What is supervised access and when might it be ordered?
Supervised access is access to the children that is required to occur under supervision. The supervision is typically provided by a mutually agreed upon, available and willing individual (usually a friend or family member) or at a facility that offers the service of supervising visits.
Where the parties cannot agree upon an individual, supervised access will typically occur at a facility. Such facilities usually charge for the service, may require the parties to register and complete intake forms and may have a waiting list.
Orders for supervised access are not made lightly. Supervised access is more likely to be ordered in situations where the child needs protection from abuse, the child is being reintroduced into the life of a parent after a lengthy absence or there are substance abuse issues.
Supervised access is not a permanent or long term solution but rather is typically intended to be a short term, temporary solution.
How is the amount of the child support payment determined?
The amount of the regular, monthly child support payment depends on a number of factors including, but not limited to, the following:
i) the number of children receiving support;
ii) what the parenting time arrangement is (how much time is/are the child/ren in each parent’s care?);
iii) the income of the payor and, if applicable, the recipient;
iv) whether any of the children are attending post-secondary studies and, if so, where those children reside during the school year;
v) the province or territory in which the payor resides.
The interplay of these and other factors result in too many different scenarios to be able to exhaustively go through them all here. Generally speaking, in a situation where the children reside primarily with one parent and the other parent (the payor parent) has care of the children clearly less than 40% of the time, the payor parent will pay child support based on: the applicable child support guidelines and table; the number of children entitled to support; and the payor parent’s income.
If, however, the children regularly spend considerable time with each of the parents, the approach to calculating child support may change. For instance, if the children’s primary residence is with one parent and they spend more than 40% of their time in the care of the other parent, it COULD be that the payor parent will pay child support in an amount below the amount provided for in the applicable table.
Just some examples of other scenarios where the appropriate child support payment may not be the same as the otherwise applicable table amount of child support would include, but not be limited to, situations where: the primary residence of one or more of the children is with one parent and the primary residence of the remaining children is with the other parent; one or more of the children is enrolled in and attending post-secondary schooling and is/are residing away from home during the school year; the payor parent has demonstrated that he or she would suffer undue financial hardship should he or she be required to pay the table amount of child support (it is very difficult to convince the courts that the payor parent has satisfied the test for undue financial hardship).
How do I get a final order for child support changed if my income has dropped significantly since the date of the final order?
The easiest, least expensive and fastest way to change a Final Order for child support is by getting the consent of both parties. You will still need to prepare and file the appropriate court paperwork but it is highly unlikely that an appearance before a judge will be necessary.
Should you not be able to secure the other party’s consent, you will need to bring a Motion to Change. In a Motion to Change, the party seeking to change the order must first satisfy the court that there has been what is called a material change in circumstances since the date of the Final Order in question.
It has been held that a material change in circumstances is a change in circumstances that is significant and continuing and was also unforeseen at the time of the making of the original order, and which if it had been in existence at the time of the original order would likely have resulted in a different order being made.
If you are able to satisfy the court that there has been a material change in circumstances, you must then establish that your income has legitimately dropped significantly below your income at the date of the Final Order. The recipient may take the position that you are intentionally underemployed or intentionally unemployed, if you are, in fact, unemployed. He or she may argue that you have intentionally chosen to earn less than you are capable of earning or that you have not taken reasonable steps to earn what you are capable of earning. If you are unemployed, the recipient may take the position that you lost your previous job for cause and, therefore, it is your fault that you are unemployed. He or she may also take the position that you have remained unemployed by virtue of your lack of genuine effort to secure employment. If the court finds that you are not intentionally unemployed or intentionally underemployed, it will likely be ordered that your child support payment be adjusted to reflect the material change. If, on the other hand, the court finds that you are intentionally unemployed or intentionally underemployed, you will then have to satisfy the court that the intentional unemployment or intentional underemployment is required by virtue of the needs of a child of the marriage or any child under the age of majority or by your reasonable educational or health needs. If you are unable to satisfy the court that the intentional unemployment or intentional underemployment is required, the court may assess/impute an income to you based on what you are deemed capable of earning in all the circumstances.
Addressing whether or not an income should be imputed can be an involved, complicated case by case exercise with considerable emphasis on the evidence.
If I can no longer tolerate living under the same roof as my spouse, can I move out of the matrimonial home without losing my interest in the house?
Moving out of the matrimonial home will have no impact on whether or not you have a proprietary or monetary interest in the house.
Leaving the matrimonial home will, however, affect any claim either you or your spouse may thereafter make for exclusive possession of the matrimonial home (likely weakening the claim of the party who left the home and possibly strengthening the claim of the party who remained in the home). Also, as the matrimonial home is quite often a couple’s most significant asset, by leaving the matrimonial home, you will be leaving your most valuable asset and its’ state of repair in the hands of your spouse.
