Podcast: Ontario Child Support and Divorce Law Advice

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In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740 in Toronto, family and divorce lawyer Lorne Fine of Fine & Associates Professional Corporation offers advice on child support and divorce law.  Read the interview below, or listen to the podcast at the bottom of the page. Divorce lawyers in Toronto are abundant, so make sure that the family lawyer you choose is up to the task.

Goldhawk Fights Back Podcast:  Recorded January 21, 2013

Dale: Okay, so we go from wind turbines to divorce law. That’s a
natural kind of progression, wouldn’t you think Lorne Fine?

Lorne: Sure, why not?

Dale: Absolutely. Lorne Fine is our resident divorce lawyer in our
search for various professionals to come on and talk about
different aspects of life as it would affect Zoomers. We
thought, “Well, we’ve got to have a divorce lawyer.” And so,
Lorne, happily, you’re here and we’re very happy to have you.

Lorne: Thank you for having me. Zoomers are the fastest-growing
demographic when it comes to divorces, unfortunately, but it’s
true.

Dale: Yeah, we’ve mentioned that last time. It’s almost counter-
intuitive, is it not, to think that?

Lorne: Well, as people get older and they’ve been married for many
years.

Dale: Is it the kids leaving the nest that seems to prompt it?

Lorne: It’s a factor. People tend to stick with it and stick through
it when the kids are around and then move on, unfortunately.

Dale: So, then, if the kids can stick a little longer…

Lorne: Less people would get divorced.

Dale: Exactly. Now today, I know you want to talk about child
support.

Lorne: It’s a big topic.

Dale: It’s a hugely complex thing, is it not?

Lorne: Yes. It’s not as simple as people think it is.

Dale: Okay. Well, would you wade into it and then, we’ll ask a number
of dumb questions?

Lorne: Okay. No question is a dumb question.

Dale: I’ve heard that. I’ve asked them all my life, so I guess it’s
okay.

Lorne: Every question is a good question. I guess I’ll go through the
process, does that work?

Dale: Yeah.

Lorne: Okay. The first thing is to realize there’s something called
the child support guidelines. Where it sets out the payor’s
incomes. And it sets out the number of kids that the person may
have, the recipient. So, depending on what the person’s, the
payor’s income is, and depending on the number of kids, that
determines what the support would be.

Dale: It’s a formula.

Lorne: It’s a formula, but it can be complicated. Especially when
someone’s self-employed. So, if the payor is a normal employee
and they get a T4, you look at the person’s income tax return.
You look at their what’s called Line 150, what their income tax
return says, the bottom line. And let’s say their income is
$60,000. And let’s say they have two kids.

So, you look at the chart and you see there’s two kids for $60,000
and what the amount is. Let’s say it’s $500 a month.

Dale: That would be typical? $500 based on that, roughly?

Lorne: It depends on, well, I have the guidelines in front of me.

Dale: Just as a, you don’t need to dollars and cents. But if that’s a
good example, that would important for us to know.

Lorne: Okay, so $50,000.

Dale: You said $60,000. So, do it from $60,000.

Lorne: Okay, $60,000? Okay, $60,000 for two kids is $912.

Dale: Of what? Per kid?

Lorne: Total per month.

Dale: Total per month for the two children?

Lorne: For the two kids. Plus, there’s extraordinary expenses. So,
it’s not just the base support. It’s also something called
extraordinary expenses. So, in addition to the base support, you
pay your proportionate share, I’m talking with the payor, would
pay his, for instance, it’s a husband.

Dale: Or “her.”

Lorne: Or her. In many instances, it’s the husband paying the support.
Would pay his proportionate share of a child’s extraordinary
expenses. The definition of extraordinary expenses is as
follows. It could be childcare expenses. It could be health-
related expenses that exceed insurance.

Dale: Dental fees for example?

Lorne: Dental, orthodontics, so on. Expenses for primary and secondary
school. Post-secondary education expenses, university expenses
and extra expenses in relation to extraordinary activities.
Hockey, soccer, ballet, whatever.

Dale: So, there’s a lot of room for some back and forth in here, I’m
assuming, right?

Lorne: Well, the guidelines were enacted to try to get things more
specific.

Dale: More focused.

