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As many frontline workers will tell you, the hours they work are anything but regular nor seldom reliable. From firefighters to nurses, last-minute calls to cover a shift or sudden emergencies frequently make it difficult to spend much time at home. For separated and divorced families, this makes traditional parenting schedules an impossible situation.

How do truck drivers and pilots find the time to spend with their children while still balancing work obligations? This question highlights the logistical challenges faced by separated parents and the complicated nature of work/life balance.

Can I Have a 50/50 Parenting Schedule if I Don’t Have Regular Work Hours?

When a court makes a parenting order, the paramount consideration is to develop a schedule that is in the child’s best interest.  The court will typically strive to create a plan that allows the children to have regularly occurring, meaningful periods of contact with each parent.

There are numerous factors that a court must consider when creating a parenting schedule, which could fall under several categories, including:

• Age and needs of the child
• The child’s relationship with each parent and other influential persons in their life
• Previous care history
• Willingness to support the child’s relationship with the other parent
• The child’s views and preferences
• History of family violence

Each child is different, and each family is different.  A parenting arrangement that might be in one child’s best interest might not be in the best interest of another.  The type of schedule that is ordered depends on many factors.

Does an Erratic Work Schedule Prevent Me from Co-Parenting?

While there are numerous approaches to creating a parenting schedule that will accommodate an inconsistent or unpredictable work schedule, it is essential to have a lawyer on hand that is familiar with the complexities of these types of arrangements. Parents who have frontline positions or emergency service duties will not be able to use a typical parenting schedule.

Below are some tips for accommodating your job in a way that is not overly disruptive to your child.

Use a Flexible Schedule

If you and your ex-partner have strong communication skills, a flexible schedule might be a solution. This approach allows both parents to change parenting time based on their work schedule as often as necessary.  When communicating, always treat the other parent with respect, be polite, clear, and child-centered.  A flexible schedule is not appropriate for high-conflict cases.

Agree to Parenting Time, but Not Specific Dates

Parents who do not practice effective communication may opt for a court-ordered parenting schedule to minimize conflict. Instead of designating every detail, they can agree to a specified number of overnights or time per month the child will spend with each parent.  The agreement or order can specify how parenting time is decided upon each month.  For example, once a work schedule is disclosed, parents can alternate picking dates each month with one parent having the first choice in even months and the other parent having the first choice in odd months.

Multiple Schedules to Match Work Flow

Families, where a parent must work seasonally or has extended time off between projects, like in construction or mining industries, can maximize parenting time for both parties involved by creating multiple schedules. Two parenting plans can be implemented where one is in effect while working, and the other while off duty, brings a sense of consistency to the situation.

Traditional Parenting Schedule

Traditional parenting schedules would not make adjustments to the time a parent is to see their child. In these situations, a parent may have to arrange for a babysitter when a work schedule conflicts with their time.  This may raise other issues relating to the apportioning of childcare fees in these situations.

Is My Shift Work too Disruptive for a Parenting Schedule?

Children thrive on routine and schedules should be predictable and consistent for children. However, that does not mean a parenting schedule cannot be alternated to work with a challenging work schedule, provide it is in the children’s best interest. While it is unlikely that the court would place the child with someone who works during the night if they have no one to care for their children during that time, some strategies can be employed to maximize your time with your children. The courts recognize the value of parenting time with children and can create a plan that will take into account a parent’s work schedule.

Does My Partner Automatically Get Custody if I Work Too Many Hours?

Your child’s best interest, not your line of work, determines custody. The court may indeed consider your work schedule, but it is only one of many factors that are part of a custody decision. Custody is not about where your child lives or how much time your child spends with you; it is about who has the legal right to make major decisions relating to the care and upbringing of your child.  Merely because your work schedule does not afford you the opportunity to take your child to yearly checkups does not mean you get denied the right to weigh in on medical decisions.

Speak with an Experienced Family Law Lawyer First

Preparing ahead of time for a complex parenting agreement because of your unpredictable work schedule requires the assistance of a knowledgeable family lawyer. Their guidance will help you determine options the court may find favorable to your case.

Benefits of Mediation

The bottom line to creating a parenting schedule that is best for your child while accommodating hectic work hours is cooperation. An accredited mediator can assist parents in finding a solution that will allow them to maximize their time with the child in ways that take into account both parents’ work schedules, as well as the child’s needs.

Many Canadian families with co-parenting agreements are finding themselves unable to agree about letting their children return to in-person classes this fall or stay home and attend online courses. This has caused the courts to step in when parents cannot find common ground.

Sending Children to School During the Pandemic Just One More Battleground for Parents

Despite the numbers being few, cases regarding whether children should attend in-person class or remain at home and attend classes online have begun popping up in family courts across Canada. In this new co-parenting battleground, the majority of presiding judges have been in favour of physical attendance since the Ontario government is in a better position than the courts to assess and address school attendance risk.

