You will find some of the most common questions that users of this site have about child support and spousal support below.
Being prepared in your family law file will save you time – and money.
The following posts let you know how you can do some of the background work to collect the appropriate information and documents when planning for a family law case.
Only one parent can claim tax deductions like the children’s fitness credit (line 365), tuition transfer (line 324) or amount for an eligible dependent (line 305). During separation or divorce, parents need to communicate during tax season in order to ensure that both are not inadvertently claiming the same thing.
Some people try to claim legal fees under the Line 232 “Other deductions.”
All of these areas, if improperly addressed, could flag the attention of the CRA and lead to an audit.
Natalie Gregg, a family lawyer in Texas, wonders in the Huffington Post whether there’s a link between Viagra and breakdowns in family relationships:
If you aren’t having sex with your husband and yet your medication list at the pharmacy (or on your health insurance records) indicates that your spouse is taking erectile dysfunction pills such as Viagra, chances are he may be cheating.
Conversely, if you can’t keep up in the bedroom since your husband started taking Viagra, you are also at risk. Many fifty- and sixty-something couples are finding that this “sex enhancing” drug has made them sexually incompatible.
In Decaen v. Decaen, the Ontario Court of Appeal upheld a trial judgement granting sole custody of 8-year-old twins to a mother on the condition that she relocate from Mississauga, Ontario (where she was living) to Sudbury, Ontario (where the children were living).
The parties resided in Sudbury during the marriage and the mother was the primary caregiver of the children. After separation the mother moved to Mississauga with the parties’ 18 year-old daughter, but the father did not allow the twins move.
The mother applied for sole custody and an order allowing her to relocate the twins to Mississauga. The father applied for joint and shared custody and an order requiring the twins to remain in Sudbury.
The judge trial concluded that it would be in the children’s best interests to remain in Sudbury. He granted sole custody to the mother on the condition that she returns to Sudbury, and if the mother decided to remain in Mississauga the father would have sole custody. Both parents appealed.
Neither party objected to the relocation condition in the custody order; both parents argued that the order should be set aside entirely, and each parent sought the relief he/she originally asked for at trial. In a jointly-written decision by a 3-judge panel, the Court of Appeal dismissed both parents’ appeals and upheld the trial decision.
By deciding to uphold the trial judgement in Decaen, the Court of Appeal accepted (at least tacitly) that judges in Ontario can make custody orders that are conditional on a parent’s willingness to relocate, and this decision of the Court of Appeal is very noteworthy.
While section 16(10) of the Divorce Act empowers judges to “impose any terms, conditions, and restrictions” on custody orders that they see “fit and just”, case law indicates that judges rarely use this discretion when making custody orders. In mobility cases, judges do restrict a parent’s ability to move to another jurisdiction (by prohibiting that parent from relocating with a child to another jurisdiction. It is very uncommon to see orders that place a positive obligation on a parent to move to or from a jurisdiction as a prerequisite to being awarded custody of a child.
The Nova Scotia Court of Appeal has found that requiring a parent to relocate as a condition of custody is permitted but unusual, and such orders should only be made in rare circumstances when it is the children’s best interests (see Reeves v. Reeves and MacRae v. Hubley). In contrast, the British Columbia Court of Appeal found that courts “do not have the power to dictate where a parent must live, even if the result would be in furtherance of the best interests of the children.” (see Stav v. Stav).
The trial judge’s order in Decaen did not explicitly compel the mother to relocate to Sudbury, however in light of the mother’s interest in sole custody of the children, it could be argued that the actual effect of the order was compulsory from her perspective. It will be interesting to see how this decision will be used and interpreted in future mobility (and custody) cases in Ontario.
In addition to raising an interesting point of law about conditions of custody, the Court of Appeal’s decision contains a helpful analysis of mobility issues and helpful comments about the weight that should be accorded to children’s wishes in custody disputes. The mother in Decaen argued that the trial judge did not conduct a proper analysis of the children’s best interests with respect to mobility, and that he did not give sufficient weight to evidence that the children wished to relocate to Mississauga.