Lorne: More focused, but there’s still gray areas. There’s still lots
of arguing about what the payor’s income is. What’s an
extraordinary expense? The quantum of the expenses. Whether
something is extraordinary or not. So, there’s still some gray
areas and still room to, you said “argue.” Still some room to
argue.

Dale: Okay. What about how long that goes on? I foresee one of those
kids growing up and going to university, a very expensive
process, of course. Is the payor to pay that? What part of
university tuition or living expenses would the payor pay in
that kind of case?

Lorne: The payor, the truth of the matter is, the courts are reluctant
to terminate support. So, they look at the parents. Are the
parents professional? Did they go to school for post-secondary
education? Is the child talented? Child support would continue
as long as the child is dependent in most cases when there’s a
married couple.

So, if the child’s in school and they go to, they take an
undergraduate degree. And they’re bright and they take a
postgraduate degree. If they’re applying themselves and they’re
doing well, of course it’s going to be reluctant to terminate
support. So, it really would continue for married couples until
the child…as long as the child is enrolled in a full-time
program of education.

Dale: Even if the child is above the age of majority?

Lorne: Right.

Dale: So, that could be mid-twenties.

Lorne: Very possible.

Dale: Again, that’s something that would be argued or negotiated, I’m
assuming, back and forth. So, then, if once the child, say age
25, does graduate from law school and goes out on her own and
hangs a shingle up somewhere, I’m assuming at that point, the
payor’s spouse is no longer responsible.

Lorne: As soon as the child graduates from law school, child support’s
over. So, the child has to really be enrolled in a full-time
program of education. The child has to apply himself or herself.
So, the child can’t take one or two courses and do lousy in
school and not try. The child has to apply himself or herself.
And the child would be entitled to support.

Dale: What about spousal support during that time?

Lorne: Spousal support is a whole different topic.

Dale: Oh, I understand that.

Lorne: Spousal support is a whole different topic. Also complicated.
But there’s really no connection between…the quantum of
spousal support may change. But entitlement doesn’t, there’s no
relation to spousal support and entitlement with child support.

Dale: No, but there’s still entitlement to both, separately, right?

Lorne: Absolutely.

Dale: Even if they’re separate issues?

Lorne: It happens all the time. That a payor would have to pay child
support, base support, extra earning expenses and spousal
import. It depends on the duration of the marriage, the
differences in incomes between the parties. So, that happens all
the time.

Dale: And with the money left over, the guy can buy a cup of coffee.

Lorne: If he’s lucky. Well, the good news is usually, after everything
is said and done, he’s usually with about 50 percent of his
income, if it’s a long-term marriage. That’s the good news. I’m
being sarcastic.

Dale: Well, it sounds like you’re being real.

Lorne: It is real.

Dale: 50 percent. So, in other words, you better decide for yourself,
wife or husband, whether or not you can afford to get divorced?

Lorne: It’s expensive. It changes people’s lifestyles. It changes
their finances. When I say “50 percent,” I’m talking child
support, spousal support, extra earning expenses. That’s usually
how it works out to be.

Dale: Yeah. And you’ll want to be paid, probably?

Lorne: Are you talking as a lawyer?

Dale: Yeah.

Lorne: That would be nice.

Dale: But, really, you’ve got to make that, that’s got to be part of
your consideration, I’m thinking.

Lorne: Absolutely.

Dale: Because you can financially ruin one person or maybe two
persons. Or maybe more.

Lorne: Well, you’re talking about a pie that’s divided, right? It’s a
household and the income is being divided. So, it definitely has
a financial impact on the families.

Dale: What is your attitude towards and what do you tell people if
they say to you, although, I guess maybe they wouldn’t say it to
you, what do you think about prenuptial agreements where a lot
of the stuff is laid out beforehand? Is that just for rich
people with huge assets? Or is it really for ordinary, mere
mortals as well?

Lorne: It’s for everybody. If the agreement is done properly, then you
deal with property issues. But you’re not going to be able to
deal with spousal support. I don’t know if you’re familiar.
There’s that recent decision of the McCain family when there was
a prenup dealing with spousal support. That doesn’t work.
Spousal support is very difficult to deal with a prenup because
you don’t know how long the marriage lasts. And it’s very
difficult to see.

Dale: And you don’t know what the amount of money that the payor has
amassed.