COVID-19 Causing Unprecedented Case Rulings

The core issue comes down to opposing attitudes and concerns regarding the safety of physical classroom learning for the children in the middle of these sometimes nasty disagreements between parents. Traditional classroom learning is still the most supported avenue in Ontario.

This opinion was echoed in Newmarket, Ontario[i] when Superior Court Justice Andrea Himel sided with the mother of a young boy in allowing him to attend school in-person. The boy’s father had felt safety protocols at the boy’s school were not proven effective and put his son at risk, so he wanted his child to attend classes virtually.

The rationale employed was that the decision to re-open the schools were made with the benefit of medical expert advisers and in consultation with Ontario school boards – the court should not interfere with this process unless the child or an adult in the household has any underlying medical conditions that may make them particularly susceptible to the adverse effects of COVID-19.

This recent case shines a spotlight on the reality that the pandemic will not be over anytime soon.  Not only did this Ontario Justice acknowledges that it may not be possible to provide a learning environment that is 100% safe, but she also acknowledged the challenges faced by parents in homeschooling their children (although not a deciding factor in and of itself).

Factors Considered by Judges in Ontario

The issue all courts have been juggling with is whether the social, psychological and developmental advantages of attending in-person learning outweighs the physical risks of returning to school.

The only test to be applied in custody and access matters is the best interest of the child.  Under the Family Law Act and the Divorce Act, the court determines the best interest of the child by considering the child’s needs and circumstances.

Toronto Justice Jasmine Akbarali[ii] shared her own determining factors when presented with cases involving the question of children attending school in-person or virtually this school year.

Six of these areas of consideration include:

• Level of COVID-19 exposure risk
• Family members in the household at greater health risk if infected
• The overall risk to a child’s well-being, academic development, social growth, mental health if in an online learning environment
• The ability to facilitate online learning in the household
• Any additional proposed measures to reduce infection risks
• Wishes of the child

Mediation is the Better Solution for Co-Parenting Disputes

While parenting styles may be different, and the pandemic may be highlighting this fact for many co-parenting families, it is important to understand that litigation is rarely the best first step. This reality is apparent in the way Canadian courts are addressing the issue of children returning to school when parents cannot agree.  Justice Himel encouraged parents to engage in mediation and employ creative solutions to this novel issue.  Taking time to do research and get accurate opinions from your child’s doctor may help ease the disagreement between parents. Mediation will allow more control over the final outcome where both parties will have a part in creating the best learning environment and experience for their children.

[i] Chase v. Chase, 2020 ONSC 5083

[ii] Zinati v. Spence, 2020 ONSC 5231

Q: What is Child Support?

A: Child support is the money one parent pays to another to support their children financially after a separation or divorce. Child support is paid by the parent that spends the least amount of time with the child and it goes to the parent who takes care of the child most of the time. In cases where the child(ren) spends at least 40% of the time with each parent, the parent with the higher income may still have to pay some child support to the other parent. Child support helps cover costs associated with caring for the child such as food, clothing and shelter.

All dependent children have a legal right to be financially supported by their parents. This right is taken very seriously by the Court; judges may refuse to grant a divorce if they are not convinced that reasonable arrangements have been made for the continued financial support of the children.

Child support arrangements can be written in a separation agreement or a court order.

Q: Who Pays Child Support?

A: The law states that parents are responsible for financially supporting their dependent children. The parent who pays child support is called the “payor” parent.

Child support is the right of the child. The payor parent must support the children even if they:

• Are not married to the other parent.
• Did not have an ongoing relationship with the other parent.
• Remarry or start to live with someone else.
• Earn less money than the other parent.

More than one parent may have a legal duty to pay child support for the same child. A step-parent, for example, may assume the role of a parent and be required to pay child support in addition to the child’s biological parent.

Q: Who is the Dependent Child?

A: Child support is typically paid as long as a child remains dependent. “Dependent” usually means until the child turns 18 and sometimes longer.

A child is no longer dependent if they:

• Marry, or
• Are at least 16 years old and leave home voluntarily, often referred to as withdrawing from parental control. They must choose to leave home and cannot be forced to leave.

A child who is over the age of majority, which means 18 years or older, may still be dependent if they cannot support themselves, due to disability, illness, or going to school full-time.

In the case of disability or chronic illness, a child over the age of majority can remain dependent for their entire life.

Whereas, if the child is diligently pursuing their first undergraduate degree or diploma, they are generally in need of support until they finish school. This usually lasts until the child turns 22 or gets a degree or diploma. Sometimes support can be ordered to allow the child to get more than one degree.

Q: How is Child Support Calculated?

