It’s scary to think of anything going sideways. Simply thinking of the unimaginable makes us feel like something bad could happen. And yet, we do. That’s why we get insurance – for our car, our homes and even ourselves. We want to make sure we’re protected. However, when it comes to relationships, we hate to think that it could possibly end.
“Our love is eternal”
“We promised to grow old together”
“He/She’s my soulmate”
“We’re destined to be”
While you tell yourself this, you might find yourself reminded of others who have said the same and who are now filing for divorce.
Of course, there’s no saying that your relationship would come to that. It could thrive. It could last your lifetime. And I pray yours does.
In fact, a handful of couples have made it work – kudos to them- however, relationships won’t always turn out the way we want or expect them to.
And while you might not see it now, having a Marriage Contract or Cohabitation Agreement is something you might want to consider before you commit to living together from here on out.
The Marriage Mindset
We want our love to last forever. And while we should all strive to fight for that, we also don’t know what the future holds.
A marriage contract is there to secure you and your partner’s properties and assets if ever things go south. Of course, the goal is to never have to get to that point but then again, you never know.
In fact, if you get a marriage contract, you can just get it and forget it.
So, what’s the point of it then?
If you truly love your partner, you’d have everything set in writing while you can still amicably come to an agreement on things. Also, many people fail to realize that there are unintended consequences to not having a marriage contract at all.
Let’s say that you only want what’s yours or you’ve planned to just shares things if it does come to it, leaving it to the default means you leave it up to the provisions of the law and it may not be what you or your partner intended.
The Unintended Consequences
Now, what could these unintended consequences be?
Although a ton of things come to mind, primarily, the main consequences you should wish to avoid are changes in the provision of the law in regard to marriage and how marriage affects your own personal assets, achievements and income moving forward.
Of course, this involves quite a broad range of things, which is why I’d like to discuss three of the most misconstrued myths behind the division of properties during divorce.
This house is under MY Name before Marriage
Regardless of how much you put towards your home, even prior to marriage, even if it is under your name, it is considered conjugal. The same could be said of other properties and assets acquired before and after your marriage.
That said, if the matrimonial home was initially purchased by you, even with the downpayment being covered solely by you, in the eyes of the law you will still be splitting it 50-50.
Many make the mistake of thinking they’d get a deduction because they put more towards the home than their partner, however, that is not the case. In fact, when it comes to the matrimonial home title it does not matter.
My Partner Used to Earn More and Can Still Earn More
Despite how responsible and financially capable you or your partner may be now, you never know how the tides may turn. You may be the low-income earner or the high-income earner at one point in another during your relationship, and this is fine so long as you are together.
However, in separation, spousal support tends to be very draining especially if things turned out for the worse. It could be that your partner, being the former breadwinner, cheats, turns to drugs, might go into a life crisis of some sort and you end up being the greater-income earner in your relationship at the date of separation.
In this case, more often than not, where the lower-income earner becomes the high-income earner, the now greater-income earner does not want to pay spousal support, and of course, for good reason. Yet no matter the cause of the role reversal, the lower income-earner during the date of separation is entitled to spousal support from the higher income earner.
Of course, there is an entitlement threshold, but most of those who have experienced this scenario say that had they known it would happen they would have organized their affairs differently.
Getting Back Inheritance spent on the Marriage
Another thing we have to look at is your inheritances.
Although inheritance is considered separate property, belonging exclusively to the inheritor, if you decide to put it to use towards your marital assets such as using it on your matrimonial home or depositing it into a joint bank account, it automatically becomes subject to division if you do decide to separate even if your intention was to simply temporarily sustain or improve your shared household during the time it was used.
What if these scenarios don’t bother me at all?
The point of a marriage contract is to be intentional with your future. Even if you aren’t concerned with these unintended consequences, it’s always best to put that into writing this way both you and your partner have a written agreement you can turn to if ever it comes to that. Of course, you could always change the terms in the future, however, at least it would be on your terms rather than leaving it up solely to the law to decide.
This way, both you and your partner have a say as to who gets to keep what and what is considered as yours or your partner’s throughout the course of your marriage.
Separation and divorce are difficult processes for everyone, but it can be challenging to face a reality in which your former spouse or partner has a new partner, especially if this new partner is entering the lives of your child(ren).
If a new partner is growing to be a significant part of your child(ren)’s life, it’s healthy to find a positive way to approach co-parenting with this new individual in the mix. An amicable approach would be the ideal way to handle the situation. It may be hard to acknowledge that your child(ren) feels affectionate towards your co-parent’s new partner but remember that you and your co-parent will always be your child(ren)’s mom or dad. If you can recognize that this person has your child(ren)’s best interest at heart, then support this positive relationship. It is great for your child(ren) to have plenty of healthy support systems in their life. Consider them an extra set of listening ears and an extra set of hugging arms when your kids need support, and you can’t be there.
It is always important to keep the child(ren)’s best interest and needs at heart. Even if this new partner isn’t your favorite person, approach in a polite manner because causing meritless challenges will only impact your child(ren)’s well-being. There is no exact law on how to introduce new partners to your child(ren); parties should act reasonably and consider the best interests of the child(ren). By setting this co-parenting boundary, it will promote positive interactions, and cheerful life experiences to help your child(ren) succeed.
Be advised, this can be a confusing time for your child(ren) with all the changes they may feel internal pressure not knowing how to react. It is incredibly important that the co-parent’s partner is introduced to the child(ren) carefully with a proper plan. Essentially, provide the child(ren) with reassurance that your new partner is not replacing their other parent and being mindful not to overstep boundaries.
If you do have concerns about your co-parent’s new partner, address the concerns to the other parent directly or speak with a family lawyer or mental health professional specializing in post-separation dynamics if there are challenges. On the other hand, if you are the co-parent with the new partner and you feel overwhelmed about the situation, seek professional help to you navigate this tricky situation.
Here are a few tips for setting co-parenting boundaries:
1. Open communication with your ex-partner;
2. Aim for consistency in co-parenting;
3. Prioritize your child(ren)’s best interest;
4. Resolve co-parenting disagreements;
5. Set your own boundaries if required; and
6. Evaluate your own emotional and mental health
Motions are one of the numerous steps in family law. Motions can be brought by either party to the proceeding, and this can be done before the court makes a final decision on the matter in your case. If you are bringing the motion, you are called the moving party and your partner is called the responding party.
Motions allow the moving party to ask the court to make temporary decisions on the matters you have asked the court to decide, ideally on a time-sensitive issue before the outcome of your case is reached. This temporary decision would be in place until the court makes a final decision in your case.
A temporary order can vary as it depends on the type of claim you are seeking but an example would be a request to the court for your ex-partner to pay temporary child support or a decision on parenting time. Another example is when you need a temporary order that says where your children will live and what school they will go to.
