Canadian legislation mandates a Court to consider 'what is in the best interest' of a child when making a decision about custody, access and many other issues related to parenting children.
In other words, the Court is to put aside considerations of what a parent wants, what would be convenient to the parent, a parent's sense of entitlement, allegations that one parent is of poor character etc. Instead, the Court must try to look at the world through the eyes of the child in question and determine from that child centred perspective what is best for that child.
Although the legislation does not have a sublist of factors for a court to consider, certain key concepts arise, for example:
- the need for maximum contact between the child and both parents, provided that is considered best for the child;
- stability of routine is important;
- the pattern of parenting during and post-separation is highly relevant;
- maintaining bonds between a child and each parent consistent with what the child is used to;
- the wishes of the child, although this can be limited to older children.
The Court is directed to avoid considering matters of conduct in this analysis. In other words, if a child lives with one parent, is stable and bonded to a parent, that is far more relevant to the court than the fact that one parent thinks the other parent is bad, a cheater, a liar, etc.
It is often hard for a parent to accept the fact that, although the other parent may be highly flawed from an adult perspective, or the former spouse's perspective, if the evidence shows that it is best for the child to be with that parent, the court will overlook the flaws.
For parents who do want scrutiny of all factors, more in depth custody analysis may be available, but this tends to be the more complicated, more expensive, more time consuming and intrusive route. Also, this commentary is intended to give a general comment on custody and may not apply to all situation: there are always exceptions.
Obtaining legal advice prior to or as quickly as possible after separation is critical because of the fact that patterns of parenting post-separation are highly relevant.
Friday, February 26, 2010
Thursday, February 11, 2010
Child Support - General
Most people have some awareness that the parent who cares for a child should receive child support from the other parent.
The thing that not everyone knows is that it is really dangerous to guess what the amount should be. Our legislators have set out rules for how to calculate support that fluctuates from person to person based on the amount of income earned and some other factors. So, the amount that a friend is paying/receiving, is likely very different from what you should pay/receive.
Here is the cusp of it -- the law has been interpreted in many, many cases to say that your child has the right to receive child support in the amount set out in the Federal Child Support Guidelines (FCSG) both retroactively and on an ongoing basis. So, if you do not know what the FCSG is, or if the amount that you are paying/receiving is more or less than the FCSG amount, you need to find out.
The consequence of failure to get this right is that a court could order you to pay a large back payment, should it be determined at a later date that you have underpaid. And, for the majority of people, it is far easier to pay the right amount today, than to be hit with a huge liability down the road (a stitch in time saves 9).
To avoid the possibility of a looming and increasing debt arising from a shortfall of child support, find out how to calculate child support under the FCSG, get the amount in a court order and pay it. Also, you need to adjust your payment every year to match your income variations.
Trying to work out child support any other way can lead to big, expensive problems. And for those on the receiving end of too little, it is best for you, your child and the payor to get it right today.
With respect to how to get a child support order, I'm not entirely sure of all of the routes people take to get child support. In my office, I help people who are going through a divorce and people with children out of wedlock. I do the paperwork and take the steps to get child support for my clients. I help gather the information to determine what should be paid.
I think that the 3 other main routes people take to get child support are to figure it out and ask for voluntary payments, to apply to court as a self-represented party, or to have the matter addressed when social assistance is being received. For those who represent themselves, forms and some assistance from trained personnel is available. If you take any of these 3 routes, please take as many steps as you can to get the amount correct. Avoid a headache down the road.
The thing that not everyone knows is that it is really dangerous to guess what the amount should be. Our legislators have set out rules for how to calculate support that fluctuates from person to person based on the amount of income earned and some other factors. So, the amount that a friend is paying/receiving, is likely very different from what you should pay/receive.
Here is the cusp of it -- the law has been interpreted in many, many cases to say that your child has the right to receive child support in the amount set out in the Federal Child Support Guidelines (FCSG) both retroactively and on an ongoing basis. So, if you do not know what the FCSG is, or if the amount that you are paying/receiving is more or less than the FCSG amount, you need to find out.
The consequence of failure to get this right is that a court could order you to pay a large back payment, should it be determined at a later date that you have underpaid. And, for the majority of people, it is far easier to pay the right amount today, than to be hit with a huge liability down the road (a stitch in time saves 9).
To avoid the possibility of a looming and increasing debt arising from a shortfall of child support, find out how to calculate child support under the FCSG, get the amount in a court order and pay it. Also, you need to adjust your payment every year to match your income variations.
