Child Support – Sources of Income
January 31, 2012 | 
Author According to s.16 of the Federal Child Support Guidelines, in order to determine the quantum of child support, you must first calculate a payor’s total income. The courts have evaluated certain types of “income” and considered whether or not it should be considered in determining the payor’s income:
- he definition of “income” as set out in the Guidelines is very broad;
- non-taxable income (eg. WSIB) is considered “income” and will be grossed up for tax;
-Employment Bonus was included as “income ” for the year in which it was received;
- non-taxable structured settlement payments as a result of a personal injury claim were not considered “income” if the payments were for the cost of personal care and not lost wages, in which case it would be considered “income” for support purposes;
- overtime income is considered “income” for support purposes;
- a one – time severance package (which was a form of replacement income) was considered “income” for support purposes;
- RRSP withdraws used to pay living expenses was considered “income”; and
-bonus, stock options and severance packages are “income” for the purposes of determining support.
Although the definition of “income” as set out in the Federal Child Support Guidelines is broad, feel free to contact us to discuss this issue in depth.
Child Support – When is the Recipient’s income Considered?
We frequently get asked by support payors when is their spouse’s income considered in relation to child support. A recipient’s income is relevant in the following circumstances:
1. In determining the parties respective contributions to the special or extraordinary expenses for the child (ren) – s.7 of the Federal Child Support Guidelines (see blogs herein wrt same);
2. When there is a split custody arrangement - s. 8 of the Federal Child Support Guidelines;
3. When there is a shared custody arrangement – s.9 of the Federal Child Support Guidelines; or
4. When one spouse claims undue hardship pursuant to s.10 of the Federal Child Support Guidelines.
Therefore, the recipient’s income is relevant in the determination of child support in some circumstances. Please feel free to contact us to discuss this issue further.
Determining Income for Child Support – Severance Pay
When one obtains severance pay from his/her employer, it is considered income for the purposes of determining child support. Most payors seem to believe that it is an asset rather than income. This is incorrect. Severance pay is income replacement. As such, it is considered in evaluating child support obligations.
The best approach is to treat the severance pay as being paid for over time for the employer calculated the amount and adjust the amount of child support.
Please feel free to contact us to discuss your child support obligation or your entitlement to child support.
Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines are not legislated guidelines. Although they assist lawyers and the courts in determining the appropriate range of spousal support in a case, the SSAG are not binding on a court. A judge has the inherent discretion to determine what he/she considers the appropriate quantum of support. In Fisher v. Fisher, the Ontario Court of Appeal held that the SSAG are a useful tool in assisting the court in determination of spousal support. As a result, SSAG should be referred to when dealing with support in Ontario.
Please feel free to contact us to discuss your spousal support claim or to respond to a spousal support claim.
Property Division – Contents
It is frequently necessary to divide the contents of the Matrimonial Home. You do not want to pay a lawyer to argue over contents, the cost will likely exceed the amount at issue. As a result, there are several methods one can use in amicably dividing the contents of the Matrimonial Home, namely as follows:
1. sell all of the contents and divide the proceeds of sale;
2. have a “shot gun clause” whereby one person makes an offer to purchase all of the contents of the house, but also must be willing to sell his/her interest in the contents to the other party on the same terms;
3. Don’t fight over the contents. It is sometimes not worth it. Take your personal items and forget about the rest. You can always buy a new couch;
4. one party makes two lists of equal value listing all of the contents in the house. The other party gets to pick one of the two lists. It is a risk as to the list of items that you will end up with, but it is quick and easy;
5. one party makes a list of all of the items in the house (group the smaller items together – ie. bathroom contents). The parties then take turns picking from the list.
It is important to stay focused on the big issues (ie. custody/ access, child/spousal support, and property division) and not get hung up on the small issues. It does not make logical sense to fight over tools or books. The cost does not justify the amount at issue. Stay focused and objective and you will have a successful divorce.
