Podcast: Ontario Spousal Support, Child Support and Family Law Advice
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In this transcribed interview with Jamie Busson of The Tonic Talk Show, family and divorce lawyer Daniel Dominitz of Fine & Associates Professional Corporation offers advice on spousal support, child support and family law and how the pandemic challenegd the divorce process. Read the interview below, or listen to the podcast at the top of the page. Divorce lawyers in Toronto are abundant, so make sure that the family lawyer you choose is up to the task.
The Tonic Talk Show Podcast: Recorded November 24, 2020
You’re listening to an interview taken from The Tonic Talk Show and Podcast, heard exclusively on Zoomer Radio. To download or listen to the original episode or other episodes of The Tonic, please visit thetonic.ca.
Jamie: Daniel Dominitz is a lawyer at Fine & Associates. He’s devoted to all aspects of family law, including divorce, custody, and access, child and spousal support, property division, separation agreements, marriage contracts, and cohabitation agreements. Daniel’s practice involves both litigation and alternative dispute resolution. Welcome to the show, sir. How are you?
Daniel Dominitz: Good. How are you, Jamie? Thanks for having me on.
Jamie: I’m doing really well today. And I’ve been with my wife since we started dating when she was 18 and I was 20 and I’ve known her since I was 14 and she was 12, so we are rock solid. But there’s a lot of people out there who are struggling, particularly during COVID, and one of the issues that always comes up is spousal support, yeah?
Daniel Dominitz: Yes. For sure. That is a big one.
Jamie: Yeah. Why don’t you sort of walk us through what is spousal support and what are some of the issues that surround it?
Daniel Dominitz: Sure. Spousal support, or otherwise known as alimony in certain circles, mostly in the U.S, here we refer to it as spousal support. Spousal support, it is what it seems like. It’s support that’s intended to compensate or to provide care for one spouse upon a breakdown of a marriage or upon a breakdown of a relationship. Now, some people don’t understand or they don’t realize that spousal support is not only intended for married spouses. People do not have to be married in order to potentially be entitled to spousal support. The question of who is entitled and how long you need to be in a relationship for is a function of how long the relationship has been? What were the parties’ respective roles during the marriage or the relationship? How long that was? Whether there are children, and what both parties’ income is?
Jamie: Okay. You’re taking sort of a snapshot of who’s earning the money? What is the actual relationship they have? How long has it lasted? All the sorts of things you would think about to sort of frame what was… Because everybody’s relationship is different, right?
Daniel Dominitz: Correct. We look at what were the parties’ circumstances during the marriage? Was one party the primary breadwinner, so to speak? If that’s the case, then usually we do find an entitlement. The first step in examining spousal support is, is there an entitlement?
Jamie: Right.
Lorne: Less people would get divorced.
Dale: Exactly. Now today, I know you want to talk about child
support.
Daniel Dominitz: That’s really the threshold question. And obviously, the longer the duration of the marriage or the relationship, if there are kids, that is usually a slam dunk answer in, “Yes, there is an entitlement.” Once you pass that threshold, then we look at quantum. How much is the appropriate and reasonable amount of support that will be owing to the entitled recipient spouse?
Jamie: Okay. Let’s stop for a second and think about what are some of the issues that a court would look at to determine the quantum of spousal support?
Daniel Dominitz: Great. It’s a great question. Quantum is… Unlike child support, spousal support, we look at both parties’ respective incomes or, equally important, their capacity to earn specific levels of income. Now, if both parties were working during the marriage and post-separation and they’re employees and they have a T4 income, we would just plug in their respective incomes into what we call the spousal support advisory guidelines. It’s a mathematical exercise and then the guidelines would spit back a range of support and where a specific case will fall within the range, is a function of how long the parties were together for, and usually how many children they have.
Daniel Dominitz: However, in many cases, when we have self-employed individuals, then their income and how that translate into the quantum of support, is a little bit of a different exercise because then we come to a situation where one party or both parties are claiming specific amounts of income on, let’s say, their tax return, but really they have the capacity to earn more or they, in fact, do earn more but for legitimate tax savings instructors, they are declaring a lesser income. And in that situation, the courts have a wide discretion to actually impute, what we call to impute, a higher level of income to one or both parties and, of course, that will, in turn, impact the quantum of support.
Jamie: Right. Are there other factors other than earnings that would factor into this? For example, if there was family money or pre-existing wealth. Is it all derived from income or is wealth taken into it?
Daniel Dominitz: Great question. Capital and savings and one or both parties access to that definitely impact that quantum. The short answer is, “Not as much,” but the one other area that would impact the quantum, other than income, is whether the payor spouse in the given situation, will also be paying child support and a separate pot of money for what we call Section 7 expenses, that goes to extracurriculars, activities, post-secondary education and other expenses for the children. The theory is, is that the more the payor is paying, on account of other areas, the less money they have to then pay spousal support, there’s less discretionary income to pay for spousal support and then the quantum will be less.
Jamie: When the court is looking at all these sort of factors, is it a snapshot or are they looking both backwards and forwards? What I’m thinking of, for example, somebody who has a business, maybe it’s a start-up and then maybe in a year or so, maybe that business takes off. Or they’re in a pandemic, for example, and maybe their income isn’t quite what it was. Will the courts look at that?