If you and your spouse have children, it is certainly not advisable to leave the children in your spouse’s care if and when you leave the matrimonial home without at least a temporary agreement in place in relation to parenting time. To do so would likely put your spouse in a strategically advantageous position on issues of interim and possibly even final custody or primary residence of the children. If you must leave, it would be best to enter into a temporary agreement relating to, amongst other things, parenting time in advance of your move.
With the above in mind, however, if you fear for your safety and/or the safety of the children, leaving the matrimonial home may feel like your only option. You are strongly encouraged to seek legal advice to protect you, your children and your interests.
What is the difference between joint and sole custody?
To begin with, there is a shift away from using terminology such as custody and access. Many judges have demonstrated a clear preference for terminology such as parenting time, parenting plan and decision-making.
For ease of reference though, the term custody will be used here. Sole and joint custody relate to decision making.
Joint custody involves both parents being integrally involved in the decision-making process in relation to major decisions pertaining to the child such as major non-emergency medical, education, religion and extra-curricular activities.
A parent with sole custody of a child has final decision-making authority in relation to major decisions such as major non-emergency medical, education, religion and extra-curricular activities. That parent will still be expected to consult with the other parent about the decision in question but will have the final say.
The terms shared custody and joint custody are often confused by clients as being the same thing. They are not the same thing. Shared custody, unlike joint custody, refers to the principal of the parents sharing the physical care of the children. This sharing need not be an equal sharing but the parent in whose care the children spend less time must have the children in his/her care at least 40% of the time. There is not one unanimously accepted and applied method by which our courts calculate the percentage of time that the children are in each parent’s care. This calculation exercise could become complicated.
When my spouse and I get divorced, will we each simply receive 50% of all of our assets and be responsible for 50% of all debts?
The short answer is: it is not that simple.
The property division regime of the Family Law Act applies only to legally married spouses and not common law spouses. Common law spouses who are separating may have a claim to property division under trust doctrines.
Reference to spouse here is intended to refer only to legally married spouses. Each spouse must prepare a document that is called a Net Family Property Statement. This document details the assets and debts of each of the spouses on the date of marriage as well as on the valuation date, which is typically the date of separation of the parties. Each party then calculates his or her Net Family Property (NFP) which is the increase in that party’s net worth during the marriage. There are certain deductions and exclusions from this NFP calculation. By way of example, an inheritance received during the marriage is excluded from this calculation so long as the inheritance is not paid into or towards the matrimonial home. Life insurance proceeds where one or both of the spouses are beneficiaries will also be excluded so long as the proceeds of said life insurance payout are not paid into or towards the matrimonial home.
Once the Net Family Properties (‘NFPs’) of each of the spouses has been arrived at, the spouse with the higher NFP shall typically be required to pay the other spouse ½ of the difference between the parties’ NFPs. This is referred to as the Equalization Payment. There exist exceptions to this rule, however. For instance, if the period of cohabitation, including cohabitation prior to marriage, was a short one (less than 5 years), if one of the spouses incurs debts recklessly or in bad faith or if one of the spouses recklessly or intentionally depletes his or her NFP, it may be that an unequal division of NFPs may be appropriate.
How much spousal support, if any, should be paid and for how long?
The issue of spousal support can be quite complex. Unlike with child support, there are no tables that tell us exactly how much, if any, spousal support should be paid in any given situation. Each case must be assessed on its own unique set of facts.
Before considering how much, if any, spousal support should be paid and for how long spousal support payments should be made, the issue of entitlement must first be decided upon.
Generally speaking, there are three (3) grounds upon which an entitlement to spousal support may be based. They are compensatory, non-compensatory and contractual. If one spouse stayed home to take care of the children and the household thereby liberating the other spouse to focus on his or her career, the stay at home spouse may have a compensatory spousal support claim. A non-compensatory spousal support claim is essentially a needs-based claim which could include a spouse’s inability to cover one’s post-separation expenses or a significant drop in one spouse’s standard of living post-separation as compared to the standard of living enjoyed during the marriage. A contractual spousal support claim is one that is based on an agreement between the parties as laid out in a contract.
Assuming an entitlement to spousal support has been established, there are many factors that affect the amount and duration of spousal support. These include, but are certainly not limited to: the spouse’s incomes during the marriage and post separation; recipient’s age at separation; years of cohabitation both prior to and during marriage; roles assumed during the marriage; recipient’s self-sufficiency; recipient’s likelihood of becoming self-sufficient; recipient spouse re-partnering; payor spouse retiring; payor’s ability to pay; whether or not child support is also being paid; age of children and in whose primary care they are; the extent of the need of the recipient spouse; the disparity in the spouse’s standards of living post-separation. These are just a few of the factors. As with any other questions that you may have in your family law matter, you are strongly encouraged to seek legal advice if you have questions about your entitlement to receive or obligation to pay spousal support.
Disclaimer
While the above information may scratch the surface of some issues you may be facing, you are strongly encouraged to seek the assistance of a family law lawyer in order to get fact-specific guidance and advice on your matter. Please feel free to contact us at the Law Firm of Sunny Chhabra at 289-240-6198 in order to schedule a meeting to review your matter.