Trying to work out child support any other way can lead to big, expensive problems. And for those on the receiving end of too little, it is best for you, your child and the payor to get it right today.
With respect to how to get a child support order, I'm not entirely sure of all of the routes people take to get child support. In my office, I help people who are going through a divorce and people with children out of wedlock. I do the paperwork and take the steps to get child support for my clients. I help gather the information to determine what should be paid.
I think that the 3 other main routes people take to get child support are to figure it out and ask for voluntary payments, to apply to court as a self-represented party, or to have the matter addressed when social assistance is being received. For those who represent themselves, forms and some assistance from trained personnel is available. If you take any of these 3 routes, please take as many steps as you can to get the amount correct. Avoid a headache down the road.
Monday, February 8, 2010
Tip: Cheating is almost never relevant to custody
I am always amazed at the degree of relief some women experience when I tell them that they will not lose custody of their children, simply because they had an affair or someone has accused them of having had an affair. While I'm sure that there are places in the world that seek to punish marital transgressions, Canada is not such a place. And, for the people who are suffering from the pain caused by this behaviour, I am sorry to tell you that our judges are not paid to act as your family's personal morality judge or to publicly denounce whatever act has occurred.
The Federal legislators who wrote the law related to custody and access to children, child support and spousal support in divorcing couples decided that the mere fact that there has been adultery or other matters of conduct should not be determinitive of these issues. For example, proof that a mother had an affair does not mean she will lose custody of her child and proof that a father cheated does not mean he will have to pay spousal support.
Cheating is only relevant if you can link something about the cheating to another issue. For example, when a court weighs evidence to determine who should be granted custody of a child, the fact that one parent had an affair, should not form a material part of the evidence. But, if a parent in a custody battle had an affair and has continued to live with a person who could be dangerous to the children (for example if the new partner had a history of violence to children, or serious drug or alcohol problems), the court may have to consider this factor in order to ensure that the children are protected. So, again, the court will not focus on the fact that there is a relationship with the new partner, but they might consider any safety matters arising as a result of the relationship.
A few years ago, a woman successfully presented a case to the Supreme Court of Canada in which she argued that her husband's affair placed her in need of spousal support. This was an unusual case in which she was able to show that the affair caused her such a degree of grief that she was not able to work. So, again, the spousal support was not granted because of the affair, but because the affair triggered a wife to suffer from a serious and debilitating depression. This was an unusual case.
One could ask if some of our judges could be influenced on an emotional level if evidence of conduct is included in submissions. Legal advice should be sought on this point. Afterall, our judges are able to hear that an accused has pleaded guilty and still find that accused to be innocent on strict application of the law.
I wanted to write about this point because I have seen good people on the brink of making really bad decisions about parenting due to their guilt, or their feeling of powerlessness in the face of accusations, even if they are not true. Please seek legal advice when the parenting of children is at stake -- as I have stated in previous posts, you cannot guess what the law is. It changes over time and from place to place. So, it is not necessarily what you see on t.v. or what your friends or community leaders tell you. It is not what makes good fiction. It is what it is and cheating is rarely relevant.
.
The Federal legislators who wrote the law related to custody and access to children, child support and spousal support in divorcing couples decided that the mere fact that there has been adultery or other matters of conduct should not be determinitive of these issues. For example, proof that a mother had an affair does not mean she will lose custody of her child and proof that a father cheated does not mean he will have to pay spousal support.
Cheating is only relevant if you can link something about the cheating to another issue. For example, when a court weighs evidence to determine who should be granted custody of a child, the fact that one parent had an affair, should not form a material part of the evidence. But, if a parent in a custody battle had an affair and has continued to live with a person who could be dangerous to the children (for example if the new partner had a history of violence to children, or serious drug or alcohol problems), the court may have to consider this factor in order to ensure that the children are protected. So, again, the court will not focus on the fact that there is a relationship with the new partner, but they might consider any safety matters arising as a result of the relationship.
A few years ago, a woman successfully presented a case to the Supreme Court of Canada in which she argued that her husband's affair placed her in need of spousal support. This was an unusual case in which she was able to show that the affair caused her such a degree of grief that she was not able to work. So, again, the spousal support was not granted because of the affair, but because the affair triggered a wife to suffer from a serious and debilitating depression. This was an unusual case.
One could ask if some of our judges could be influenced on an emotional level if evidence of conduct is included in submissions. Legal advice should be sought on this point. Afterall, our judges are able to hear that an accused has pleaded guilty and still find that accused to be innocent on strict application of the law.