Lorne: Absolutely. And it’s not going to work for child support. You
can’t have a prenuptial agreement and deal with child support.
It’s the deal with property, really. And if everyone did it, I
would have less work to do.

Dale: And you think that’s a good idea?

Lorne: It’s still a good thing.

Dale: But even for mere mortals, you’re saying?

Lorne: Mere mortals, yes. Everybody. It’s usually for people who are
bringing a house into a relationship. I always get calls for
people who are bringing property into a relationship into a
marriage. And they want to exclude that house.

Dale: Family house or something?

Lorne: A family house is treated differently than other property. So,
a family house is treated separately. So, the agreement deals
mainly with a family house. Or if someone’s bringing a business.
They want to exclude the increase in value of the business in
the event that they separate. So, you exclude that.

Dale: But it’s kind of a bummer, isn’t it? If you have to say “Honey,
I love you, but will you sign this nuptial agreement, prenuptial
agreement”?

Lorne: Bummer’s a good word. Well, you’re saying to this person “I
love you. But just in case…”

Dale: No, you’re saying “I love you now,” is what you’re saying.

Lorne: “I love you now, but just in case.” It’s difficult because
you’re hoping for the best with this person and you’re planning
for the worst. But it’s smart. It’s a smart thing to do.

Dale: When people talk these days about grounds for divorce, what are
the grounds?

Lorne: Nowadays, you don’t need an excuse.

Dale: It’s an old-fashioned thing, right?

Lorne: It’s an old-fashioned thing.

Dale: The idea that at one point, adultery was pretty well the only
grounds for divorce. That’s out the window, that’s gone totally.

Lorne: It’s gone. You’re separate and apart for one year. You
separate. And then you’re separate and apart for one year and
then you can get a divorce. If there’s adultery, if there’s
cruelty, you don’t have to wait for that year. So, if you and I
are married and I say “That’s it. I’ve had enough.” I can go and
separate and get a divorce after a year.

Dale: And do we get a separation agreement?

Lorne: You and I as a same-sex couple? Yes, we do. It’s entirely
possible.

Dale: Well, we’ll have to be a little more general with this? All
right, okay.

Lorne: It’s entirely possible. You and I say “Okay, that’s it. Dale,
I’ve had enough of you. I’m separating for you. I’m going to
have a separation agreement.”

Dale: But is it a good idea for anybody to get a separation agreement
if they decide to part ways?

Lorne: Well, a separation agreement deals with all the issues. So,
instead of going to court, you go get a separation agreement.
You go to a lawyer, you try to negotiate an agreement. And you
deal with the property issues, the support issues. It’s all
incorporated into an agreement. And it’s preferable than going
to court.

Dale: It’s like a preliminary hearing in a way, isn’t it?

Lorne: Well, it resolves your issues. It resolves all your issues and
then, you just get a divorce. A divorce just allows you to
remarry. A divorce is just like a piece of paper that says “Now,
you can go remarry.” That’s all a divorce means. So, the goal
is, to have, to work with your former spouse and to come to an
agreement that resolves all your issues. Rather than going to
court and arguing over it. Or going to mediation or arbitration.
To negotiate an agreement with your counsel and the other side
to come to a fair resolution of the issues.

Dale: Lorne Fine is here. He knows a thing or two about divorce
because he’s a divorce lawyer. He’s here to answer all your
questions in this very complicated area of law. I think that’s a
fair statement, is it not?

Lorne: It is complicated.

Dale: All right. Then again, what part of law isn’t complicated?

Lorne: Well, unfortunately people seem to think that it’s easier than
it actually is. And then they go and make their own agreement
and they end up regretting it.

Dale: Right, okay. Here are the numbers to call with your question.
416-360-0740 or 866-740-4740.

Dale: Lorne Fine is here. The “Goldhawk Fights Back” resident divorce
lawyer. A number of questions waiting online here on the phone.
Here’s Alan in Wasaga Beach. Alan, do you have a question for
Lorne Fine? Alan? Whoops. What happened there? Okay. Here’s
Karen on the line from Toronto. Karen, do you have a question?

Karen: Yes, I’ve been separated over 10 years. And then I found out
the law has changed drastically. And I wish to collect, I’m
entitled to half of my husband’s pension. However, I was
misrepresented in my separation papers. It didn’t state anything
in regards to pension at all.