A: The Federal Child Support Guidelines calculate the base amount of child support by taking into consideration the payor parent’s gross annual income, and the number of children for whom support is being paid. The Child Support Guidelines vary from province to province.

Calculating a payor’s gross annual income can be complicated. In most cases, gross annual income can be calculated by looking at Line 150 of the payor parent’s income tax return or notice of assessment from the Canada Revenue Agency. However, in some cases, documents do not show the whole picture of what the payor parent makes or could be making. For example, if the payor:

• Is self-employed
• Has fluctuating income from year to year
• Works for cash
• Is not reporting his or her income
• Reports false information
• Only works part-time and is not actively looking for a job

In these situations, you can ask a judge to impute income, which is to decide that your partner earns more than they report to the Canada Revenue Agency or are capable of earning more. This is typically done by looking at the payor’s work history, past incomes, education, and job opportunities.

Payor parents are required to provide complete up-to-date income information to the other parent, including:

• Income tax returns and notice of assessment.
• Pay stubs or a letter from their employers.
• A statement of employment insurance, social assistance, pension, worker’s compensation, or disability payments.
• Their corporation’s financial statements if they are self-employed or if they control a corporation.
• Proof of income from a trust.
• Information about their corporation’s pre-tax income if they are a shareholder, officer or controller of a corporation.

The base amount referred to above is referred to as the “Table amount,” after the tables in the Child Support Guidelines that list the applicable support amounts for various income levels and number of children. These tables provide a starting point and are necessary when determining whether there are any special or extraordinary expenses that may occur. Once the Table amount of support is determined, it is necessary to determine whether the child(ren) have any special or extraordinary expenses.

The Federal Child Support Guidelines define special and extraordinary expense as those that are:

• Necessary because they are in the child’s best interest.
• Reasonable in relation to the means of the parents and the child.
• Reasonable in relation to the family spending patterns before the separation.

Special and extraordinary expenses may include:

• Child-care expenses.
• Medical and dental insurance premiums attributed to the child.
• Health related expenses including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, and prescription drugs, hearing aids, glasses, and contact lenses.
• Private school education cost.
• Expenses for post-secondary education.
• Extracurricular activities.

Special and extraordinary expenses are typically shared by the parents in proportion to their respective incomes.

Q: What Happens if I Cannot Afford to Pay Child Support

A: A court may order less than the Table amount of child support set out in the Federal

Child Support Guidelines if a parent suffers undue hardship by being required to pay this amount.

The factors that a court takes into account when determining whether a parent or child would suffer undue hardship include:

• unusually high levels of debt reasonably incurred to support the spouse and their children prior to the separation;
• unusually high expenses associated with access to a child;
• a legal duty under a judgment or order to support another individual;
• a legal duty to support a child, other than the child of the marriage, who is under the age of majority or who, owing to illness, disability, or other cause (including education), cannot support himself or herself; or
• a legal duty to support a person who cannot get the necessaries of life due to illness or disability.

This undue hardship provision was not meant to be used often and is rarely applied by family court judges. Courts have narrowly interpreted each element of the undue hardship test.  Before making a claim of undue hardship, it is advisable to speak with a family law lawyer to discuss your likelihood of success.

Q: How do obtain Child Support?

A: There are numerous ways to get child support:

1. Written Agreement: Enter into an agreement with the other parent. If both of you can agree on the terms, then you’re able to enter into a child support agreement or separation agreement on your own. Keep in mind that for it to be valid, the agreement must be dated, signed by both parents, and witnessed. You should also have the agreement reviewed by a family law lawyer.
2. Court Order: If you’re unable to reach an agreement on your own, then you must apply to court under either the Divorce Act or the Family Law Act and have a judge make an order for child support in accordance with the Child Support Guidelines.
3. Mediation: You and your spouse can choose to mediate the issue of child support.  Mediation usually resolves things faster and cheaper than going to court.  A mediator can assist you and your spouse in preparing a separation agreement.

If you have a court order, the court automatically sends a support deduction order to the Family Responsibility Office for endorsement. If you have a separation agreement, it is recommended that you have the agreement filed with the court so that the Family Responsibility Office can enforce it. Only agreements filed with the Court can be enforced by the FRO.

Q: Do I Still Have to Pay Child Support if I do not See my Children?

A: Child support is separate from the issue of access and the payor parent must support their children even if they do not see the children. Similarly, a payor parent cannot be denied access to their children because they have not paid child support. A court will not suspend a parent’s access because the parent does not pay support. Judge’s use the “best interest of the child test” when they are making decisions about custody and access. This test is set out in section 24 of the Children’s Law Reform Act.

Q: How is Child Support Enforced in Ontario? How do I deal with Arrears, or Delayed Payments?