Note that we are talking about regular motions which are different from 14B motions. If your motion is for something procedural and uncomplicated then you can file a Form 14B motion. A general example is asking the court for permission to file an Answer after the time to file an Answer has passed.
Here are a few specific examples of when 14B Motions are used:
If financial statements are required in the proceeding and if a party is unable to obtain Canada Revenue Agency documents in a timely manner. A Form 14B may be filed with supporting documents along with an affidavit indicating that the party has filed tax returns and a copy of the return was disclosed to the other side but that the party is still waiting for the Notice of Assessment from the Canada Revenue Agency and request for extension of time. Similarly, if a party believes that the financial disclosure provided by another party does not provide enough information for a full understanding of the other party’s financial circumstances then the party may file form 14B requesting the court to order the other party to give the information requested or to serve and file a new financial statement.
An Applicant can ask the court for an order for substituted service if the Applicant believes that the Respondent is intentionally evading service. In situations where the Respondent has been unresponsive to any communication from the Applicant or the Applicant’s counsel and if service was attempted numerous times with no success. In this situation, Form 14B can be completed to ask the court to allow substitute a service to serve the Application, supporting documents, and affidavit along with proof of attempted service.
If you have served your Family Court Applications and tried communicating with the Respondent and it is obvious the Respondent chooses not to participate in the matter, it is possible to bring a Form 14B along with supporting documents and an affidavit to request the court to note the Respondent in default of the proceedings and to proceed with an uncontested trial.
If the parties to the proceeding agree on a common issue, the parties can ask the court to put the agreement in a court order. They complete simply a 14B motion form, attach the consent, and a draft order that includes the terms that you are seeking for.
Motions are an important tool in family dispute resolution through the courts and the above is a very brief outline of how motions can help you resolve issues in your family law matter.
Narcissistic Personality Disorder (NPD) is a complex condition with significant implications for individuals’ thinking, emotions, and behaviors. Central features of this disorder include an exaggerated sense of self-importance or worth insistent cravings for admiration from others despite the low capacity for empathy or emotional engagement with them and an intense focus on achieving power or success regardless of cost. At its worst NPD can manifest in manipulating or exploiting others to achieve desired ends. When circumstances involve divorcing parties or separating couples such behavior can inflict lasting damage as the narcissistic partner may fixate on controlling assets and decisions involving children.
Managing a separation from someone who has NPD isn’t easy and it can drain you both physically and emotionally. Set up some proactive measures during this period to safeguard yourself against their behavior so that your mental health isn’t compromised further than it may already have been by their disorder. Establish firm boundaries as soon as possible while keeping these expectations clear so there’s less room for manipulation by them. Indulge in physical self-care practices such as regular engagement in mindfulness or deep breathing exercises which will draw lines of physical and mental distance between yourself and their conduct leading to less stress. Keep all communication exchanges brief, focused, and strictly on “business” meaning avoid all confrontations or arguments about anything beyond taking care of parenting issues for example or fairly splitting assets with them as another example, if these are applicable to your circumstances. Engaging in arguments with a narcissist will only provide histrionic outlets for their already inflated ego which is best left unprovoked. Be measured in your tone with them too and avoid losing your cool since anything confrontational feeds into their control and ego.
Remember that while you can control how much energy you give towards separating from a narcissistic partner, it’s not within your power to change their personality. They’re likely to crave attention from all directions so it’s essential to minimize giving them any more than legally required to deal with the issues that pertain to your separation or divorce proceedings.
You could also consider seeking guidance from a therapist who can help with specific advice on how best to handle the challenges of dealing with a narcissistic ex-partner. I am not a therapist but as a family law lawyer who has to deal with these personalities, these are my two cents. All the best!
Family law is a complex and emotionally charged area of law that governs the legal relationships between family members. In Ontario, the family laws are based on case law, the Family Law Act, the Children’s Law Reform Act, and other related legislation. Hollywood has produced several movies that depict the intricacies and challenges of family law. In this blog post, we will take a look at the top ten movies related to family law matters.
Kramer vs. Kramer (1979)
Kramer vs. Kramer is a classic movie that depicts the emotional and legal struggles of a couple going through a bitter divorce. The movie explores the impact of divorce on children and the challenges of co-parenting.
The War of the Roses (1989)
The War of the Roses is a dark comedy that portrays the ugly and bitter end of a marriage. The movie explores the financial and legal aspects of divorce, including property division and spousal support.
Blue Valentine (2010)
Blue Valentine is a raw and emotional movie that portrays the breakdown of a marriage. The movie explores the impact of infidelity and the legal challenges of custody and access disputes.
Mrs. Doubtfire (1993)
Mrs. Doubtfire is a heartwarming comedy that portrays a father’s struggle to maintain a relationship with his children after a bitter divorce. The movie explores the legal challenges of custody and access disputes and the impact of divorce on children.
The Kids Are All Right (2010)
The Kids Are All Right is a comedy-drama that portrays the legal and emotional challenges faced by a same-sex couple and their children. The movie explores the legal challenges of same-sex parenting and the impact of divorce on children.
The Squid and the Whale (2005)
The Squid and the Whale is a dark comedy that portrays the impact of divorce on a family. The movie explores the legal challenges of custody and access disputes and the emotional struggles of children caught in the middle.
The Good Girl (2002)
The Good Girl is a drama that explores the challenges of extramarital affairs and the impact on family relationships. The movie portrays the legal and emotional challenges of divorce and the impact on children.
Revolutionary Road (2008)
Revolutionary Road is a drama that explores the breakdown of a marriage and the legal and emotional challenges of divorce. The movie portrays the financial and legal aspects of property division and spousal support.
A Separation (2011)
A Separation is an Iranian movie that explores the legal and emotional challenges faced by a couple going through a divorce. The movie portrays the challenges of child custody and access disputes and the impact of divorce on children.
The Divorce (2003)
The Divorce is a made-for-TV movie that portrays the legal and emotional challenges of a divorce. The movie explores the financial and legal aspects of property division and spousal support and the impact on children.
Hollywood has produced several movies that explore the intricacies and challenges of family. These movies offer a glimpse into the emotional and legal struggles faced by families going through divorce and parenting disputes. Whether you are a lawyer, a parent, or a movie enthusiast, these movies are a must-watch.
Toby, who had been married to Leah for five blissful years, unfortunately, had to go through the arduous divorce process due to the strain and pressure of the pandemic. After much contemplation and discussion, they decided to dissolve their union in 2021, a recently finalized decision. However, Toby’s fortune changed after meeting his life’s love during a ski trip to Whistler, BC, in December 2022. Overwhelmed with affection and the desire to tie the knot once again, Toby is left with an important question that must be answered before he can proceed to exchange vows with his new partner, “will his divorce be recognized in Canada?”
The question of whether a divorced individual from the United States can get remarried in Canada is not uncommon. Toby’s previous marriage was legally dissolved in the United States as per the country’s legal system. The process involved filing a petition, serving notice to the spouse, division of assets, and agreement on child support, among other aspects before a judge made a final decision on the matter.