In finding that the trial judge properly conducted his analysis, the Court of Appeal cited the leading case on parental mobility, Gordon v. Goertz,  2 SCR 27:
 In Gordon v. Goertz, Justice McLachlin (as she then was), writing for the majority, identified a number of factors relevant to a child’s best interests in the context of possible relocation:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody; and
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
 At para. 50 of Gordon v. Goertz, McLachlin J. stated that, “[i]n the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.
In dismissing the mother’s argument with respect to the children’s wishes, the Court of Appeal listed the factors that are relevant to such a determination:
 In assessing the significance of a child’s wishes, the following are relevant:
(i) whether both parents are able to provide adequate care;
(ii) how clear and unambivalent the wishes are;
(iii) how informed the expression is;
(iv) the age of the child;
(v) the maturity level;
(vi) the strength of the wish;
(vii) the length of time the preference has been expressed for;
(ix) the influence of the parent(s) on the expressed wish or preference;
(x) the overall context; and
(xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.
It is apparent that the trial judge considered all of these relevant factors.
Ontario Court Justice Harvey Brownstone says he’s tearing down the thick shroud over Canada’s judiciary by moving readily between the bench and the TV spotlight.
The family court judge has grown tired of looking on from the bench as litigants struggle to navigate the justice system. That’s why, Brownstone says, he didn’t hesitate when a producer approached him about hosting a TV show called Family Matters.
My Support Calculator is a proud sponsor of Family Matters.
Guttmann v. Guttmann, a unanimous decision of the British Columbia Court of Appeal, deals a husband’s appeal from a final spousal support order. The parties in this case were married for 22 years, and the spousal support order was issued as part of their divorce.
The portion of the support order that was contested by the husband read as follows:
To calculate the quantum of spousal support to be paid by the [husband] to the [wife], the mid-range spousal support payable on the Spousal Support Advisory Guidelines shall be used. The [husband]’s income for the calculation on the Spousal Support Advisory Guidelines is $70,000.00 per annum and the [wife]’s income to be used is $31,700.00 per annum. The spousal support amount payable by the [husband] to the [wife] shall be adjusted annually based on the actual amounts paid to the [husband] for the year, which amount shall include the [husband]‘s bonus.
The husband put forward several grounds for appeal, all of which were rejected by the Court of Appeal. Justice Frankel dismissed the husband’s appeal in this brief, but notable, judgement.
The husband first argued that the trial judge erred because he did not assess the wife’s entitlement to spousal support prior to making the support order. Justice Frankel disagreed. He found that the wife’s entitlement to spousal support was not put before the trial judge as an outstanding issue for determination. Rather, the trial judge was only asked to determine the husband’s income for 2012 and the resulting spousal support obligation.
The husband next argued that the trial judge erred when he fixed the husband’s 2012 income for support purposes at $70,000. Specifically, the husband claimed that:
- there was no basis for the $70,000 figure, and;
- the trial judge should have averaged the husband’s income from 2009, 2010, and 2011 to determine his income for support purposes.
The Court of Appeal was not persuaded by either of these arguments. Justice Frankel first noted that fixing the income at $70,000 was actually beneficial to the husband, because the evidence available at trial suggested that the husband was actually on track to earn over $100,000 in 2012. Justice Frankel concluded that:
 The chambers judge was asked to determine [the husband’s] income for the purposes of his 2012 spousal support obligations. On the limited information available to the judge, a good indicator of [the husband’s] ability to earn income on a going-forward basis was his actual income for 2011, which included substantial bonuses. While the judge did not provide a mathematical basis for arriving at the $70,000.00 figure – and counsel were unable to provide us with one – that amount cannot, as submitted by [the husband], be said to be either unfair or unreasonable.
Justice Frankel’s findings on this point are in line with the leading authorities on the issue of determination of income for support purpose (see for example: Dickie v. Dickie, 2001 CanLII 28203 (ON SC); Bell v. Bell, 1999 BCCA 497; Jakob v. Jakob 2010 BCCA 136; Dabrowska v. Bragagnol, 2008 ONCJ 360.