A: In the province of Ontario, enforcement of child support is done through a provincial government office called the Family Responsibility Office (FRO). The FRO collects and distributes support payments. The parent who is to pay support is told to make all payments to the FRO. When the FRO receives a payment, they send a cheque – only when money is received from the payor- to the other parent or deposit the money directly into their bank account.

If you haven’t received payment in more than 30 days, you should contact the FRO. You will need to provide the FRO with as much up-to-date information about the payor as possible. This includes his or her full name, address, social insurance number, places of employment, income, and any property he or she owns. This information will be used by the FRO in collecting overdue amounts.

If the payor falls behind on support payments, the FRO can take enforcement action.  Depending on the action taken, the payor may or may not be notified in advance. The FRO has the authority to take the following enforcement action:

• Garnishing the payor’s bank accounts
• Garnishing money the payor receives from the Government of Canada
• Reporting the payor to the credit bureau
• Suspending the payor’s driver’s license
• Suspending Canadian passports or federal licenses
• Placing a lien on personal property

And more. Learn more

If the payer has declared bankruptcy, the Director of the FRO will be a creditor with a claim against their estate. If the payor has not made a support payment in the last six months and the FRO has exhausted all efforts in trying to locate that person, the payor’s picture and personal information may be posted about that person on goodparentspay.com in order to locate the missing defaulting payor.

Q: How can Child Support be Changed?

A:

Agreement between the parents

If both parents agree on new changes, they can make a new agreement. The agreement must be dated and signed by both parents and a witness. If the new agreement changes an old agreement that was filed with the court, a Notice of Calculation, or a Notice of Recalculation, then the new agreement should be filed with the court. Failure to notify the court will result in the FRO (Family Responsibility Office) being unable to enforce the new support amount.

Online Portal for Updating Child Support

Another way to change an existing child support payments is to use the online Child Support Services (CSS).

This online service streamlines the process for parents to get the support they are owed. Using this portal saves both parents’ time and money that would be eaten up by doing things the old way.

Here’s how it works:

1. As soon as either parent registers or makes an update to the child support agreement through the portal, the other parent is notified.
2. The other parent then has 25 days to respond.
3. Both parents are required to allow the Canadian Revenue Agency (CRA) to share their tax information with the service in order to get the most accurate financial information from the parents,
4. Once the service has the information, any necessary adjustments will be made and then enforced as a court order. The document produced by the service is referred to as a “Notice of Calculation or Recalculation” depending on whether or not it is your first time using the service.

While the Online Child Support Portal is an effective and efficient service for both parents, it has a few shortfalls:

1. It does not address situations with shared parenting arrangements.
2. If either parent refuses to use the online portal, the other parent will need to go through the traditional court process to obtain a new order.
3. The service is only effective if both parents reside in Ontario.
4. The service does not apply if the payor is self-employed and/or earns more than $150,000 per year. Only parents who are T4 earners can participate.

Motion to change

If the parents cannot agree or are unable to use online CSS, either parent may ask the court to change child support. The court will make changes only if there has been a material change in circumstances, such as:

• A change in the payor’s income.
• An adjustment to the needs of the child.
• A change in the child’s living arrangements.

It is becoming more common for couples in Canada to remain separated indefinitely instead of getting a divorce. However, many individuals are still confused about the difference between a legal separation and a divorce. An experienced family law lawyer can help you understand the practical and legal effects of both so that you can make an informed decision when choosing whether to get a legal separation or a divorce.

What is a Separation?

Separation does not end a marriage.  The Ontario Family Law Act considers spouses “separated” when they live separate and apart and there is no reasonable prospect that they will resume cohabitation. Spouses can be separated and still physically live in the same house, as long as they are living “separate and apart.”

No single factor determines whether spouses are living “separate and apart.”  The court will look at a variety of factors in determining whether spouses are living “separate and apart” including:

• Whether they are occupying separate bedrooms
• Whether they are having sexual relations together
• The degree of communication between the spouses and whether they discuss family problems together
• Whether one spouse is providing domestic services for the other
• Whether they eat meals together
• Whether they attend social activities together

During a separation, spouses can enter into a separation agreement or start court proceedings to obtain an order that will settle issues such as custody, access, child support, spousal support, and equalization of net family property.  A divorce is not required to deal with these issues.

Why do you need a Separation Agreement?

A Separation Agreement is a legally binding contract between two separated spouses after their separation.  It is considered a domestic contract and is governed by section 54 of the Family Law Act. A separation agreement can address the following issues:

• Ownership in and division of property
• Support obligations
• The right to direct the education and moral training of their children
• The right to custody and access to their children
• Any other matter in the settlement of their affairs

Why should you enter into a separation agreement?