However, recognizing a foreign divorce in Canada may not be automatic. Generally, if the divorce is granted in a country that follows similar legal principles as Canada, it is usually recognized. According to the Divorce Act, a foreign divorce can generally be recognized in Canada if both parties involved in the original marriage were entitled to obtain a divorce under the laws of the country where the divorce was granted. Additionally, the divorce decree must meet certain requirements in terms of form and content, and the parties must have been granted appropriate notice and the opportunity to participate in the proceedings leading up to the divorce.
It’s worth noting that Toby may need to meet certain requirements before getting married in Canada, regardless of whether his divorce is recognized or not. For instance, he would have to obtain a marriage license, provide proof of his divorce, and fulfill any other conditions deemed necessary under the Marriage Act, R.S.O. 1990 c.M.3. Moreover, Toby and his new partner may need to be aware of the impact that their marriage has on their immigration status, particularly if one of them is a non-resident of Canada, and they wish to make Canada their home.
While Toby’s US divorce is legally binding in the US, its recognition in Canada, while very likely, given it is in the United States, depends on several factors. To avoid any future legal complications, Toby may choose to seek guidance from a legal professional to ensure that he meets all the requirements before tying the knot.
It is devastating to find out that the person you are spending your life with, or have spent a significant part of your life with, is unfaithful. It feels as if the ground is slipping under one’s feet. As easy as it is for me to write it here, stop, think, plan and follow these steps below to help assist you in separating from your significant other.
1. Talk to a Therapist
While you are building a support system, it is also beneficial for your mental health to contact and speak to a therapist, for expert advice. It will provide you with mental strength that you need to deal with separation and a cheating spouse. They will provide you with coping mechanisms you need to help you move forward in this process.
2. Consult a Family Law Lawyer
After you have taken time to digest the facts, call and consult with a Family Law lawyer. Consulting with a lawyer will assist you in planning for your future. You may or may not choose to separate, depending on your circumstances. However, there is no harm in finding out what you are legally entitled to under the law.
3. Update your Will
If you have an existing Will and Power of Attorney, please contact your Will and your Estate Lawyer to update your Will as your relationship with your spouse changes upon separation. In addition, you will need to update the beneficiary designations as your former spouse may no longer be the person you want to inherit from your investments or estate upon your death.
4. Protect yourself
Once you separate from your partner, you must protect yourself financially. If you have joint accounts, then open a separate bank account. Keep records of any Section 7 expenses you are paying for your children. Good record-keeping will take you a long way. For more information on how to protect yourself financially post-separation, please consult a lawyer.
5. Communicate with your Children Together
If you decide to separate from your spouse, then you and your spouse should sit down with your children and explain to them that their parents will no longer be together. It is important for the children to know that their parents love them dearly, but now they will have two households instead of one.
Sometimes, children get wrapped around adult conflict, and it is essential for the parents to put their conflict on the side and think of the children’s best interests. You and your former spouse will be parents for the rest of your children’s lives; the earlier you start co-parenting, the better it is for them emotionally.
6. Build a Support System
Separation and divorce can be emotionally draining. Talk to a friend or a family member you trust and build a strong support system around you. Not only do you need it for yourself but also for your children. It is comforting to know that you have a shoulder to cry on and can rely on your support system anytime throughout this process.
Dealing with family law matters can be incredibly stressful and emotionally draining. The prospect of facing legal proceedings can be overwhelming, whether it’s a divorce, parenting dispute, property division, or another issue. Mental preparation can help you navigate these challenging situations more easily and resiliently. Here are some tips for how to mentally prepare for a family law matter:
Acknowledge your emotions
Feeling a range of emotions is normal when going through a family law matter. You may feel angry, sad, betrayed, or overwhelmed. Acknowledge these emotions and allow yourself to feel them. It’s okay to cry, scream, or vent to a trusted friend or therapist. Remember that taking care of your mental health is important during this process.
Educate yourself
The more you know about the legal process, the less scary it will seem. Research the laws or rules that apply to your situation and familiarize yourself with the legal terminology. Learn about the steps involved in your case and what you can expect at each stage. This knowledge will help you feel more in control and better able to make informed decisions.
Find a good lawyer
A good lawyer can make all the difference in a family law matter. Look for an experienced Family lawyer who specializes in family law and has experience with cases similar to yours. Make sure you feel comfortable with your lawyer and trust their advice. A good lawyer can provide you with guidance, support, and advocacy throughout the legal process.
Set realistic expectations
Family law matters can take time to resolve, and the outcome may not be exactly what you want. It’s important to set realistic expectations and be prepared for the possibility of a less than ideal outcome. Focus on what you can control and work towards a positive outcome within those limits.
Practice self-care
Taking care of yourself is crucial during a family law matter. Make time for activities that bring you joy, such as exercise, meditation, or spending time with loved ones. Practice good sleep hygiene and eat a healthy diet. Taking care of yourself will help you stay strong and resilient during this difficult time.
Preparing mentally for a family law matter is critical to your ability to navigate the legal process with ease and resilience. Acknowledge your emotions, educate yourself, find a good lawyer, set realistic expectations, and practice self-care. By following these tips, you’ll be better prepared to face any challenges that come your way.
I always liked Good Luck Charlie. I mean it’s no That’s so Raven or Hannah Montana but still, I remember being so excited to watch this show every time it came on. I remember when Spencer cheated on Teddy, I felt like I was the one who was heartbroken. Great show.
For the non-90’s babies, the older 90’s babies and the non-Disney channel watchers, let me give a breakdown of the show. Main character is Teddy. She’s a 15-year-old girl dealing with high school, friends, boys, driving and all the other regular teenage things. She has an older brother and a younger brother. Her parents decided to have another baby, Charlotte a.k.a. Charlie. Teddy then decided to document her life and make videos for Charlie to be able to refer to when she is older. At the end of the videos which usually occur at the end of the episode, she always says “Good Luck Charlie” hence the name of the show. It’s not a bad show at all and it actually still holds up. I refuse to confirm or deny if I have watched episodes of the show recently.
Anyways.
Why is a children’s show featuring in the Cut blog? Who could possibly be getting divorced on Disney? I mean Carrie from Suite life comes to mind. Also, Phineas and Ferb, we were actually never told about Phineas and Candace’s birth father and Ferb’s birth mother. Come to think of it, no parenting time was ever sought by the parents so what was that about?
Okay. None of that is relevant. Let’s get back on track. The reason that this show is being featured in the Cut blog is not for divorce. Family law is not all about separation, sometimes we are there for the inception too. *ahem* inserts plug about how you should retain AP Lawyers for your marriage contracts.