Dale: Didn’t mention it?

Karen: No. So, I went to a lawyer and I paid $350 for the lawyer to
send one to my ex. And to the lawyer who misrepresented me.
Nothing transpired. Where do I stand now other than keep forking
over money?

Lorne: Okay, so you have a separation agreement? And your spouse was,
where was your spouse working, your former spouse?

Karen: The company closed down over the last period of time. But it
was Stirling Connectors, so it’s been shut down.

Lorne: It’s been shut down?

Karen: Yes. So, in other words, this has been over 10 years like I’ve
been separated. Well, I just figured, well, I shouldn’t have
figured, I assumed. But in any case, I never signed the divorce
papers. But he just recently wanted, he sent me papers by legal
age that he wants a divorce. But then I said “No way.” Then, I
stepped up to the plate and I found out things have changed
drastically. Because I never pictured divorce.

Lorne: Okay, so this is complicated. When you have a separation
agreement, what happens is both spouses exchange financial
statements. So, both spouses say…I’m sorry?

Karen: It was not mentioned at all.

Lorne: So, did he send you a financial statement?

Karen: And the financial statement regards to half of pension or
anything regarding to support me or anything. Because I was
basically supporting myself.

Lorne: So, when you negotiated the separation agreement, his financial
statement, which you swore to be true, did not include any
mention of his pension?

Karen: No.

Lorne: So, he swore a false, misleading financial statement, A. B),
your lawyer should have investigated whether or not he had a
pension.

Karen: And I’m still waiting for an answer.

Lorne: Okay. So, it sounds to me, from what you’re telling me, that
there’s two parts to this. One, your lawyer should have done
more than he or she did. And two, your husband swore a false
financial statement. So, you could set aside the separation
agreement. The question is, whether there was any value to the
pension. There was a value as of the date of separation. So,
that has to be determined. And does your former husband have any
assets?

Karen: No, we set that all aside. This is like, over 10 years.

Lorne: No, but does he have any assets now?

Karen: No, we set all that straight except for the pension.

Dale: Karen, I’m going to get Lorne Fine to get you a little bit of
general advice. We can’t go so much into the detail of this
because we’re just going to take up all our time. So, Lorne,
generally speaking, Karen needs another lawyer, right?

Lorne: She needs to get a lawyer to examine what the first lawyer did.
And it seems to me that there was a major mistake here.

Karen: Exactly.

Lorne: And that you need to meet with a lawyer. And you can call the
Law Society. There’s a lawyer referral service that can find you
a lawyer nearby.

Karen: That’s funny because that’s the one they gave me.

Dale: All right, Karen, thanks very much for your call. That’s still
the best advice though, right? Certainly in that kind of
situation, it might be well worth fighting for, right?

Lorne: It depends on how much money the husband has. If he has no
money, it’s not worth it. But also, the lawyer was negligent.
And every lawyer has insurance. And if a lawyer is negligent,
then the lawyer should be liable.

Dale: Yeah. Okay. Here’s Sharon on the line from Ayr. Sharon, do you
have a question.

Sharon: Yes. Good afternoon, Mr. Fine.

Lorne: Good afternoon.

Sharon: My fiance is divorced and would be remarrying a second time.
And I’m a widow and I would be remarrying a third time. We’re
going to Las Vegas and I’m just wondering, like, what necessary
papers would he need to show that he’s been divorced and would I
need a death certificate for my late? Or what, specifically,
would we need?

Lorne: I’m not sure what the laws are in Nevada. But I think it
probably is a good idea to bring a certified copy of any court
document, certified copy of a divorce judgment. Certified copy
of a divorce order. And sorry, you’re a widow?

Sharon: Yes.

Lorne: Some people demonstrate death certificates. All documents
certified. But you probably should contact a lawyer from Nevada
to make sure that you have everything that you need in order to
get married in Las Vegas. I’m assuming it’s easy to get married
in Las Vegas. But you really should contact. Go online, do a
search for a Las Vegas family attorney and I’m sure they’ll give
you a quick answer.

Sharon: Thank you kindly, have a great day.

Dale: All right, thank you, Sharon. People sometimes run to the
misconception that because you’re a lawyer in Ontario, you’re
admitted to any bar in the world. And of course, such is not the
case. All right. Here is Shirley calling on her cell phone.
Shirley, do you have a question?