Although a separation agreement is not a legal requirement to formally separate from your spouse, it is highly recommended.  Separation agreements provide finality to the relationship and avoid the pitfalls associated with oral and informal agreements as they are unlikely to be enforced by a court. A well-drafted separation agreement is essential to protect your rights.  The benefits of entering into a separation agreement can be summed up as follows:

1. Entering into a separation agreement Is typically quicker and less expensive than going to court.
2. A separation agreement summarizes parenting arrangements and provides those involved with your children with guidance on agreements reached between you and your spouse (for example: it lets the daycare know who is supposed to pick your child up or it lets the doctor know who is permitted to make decisions about your child’s health)
3. Having a separation agreement allows support to be enforced by the Family Responsibility Office. The Family Responsibility Office is not able to enforce oral agreements.
4. A separation agreement allows monthly spousal support to be tax-deductible to the payor. The Canada Revenue Agency will not recognize oral agreements.

Things to Avoid When Going Through a Separation?

If you are separated from your spouse or considering a separation (or divorce), you should meet with a family law lawyer and obtain independent legal advice. Until you do so, it is important to avoid the following:

• Don’t leave your family home unless there is a risk of harm to you or your children
• Don’t threaten or become violent with your spouse
• Don’t involve your children in the conflict with your spouse
• Don’t deplete joint bank accounts
• Don’t cut off your spouse financially
• Don’t make negative posts about your spouse on social media
• Don’t t sign documents before having them reviewed by an Ontario family law lawyer
• Don’t make financial commitments, such as purchasing a new home, until you have signed a separation agreement with your spouse or have spoken to your lawyer

What is a Divorce?

While a separation marks the end or a relationship, it does not end your marital status.  A divorce, on the other hand, legally ends the marriage and allows the ex-spouses to remarry.  In Canada, a couple becomes officially divorced 31 days after a judge signs a Divorce Order. This effectively puts an end to their marriage, and they can obtain a Divorce Certificate.

A Divorce Certificate confirms the date of divorce and allows either party to re-marry if they so choose.

Who can apply for a Divorce in Canada?

To successfully file for a divorce in Canada, you must meet the following criteria:

• You and your spouse must be legally married in Canada or your foreign marriage must be recognized in Canada
• Your marriage has broken down
• You or your spouse lived in the province or territory where you apply for the divorce for a full year prior to submitting the application

Does it matter whose fault it is that the marriage is over?

The Canadian law takes a “no-fault” divorce regime approach.  This means there is no provision to punish a spouse for the breakdown or a marriage.

How can you get a divorce in Canada?

There are three grounds for apply for divorce in Canada.  One of the following must be satisfied for a divorce to be granted:

1. Separation

This is the most common ground relied on for divorce in Canada and requires that the spouses lived separate and apart for at least one year.

To be clear, you do not have to wait until you have been separated for a full year to apply for a divorce in Canada.  You can begin the application process as soon as you and your spouse are separated; however, the court will not grant your divorce until the full one-year has passed.

Even once the year has passed, the Court may refuse to grant a divorce if they are not satisfied that reasonable arrangements have been made for the continued financial support of the children.

2. Cruelty

Cruelty is used when one spouse has treated the other with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

3. Adultery

Adultery is when one spouse cheats on the other.

In these scenarios, one spouse is trying to prove that the other is solely at fault for the breakdown of the marriage.  These allegations will likely be contested by the other spouse.    Due to this, cruelty and adultery are rarely relied on as a ground for divorce as doing so tends to be costly, lengthy, and difficult.  Further, since proving the grounds of cruelty and adultery may take more than a year, it typically does not warrant the added expense and stress.

What is the difference between a Contested Divorce and an Uncontested divorce?

Uncontested Divorce

A person cannot file for an uncontested divorce.  A divorce in Canada becomes uncontested if the other spouse chooses not to file a response (known as an “Answer”) and contest the divorce application or raise other issue not claimed in the divorce application relating to custody, access, support and/or property division.  This typically occurs when the parties have nothing to resolve or negotiate.  This may mean that they have already entered into a separation agreement.  Alternatively, if the parties did not have any children or assets, these issues may never have had to be negotiated in the first place.

Contested Divorce

If a spouse that has been served with a Form 8A (Divorce Application) files an Answer, the divorce becomes contested.

A contested divorce is when the spouses cannot agree on one or more of the following issues: custody, access, support, equalization of net family property or any other matter in the settlement of their affairs. This process tends to take longer to resolve and is more costly.

What if I apply for a Divorce and then try to live with my spouse again?

During the separation period and even after applying for a divorce, you have a chance to reconcile with your spouse. You can live together for up to 90 days for the purpose of reconciliation, before or after you applied for a Divorce on the ground of one-year separation. If things don’t work out, you can continue with your divorce without having to restart the clock

Is it better to Separate than getting a Divorce?