The reason that this is being featured is interesting. So after four children, a mortgage etc, Teddy’s parents, Amy and Bob decided to go on a skiing trip. On this trip, they find out that they were not actually married. Apparently, Judge Lawson, the person who married them was some kind of con man who did fake marriages all the time. They did not realize this at the time, obviously so they thought they were married.
If this had happened in Ontario, what would the courts have done? Luckily, we can look to the case of Swinden and Crowell. It is almost exactly what happened in Good Luck Charlie. In that case, the parties were married but apparently, the Reverend was not qualified to marry them. The Reverend in this case was not a scam artist, she genuinely thought she could marry the parties Now they were looking for a declaration that they were married.
In Swinden, the court held that four elements must be applied for a marriage to be deemed valid under the Marriage Act:
1. The marriage must have been solemnized in good faith;
2. The marriage must have been intended to be in compliance with the Marriage Act;
3. Neither party was under a legal disqualification to contract marriage; and,
4. The parties must have lived together and cohabitated as a married couple after solemnization.
For the first element, I believe the marriage between Amy and Bob was solemnized in good faith. They fell in love, got married and had children. For the second element, I am sure they intended to comply with the Marriage Act of the state that they lived in (Colorado, apparently). Again, we are looking at this as if it happened in Ontario so we assume that yes they did intend to comply with the Marriage Act. For the third, as far as we know, there is no legal disqualification. Off the top of my head, a legal disqualification could be if either person was at that time married to someone else. This would disqualify them from marrying another person as bigamy is not allowed in Ontario. As far as we know, this is not the case. For the final element, Amy and Bob have lived together as a married couple. They own a home together and have 4 children (they eventually have a fifth).
Amy and Bob fulfill all the grounds so likely an Ontario Court will hold that they are still married. They did end up getting married again at the lodge but if this was in Ontario, it would likely have been unnecessary.
Reconciliation between two parties can be a powerful thing, but it can also have unexpected effects in certain legal situations. Absent any provisions to the contrary, reconciliation will terminate a separation agreement between the two parties. This means that any clauses or agreements outlined in the initial separation agreement will no longer be valid and any assets or liabilities that were to be shared based on the terms of the agreement will no longer have to be divided between the two parties. Anything that has already been divided is unaffected, though.
When it comes to your separation agreement, whether or not it will be terminated by reconciliation depends on the terms of the agreement itself. Generally speaking, if it is clear from the terms of the Agreement that the parties intend for all or part of an agreement to remain intact even if reconciliation occurs, then it will not be terminated. On the other hand, if there are no specific stipulations about this occurring in the Agreement then reconciliation may terminate the entire agreement.
If you are going through a period of difficulty and considering entering into a separation agreement with your partner, it’s important to be aware that reconciling could potentially terminate any agreements you make during this period. Before signing any agreements, you should always seek legal advice to ensure your rights are protected and understand how they might change if reconciliation were to take place further down the line.
Overall, when considering reconciliation after entering into a separation agreement with your partner – no matter what form that takes – it’s essential to remember that any agreements you’ve made could potentially be affected by reconciling with your partner again. If in doubt about anything at all related to your situation, make sure you consult with our team at AP Lawyers as soon as possible so you know exactly where you stand both before and after reconciling with your partner again.
Separation is emotionally and financially draining, regardless of whether you sponsor your former spouse to Canada or if your former spouse already resides in Canada.
This blog focuses on the perspective of a spouse who is a Canadian Citizen and who sponsored their spouse (now ex-spouse) to Canada.
Can I Divorce or Separate my Sponsored Spouse?
Yes, you can separate and obtain a legal divorce from your sponsored spouse. However, there are some risks associated with it
What are the risks of Sponsoring a Spouse in Canada?
If you have sponsored your ex-spouse to come to Canada, the sponsorship undertaking that you signed with the Government of Canada remains in effect for three (3) years after the person becomes a permanent resident, even if you separate or divorce during that period. This means you will be responsible for the basic needs of your sponsored spouse, including food, shelter, and clothing throughout the period of the undertaking.
Not fair, right? But life isn’t fair, and this is why it is extremely important to think and assess your relationship before sponsoring an individual under Spousal Sponsorship. There is no turning back when you have made a commitment to the Government of Canada. It is always best to speak with a family law lawyer to assess your situation and take the proper steps when you have determined to separate from your spouse.
Does Separation Affect Immigration Status in Canada?
In short, no. Unfortunately, if you have decided to separate from your ex-spouse, this change in marital status does not affect their immigration status in Canada.
Permanent residents cannot lose their status or be removed from the country at the end of the marriage. We highly recommend that you seek legal advice from an immigration lawyer.
Is the Sponsorship Financial Support, the same as Spousal Support?
No, spousal support is a different concept under the Divorce Act, whereas, the Spousal Sponsorship Agreement, is under the Immigration and Refugee Protection Act (IRPA). Immigration sponsorship may be a factor considered by the courts when determining issues of spousal support.
The authors of the Spousal Support Advisory Guidelines (SSAG) comment in the new and improved User Guide to the final version of the SSAG that immigration sponsorship agreements are an important consideration when determining support issues, especially in cases involving a short marriage. In Sethi v Sethi, 2019 ONSC 4797, 2019 CarswellOnt 13150 (S.C.J), the husband was ordered to pay support to his wife, who he had married through an arranged marriage in India. The husband’s appeal was dismissed on the basis that the wife required support to attend school, which the husband was aware of. The court referenced the fact that the SSAG, specifically mention that immigration sponsorship was a factor that could be taken into account when departing from the SSAG.
Conclusion
To summarize, while you can divorce your sponsored spouse to Canada, however, you have to be mindful of the risks associated with it.
First, by sponsoring your spouse to Canada, your undertaking with the Government of Canada remains in effect for three (3) years, after your ex-spouse becomes a permanent resident. The change in marital status does not change your undertaking with the Canadian government.
Second, your separation from your ex-spouse, will not affect your ex-spouse’s immigration status in Canada.
Finally, the Spousal Sponsorship Agreement is not the same as Spousal Support, and under the SSAGs the immigration sponsorship agreements are an important consideration when determining spousal support issues.
If you are thinking of separating, or are separated from your spouse, you sponsored to Canada, you should immediately consult a Family Law lawyer. We at AP Lawyers are ready to discuss your matter and will guide you through this difficult time.
This is often an area of confusion as many people who have spousal support issued for an indefinite duration erroneously assume that they are entitled to spousal support for life. This is far from true.
According to the court in Bradenkamp v. Bradenkamp, 2020 BCSC 730, the fact that the husband was ordered to pay support for an indefinite duration did not mean it was permanent. In the words of Shergill J., “In my view, more than a reasonable period of time had transpired between the parties’ separation and November 6, 2017. Indefinite does not mean permanent; it simply refers to an order for support without a time limit at the time it is made.”