General principles borne out of these cases include the following:
- The determination of income for support purposes is based on a payor’s capacity to pay;
- Income for support purposes should be based on the payor’s current income, unless current income does not accurately reflect a payor’s capacity to pay;
- A payor’s income from the previous year is generally a good indicator of his/her current income;
- When determining ongoing support obligations, courts should not average a payor’s income from prior years as a matter of course, especially if current and reliable income information is readily available and there are no other mitigating considerations;
- In certain circumstances it may be more appropriate to average a payor’s income to determine ongoing support, even when current income information is available. Courts have averaged income in circumstances where:
- the payor’s income is unpredictable or fluctuates significantly from year to year (for ex: if the payor works on commission, or if the payor’s income depends on external factors such as company performance or market performance);
- the payor’s current income does not accurately reflect his/her capacity to pay support (for ex: the payor’s income in the previous year was uncharacteristically high or uncharacteristically low, and is unlikely to be repeated in the near future), or;
- The payor’s current financial circumstances are anomalous and likely to change in the near future
The husband next argued that the trial judge’s erred because he did not specify an end date for spousal support. Justice Frankel noted that, prior to the appeal, the husband never asked for an end date to be included in the order. He also noted that nothing prevents the husband from applying for a variation of the order in the future, if he ever feels that a material change in circumstances has occurred to warrant a termination of his support obligations. Justice Frankel concluded that the trial judge did not err in making a support order without a termination date.
Finally, the husband argued, unsuccessfully, that the trial judge erred in fixing spousal support in the mid-range of Spousal Support Advisory Guidelines (SSAGs). After reviewing the husband’s evidence, Justice Frankel concluded the husband failed to show any basis upon which the Court could interfere with the trial judge’s decision about quantum. Justice Frankel’s conclusion on this point illustrates the broadly accepted principles set out in the Supreme Court of Canada’s decision in Hickey v. Hickey ( 2 SCR 518, at para 10-12), namely that:
- Trial and motions judges have broad discretion to determine the appropriate level of spousal support in each case before them, and this discretion is limited only by legislation (for example: section 15 of the Divorce Act or the relevant sections of applicable provincial legislation);
- Appeal courts should not interfere with a trial or motions judge’s decision about quantum of spousal support, unless (1) there is clear evidence that the judge made a mistake about the law and/or facts of the case, and (2) the judge’s decision would have been different if he/she did not make the mistake.
Guttmann is most noteworthy because the Court of Appeal in this case explicitly upheld the portion of the trial judge’s order that required the parties to adjust spousal support every year based on the husband’s actual income in that year. Unlike with child support orders, it is highly unusual for spousal support orders to require payment readjustments to account for the annual changes in a payor’s income.
Only a handful of reported cases that contain orders similar to Guttmann. These cases all appear to originate in British Columbia (like Guttmann), and in some cases, the annual readjustment order is made only because the parties have agreed to such an arrangement. See for example: Jones v. Jones, 2012 BCSC 1231; Vallée v. Vallée, 2012 BCSC 1780; K.S.F. v. S.M.F., 2011 BCSC 1563.
It is much more common for spousal support orders to be ‘fixed’ for a period of time, with a right seek a variation if there is a material change in circumstances, and sometimes also a right to review the support arrangements after a specific date without having to demonstrate a material change.
It should be noted that courts across Canada do sometimes order annual spousal support adjustments to account for annual increases in the cost of living increases. However, such adjustments are generally based on increases in the Consumer Price Index (CPI) and result in only minor changes to support payments (an increase of 2-3%/year). In contrast, the type of support order that has been upheld by the Court of Appeal in Guttmann can potentially result in much more significant variations in spousal support payments from year to year.
An annual, income-based readjustment of spousal support has the potentially to benefit both recipients and payors:
- it would allow a support recipient to automatically share in, and benefit from, increases in the payor’s income, without being put to the cost of seeking a variation, and without having to demonstrate that an increase in the payor’s income meets the threshold of “material change”; and
- It would largely eliminate the financial burden faced by a payor whose income has decreased by an amount that does not meet the threshold of a “material change”, but may nonetheless have a significant impact on the payor’s ability to pay support and meet other financial obligations.
However, such an order could also result in several serious issues:
- the unpredictable payment pattern may be contrary to some of the objectives of spousal support awards, including the important objectives of certainty and finality (see Miglin v. Miglin, 2003 SCC 24;
- Annually adjusted support awards may deter payors from seeking or accepting opportunities to increase earnings in order to avoid sharing the benefit with the recipient;
- Sharing in post-separation increases in income may not be appropriate (See Pendleton v. Pendleton, 2010 BCSC 1167, for a good review of this issue);
- While “fixed” support awards encourage payors to maintain income at a level sufficient to meet financial obligations, annual readjustments may incentivize payors to minimize their earnings in order to reduce support payments. This could potentially lead to increased litigation about intentional underemployment; and
- The necessity for annual interaction may result in increased potential for conflict, especially in highly contentious cases.