Shirley: I do.

Dale: Go ahead, please.

Shirley: Okay, thank you. I’m calling to ask what your feelings are
around divorce with collaborative law? I’ve had some experience
with that. And it’s been, by most part, very positive. I
understand that it takes two people that are willing to go
through the process. But I would like to turn off my sound here
and ask what your comment would be around collaborative law?

Dale: Okay, Eleanor, thanks very much.

Lorne: So, firstly, we should define what collaborative law is.

Dale: It wasn’t Eleanor, it was somebody else. Sorry. Go ahead.

Lorne: We should define what collaborative law is.

Dale: It was Shirley. Need to get the name straight. Go ahead.

Lorne: Collaborative law is when the parties get together with their
lawyers. And each party has a lawyer and they sign an agreement
that says we’re going to reach an agreement together. And if we
can’t reach an agreement together, a separation agreement, the
lawyers have to withdraw.

So, it’s as if the lawyers have a vested interest in trying to come
to an agreement with the parties. It’s not adversarial. It’s
friendlier. And the lawyers kind of take a backseat to the
parties. Let the parties work, give some guidance, but let the
parties negotiate the terms. But the lawyers take a backseat and
facilitate the discussion and help the parties come to an
agreement.

Dale: And the lawyers are there to submit the paperwork, all that
side of it?

Lorne: To draft the paperwork if you come to an agreement, that’s
right. Now, the caller asked if it is effective. It totally
depends on the parties. If there’s a level playing field between
you and your spouse, no abuse, no history of abuse. If you think
your spouse is going to be providing full and frank disclosure
and be up front about his or her assets, then it works, then it
can work. It totally depends on the parties.

Dale: All right. Thanks very much. Do many people take that route?

Lorne: It’s a growing field. It’s a growing field, yes.

Dale: Is that because it’s somewhat cheaper to do it that way?

Lorne: It can be cheaper. It’s less adversarial. And like I said, it
totally depends on the relationship of the parties. And if they
feel that they can talk to their spouse, their spouse is going
to be honest and upfront, they can negotiate with their spouse,
then it’s effective.

Dale: But if no agreement can be reached and as you say, both lawyers
are then required to withdraw, then they’d have to go through it
all over again?

Lorne: Well, then, it’s either going to court or retain other lawyers.
So, everyone’s vested in trying to come to an agreement.

Dale: Yeah. Okay, thanks very much for that. Here are the number if
you, you can stay for a few more minutes, can’t you? We have a
lot of calls.

Lorne: As long as you want me.

Dale: All right. Well, can’t go past 1:00, that’s when the show ends.
If you want to have a question for Lorne Fine, give us a call.
416-360-0740 or 866-740-4740.

Dale: Okay, we’re back at 12:48. Lorne Fine is here answering
questions. All the questions and legal issues that surround a
divorce. Here’s Ted from Bowmanville. Ted, have you got a
question for Lorne Fine?

Ted: Yeah. I [inaudible 23:38] from my ex-wife and I separated in 1978. At
that time, I had a house which was paid for. She didn’t want to
sell the house, so I agreed to that time that she could buy me
out. So, she gave me her half, less $15,000 she didn’t have at
the time. With an agreement that if she ever changed the title
on the house or sold it, then I would be reimbursed my $15,000.

My question is, 35 years, I’ve moved around an awful lot. Was the
onus on me when she sells that house, is the onus on her to find
me or do I have to let them know I’ve moved about?

Dale: In other words, to enforce what was in your agreement, right?

Ted: Yeah. Like, when the time comes, is it up to them to find me to
satisfy me with $15,000?

Lorne: Sorry, the $15,000 would be owed to you when the house is sold
or refinanced?

Dale: Yeah, that was the deal.

Lorne: Okay. I would have to look at the agreement. But I would think
that she owes it to you and you’re going to have to enforce the
agreement. I would probably register the agreement on title to
the house. And give notice to any potential purchaser. So,
that’s probably your best bet. But it’s really up to you to
enforce the terms of your agreement.

Dale: It’s not up to her, Ted.

Ted: Well, it’s like a lien against the house. That’s how it was written
up.

Lorne: Okay, but did you register the agreement against title?

Ted: I don’t know, I didn’t know anything about that. How would I go about
doing that?