Separation can be used as a trial for couples unsure of whether they are ready to terminate their marriage or not. Meanwhile, Divorce ends a marriage and once the proceedings are completed in court, the two parties are legally permitted to remarry.

Unless you have plans to get remarried, there is no legal obligation to get divorced.  More and more couples are choosing to remain separated indefinitely, rather than filing for divorce.  Staying separated may offer some financial benefits such as remaining on your spouse’s medical and dental benefits.  A divorce may terminate your entitlement to your spouse’s benefits. Some individuals may also prefer to stay separated for other reasons, such as religious beliefs that discourage divorce.

If you are unsure of whether a Separation or Divorce is right for you, speak with a family law lawyer who can review your unique situation and recommend the best course of action.

Being legally required to provide spousal support is often one of the most contentious parts of a divorce or separation. 

What happens, though, if your former spouse’s income changes significantly after your divorce or separation? Is your support based on the new income level or on the previous level?

First, let’s review how spousal support is calculated in Ontario. 

How Spousal Support is Calculated in Ontario
Once the issue of entitlement has been addressed, the Spousal Support Advisory Guidelines serve as a starting point for determining the amount of spousal support to be paid by the payor. There are different calculations for couples or partners with children, and for those with no children.

Factors that are taken into consideration include:

• Length of the relationship
• Income and age of both partners 
• Current and potential earning power of both parties
• Roles of each partner during the relationship (for example, whether one was the primary breadwinner or primary caregiver)
• Whether either party is leaving the relationship in a worse financial situation than the other.

Again, the Guidelines serve as merely a guide to determine a fair support requirement based on the uniqueness of your relationship.

While there are online spousal and child support calculators available, they serve as only an estimate for how much you could expect to pay or receive. A judge ultimately has the authority to order more or less support than what the guidelines recommend.  

Bear in mind that spousal support can be required permanently or for a limited amount of time until the spouse receiving it is in a better position to support themselves. You can expect support amounts to be higher and paid over a longer duration where there is a large difference between the spouse’s incomes, the spouses lived together for a long time and/or there are children from the relationship. 

What if a Payor’s Income Increases after Separation?

If the person paying spousal support receives an income increase post-separation, it’s generally left to the court to decide whether spousal support will be based on the new income or on the payor’s income during the relationship and/or at the time of separation.  

Listed below are general guidelines the court will follow in reaching a decision on whether to use the payor’s post-separation income.  

• Was it a lengthy relationship?  The use of a payor’s post-separation increase in income is more likely in longer relationships where parties’ personal and financial affairs became completely integrated.
• Were the skills and credentials that led to the post-separation income increased obtained and developed during the relationship? 
• Did the recipient contribute to the post-separation increase to the payor’s income? For example, did the person receiving the support put his or her career on hold, while the payor earned the skills and credentials to get the increase?

COVID-19 and Post-Separation Increases in Income

With over one million Canadians put out of work due to the COVID-19 pandemic, it’s expected that many will eventually see a rise in income. If you’re in the process of settling your divorce or separation and are basing it on today’s income levels, the steps you take now can prevent legal obstacles when income levels begin to rise.

Take into account the following strategies when settling issues of spousal support during the pandemic: 

• Consider a temporary agreement that will stay in place until both parties’ post- COVID-19 incomes can be accurately assessed. 
• Include language that calls for an automatic review of both parties’ income at a specified date in the future.  This will protect both the payor and the recipient.  
• Come to a mutual agreement about what constitutes a “material change in circumstances.” In order to vary an existing spousal support order, the party seeking the change must prove that there has been a material change in circumstance, namely, a change that would likely have resulted in a different order.  Typically, the change cannot have been something that was contemplated by the parties unless the spouses explicitly define that in the agreement, which can assist them in reaching a settlement during these trying times.    

Since the issue of spousal support is one that has the potential of affecting many aspects of your life, you should seek the help of an Ontario family law lawyer who can guide you through the process. With the right representation, you’ll be legally protected on all fronts.

It may seem crazy to think that couples who are separated can survive under the same roof; however, it is actually quite common. There are plenty of reasons why a couple who is separated or in the process of getting divorced may decide to continue to live together – generally it comes down to financial reasons or the best interest of the child.

The fact of the matter is that it is expensive to maintain two households. If we throw the COVID-19 pandemic into the mix, there arises a whole new set of challenges, both financial and practical.

So…what are some tips for cohabitating with your former spouse?

1. Be Honest With Each Other

Acknowledge that this is tough. This is likely going to be an uncomfortable time– even for couples who get along. Couples that may have been anticipating being able to live their separate lives may need to come to terms with the fact that living apart may have to wait awhile for financial, logistical, familial, or health reasons. An open and honest string of communication is crucial to make
the complacent nature of your circumstances livable.