Financial Disclosure
There is a recent decision of the Alberta Court of Appeal, Webb v. Birkett, wherein the court held that Family Law Lawyers, whether engaged in mediation, the collaborative law process, or any other process, has a duty to obtain full and complete financial disclosure, unless the client, being properly informed, waives the requirement.
The Court of Appeal held that it is the duty of every lawyer in a family law case to do the followingL
- obtain reliable information to be able to ascertain what the client would likely receive or have to pay for spousal support, child support or property division and to advise the client;
- to discuss the options of settlement with a client, to discuss whether a settlement is reasonable, and to evaluate a settlement in comparison to other options;
-if a client is willing to settle without full disclosure from the other side, and therefore, may be accepting less or paying more than they would be required to pay by law, if possible, to advise the client as to what might be lost or paid. (ref – Family Law Newsletter, April 19, 2011, Epstein’s This Week in Family Law)
Therefore, although clients do not like to go through the process of obtaining financial disclosure to provide to the other side or evaluating financial disclosure received from the other side, it is an important part of the process and is necessary for any lawyer that does not want to be negligent. However, it is ultimately the client’s decision if he/she wishes to resolve their matter without some or all of the financial disclosure. He/she should ensure that he/she is making an informed decision and will not regret his/her decision years down the road for not obtaining full disclosure.
Feel free to contact us to discuss the issue of disclosure in regards to your support or property claims.
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Entitlement to Spousal Support
The courts have held that an Applicant for spousal support, must demonstrate the following in order to qualify for interim (ie. temporary support):
- a “good, arguable case”;
-a “prima facie case ” (ie. valid on the face of the case);
- demonstrate “credible evidence sufficient to entitle one to support”.
Therefore, on a motion for interim support, the Applicant must demonstrate some degree of entitlement to or need for interim support. A court would assess the evidence and if the Applicant can establish a claim for support an Order may be granted. (Ref – Family Law Newsletter – Epstein’s this Week in Family Law – April 19, 2011).
Please feel free to contact us to discuss your spousal support claim or to respond to a spousal support claim.
How to deal with your Lawyer
It is important to remember these points when dealing with your lawyer in your Family/Divorce matter:
1. Always be Child focused and think of the future of your family. It will likely save you money;
2.You hire your Lawyer to assist you in your matter. You want the best possible results at a reasonable costs. Remember to stay focused on the “big picture” (ie. custody/access, child/spousal support and property division). Do not get hung up on the small details that may not have any impact on the “big picture”. The longer you argue, the more it costs;
3. You want your Lawyer to be objective and not involved emotionally;
4. Your Lawyer is not a psychiatrist / psychologist;
5. Your Lawyer has many clients that all need his/her attention. It is important to recognize that your lawyer may have time constraints in other matters;
6. When your Lawyer asks for documentation or informatiom, it is in your interest to provide him/her with same asap;
7. Be involved in your case and assist the lawyer as much as possible. It is always helpful to provide your Lawyer with an organized document brief and a history of your matter or important facts with respect to your case;
These important points can save you time and money and lead to a “successful divorce”.
Please call us if you require any assistance.