Guttmann appears to be the first appellate decision in Canada to uphold a spousal support order that requires annual, income-based readjustments. It will be interesting to see whether courts in other provinces will use this appellate authority to issue similar orders, and what the long-term effect of such orders might be.
What does a typical divorce case look like as it goes through the courts? The recent Ontario Superior Court of Justice trial decision by Justice Parayeski in DeAngelis v. Zanin is a good case study to provide litigants with helpful context about judicial decision-making in family law matters.
The parties were married in 2004, had one child (age 6 at trial), and separated in 2010. Although the parties were able to resolve many of their issues (and were commended for doing so by the trial judge), they required the court’s intervention to reach a final resolution. Justice Parayeski addressed the outstanding issues under the broad headings that are often seen in family law disputes.
The parents agreed (prior to trial) that the mother would have sole custody of the child, but the father asked to be provided with “written notice regarding major decisions relating to the child”. Although Justice Parayeski noted that the parents had difficulty communicating even about issues relating to the child, he found that “[the father’s request] phrased in that way, is most unusual”. He therefore declined to make the order sought by the father, and no further explanation was provided by the judge on this issue.
Section 16(5) of the Divorce Act provides that, unless the court orders otherwise, “a parent who is granted access to a child has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.” Section 20(5) of Ontario’s Children’s Law Reform Act contains a similar provision (as does the legislation of most provinces that frame parental rights in terms of “custody” and “access”).
In light of the legislative background, there would likely be no issue if the father had asked to be “notified” about decisions relating to the child, instead of asking that the mother provide him with “notice” about these decisions. It is possible that Justice Parayeski was concerned that the order sought by the father could be misinterpreted as requiring the mother to inform the father in advance of making any decisions about the child’s welfare. While custodial parents are certainly encouraged to keep access parents informed about upcoming major decisions, a custodial parent would not breach the access parent’s rights to information by informing the access parent of a decision after it has already been made and executed.
An order requiring the mother to provide “notice” to the father might also result in ambiguity about the father’s role in making decisions regarding incidents of custody. It is important to remember that a parent who is awarded sole custody has the right to make all major decisions affecting the child, without having to discuss these decisions with the access parent in advance.
In certain circumstances, courts do order that the custodial parent must consult with the access parent prior to making major decisions, but if the parties are unable to agree, the custodial parent is still empowered to make the final decision (see for example: Lamont-Daneault v. Daneault, 2003 MBCA 111, at para 74, LaPalme v. Hedden, 2012 ONSC 6758 at para 97, and McArton v. Young, 2010 ONSC 3962, at para 24).
In McArton, the mother was awarded interim sole custody, but was ordered to advise the father in writing prior to making major decisions, in order to receive the father’s “input” on these decisions. In DeAngelis, Justice Parayeski apparently did not consider it necessary to order the mother to consult with the father prior to making decisions.
The parties had agreed to a general access framework, but were unable to finalize the particulars of the father’s parenting time. The outstanding issues included:
- Extending weekend access: The mother requested that the father return the child on Sunday nights after his weekend parenting time, and the father requested that the child remain in his care until drop off at school on Monday mornings. The judge agreed with the father, and noted that the additional overnight with the father would be beneficial for the child.
Courts will typically allow parents to extend weekend parenting time into Monday morning (even for relatively young children), unless there are legitimate concerns, ideally supported by reliable evidence, that such an arrangement is disruptive to the child. For example, if the parent often fails to deliver the child to school in a timely fashion, or the parent delivers the child without homework being done, without lunch, without adequate sleep, etc, extending parenting time may not be appropriate (see for example: Cunningham v. Cunningham, 2013 MBQB 50).