2. Set Guidelines For Your House

Though this may sound childish, it is time to put rules in place. Who is going to take out the trash? Who is going to make dinner? Who is going to pay the utilities and who is going to the grocery store for supplies, etc. Setting hard and fast rules prevents surprises and spontaneous arguments
which, especially if there are children involved, is not healthy for any of the
parties involved.

3. Arrange For Your Own Space

This is a huge issue because everyone should feel comfortable in the place they live. In order to achieve this comfort, individuals who share a household may need to set up their own place in the house.

If you are able to sleep in separate bedrooms you will come to find that you are more comfortable being able to go to your own place even if it is in a shared house (this may mean one spouse gets the couch!). If spacing is an issue, create a schedule. Determine who can go into what room at what time. This could be beneficial if for example an individual really wants to work-out and the only room that can accommodate a yoga mat or high leg kicks is a shared space. Also, if you have only one at-home office and you both end up working from home, scheduling would be beneficial to the extent it does not interfere with job duties.

4. Scheduling Time For Children

While you remain under the same roof, ensure that you are making time for your children – whether that is helping them with their homework or snuggling up to watch a Disney movie.

If necessary, divide your time with your children and take turns “caring” for them. This will also allow the children to get used to the idea of separate caring schedules when the physical separation becomes a reality. More importantly, this strategy is particularly helpful for parents who are unable to communicate respectfully with each other in front of their children and for parents who have
vastly different parenting styles.

5. Separate Your Income

Do not continue to rely on a joint income to support yourself even though you are still living in the same house. Separate your bank accounts and have each spouse take turns paying the bills or as mentioned above create a schedule for paying your expenses. Again, this will get you used to life beyond the walls when physical separation occurs after the sale of your home or the decision to move out.

However, do not cut your former spouse off if they are financially dependent on you as doing so may prejudice you. If in doubt, obtain legal advice from a family law lawyer on your financial obligations while residing with an ex-spouse. Similarly, you should not clear out any joint bank accounts or max out joint lines of credit as this money will likely have to be paid back. Generally, you do not want to do anything that may leave your spouse in financial hardship.

6. Avoid Dating

You should not allow any new partners into your house especially for long periods of time. You are asking for an argument or at minimum an uncomfortable situation. There is no sense in adding another individual to what we can assume is already a cramped environment. Take this time to either work on your marriage if it has not completely deteriorated or work on yourself. Again, if there are kids involved, this step is crucial as it can lead to confusion and bias against one parent.

7. Call A Mediator

If you and your former spouse are unable to communicate, talk with a professional who handles communication between adverse parties for a living. Mediators can lay the groundwork for rules that will need to be established once physical separation occurs and can assist couples in setting boundaries for living together under the same roof.

Many mediators are currently conducting mediations via Zoom or some other virtual platform. If you are cohabitating when social distancing is no longer required, it is a great time to get out of the house and go to a neutral playing field.

At the end of the day, you need to do what is in your (and our children’s) best
interest. Living with your former spouse is not ideal; however, from a financial
and health perspective it may make sense on a temporary basis, barring extreme circumstances.

It’s tough enough for the 44 per cent of Canadians who have already lost work because of the COVID-19 pandemic. It can be even tougher still for those who are also paying child support.

How to manage? Parents’ obligations and their children’s needs don’t stop, even in the middle of a worldwide crisis. Those who make support payments have to continue. At the same time, keep in mind that courts do understand the ebbs and flows of life and how economic conditions can change. 

Our family justice system has procedures in place to adjust the amount of child support to be paid for those who encounter bumps along the road. Nothing is automatic, of course, and when conditions take a turn for the worse as they have for many people now, separated or divorced couples can always negotiate a new separation agreement to recognize these difficult times. 

Remember though: stopping child support payments is simply not a viable legal option. Among the possible consequences:

• The courts can reach into bank accounts and garnish (seize) funds
• Government funding such as tax refunds can be garnished
• Driver’s licences and passports can be suspended
• A non-payer’s credit rating can be ruined.

How You Can Adjust the Amount of Support

If you’re in the situation where you simply can’t afford the child support you’re obligated to pay, there are steps you can take:

• Self-assess your situation and see if you qualify for help  — The federal government is accepting applications for emergency financial assistance. Go through your own details and see if you meet all the eligibility requirements to receive the aid. Also, think about other assets available to you — such as inheritance, savings accounts, possessions that could be sold, help from family members. 
• Think about your former spouse’s situation — Does the other parent still have a job or access to funds that will help to pay the rent or mortgage, and provide food, shelter and clothes for your child? 
• Consider the expenses that have gone because of the pandemic — Because much of the nation has closed, you and your child’s other parent likely do not have to pay for day care, private school fees, costs of extra-curricular activities (sports teams and educational programs), and transportation to various events and gatherings. 