I wanted to write about this point because I have seen good people on the brink of making really bad decisions about parenting due to their guilt, or their feeling of powerlessness in the face of accusations, even if they are not true. Please seek legal advice when the parenting of children is at stake -- as I have stated in previous posts, you cannot guess what the law is. It changes over time and from place to place. So, it is not necessarily what you see on t.v. or what your friends or community leaders tell you. It is not what makes good fiction. It is what it is and cheating is rarely relevant.
.
Saturday, February 6, 2010
Tip: Joint title has financial implications
People have a tendency to put the title to their house in JOINT names with their spouse or common law partner, without understanding the legal implications (this arrangement is called a JOINT TENANCY). I don't really know why people do this because there is another option called TENANTS IN COMMON. (I know that we think of a 'tenant' as a renter, but these are the correct terms for the two most common ways in which houses are owned by more than one person in Alberta).
Owning property as TENANTS IN COMMON is underused and most people have not heard of it. TENANTS IN COMMON must specify the percentage of ownership each owner has: 50/50, 27/75 or even 1/99. If the property is sold or one owner dies and the estate needs a payment, the value is divided as per the percentage of ownership. Simple and clear.
The rules are much murkier for JOINT TENANTS. Here is a quick overview which is intended to alert you to the issues and not to make you a lawyer:
1. 'The survivor takes all' in a joint tenancy. If one joint tenant dies, the other joint tenant gets 100% of the house.
2. If you are married, the Matrimonial Property Act (MPA) applies a 'presumption of advancement' to exempt money put into an asset owned as JOINT TENANTS. This is hard to explain, because to understand this point, you need to know that some categories of property under the MPA are exempt from division between spouses. The 'presumption of advancement' means that if a husband/wife puts exempt money into a house owned as JOINT TENANTS, 25% of the exempt property will have to be shared with the other spouse if they separate. In contrast, if that exempt money were put into a house in one party's sole name or in a house owned as TENANTS IN COMMON, this presumption would not operate. The 'presumption of advancement' presumes that when you put your exempt money into something owned JOINTLY that you intended to share a portion of that money. Example, wife deposits $60,000 of her pre-marital savings towards the purchase of a $200,000 house. She puts the husband on title as a JOINT TENANT. They separate later. The law 'presumes' she intented to 'advance' 25% of the deposit to her Husband when she put the title into JOINT names. This presumption can be successfully challenged if you can show that you explicitly agreed to waive it.
3. If you are common law, the Law of Property Act (LPA) governs. It is not very helpful. The LPA does NOT say that joint means a presumption of equal division. It says that if you and the other owner cannot agree on the division of your JOINTLY owned property, you can apply to court to have the division determined. And, if you actually applied to court for such a division, a complicated trust law analysis should be applied to determine each party's share of ownership upon a separation. That trust law analysis goes something like this:
a. there is no presumption of advancement against the deposit;
b. there is an argument for a RESULTING TRUST. Under a Resulting Trust, it is presumed to be unlikely that an unmarried person would intend to give their deposit and the house they bought with the deposit in whole or in part to the other JOINT TENANT, accordingly the other joint tenant has the onus of showing that there was an intention to gift a share of the deposit. Example: boyfriend puts the entire deposit of $60,000 into buying a $200,000 house and puts girlfriend on title as a JOINT TENANT. House increases in value to $220,000 and the parties split up. Girlfriend says joint means equal and wants half. Boyfriend says 'no' I put you on title because I needed another name to get a mortgage, I never intended that you would actually own half. A technical application of the law would say that the girlfriend has to provide evidence to show that the boyfriend actually intended to give her half of the value of the house and his deposit; or
c. There is an argument for a CONSTRUCTIVE TRUST, in which the girlfriend can argue that the boyfriend must give her a share of the value, otherwise he will be unjustly enriched by her other monetary contributions, labour or a combination of money and labour, notwithstanding no initial contribution.
I cannot make this less complicated -- it really is messy and complicated. My primary goal is to alert you to the fact that 'JOINT TENANCY' has a deviously complex meaning and advice should be sought before you sign off on this arrangement.
To help you issue spot, consider the following:
a. If you are married and deposit different amounts to the purchase of a house and then call it joint, you risk not getting 100% of your share of the deposit returned;
b. If you are not married and deposit different amounts to the purchase of a house in joint tenants, it is not clear how the deposit or the increase in value will be divided;
c. In both cases, selling the property will require consent from the other owner;
d. Joint causes confusing because it sounds like it means equal;
e.It leads to a right of survivorship on death;
f. It complicates things and may tie up your assets long after the relationship ends.