Lorne: Did you take a mortgage against the title for $15,000?

Ted: No, no. It was just that she didn’t have the money to give me what I
wanted out of the house. So, I agreed, I would take what she
had. And then, the other $15,000, she’d give me when the house
was sold.

Dale: We get that part.

Lorne: I understand. You probably should have had a mortgage against
title to the house or register the agreement against title to
the house. But I would think that it’s up to you to enforce the
agreement. I don’t think that she’s going to chase you to pay
the extra $15,000.

Ted: I was always understanding that if there was a lien against the
house, she wouldn’t be able to sell out until the lien was
satisfied.

Lorne: But a lien is something that’s registered against title. Every
house, every property in the province has something, has a
description. And you can register documents against title to the
property, like a mortgage.

Dale: It’s just another kind of mortgage, isn’t it really?

Lorne: Exactly. You don’t have a lien unless it’s registered against
title.

Ted: Okay, okay.

Lorne: So, you really have to take steps yourself to enforce it.

Dale: Ted, thanks very much for your call. That’s a general
principle, is it not? I mean, if there’s something in that
divorce agreement that’s being violated, some term or whatever,
it’s up to the person who feels that they’ve been lied to or
disadvantaged or whatever, to take it back into a courtroom
somewhere, right?

Lorne: Absolutely. Well, enforce it somehow, but absolutely.

Dale: Enforce it somehow?

Lorne: Absolutely.

Dale: Yeah, okay. Here’s Eleanor from Mississauga. Eleanor, what’s
your question?

Eleanor: Hi, Lorne and Dale. Thanks for taking my call. I was just
calling to ask what would be the percentage of support payment
for a man to give from his yearly earnings? Like, say for three
kids? Would there be a certain percentage that should be given
in?

Lorne: Okay, so it’s not so much as I said to you before. It’s not so
much a percentage, but it’s a formula. What you can do, if I
may. My website is called www.torontodivorcelaw.com. There’s all
kinds of information. All kinds of details about child support
and so on. So, it’s torontodivorcelaw.com. You would go, is your
husband, former husband…

Eleanor: No, my son actually.

Lorne: …oh, your son. Okay. Is he self-employed or is he an
employee?

Eleanor: No, he works for a company.

Lorne: How much does he make?

Eleanor: I’m not sure. 50-something.

Lorne: Okay.

Dale: Lorne’s looking in his book because there are some guidelines
here.

Lorne: So, just very general. I’m looking at the federal child support
guidelines. Someone who’s earning $50,000 for three kids. My
eyes aren’t as good as they used to be; it’s small writing. I
think it’s $986, but I’m not sure because I can’t see that well.
But it’s around $986.

Dale: I’m getting up. Where is it? I’m the one wearing glasses. Hang
on a sec. Where’s the line? Good grief! Could they make it
smaller?

Lorne: 900 and something.

Dale: Point again to it.

Lorne: It’s 50.

Dale: That number there is, good grief. $958.

Lorne: $958.

Dale: Okay? But that’s only a guideline, right?

Lorne: That’s only a guideline. So, it depends on, like I said, that’s
just a base. You have to look at his income. He really needs to
consult with a lawyer.

Eleanor: They’ve done this mediator and they’ve done their legal
separation and he’s doing his payments. But the other thing,
what I was wondering was the, as you did this formula, but also,
if there was a commission? Now, he’s very open with his wife or
ex-wife, as far as all his business, he shows anything. He’s
not, because he adores his kids and he wants to do best by the
kids.

Lorne: That’s good.

Eleanor: But if there’s a commission, do they have to report the
commission?

Dale: Extra money you mean? Of some kind.

Lorne: So, as I said before, the mediator will look at your son’s
income tax return. They will look at his line 150, which is the
bottom gross income and determine what his gross income for
support would be. It’s possible that if your son writes off
expenses that are personal in nature. Maybe he has gas expenses
for his employment that are really personal in nature, it’s
possible to add back that expense to his income and gross it up
for tax.

So, you really need to look at, have a lawyer, have the mediator look
at it and determine what his…

Eleanor: They’ve done all that. But from here on in, as he’s making his
payments, if he does get a commission, which is rare, far and
few. But if there, like a commission, should they have to give
part of that commission in?

Dale: On an ongoing basis, but yeah.