- Mid-week access: The father requested that his mid-week parenting time be extended from an evening to an overnight. The mother disagreed with an overnight, and requested that the father’s mid-week parenting time end earlier, to allow her to prepare the child for bed. Justice Parayeski Justice noted that the status quo before trial was a mid-week visit with the father from 6:15 p.m. to 8:30 p.m. He found that the father’s request to increase the time was ‘too much, too soon’, especially in light of his order that weekend parenting time be extended, and that the mother’s request to decrease the time had more to do with her need for control than with the child’s best interests. Accordingly, Justice Parayeski ordered the mid-week visit to remain the same.
This decision provides a good illustration of the significance of status quo in parenting. Generally speaking, courts are reluctant to make drastic changes to children’s schedules in the absence of strong evidence that an established routine is not in the children’s best interests (for ex: where there are concerns about the children’s well being or safety or a party’s parenting ability).
Although it is certainly possible to make changes to any parenting schedule, even when the schedule is mostly “working”, courts prefer changes to be gradual, to allow children time to adjust. In light of the courts’ tendency to use the status quo as a starting point, it is particularly important for access parents to insist that an acceptable parenting schedule is established as soon as possible after separation (while keeping in mind that the children’s best interests are paramount in determining what schedule is appropriate).
- Pick up and drop off and missed access visits: The mother claimed that the father was often late to pick the child up, and asked to be given the right to declare an access visit “abandoned” if the father was late by 30 minutes or more. Justice Parayeski agreed that the mother and child should not be kept waiting, but also noted that the father worked out of town and could not control factors such as traffic. Although Justice Parayeski noted that the father should call and explain any delays to the mother and the child, he declined to make an order on the issue.
The mother also requested that the father provide 48 hours’ notice of any missed access visits. The father asked notice to be only 8 hours. Justice Parayeski ordered that the father provide 24 hours’ notice. To provide further incentive to the father, Justice Parayeski ordered that missed visits would only be rescheduled when 24 hours’ notice is provided.
- Holiday schedule: Justice Parayeski reviewed the parties’ proposals for holiday access during Easter, statutory holidays, March Break, and the summer vacation. In each instance, he found the father’s proposals to be more reasonable, and ordered holiday access as requested by the father.
Access is the right of the child, and not the right of the parent. Unless there are specific concerns about prolonged/consecutive parenting time, or practical difficulties such as serious scheduling issues, courts are often prepared to order generous holiday parenting time to access parents. Absent specific and cogent reasons to limit time, there is an increasing tendency by the courts to order generous parenting time for access parents, even in cases involving very young children (see also: the “maximum contact principle” in section 16(10) of the Divorce Act)
- Overnight visits: The mother requested the father’s overnight visits to take place at the father’s parents’ or sister’s home. The father advised that he secured a furnished apartment and asked for overnight access to take place there. He suggested that the mother should visit his apartment to satisfy herself that it was suitable for the child, and the parties would return to court if they couldn’t agree after her visit. The judge found the father’s suggestion to be more reasonable than the mother’s, and ordered accordingly.
The mother requested that the father maintain a life insurance police of $300,000 to secure his child support obligations. The father requested that the mother be obliged to maintain a similar policy on her life. Justice Parayeski ordered both parents to maintain similar life insurance policies. He noted that:
 While the father’s request is out of the ordinary inasmuch as it is usually the support payor who is obliged to carry life insurance, the rationale behind that request is compelling. In the event that the mother should die before the child no longer requires support, it is probable that he would live with the father full-time. Without the mother being insured, the full support obligation would rest on the father, just as that burden would rest upon the mother should the father die before his child support obligation ends. I see no manifest why reason life insurance should not be carried by both parents for so long as the child remains dependent. The amount suggested by the mother is reasonable.
Property Division and sale of the Matrimonial Home
In this case, the mother and child continued to live in the parties’ jointly owned matrimonial home. The mother sought an order allowing her to buy out the father’s equity in the home. The father argued that the home should be listed for sale, and that the mother could make an offer on the home, to be considered against other offers made in the open market.
Justice Parayeski acknowledged that a spouse cannot be forced to sell his/her equity in a matrimonial home to the other spouse without his/her consent. However, he found that the father previously consented to an order that allowed the mother to buy his interest in the home, and the father did not take any steps to set that order aside. As a result, Justice Parayeski ordered that the wife could buy the husband’s equity in the home at fair market value.