Posted in child support, common law spouses, divorce, lorne fine, Property Division, spousal support | Tags: child support, child support guidelines, determine child support in ontario, divorce, lorne fine, ontario child support, section 7 of the child support guidelines, separation, support guidelines, toronto child support, toronto divorce lawyer | No Comments »
How to Prepare for your Separation/Divorce
In some of our cases, the parties separation has been “brewing” for quite some time. One or both parties may think about separating from their spouse, but they do not approach a lawyer. He/she may be preparing emotionally and financially to separate from his/her spouse. In other cases, a spouse may be surprised to learn that his/her spouse wants to separate. It comes as a complete surprise. They then come to our office and have no idea where to begin or how to deal with their situation. In both cases, when there are property or support issues, you must prepare to deal with same in the following manner:
1. Prepare a list of all assets and liabilities as of the date of marriage and the date of separation. Gather all of the documents to substantiate your figures. If there are any assets that were inherited or received as a gift during the marriage, it is important to provide documentation to substantiate the gift/inheritance and tracing of the gift/inheritance to the date of separation;
2.Do not leave the Matrimonial Home without first discussing the ramifications of leaving the house with your lawyer. It is very possible that leaving the house will have a detrimental impact on the sale of the house and any custody/access issues;
3. Do not incur any debts or allow your spouse to incur any large debts prior to the separation. You want to be able to have sufficient funds to finance any potential litigation. In addition, you do not want your spouse to incur any joint debts that you be held liable for. You do not want your spouse to deplete your equity in your residence by utilizing a joint secured line of credit or deplete their net worth. It may be necessary to cancel joint credit cards and joint lines of credit;
4. If your house is jointly owned, you may want to consider “severing the joint tenancy”. If you own the house as joint tenants with your spouse, and one person dies, the other person will automatically receive the entire house regardless of the terms of any Will. However, your lawyer can prepare documents in order to “sever the joint tenancy” . Each party would then own the house as tenants in common. Therefore, if you died prior to the resolution of your matter, your estate could deal with your interest in the house and it would not automatically vest in your spouse;
5. You may want to consider changing any beneficiary designations on your RRSPs, life insurance, etc. If your spouse is a beneficiary, and you die, he/she would receive the benefit of this asset, notwithstanding that it may be your intention due to your separation;
6. Save your money. A separation/divorce will have financial consequences. You should have a financial cushion to assist you in coping with any monetary issues;
7. Investigate your spouse/partner’s financial situation. Gather as many documents that you can find to substantiate your allegations (financial or otherwise). Copy all documents. Keep a journal/notes. It may assist you if there are future court proceedings;
8. Make sure that your spouse/partner does not have access to your email or mail received at your shared residence. It is important that any discussions that you have with your lawyer be on a strictly confidential basis;
9. If there are children involved, you should maintain the status quo (with respect to caregiving) or, better yet, become more involved with the kids.
Please feel free to contact Mr. Fine to discuss your family situation.
Posted in child support, common law spouses, divorce, lorne fine, marriage, Property Division, spousal support | Tags: child support, child support guidelines, determine child support in ontario, divorce, lorne fine, ontario child support, property division, separation, Separation Agreements, support guidelines, toronto child support, toronto divorce lawyer | No Comments »
Important Rules to Remember when dealing with a Separation/Divorce
It is important to keep in mind the following rules when dealing with a Separation /Divorce:
1. Separation/Divorce is a very stressful experience. It is important to try to deal with the situation in a mature, reasonable, objective manner. Do NOT let your emotions dictate your actions;
2. It is important to have the benefit of independent legal advice and full financial disclosure before you enter into any Agreement with your spouse/partner. Do NOT draft your own Agreement without counsel;
3. Be very careful what you say and do when there is potential for court proceedings or ongoing proceedings. It is likely that anything negative will end up in an Affidavit before the court. You want the judge to have a positive picture of you and your case. Do NOT say or do anything you will regret in the future;
4. Do not lie or conceal any evidence. Your credibility is important. If you lie or mislead the court in any manner or hide evidence or assets, and you are discovered, your credibility will be destroyed. A judge may then be unlikely to believe anything you say. Do NOT lie, cheat, conceal or hide evidence;
5. Be honest with your lawyer. He/she is on your side. Your lawyer should know the entire story. You do not want your lawyer to be surprised by the other side. Your lawyer must know the good with the bad. Do NOT lie to your lawyer;
6. Be child focused. You may hate your spouse/partner, but your love for your child(ren) must be greater than your hate for your spouse/partner. Remember, Divorce/separation may have a lasting negative impact on your children. You do not want your children to suffer because of your actions. Do NOT forget about your child (ren);
Please feel free to contact Mr. Fine to discuss any aspect of your separation/divorce.