In this case, the parties were 69 years old and had two children who were in their 40s. The parties lived in British Columbia, having married in their 20s in South Africa. The move to Canada was a financially and personally difficult one for the parties. The parties were married for about 20 years, separating in 1993 or 1994 when they were in their 40s. For most of the marriage, the wife was a homemaker. She stopped working in 1975 when the parties had their first child. The husband was a psychiatrist, and the wife had helped him establish his career. At the time they got married, the husband was a medical student, and the wife was a teacher. The husband was now married to his second wife, who assisted him in his practice.
The husband paid spousal support to his first wife from April 1995, and in September 2017, he applied to terminate his spousal support obligation. The wife received about $30,00 per year in spousal support and over $700,000 in spousal support payments from the husband between August 1994 and November 2017.
The husband’s average income over the last five years was approximately $250,00. However, he was 70 years old, in poor health and was in the process of winding down his practice so he could fully retire. His post-retirement income was expected to be about $57,890. The court found that there was a material change in circumstances and that the husband’s retirement was justified. That is, there was no indication he was retiring simply to avoid paying spousal support.
The court found that even though the parties’ relationship ended over 26 years ago, the wife had made very little effort toward becoming economically self-sufficient. It found that the evidence did not support a finding of continued entitlement to spousal support on a compensator or needs basis.
The takeaway from this is, that do not mistake your indefinite support order for a lifetime award of spousal support.
The Spousal Support Advisory Guidelines (SSAG) were developed and implemented in an effort to provide predictability and consistency when determining spousal support pursuant to the Divorce Act. However, when a support payor’s income is above the ceiling of “$350,000.00, the formula no longer applies, and the discretion of the Courts comes into play. More specifically, an “individualized, fact-specific analysis” is required.
This 2017 Court of Appeal case of Halliwell v. Halliwell, 2017 ONCA 349 found that when determining spousal support for a payor whose income was significantly over the ceiling, ‘an individualized, fact-specific analysis would require consideration of the equalization payment. Gillese J.A. noted that “while the trial judge was fully justified in making an award of spousal support that was both compensatory and non-compensatory, in setting the quantum, he needed to take into consideration the fact that the equalization payment went some considerable distance towards satisfying both bases for the award.
In Haliwell, where the husband was ordered to pay more than $3,000,000.00 in equalization, the Court of Appeal found that this payment addressed both the wife’s compensatory entitlement based on her role during marriage as the children’s primary caregiver and in caring for the household as well as her non-compensatory entitlement (or her needs and means) as her lifestyle following separation significantly decreased.
In determining the quantum of support to be paid, the Court of Appeal imputed an income of $35,000.00 to the wife, attributing it to investment income and post-judgment interest earned on the equalization payment. The appeal by the Husband was allowed in part and spousal support was varied to a lower amount, accordingly.
My partner and I received lots of cash gifts from her parents throughout our marriage. Can I ask for the gift to be included as income to my partner?
Answer:
Whether or not gifts received by a spouse or parent from their parents or grandparents can be imputed as income for the purpose of support obligations variescase-by-case. In imputing income, Courts have made a distinction between parents or spouses who receive one-time, needs-based gifts from their families from those who receive such gifts on a regular and periodical basis. In Bak v DobellJustice Lang stated that “usual gifts, such as those given to mark a special occasion, are not included as income”. Justice Lang further stated that in considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider several factors, including:
1. the regularity of the gifts;
2. the duration of their receipt;
3. whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle;
4. the circumstances of the gifts that earmark them as exceptional;
5. whether the gifts do more than provide a basic standard of living;
6. the income generated by the gifts in proportion to the payor’s entire income;
7. whether they are paid to support an adult child through a crisis or period of disability;
8. whether the gifts are likely to continue; and
9. the true purpose and nature of the gifts.
In the Bak case, the mother (the “Applicant”) applied to increase the father’s (the “Respondent) obligation to pay child support by imputing income based on the Respondent’s lifestyle and receipt of gifts from his father. The Respondent had a chronic disorder that resulted in an inability to maintain employment. As a result of his inability to work, the Respondent’s father provided him with a monthly allowance to cover day-to-day needs; paidall his medical bills; and bought a property for his use to motivate him to be self-sufficient. The Court of appealaffirmed the trial judge’s decision to dismiss the wife’s motionstating that the husband had no entitlement to a stream of income from his father; the gifts were intended only to encourage thehusband’s self-sufficiency;they were more in the nature of support for an adult child than an allowance; and they did not provide the Respondent with an extravagant lifestyle.
When gifts are imputed as income
In Korman v Korman, the parties were married for 21 years and had two children. Throughout their marriage, the husband’s parents assisted the parties financially, includinghelping pay for their matrimonial home, gifting the husband money to start two businesses, paying for their children’s camp and private school expenses, and paying the husband’s legal fees. The husband applied for Divorce and other relief under the Family Law Act. In determining child and spousal support, the trial judge imputed the gifts the husband received from his parents in his annual income. On appeal, the Court of Appeal held that the trial judge was right in imputing the income. The Court found that it was appropriate for the trial judge to take into consideration the gifts given to the husband by his parents. The gifts were substantial in size andwere provided regularly and on an ongoing basis.The Court stated that the gifts helped the husband establish a lifestyle well above a basic standard of living for himself and his family during the marriage.
Takeaways from the decisions of the Courts
Courts are likely to impute gifts as income if such gifts are significant, are provided on a regular and periodic basis, and have the effect of entrenching a lifestyle that is above a basic standard of living.
In understanding the difference between an application and a motion to change in family law cases, it is imperative to start with basic definitions.
What is an Application?
An application is how family court cases are initiated. Rule 8 (1) of the Family Law Rules provides that to start a case, a person shall file an application in the prescribed form. In an application, an individual involved in a family law dispute can make a claim against more than one person; and more than one claim against the same person[1]. An application sets out: (i) the issues that a judge is asked to resolve; (ii) the applicant’s relationship to the respondent; (iii) details about any children from the relationship; (iv) and any other facts relied on to support the application.
What is a Motion to Change?
A motion to change is the court process used when a person, who is a party in an already commenced family court case, wants to ask a judge to:
1. change or end a final family court order, or
2. change or end an agreement to pay support.
Rule 15 (5) of the Family Law Rules provides that a party who wants to ask the court to change a final order or agreement shall serve and file a motion to change in the prescribed form, with all required attachments.
A motion to change is used to vary or end final orders of the court as they relate to:
· support payments,
· decision-making responsibility,
· parenting time, or
· a restraining/non-harassment order.
The Difference
Applications initiate the process in family court cases, whereas motions to change are utilized to vary or end a final family court order or an agreement to pay support in an already commenced family court case.
The Exception – When Required to Proceed by Motion
Despite what has been stated above, there are situations when parties in family law cases are required to proceed by motion instead of an application. Rule 8 (1.2) of the Family Law Rules provides that the party entitled to enforcement under a family arbitration agreement shall make a motion in that case rather than an application.