Lorne: Okay, I think I understand what you’re asking. So, the
agreement should say, when you look at the separation agreement,
it should say that the child support is reviewed on an annual
basis. So, every year, his income would be looked at. Usually,
it’s in June, after he files his taxes. His income will be
looked at and his quantum of support would be adjusted either up
or down. If he’s making more money, he’ll pay more.

Dale: Also, it would apply if he somehow made less.

Lorne: If he’s making less money, then it would be adjusted.

Dale: Eleanor, thanks very much for the question. Here’s Bill in
Collingwood. Bill, what’s your question?

Bill: Well, it’s a quick one. It’s about my daughter. Just recently
separated from her husband. My daughter is a schoolteacher, has
a 19-month-old baby. Her husband has had very few jobs, mostly
minimum wage. So, he has virtually no income. Does that
preclude, I would imagine, any child support payment? And the
second part to that is, during their marriage, they’ve
accumulated significant debt because he had no credit rating.
It’s all in my daughter’s name. So, does she have any options
here or is she scuppered?

Lorne: Well, how long was the marriage for?

Bill: How long was the marriage, hon? Four years.

Lorne: Four years. And he had few jobs? It’s possible for a court to
impute income to somebody. So, if somebody is intentionally
underemployed or unemployed, a court could say “Look, you should
be working. There’s no reason for you not to be working. You
should be paying support based on let’s say $40,000.” I always
say there’s no reason for somebody not to earn at least $25,000.
They can go to Tim Hortons, they can go to Walmart, they can
make $25,000.

So, for him to say “I’m making zero and I have no support obligation”
I just think is simply not acceptable. And you have to look at
what his jobs were before. If he’s making minimum wage, minimum
wage is $10 and something, now. So, somewhere around $20,000 in
income being imputed to him, I think, is fair and reasonable.
And he’s pays support based on that.

Bill: Okay.

Dale: What about the debt?

Lorne: As far as the debt is concerned, when you’re dividing property,
there’s no, you’re dividing the increase in your net worth from
the date of marriage to the date of separation. So, if your net
worth has increased, say $1,000 and your spouse’s net worth has
increased, say $500, the difference is $500. One spouse pays the
other $250, the difference, one half of the $500. Very basic.
You can’t have a negative net worth. A negative net-family
property it’s called.

So, if you didn’t accumulate assets and you just accumulated debt,
the court is not going to divide the debt. So, you have to look
at who’s liable for the debt. Is your daughter just liable for
the debt?

Bill: That’s a good question. Her name’s on the debt.

Lorne: Okay, like if it’s a credit card…

Dale: Alone, her name is on the debt alone?

Bill: Well, they’ve consolidated their debt through a debt payment
plan. And her name is on it.

Lorne: Okay. Well, it’s possible, he improperly incurred debt. Let’s
say he’s a gambler. Or he did something unconscionable to incur
this debt, your daughter should speak to a lawyer to see if she
could do anything to recoup that money. Doesn’t sound like he
has any money, so I’m not sure what good it’s going to do her.

But I think her main concern is that she has a baby. He has a long-
term support obligation and he has to pay support.

Dale: Bill, thanks very much. I hope that helps. That’s often
considered to be a tactic by a spouse to either hide income or
pretend low income or actually have low income to avoid the
obligations of child support.

Lorne: It happens. It happens quite often, unfortunately. And you
know, in many instances, it’s my job to find the income. To act
as a detective, to try to find the income, find sources of the
income. It’s amazing how few people, usually it’s the wife. How
few women have knowledge about their spouse’s income and their
assets.

Dale: Isn’t that true?

Lorne: It’s amazing.

Dale: Absolutely amazing.

Lorne: So, become informed. If I have to say something…

Dale: Put that in your prenup. You’ve got to tell me how much money
you are making?

Lorne: But ask your spouse. How much money do you make? Let me see
your income tax return. Where’s our assets, where’s our
liabilities? Ask your spouse and if you’re in a marriage, you’re
in a partnership, he should tell you.

Dale: Pretty basic questions. Lorne, thanks very much for coming and
once again and answering all our questions about divorce law.

Lorne: My pleasure.

Dale: That’s Lorne Fine.

Lorne: Thank you for having me.

Dale: He’ll be back in a bit to answer more of your questions.

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