The parties were not able to agree on the fair market value of the home. Each party provided an expert appraisal report, but there was an $83,000 discrepancy between the values provided by the two experts. Justice Parayeski preferred the mother’s expert because. The mother’s expert considered properties that were more similar to the matrimonial home in terms of amenities;
- The father’s expert did adjust the value of comparable properties to account for differences between those properties and the matrimonial home, but his adjustments were general, rather than specific;
- In making adjustments for the value of comparable properties, the father’s expert did not take into consideration case-specific factors that may affect the adjustment, such as the neighborhood where the matrimonial home and comparable properties were located.
Justice Parayeski’s comments illustrate the types of factors that courts will consider when assessing expert reports. Litigants who are dealing with valuation issues should keep these factors in mind when assessing the strength of their own expert reports, and any expert reports provided by the other party.
The parties in this case ran into further difficulty because their expert reports were outdated, and neither party provided evidence about the current value of the home. Justice Parayeski calculated the present value of the home based on an appreciation formula that was presented by the mother’s expert during his testimony at trial.
This outcome should serve as a reminder to litigants that it is crucial to provide the judge with sufficient evidence to enable him/her to make decisions. Prior to attending any court appearance, litigants should ensure that the court has access complete and up-to-date evidence about every outstanding issue. If such evidence is not available, the court may have to make a decision based on incomplete information, to the detriment of either or both parties.
As a final issue, the parties were not able to agree on the division of household contents. The majority of household contents remained in the matrimonial home when the father moved out. The mother suggested that she should keep all the contents in the home, and that the father should be credited with $4,000 for his 50% share of the value. The father argued that the household contents were more valuable than $8,000, and noted that it cost him significantly more than $4,000 to furnish his new home.
The father made a proposal for division of contents, and Justice Parayeski found it to be reasonable: the mother was ordered to create an inventory of the disputed household contents and divide it into two lists with equal total values. The father would then select one of the lists, and each party would keep the items from his or her list.
Justice Parayeski’s decision in DeAngelis exemplifies a very important point that all family litigants would do well to remember: in family law disputes, reasonableness wins the day. This is especially true in cases involving children.
Judges are often required to make decisions that will have a significant impact on children’s day-to-day lives, and their futures. In the vast majority of cases, judges are asked to make these decisions without knowing the children in question, and without the benefit of neutral third-party evidence.
In the face of conflicting evidence from the parties, judges try to create solutions that are reasonable. Litigants who can demonstrate to a judge that they are willing to put the need of children first, to work with the other parent, and to compromise (unless there are valid and demonstrable reasons to insist on a position), will often receive the orders they are seeking, or orders that are quite close. This is what happened for the father in this case; whenever he presented reasonable proposals, Justice Parayeski ordered in his favour.
Shirley Bond, Minister of Justice and Attorney General of British Columbia, released the following statement clarifying the new family law legislation enacted this month:
Headlines have mistakenly suggested that common-law couples are now “married” under B.C.’s new Family Law Act. This is not true.
I want to make it very clear: the new family law is not about forcing unmarried couples into getting married. When it comes to the law’s property division rules, it’s about providing fair rules for couples who split up – and ensuring that those rules are crystal clear at the onset of a relationship.
The new family law’s model is fair: you keep what’s yours, but you share what you accrued together as a couple. This means that property brought into a relationship, and certain property you might receive during your relationship, such as inheritances or gifts, are generally not divided upon separation, regardless of whether you are married or not.
Only property and debt that a couple accrues together during their relationship is dividable. This is similar to many other Canadian jurisdictions.
Under the outdated Family Relations Act, property division provisions only applied to married couples.
A common-law couple could live together 20-plus years, and when they broke up, the property would stay with whoever’s name it was in. It would not be considered joint property and divided in half, as would be the case for married couples.
This resulted in complex legal cases and often great unfairness, usually to women, as the property was more often in the man’s name.
Today common-law couples have the freedom to opt-out of the property division rules by written agreement.
The agreement will allow them to divide their property as they see fit, with limited ability for the court to overturn the agreement.
It is important to note that under existing law, common-law couples are already subject to many of the same laws as married couples, such as those around income tax and wills and estates.
Also, under the old Family Relations Act, common-law couples could seek spousal support.
The new Family Law Act replaces outdated legislation passed in the 1970s and addresses the needs of modern B.C. families and shifts in societal norms.