Once you have all the information, the next best course of action is to have a rational conversation with your child’s other parent. If you are both able to reach a decision on your own, that’s best for all parties involved. If you are unable to have a rational conversation with your spouse, consult with a family law lawyer or consider meeting with a mediator.  A mediator’s job is to help parties reach an agreement. Mediation with a trained, accredited mediator, can often resolve issues more quickly, at less cost and with less acrimony.

If you’re both able to reach an agreement, it’s definitely in your best interest to have the agreement put in writing, reviewed by a lawyer and signed by you and your child’s other parent.

What to Do if You Can’t Reach an Agreement

If a mutual agreement is not possible, your next course of action should be to leverage the skills and expertise of your family law lawyer to help you file a motion in court to change your current agreement. 

Remember that losing your job is one of the qualifiers that may enable you to have the amount of monthly child support legally changed. 

Regardless, remember that the purpose of child support is to make sure your child has access to proper food, clothing and shelter. 

No one wins if you suddenly stop your child support payments. 

Keep in mind that no matter how long the pandemic lasts, this is a temporary situation. If you and your former spouse or partner are able to reach an agreement on a reduced amount of child support, it’s fair to include language in the agreement that the payments will return to normal when your situation is righted. 

Regardless of which approach you use, your lawyer can provide important and necessary help. You’ll want to make sure you reach the best situation that will help you navigate the COVID-19 crisis and ensure your children get the support they need.  

Darlene Rites is a family law lawyer and mediator  at the Toronto firm of Ferreira & Bettencourt LLP.

By Darlene Rites

The unprecedented COVID-19 crisis can be especially complicated for families where the parents are separated or divorced.

Not only do these families have the usual stress that comes with court orders and agreements about access; now they have to figure out how to manage safe social distancing while sticking to the rules.

Nobody is sure yet how long social distancing will last, so it’s important for parents who have access arrangements to ask a number of questions. First and foremost, what’s best for the children?

In some cases, parents will need to talk to their lawyers.  The exact solutions in each case will depend on different families’ particular arrangements. In such an unusual time, all kinds of situations can come up.

For example, parents might have an agreement where children stay with one parent every other weekend. But a parent might believe the other is not taking proper COVID-19 precautions and try to block court-ordered access.

Or it could be the other way around — one parent might believe that everything is COVID-safe, and that the other parent is using the crisis as an excuse to block access.

No matter what the situation, one thing is sure: putting the children first is always most important. It’s not just because it’s the right thing to do, it’s also how family law works in Ontario.

Normally, spouses who disagree might ask their lawyers either to negotiate or to fight it out in court. But now more than ever, going to court is a last resort. Since mid-March 2020, Ontario’s courts have been closed except for urgent matters.

On March 24, Hamilton Superior Court Justice Alex Pazaratz dealt remotely with an urgent case and outlined what parents should consider. In this case, the mother wanted to block the father’s access to their child because she feared the father wasn’t social distancing.

Judge Pazaratz refused to block access. He acknowledged the mother’s concern about COVID-19 protection, but added that, “We all have to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children.”

At the same time, “with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.”

What should parents consider? Many people have been contacting their local MPP for guidance and have been told to consult with their family law lawyer. But even before that, there are questions parents should ask themselves:

• What effect would not seeing the other parent for weeks or months have on the children?
• Am I genuinely scared for my children’s safety or just trying to take advantage of the situation?

Parents who are still genuinely worried for the safety of their children because of COVID-19 can also try to reach an alternate agreement with their spouse. Here’s what to consider:

• Why do you want to change access? Is the other person being careless? Or are they in risky, front-line jobs where contact with the kids needs to be limited?
• If your concerns are reasonable, can you still work out a new arrangement with the other parent?
• Are there alternatives, even temporary ones? For example, can you get the other parent to self-isolate for 14 days, or agree to video calls while the lockdowns persist?

Parents who can’t work out a new arrangement might still have to ask the courts for help — but still they must remember that the courts themselves are limiting their work.

The other side of the coin is a parent who is being blocked from access despite a court order or agreement. In ordinary times this might mean going straight back to court, but these are unusual times.

In such cases, parents should be able to show the lawyer and if it comes to it, a judge, that they are safe for their kids — working from home, social distancing, wearing gloves to the grocery store, and so on.

Parents should also be prepared to offer alternatives. Maybe porch visits for a while, or maybe they need to put some ground rules for visits into writing.

Many of these issues can be negotiated or mediated. Mediation, with a trained, accredited mediator, can often resolve issues more quickly, at less cost and with less acrimony.

True, sometimes that doesn’t work. But these unprecedented times call for extra effort.  As Judge Pazaratz says:

“None of us have ever experienced anything like this.  We are all going to have to try a bit harder — for the sake of our children.