If you’re separating from your spouse, you may be obliged to pay spousal support. The amount of spousal support you have to pay and the duration/ length of time you have to pay support for depends on a variety of factors including:
how long you were married/cohabited
the age of the recipient on the date of separation
if you have children with your spouse
the child custody arrangement
the age of the children
if you choose to restructure support payments to reduce the number of support payments
your respective financial circumstances
the basis of entitlement/strength of any compensatory claim
recipient’s need and ability of the payor to pay
any special needs of the children
For long-term marriages of 20 years or more, the duration of spousal support is usually for an “indefinite (unspecified) duration, subject to variation and possibly review”. Many payors get concerned when they see this as they interpret it as meaning that would have to pay spousal support forever. Even recipients are surprised when after the passage of time, they discover that their spousal support could be reduced or terminated as they imagined they would receive spousal support in the same amount until they died.
Spousal support for an indefinite duration and spousal support for the recipient’s lifetime are very different things.
The spousal support advisory guidelines would recommend indefinite support when the relationship is 20 years or longer or when the rule of 65 applies (see below for the meaning of the Rule of 65). Indefinite support simply means that at the time the support agreement or order is being made, an end date would not be set. Indefinite support amounts can also be changed. Variation and review of the amount of spousal support being paid is possible if there is a change in circumstances.
In short, despite spousal support being set for an indefinite/ unspecified duration, in the future an end date can be fixed, support can be terminated, and the amount of spousal support can change. What are some factors that could lead to this?
the payor’s retirement
remarriage of the recipient or the recipient being in a marriage-like relationship
changes in income
recipient being deemed self-sufficient, even if based on income being imputed to the recipient.
Support recipients are required to make reasonable attempts to become self-sufficient even if they have a spousal support agreement or order for an indefinite duration.
The Rule of 65
It applies to marriages of 5 years or longer where the length of the parties’ relationship plus the recipient’s age at the date of separation, equals or exceeds 65. In this case, an indefinite duration of spousal support may be appropriate, even though the parties’ relationship is less than 20 years.
Many times, litigants involved with their family law court case, do not want their support payments to be enforced by the Family Responsibility Office – but they have no choice.
In Ontario courts, when a person is ordered to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (referred to as FRO). Even during those times when the parties and their lawyers agree that payments shall be made directly between each other, the court will continue to have the order enforced by FRO, as that is the default.
There are ways around this and terminology and/or having a mutual agreement is important. In your Court Order or Consent, the parties can agree to withdraw from FRO enforcement and hae the payments made directly to the recipient via e-transfer or even post-dated cheques for example. It takes the mutual consent of the parties to do so and it is as easy as signing a form and sending it into FRO to let them know you want to withdraw from their enforcement. However, if one party wants FRO to be involved, there really will not be a choice to the other party.
Is having FRO involved a bad thing? Not at all. It really depends on the parties. Not all litigants have a poor relationshipwith one another, and they can find a way to manage support payments between themselves. In those situations where the payor is unreliable to make a payment or you need the payment garnished from their wages, FRO can become your tool. There are pros and cons to using FRO for enforcing your support payments which we can go over with you to make sure it is right for you. Book a consultation with one of our experienced family law lawyers in Toronto today! We also serve our clients in Markham, Scarborough and Pickering.
This is what happened in the case of Bormans v. Bormans Estate, 2016 ONSC 428. The parties in this case separated after a 38 year traditional marriage. There was a court order requiring the husband to pay spousal support. The husband was also to maintain her as the beneficiary of his life insurance policy however, about 4 years later, he stopped making the payments. The wife had very few assets and low income consisting of her CPP disability benefits and the monthly child support.
On his death, his estate was left to his 2 adult children. The court awarded the wife spousal support from the husband’s estate because while she qualified as a dependent under the Succession Law Reform Act, the adult children did not. The husband had a legal obligation to support the applicant.
Did you know that voluntary retirement before the age of 65 may not qualify as a material change?
A material change must be found before a support order will be varied. Also, while retirement may qualify as a material change in some cases, the courts will compare the current income of the person paying support to the income amount that was used to establish the original support order. If there is no difference, a court may find that there has been no material change.
[1] General guidance for locating where on the range of spousal support should be
[2] Case law for wife not working full time where she has the ability to
Guidelines for locating range on spousal support
Chapter 9 of the SSAG provides considerable guidance on location within the range, setting out a non-exclusive list of factors to assist in determining the location within the range for both amount and duration:
the strength of any compensatory claim
recipient’s needs
age, number, needs, and standard of living of children (if any)
In considering the duration of a spousal support award, the court should order a duration closer to the upper end of the range so as to allow a recipient spouse to transition toward a reduced post-separation standard of living, where that spouse’s circumstances are more difficult compared to other dependent spouses who are either better educated or who secure permanent employment.[2]
Strength of any compensatory claim
The strength of the compensatory claim is often mentioned as a factor, whether strong or weak: Brown v. Brown, 2013 NBQB 369 (non-compensatory claim only, low end of range); Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 (strong compensatory claim, sole caregiver);Ross v. Ross, 2010 BCSC 52 (wife maintained qualifications during marriage, able to find full-time work, weaker compensatory claim); and Barry v. Barry, 2009 NLUFC 13 (weaker compensatory claim, stronger non-compensatory claim, below mid-range).
Recipient’s needs
The depth of need can be a strong non-compensatory factor pushing amount higher in the range: Bastarache v. Bastarache, 2012 NBQB 75 (disparity in living standards, need of the wife, between mid and high range). Lower housing costs for the recipient can reduce “need” and pull a court lower in the range, where the recipient is living in a mortgage-free home or pays reduced rent: Guignard v. Guignard, 2011 ONSC 7078 (wife living in rent-geared-to-income housing).
The recipient may also require training or education to improve their earning capacity, a factor which will push the amount higher in the range for a period of time, e.g. Jones v. Hugo, 2012 ONCJ 211.
The payor’s ability to pay can be affected by debt payments: Guignard v. Guignard, above; S.D. v. J.D., 2012 NBQB 237. The payor’s cash flow may be seriously affected by mandatory pension contributions, which should be taken into account in most instances by location in the range: Hari v. Hari, 2013 ONSC 5562; and Macey v. Macey, 2013 ONSC 462.
Age, number, needs, and standard of living of children
No details provided.
Work incentives for the payor
Work incentivesfor the payor are frequently mentioned in the cases: Reid v. Carnduff, 2014 ONSC 605 (mid-range, transportation costs for commute to work); Chapman v. Chapman, [2010] O.J. No. (S.C.J.) (husband’s income dependent on how hard he works, low end of range for work incentives); Savoie v. Savoie, 2009 NBQB 134 (lower than mid-range); and Lalonde v. Lalonde, [2008] O.J. No. 4507, 2008 CarswellOnt 6710 (S.C.J.) (significant overtime included in payor’s income, low end).