In Owens v. Owens, Justice Ramsay of the Ontario Superior Court of Justice considered a motion by a mother to vary a final child support order on the basis of material changes to the children’s child care, orthodontic, dental, and tutoring expenses. This case provides a good illustration of the type of analysis judges undertake when considering the reasonableness and necessity of costly child care expenses, particularly where the parties’ incomes are relatively modest.
The parties’ final support order was issued in 2010. The father was ordered to pay Table child support and a fixed monthly contribution toward the children’s section 7 expenses that existed at the time.
The Table support portion of the final order was varied in 2011 to account for the father’s increased income in that year. In 2012, both parties’ incomes decreased, and the mother incurred additional section 7 expenses, including tutoring expenses, orthodontics, and a nanny expense (this expense doubled from the time of the original order). Although Justice Ramsay did not specifically state this, it is clear that these circumstances were sufficiently “material” in nature to warrant a variation of the final order.
Based on the father’s income of $34,500 and the mother’s income of $42,000, Justice Ramsay found that the father should, “in principle”, contribute 40% toward the children’s section 7 expenses. Interestingly, a strict proportionate sharing based on the parties’ incomes would require the father to contribute 45% toward the children’s expenses; however, Justice Ramsay does not provide a rationale for his decision to deviate from the “straight” apportionment.
Justice Ramsay accepted the orthodontic expenses ($5,300) and tutoring expenses ($150/month) as reasonable and necessary, and ordered the father to contribute his proportionate share both retroactively, and on a go-forward basis. Justice Ramsay did not order the father to contribute to previous dental expenses claimed by the mother, because there was insufficient evidence before him about the exact amounts paid by the mother and the exact amounts covered by insurance. This should serve as a reminder to all litigants about the importance of providing the court with enough information to make a determination about an outstanding issue. In the context of section 7 expenses, the court will always need to see evidence of the amounts paid to date, the amounts owing on a go-forward basis, and evidence of any subsidy or insurance coverage that may reduce or eliminate the expense.
Justice Ramsay then went on to consider the nanny expenses claimed by the mother, which were very high ($20,000/year after a subsidy), and accounted for 50% of the mother’s gross yearly earnings. He noted that the two older children (ages 14 and 12) had significant psychiatric issues (anxiety, depression, and anger management, etc) and made the following observations about the cost of the nanny [emphasis added]:
 The daughter is home schooled by a tutor provided by the school board. A nanny watches the children while the mother works. As a result of the children’s special needs and the mother’s work schedule, this is the most practical option. After school day care would be impractical. Neither of the older children is an apt caregiver for the youngest child, who is only five years old. It is expensive, but if not for the nanny, the mother would probably not be able to work. The net benefit of the arrangement is an additional $20,000 a year for this family. The father’s suggestion that the two older children should watch the youngest child is, to my mind, callous and unrealistic in the circumstances.
 I do not blame the mother for providing this care for her daughter. Hiring the nanny and the tutor were reasonable decisions. I accept that the child has benefitted from the tutor. Hiring the nanny has allowed the mother to bring in more money. I simply think that the father cannot afford it. As a result, I think s.7 requires me to award much less. The unfortunate fact is that the family’s resources are limited and hard choices have to be made. It is a fact of life in this case that the hard choices, like the hard work, fall to the mother.
As a result of his findings above, Justice Ramsay ordered the father to pay $350/month toward the children’s tutoring and nanny expenses. It is noteworthy that the father was originally ordered to pay $350/month toward these expenses, but at the time the original order was made, the cost of the nanny was only half the current cost.
Owens v. Owens illustrates the challenges that courts often face when the parties’ financial realities are at odds with the needs of the children. As the primary caregiver in this case, the mother was left to pay a significantly higher portion of the children’s child care expenses, out of necessity. This result that may be unfair, but it is, unfortunately, not at all uncommon.
Families going through separation or divorce will often experience a decrease in their standard of living as a result of the increased cost of running two separate households. It is not unusual for courts to find that an expense is necessary and clearly benefits the child(ren), while at the same time finding that the cost of the expense is financially unfeasible for the family. Under the Child Support Guidelines, only expenses that are both necessary and reasonable will be considered proper section 7 expenses.