Daniel Dominitz: Yes. For spousal support, the courts really look at the period of time a few years before separation, what were the family circumstances? What were the dynamics? But especially now during COVID where parties’ incomes have changed in a significant way versus what they earned during the marriage, courts will definitely have more discretion to say, “Look, even though this was the dynamic during the marriage and both parties were earning this and this certain amount and this is where the guidelines come.” However, on a go forward basis, given that incomes are declining specifically during COVID-19, there is discretion to order, or for the parties, if they’re negotiating out of court, to fix a lower amount of spousal support. I guess to answer your question, yes, it is a snapshot. It’s very much an exercise where we look at the historical dynamic when it came to the parties’ finances. But, more and more, the courts are also looking prospectively, “Is this an amount of support that is reasonable giving changing dynamics and circumstances?”
Daniel Dominitz: And when it comes to COVID-19, I’ll be honest with you, it’s still too early to determine where the case law and the courts will go with this. It’s such a new area. And we’re now, in my practice, we’re seeing it more and more where old clients are coming to us and say, “Look, I’ve been ordered to pay this amount of support,” or, “I’ve agreed to pay this amount of support. It’s simply not sustainable.” The challenge is, with that situation, is that there’s not enough precedent. There’s not enough direction yet from the courts how they will treat the change in circumstances. It’s really kind of a moving exercise, so to speak.
Jamie: Family law has always been that, right? I mean, it’s the most volatile of all the litigation practices because there’s so much bad law out there because most of the cases that make it to trial are the ultra wealthy. They’re the only ones who can afford to litigate so you get some very strange results. Are the courts… Are they treating COVID as a temporary situation? Are they giving interim orders or are they waiting to see the bigger picture, whether it lasts longer in terms of how it impacts income and businesses?
Daniel Dominitz: I would say that they’re looking… They’re waiting to see the course in general. They’re old school. They don’t like to be so proactive and make rash orders or decisive orders before the writing is set in stone. The challenge with COVID-19, to be honest with you, is that for the first five or six months, the courts were essentially closed.
Jamie: Right.
Daniel Dominitz: The only matters that were able to be brought before the court were truly urgent matters relating to custody and access, and support matters were really pushed to the side. Now that the courts are open, albeit in a somewhat limited matter, the support cases are still behind the line, right? They’re still not… There’s a backlog in the system for cases to come through. For the most part, courts haven’t really decisively addressed this issue. But, of course, I anticipate that they will eventually, probably we’ll see more and more cases within the next few months.
Jamie: Have the courts issued any notices about how they’re going to deal with the backlog? Are you guys in the dark? You’re just sort of waiting to hear that they have the capacity to take on the less urgent matters.
Daniel Dominitz: Well, we haven’t heard. I mean, the system and the process has been dramatically altered. I mean, we’re doing most hearings remotely. And that obviously is not as… Although you would think that it would be more conducive in terms of efficiency, that actually has further backlogged the system. But look, the courts are doing the best job that they can. They haven’t specifically addressed the less urgent cases that were punted back in the summer, such as support cases. They haven’t sent out any directions as to how they’re going to deal with it but they are starting to deal with it more and more. I have a bunch of cases, for example, that this issue will be adjudicated in the next month or so.
Jamie: Okay. There’s no precedence yet with how they’re treating COVID, so how are you able to negotiate with opposing counsel if there’s no precedent and reduced ability to get into court? Because those outside the law may not know but the vast majority of issues are negotiated out, right?
Daniel Dominitz: Correct.
Jamie: Most of the stuff does not get to trial. How is that impacting your ability to negotiate for your clients?
Daniel Dominitz: Well, I can tell you that we’ve been doing a lot of mediation. Like you said, most cases don’t… Even the matters that are in court, don’t go to the final step to trial and I have a lot of matters where there’s ongoing dialogue between counsel as to how are we going to deal with material change in circumstances in a party’s income when it comes to support? Every case is different, right?
Jamie: Of course, yeah.
Daniel Dominitz: You can’t just argue material change. You have to demonstrate it. And in some, depending on the person’s job or their self-employment income, it’s still too early to concretely demonstrate that yes, the payor’s income is drastically reduced and that’s what’s going to happen in the foreseeable future.
Jamie: My recollection was, you can correct me if I’m wrong, but there’s a higher proportion of self-represented litigants in the family arena. Are you finding that’s an added challenge during COVID, that people are representing themselves in their divorce proceedings?
Daniel Dominitz: Yes. That’s always been a challenge. It’s always difficult when, for example, I have a client and the other side is self represented. It’s always challenging. I think during COVID-19 and because the court process has changed so much, there are less and less self-represented litigants, just because as it is, there’s a challenge in getting acclimated with the court process. And now with all the differences with the Zoom hearings and the different forms that you have to file, I think that that’s a hurdle for self-represented litigants.
Jamie: Okay. We have time for one last question and that is, given everything that we’ve just discussed, what would be your best advice to anybody who’s trying to deal with spousal support through the courts at this point?
Daniel Dominitz: Well, the best advice that I could give is stay ahead of it. Don’t wait to see what can happen. The earlier you pursue your change, whether you’re the recipient or the payor, if you feel that there’s a material change in circumstances and the current level of support is just not sustainable, again for either side. The best way is to stay ahead of it. Raise the issue with other side with opposing counsel. And more importantly, you need to demonstrate the change. Just to say there’s a change and that’s it, that’s not going to fly. Gather your disclosure. Gather any documents that you need that substantiate the change that you’re seeking. Stay ahead of it and the quicker you do that, the easier the process will be for you.
Jamie: Fantastic. That’s great advice. Thank you so much for coming on the show today.
Daniel Dominitz: Thanks Jamie. I appreciate it.
Do You Need Help with Child Support or Divorce Matters in Toronto?
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