scheduled in order to establish timelines for the service and filing of materials, including responding materials, and the scheduling of further court appearances.

Most commonly, the initial hearing will be a case conference. One of the purposes of the case conference is for the court to make procedural orders, such as the financial disclosure to be exchanged between the parties, in order to move the case forward. Undoubtedly, a judge or Master (a judicial officer) will explore the possibility of settling some or all of the issues, to determine whether the parties can resolve the issues without going into the court process any further and without having to incur more legal costs.

The court cannot make a substantive order (for example, an order for custody or support) at the case conference. Further and with the exception of urgent circumstances, a party can only bring a motion for temporary relief (temporary custody or temporary support) after the case conference has been held.

After a case conference, a party can schedule another hearing, called a “motion”, for temporary relief. If a party cannot wait until trial, for example, for temporary child support, the party can schedule a motion date. At the motion, the court can make temporary orders, which are intended to address certain issues pending the trial. Of note is that the parties need not bring a motion, and can proceed directly to a settlement conference after a case conference.

After a case conference, either party can schedule a settlement conference. The primary purpose of the settlement conference, held before a judge, is to try to settle some or all of the issues. A judge will deal extensively with all of the issues (these conferences are usually set down for an hour or longer). Judges will not only try to assist the parties in settling the matters, but the court will also try to offer an opinion as to the likely outcome, should the matter proceed to trial. Many cases that have made it this far into the process, settle at this stage of the proceeding.

As with a case conference, a judge will not make a substantive order at the settlement conference hearing (except under exceptional circumstances).

If the case is still not settled at the settlement conference stage, the presiding judge can make an order listing the matter for trial. This means that the trial coordinator is directed to place the case on the next available list for trial hearings. Family law trials inOttawaare placed on a “running list”, meaning that there is no specific date set for a trial. Instead, a case is set down on a list of many cases to be heard during a sitting (usually two weeks in duration), and all cases are expected to be ready to proceed when called. For example, there may be sixty cases on a list for a particular trial sitting, with seven judges hearing the cases for that sitting. Even though your case may be #60 on the trial list, the trial coordinator may call your case in for trial within the first few days of the trial sitting.

Prior to proceeding to trial, every case on the trial list is given the opportunity to have a “last minute” settlement conference, in a final attempt to settle the case before proceeding to trial. Many cases that have made it this far in the process, settle at this “eleventh hour”.

If your case has still not settled at this point, you will be called in for trial by the trial coordinator, and the final hearing will be heard by a judge. Trials vary in duration, from one day to several weeks, depending on the number and complexity of the issues, number of witnesses, etc.

Following the trial, judges will generally “reserve”, meaning that he/she will review all of the evidence, submissions and case law, before rendering a decision. Judges have six months from the close of a case, before rendering judgment.

After rendering a decision, a judge will invite the parties to give submissions as to costs. The successful party is presumed entitled to his or her costs, which presumption can be rebutted. Again, costs are discretionary, involving a consideration of a number of factors. There are different “scales” of costs (from partial, substantial, or full recovery).

Full recovery of costs (recovering all of your legal costs) is very rarely awarded. The court must find “bad faith” on behalf of a party, not just unreasonableness.

The court process, from start to finish, is an expensive and lengthy one. It can take about one and a half years from the initiation of the proceedings to the conclusion of a trial, and then you may have to wait several months for the judge to render a decision.

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.

(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.