Property division and debts
Property division can influence location, mostly at the extremes. A large property settlement gives the spouse security and capital to fall back upon, likely leading to an amount lower in the range: Cochrane v. Cochrane, 2013 BCSC 2114 (strong compensatory claim, but large property, low end). Or, conversely, if there is little property to be divided, support can be higher in the range.
Some specific factors have emerged, that are not explicitly listed amongst those in Chapter 9 of the SSAG, but that can be important in determining the location in the range:
High access costs: H.F. v. M.H., 2014 ONCJ 450 (husband returned to Bermuda); Jardine v. Jardine, 2013 NSSC 30 (high transportation costs for access, split custody); S.D. v. J.D., 2012 NBQB 237 (custodial payor, husband pays all costs of supervised access by wife); Gibson v. Gibson, [2009] O.J. No. 4172 (high access costs after wife’s move from Thunder Bay to Elliot Lake, husband making payments on line of credit, lower end of range); Graham v. Wilson, [2009] O.J. No. 1432, 2009 CarswellOnt 1866 (S.C.J.)(travel for extensive weekend access, low end); Novlesky v. Novlesky, 2009 BCSC 1328 (wife moves back to Brazil, high travel costs, low end); Spikula v. Spikula, [2008] O.J. No. 3931 (S.C.J.)(costs of shared custody, low end).
High medical costs: S.J.M. v. J.L.M., 2010 BCSC 154 (wife’s extra medical, drug and dental costs after divorce, upper end of range).
Self-sufficiency incentives
No details provided.
Case law for wife not working full time where she has the ability to
Ratio: where it is difficult to impute income to a recipient, but a court believes she or he could earn more, the judge may go lower in the range
Summary:
The Applicant wife and the Respondent husband started living together in 1988, married in 1989 and separated in 2005. The Applicant worked full-time as a dental hygienist for two years of the marriage. Subsequently, the Applicant maintained a part-time position as a dental hygienist at the same office, working just 3 days a week. The Respondent made $114, 581.00 with $9, 560.96 as overtime.
The Applicant said she could not work full-time because she had neck and back problems.
The Respondent suffered from bladder and prostate cancer.
The court stated that having reviewed the Applicant’s ability through own admission, the Court imputed income of $38, 000.00 to her for spousal support calculations.
How it applies to S. v. S.
Ms. S. is claiming she cannot work, however, the Court can determine her ability to work without an expert report, and impute a potential income for the purposes of spousal support calculations.
[1] Spousal Support Advisory Guidelines, www.justice.gc.ca, §3.4.1.
When seeking an Order for spousal support (alimony as it is sometimes referred to), it is important to know in what court you will be asking for the relief.
For example, if you have already gotten a divorce outside of Canada, you cannot bring a claim for spousal support in a Superior Court as the Superior Court does not have the jurisdiction to order spousal support when the parties have already received a divorce outside Canada.
Also, the Ontario Court of Justice does not have the jurisdiction to hear a proceeding where a party is asking for spousal support under the Divorce Act, if the parties have obtained a divorce outside of Canada. The case of Okmyansky v. Okmyansky, 2007 ONCA 427 is the binding authority on this subject.
While a person may seek spousal support under the Family Law Act, it also cannot be done if the parties obtain a divorce outside Canada. Section 30 of the Family Law Act (FLA) provides that:
“Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).”
This section refers only to spouses and not to former spouses. A Spouse under Part III of the FLA is defined as follows:
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30; 2016, c. 23, s. 47 (1).”
Therefore, former spouses are not entitled to claim support under the FLA.
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As of April 28, 2017, the condition that forced couples to live together for 2 years to maintain their permanent residency was removed.
What was the condition P.R. card holders had?
The old condition was introduced to citizens wishing to sponsor their partners in 2012. This condition stated you had to live with one another at least two years if, at the time you applied your relationship was less than two years and if you had no children together. This meant that if the couple realized before 2 years of living in Canada together, that they were not meant for each other the sponsored spouse may be forced to give up their residency or would be subject to a removal order. Now, upon arrival you will hold full permanent residency without conditions.
Why was the condition put in place?
This condition was put into place in efforts to eliminate marriage fraud and persons seeking to immigrate to Canada through marriage. However, by putting so much focus on these issues the government acknowledged that not only did it lack trust in Canadians- but issues may arise by forcing couples to cohabit for 2 years. A sponsored spouse may feel obligated to stay in a relationship with their sponsor to protect their residency even if they are experiencing feelings of unhappiness and at times abuse.
What now?
Couples that hold the same citizenship go through rough times in their relationship where it causes them to separate– so why shouldn’t two people that happen to have different citizenship be able to? With this condition being lifted it will allow the relationship between you and your significant other to grow naturally. Sometimes the pressure of making a relationship work because of all the legality behind it diminishes the reason two people decide to be with one another.
In mid-December Immigration, Refugees and Citizenship Canada (IRCC) released a suite of changes to its spousal sponsorship application process. This is aimed at streamlining and simplifying these applications, with IRCC expecting processing times for spousal sponsorship to fall from up to 26 months currently to 12 months. This new 12-month processing standard will apply to 80% of new and existing applications. This amounts to some 64,000 applicants who are expected to benefit from this significantly improved processing time in 2017.
A key feature of these changes is the introduction by IRCC of a new application kit designed to facilitate faster and easier spousal applications, particularly by no longer requiring certain information at the time of visa application submission. Instead, requirements such as medical examinations and police checks are to be directly requested by IRCC later in the process. This new application kit also applies to sponsorship applications lodged from anywhere in the world, replacing the two previous kits for applications lodged respectively inside and outside of Canada.
In line with this simplification process, a brand new IRCC guide for spousal sponsorships has also been released which consolidates 180 pages from previous multiple guides into one 75-page guide for the entire spousal sponsorship process. Likewise, multiple IRCC spousal application checklists detailing the necessary forms and documents have been replaced with a new single checklist. Applicants are required to closely follow this new checklist, with applications being returned by IRCC if all required forms and documents on this are not provided at the time of application.
From February 1st 2017 all spousal sponsorship applications submitted to IRCC must use the newly released application kit. A main feature of this new mandatory kit is that applicants will be asked to link their submitted paper spousal sponsorship applications to an online account. This will enable applicants to receive electronic correspondence from IRCC and provide further information and requested documentation online. While the spousal sponsorship application process is being simplified, obtaining professional legal advice about your application at the outset of the process ensures the very best prospect of application success. Getting a spousal sponsorship application right the first time is particularly important as this visa program is traditionally over subscribed, with more applications than spousal sponsorship places available each year.
Further information on these changes to spousal sponsorship and the new application kit can be found on the Government of Canada’s website at the following links:
If you are receiving spousal support payment or alimony (as it is called in the USA) you may wonder what happens if you remarry.