I am trying to be careful to point out legal issues in this blog and not to give legal advice (that would be dangerous and could run afowl of my 'always get legal advice' tip.)
The point here is that joint title carries different implications depending on whether you are married, not married or on death. Ask a lawyer to explain further and then find a way to own your property that best suits your situation.
Owning property as TENANTS IN COMMON is underused and most people have not heard of it. TENANTS IN COMMON must specify the percentage of ownership each owner has: 50/50, 27/75 or even 1/99. If the property is sold or one owner dies and the estate needs a payment, the value is divided as per the percentage of ownership. Simple and clear.
The rules are much murkier for JOINT TENANTS. Here is a quick overview which is intended to alert you to the issues and not to make you a lawyer:
1. 'The survivor takes all' in a joint tenancy. If one joint tenant dies, the other joint tenant gets 100% of the house.
2. If you are married, the Matrimonial Property Act (MPA) applies a 'presumption of advancement' to exempt money put into an asset owned as JOINT TENANTS. This is hard to explain, because to understand this point, you need to know that some categories of property under the MPA are exempt from division between spouses. The 'presumption of advancement' means that if a husband/wife puts exempt money into a house owned as JOINT TENANTS, 25% of the exempt property will have to be shared with the other spouse if they separate. In contrast, if that exempt money were put into a house in one party's sole name or in a house owned as TENANTS IN COMMON, this presumption would not operate. The 'presumption of advancement' presumes that when you put your exempt money into something owned JOINTLY that you intended to share a portion of that money. Example, wife deposits $60,000 of her pre-marital savings towards the purchase of a $200,000 house. She puts the husband on title as a JOINT TENANT. They separate later. The law 'presumes' she intented to 'advance' 25% of the deposit to her Husband when she put the title into JOINT names. This presumption can be successfully challenged if you can show that you explicitly agreed to waive it.
3. If you are common law, the Law of Property Act (LPA) governs. It is not very helpful. The LPA does NOT say that joint means a presumption of equal division. It says that if you and the other owner cannot agree on the division of your JOINTLY owned property, you can apply to court to have the division determined. And, if you actually applied to court for such a division, a complicated trust law analysis should be applied to determine each party's share of ownership upon a separation. That trust law analysis goes something like this:
a. there is no presumption of advancement against the deposit;
b. there is an argument for a RESULTING TRUST. Under a Resulting Trust, it is presumed to be unlikely that an unmarried person would intend to give their deposit and the house they bought with the deposit in whole or in part to the other JOINT TENANT, accordingly the other joint tenant has the onus of showing that there was an intention to gift a share of the deposit. Example: boyfriend puts the entire deposit of $60,000 into buying a $200,000 house and puts girlfriend on title as a JOINT TENANT. House increases in value to $220,000 and the parties split up. Girlfriend says joint means equal and wants half. Boyfriend says 'no' I put you on title because I needed another name to get a mortgage, I never intended that you would actually own half. A technical application of the law would say that the girlfriend has to provide evidence to show that the boyfriend actually intended to give her half of the value of the house and his deposit; or
c. There is an argument for a CONSTRUCTIVE TRUST, in which the girlfriend can argue that the boyfriend must give her a share of the value, otherwise he will be unjustly enriched by her other monetary contributions, labour or a combination of money and labour, notwithstanding no initial contribution.
I cannot make this less complicated -- it really is messy and complicated. My primary goal is to alert you to the fact that 'JOINT TENANCY' has a deviously complex meaning and advice should be sought before you sign off on this arrangement.
To help you issue spot, consider the following:
a. If you are married and deposit different amounts to the purchase of a house and then call it joint, you risk not getting 100% of your share of the deposit returned;
b. If you are not married and deposit different amounts to the purchase of a house in joint tenants, it is not clear how the deposit or the increase in value will be divided;
c. In both cases, selling the property will require consent from the other owner;
d. Joint causes confusing because it sounds like it means equal;
e.It leads to a right of survivorship on death;
f. It complicates things and may tie up your assets long after the relationship ends.
I am trying to be careful to point out legal issues in this blog and not to give legal advice (that would be dangerous and could run afowl of my 'always get legal advice' tip.)
The point here is that joint title carries different implications depending on whether you are married, not married or on death. Ask a lawyer to explain further and then find a way to own your property that best suits your situation.
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