Spousal Support Determined
Spousal support is the amount you receive from your former partner when you separate, to contribute to your living expenses. For spousal support purposes, a spouse is determined in the Family Law Act as two persons who;
are married to each other; or
have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
It also includes two persons who are not married to each other and have cohabited;
continuously for a period of not less than three years, or
in a relationship of some permanence, if they are the natural or adoptive parents of a child.
Therefore you may be entitled to spousal support even though you are not married or have only lived together for a short time.
The payment or receipt of spousal support is not based on fault. The starting point is always to determine whether or not you are entitled to spousal support based on:
need
compensation
contractual obligation
Spousal support is covered under the Divorce Act (married persons only) and the Ontario Family Law Act. The purpose of spousal support under Subsection 33(8) of the Family Law Act is to:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
So what happens if you are a spousal support recipient and you remarry?
This is a factor that is determined on a case by case basis and the starting point is to, look at the basis of your entitlement to spousal support in the first place.
If your spousal support is based solely on a need that no longer exists as a result of your remarriage, a court may be persuaded to vary or terminate the spousal support payments. If need still exists, then the fact of your remarriage alone may not be sufficient to justify a variation or termination of the spousal support payments.
Another scenario may be where your former spouse is claiming undue hardship. If your new standard of living exceeds his due to your remarrying then your remarriage may be a relevant factor in a proceeding to vary or terminate spousal support.
If your entitlement to spousal support is based on compensation, then your remarrying may not relive the other party from their spousal support obligation.
Each case is unique and whether support payment will continue or terminate on a marriage to a new partner must be determined based the unique factual scenario.
An unexpected layoff can be a stressful experience for anyone, but particularly for a separated spouse who is required to make regular support payments. For the payor, support obligations can quickly run through any savings that have been accumulated, and previously comfortable individuals are put into the difficult financial situation of struggling to make payments.
A common question asked is whether an individual can begin to pay a lesser support amount because of their unemployment. The answer is that it all depends on the circumstances of the unemployment. A court would look at the reasons for the employment change before making the decision of whether or not to vary the child or spousal support amounts.
Examples of When Courts Will Reduce Payments
In some situations an applicant may be able to significantly reduce their payment amount. In the case of Chambers v Chambers (2008 ONSC), the applicant was unemployed and living in poverty because his critically ill wife required constant care on the order of the doctor. Unable to look for employment until after his wife’s surgery, the court reduced child support payments from $668 per month to $100 per month. This reduction was not meant to be permanent, however, and the applicant would have to find employment following his wife’s surgery.
Regarding spousal support, the 2013 decision of Hay v Hay (ONSC) had the applicant successfully terminate spousal support due to the combination of his unemployment and his wife’s recent employment. The court placed emphasis on three factors relating to Mr. Hay’s unemployment: the unemployment was due to no fault of his own, he continued to pay all of his spousal support obligations during unemployment, and that his search for new employment was being made in good faith.
For those who have accumulated arrears during their unemployment, it may be possible in some scenarios to have it reduced. In the case of Krause v Zadow (2014 ONCJ), the father lost his job and was unemployed for a year before accepting a new position at half his previous salary. During the year of unemployment, the father was unable to meet his support obligations and quickly accumulated sizable arrears. In its decision, the court lowered the future spousal support payments from $1654 per month to $700. Recognizing the father’s good faith attempt to continue paying support into his unemployment for as long as possible, the court rescinded all the arrears of child and spousal support that accumulated during his unemployment.
When Reduced Income will not Result in Reduced Payments
Reducing payments is not as easy as just reducing income and the above cases should not be taken as a guarantee that everyone will receive a reduction in payment amounts. For those who claim to be actively seeking a new job but unable to find suitable new employment, the courts will look for evidence of an active job search. In Filippetto v Assunta Timpano (2008 ONSC), the unemployed applicant brought a motion to decrease his support payments from $783 to $335 per month because his only income was his Employment Insurance. In the decision, the court was unimpressed by the applicant’s lack of evidence of a diligent job search, and the result was only a temporary reduction of child support payments to $570 per month.
Courts are very alert to individuals who are purposefully unemployed or underemployed in order to lower payment amounts. If, for example, a high-earning executive decided to quit their job and instead become a gas station attendant, a court may decide to impute income under Section 19 of the Federal Child Support Guidelines and maintain support payments at his previous position’s salary. Imputing income can occur with both child support and spousal support. One of the common reasons for imputing income is when a court believes there is intentional unemployment or underemployment.
A court may also impute income if the applicant has been fired for cause. The applicant in Aboagye v Sakyi (2012 ONCJ) was fired due to poor performance, frequently being late, using his cell phone during company time, and damaging company property. The court held that if the employer was justified in firing the payor then he cannot use his dismissal as a reason to reduce his support obligations. The court imputed income to the payor at the same level he was earning before his dismissal.
Finally, it is also important to note that leaving secure employment in favour of a riskier venture can also result in a court imputing income. In Le Page v Porter (2000 ONSC), the parent left a social worker position to engage in stock speculation and real estate investing. When his income plummeted; the court imputed income to him.
Conclusion
Whether unemployment will cause a reduction in support payments will depend on the circumstance of the individual. It may be possible to receive a substantial reduction, but it is also possible that a court will impute income and maintain the payment amount.
When a relationship ends, a spouse may be required to make child or spousal support payments. Whether support payments are required will depend on a variety of factors, such as income level, number of children, and length of the relationship. The type of relationship may also influence the ordering of support payments. For example, if a married couple is divorcing, the support may be ordered under the federal Divorce Act, while a non-married couple who is separating would have the support dealt with under the provincial Family Law Act.
Child Support
Parents have an obligation to provide financial support for their children. If there is a separation or divorce, that obligation still remains even if a parent does not have custody of their children. The child support payments fulfill a parent’s obligation to provide financial support to their children.
The amount of child support payable is dependent upon the Child Support Guidelines. The Guidelines calculate the support based on a formula which includes level of income and number of children. In addition to the Child Support Guidelines payments, the court may also order a parent pay an additional amount for special or extraordinary expenses for the child. These expenses may include: child care expenses, health-related expenses or extracurricular activities.
Spousal Support
A spouse is not automatically eligible for spousal support when a relationship ends – they must first establish an entitlement. If an entitlement is established, the amount of support is guided by the Spousal Support Advisory Guidelines. These guidelines use two formulas to calculate spousal support: one for if there are no dependent children, and a second if there are dependent children.
While the Spousal Support Advisory Guidelines guide the awarding of spousal support, they are not law, and it is possible that a court may deviate from them. There are several situations where the guidelines may not apply and a court may use their discretion in awarding spousal support.
How We Can Help
The awarding of child and spousal support payments have been standardized to a certain extent by the introduction of the Child Support Guidelines and the Spousal Support Advisory Guidelines, but every family law situation remains different. It is recommended individuals seek the advice of a lawyer for their specific set of circumstances.
