Note on legal pages: The recommended resources, articles, etc. are offered in part to make you aware of the different situations that may be part of your on-going journey. The law does change through legislation and case precedent. Some recent articles talk about different case law and legislation that may be updated again and again. You must do your own update or engage a legal professional or access legal services at the Family Law Information Centre (FLIC) at the Court House. WE ARE NOT LAWYERS!

At Kids ‘n’ Dad, we limit any specific comments on legal matters. Our legal observations are about the process and our personal experience and those of our clients.

• We recommend the use of lawyers, where doing so makes sense. Lawyers in the community have helped us understand certain ‘unusual’ issues in law, in order to give direction to our clients.
• It is important for every client going through the separating process to do their own homework on what makes sense for them and their family. Choices must be made at different junctures that are difficult. Some may work out as hoped, others less so.
• It is important not to beat yourself up for choices made that go south; but try to learn lessons from those experiences. Do not react with behaviors that only aggravate an already difficult journey.

Remember our rule: Choices made should be intended to bring your family closer together, even if it is in a changed family form.

In the personal essay, Our Kids Matter, I discuss my journey some 25 years ago through the legal jungle that contributed to the premature loss of my children’s grandparents and damage to every important family relationship.

A non-adversarial approach in our view has the best opportunity to set in place a more peaceful process that respects each other as effective, integral parenting partners. You are establishing a problem-solving strategy for the inevitable differences. It will help ensure that your children know that their parents are working together.

If you read Why It Matters, you know that I made any number of critical errors i.e. a) no attempt at alternative, non-adversarial support; b) failing to find appropriate legal support; c) allowing others to take charge of outcomes; d) failed to take charge of my own destiny; e) assumed legal competency or emotional stability in the professionals- even when the signs were available that something was amiss.

Things to do differently

• Don’t leave the matrimonial home! The caveat to this is that volatility/conflict could lead to police and/or F&CS involvement and alter this good advice. If that is a concern, attempt to sign an interim agreement (signed) re: the parenting care time/involvement for the children prior to either parent leaving. Some parents, in order to be least disruptive to the children, alternate being in the matrimonial home, if they have nearby family or friend to stay with part-time.
• Don’t sign anything, especially if it seems to leave a legal opening for mischief. In other words don’t assume that goodwill prevails beyond the moment. The line that came back to haunt me- that won’t happen- it almost always did happen, unfortunately.
• Verbal promises are not binding agreements/commitments. Sometimes. if implemented on an interim basis, they may show intent and buy you a history that may work for you or against you i.e. parenting arrangements in the early post-separation weeks and even months are very important.
• Take responsibility for the direction of your legal strategy- or even the direction or approach of your negotiations. Know the different resources available to support your family in navigating the way to a parenting agreement and division of assets.

Rule re: your lawyer: Remember, when your lawyer is so empathetic and certain about the strength of your case, if the lawyer had been approached by the ‘other side’ first they would probably have been espousing similar words to their client. It is the nature of the adversarial approach. (See resources)

If it feels risky-it probably is.

Work at understanding the legal process. Many people are now self-representing. In fact, in many jurisdictions the figure ranges from 60-85%. Again, Family Law Information Centres (FLIC) are located in the courthouse to provide free counsel (30 minutes) to help facilitate document preparation or to answer specific questions. There is also some support at hearings through Duty counsel.

Research the drawbacks on self-representation. I admire those who do so; but the legal process can be complicated, and non-professionals don’t normally understand the different legal tools. There is some research that suggest self-representation leads to negative outcomes. The Law Commission is trying to reduce self-representation. Justices are generally less patient with wannabee lawyers, who are less efficient and stumble their way through the process.

You are at the mercy of the judge’s willingness to tolerate your inexperience. 

Common financial areas of conflict between separating/separated parents

Child support is laid out in guidelines and tables. Once a parenting agreement is signed the child support arrangement commences. It would seem to be straight forward…right?

There is rarely enough money to pay for a mom’s house and a dad’s house. Almost all separating partners are ‘funny’ about money.

Where/when does this show up? The initial period of separating is a complicated period re: child support. It is our suggestion that if a parent has the children less than 40% of overnights or there is a significant disparity in income, the parent who is the likely payer should pay the guideline child support prior to an agreement or set the amount in an account for possible future payments. Your ‘good intention’ is of some possible value in countering allegations that you are avoiding supporting your children.

Some payers (usually dads) balk at having wages garnished; however, this is the decision of the recipient. The Family Responsibility Office (FRO) eliminates flexibility, but does reduce potential, monthly conflict.

a) Extraordinary expenses for children e.g. grade 8 end of year school trips; daycare; braces; high level (?) activities; everything else that fall into a grey area- outside (?) of ‘normal’ care expenses. There is often a need to clarify what is an extraordinary expense. It is often a subject of a Court claim. Everything possible should be done to clarify such expenses from normal child support expenses.  I suggest that cooperating parents use common sense to determine the sharing of these expenses, usually done on a proportion to income basis.

b) Layoffs or loss of job has consequences for meeting child support and extraordinary expenses i.e. income may drop to E.I. income. Parenting plans should lay out a process that recognizes change of income in a timely way. The Covid virus created a ‘mess’ because of reduced income, reduced hours or loss of employment by payers.

C) Spousal support is determined through non-binding case law. Again, spousal support often has no apparent end date- to be determined. Very few requirements re: the receiving parent to move into the workplace or to actively (re)train. There are guidelines that are non-binding but are being generally employed by the court.

• Ending child support for a child, who has graduated from secondary school,  but is unsure about going to post-education. This area is generally a mess, for often the paying parent has a less intimate relationship with the child. The recipient parent has a continuing need and has been used to receiving this payment and wants the payment to continue.
• Many young graduates (age 17-18) now return for part-time (grow up) semester or two. Even if they don’t, the parent receiving payments has them often underfoot for some time. The receiving parent is balking/reluctant at voluntarily acknowledging the child’s completion of school and transition to independent living and responsibility for their own expenses. Cutting off payments immediately may have negative outcomes in your relationship with your child.
• Remember that the definition of post-secondary education is very expansive and for many children flows straight out of secondary school graduation.
• The paying parent and the recipient parent need to communicate early on a plan dealing with post-secondary education. This should be set out in the original separation agreement, if possible; but for certain, requires a conversation and resolution as the child enters their final year of high school.
• The reality is that separated parents have more obligations than intact family parents to decide the level of support. In addition, the issue of continuing child support for a child away from their primary home is often a conflict i.e. 8 months at school/ 4 months at home. In some case precedents re: our clients, judges have applied a 1/3 responsibility for the overall cost to the child and to each parent.
• Emotional Component: Making payments for child support with no certainty that the payment is going to provide for your child. Anger may show up when the ‘other’ parent informs you that you owe additional funds for unexpected child care expenses, etc… Disputes occur often over what is already included in normal child support vs. over and above costs.
• If you are in a second relationship, every additional dollar paid out (especially in limited access situations) may be seen as a burden re: providing for your new family. In addition, the payments made to your child’s other home is not based on their family income/need. See attached article: My New Family Matters…Too!

While in general a new spouse’s’ income is not included in any child support calculation, the reality is that the new home (partner) pays toward child expenses from their family income. Children from a new, subsequent family are treated as second class to a parent’s first family (children) in Family Law’s pecking order. 

Further Comments

• It is a rare separating family that has enough assets and yearly income to deal with the costs from a separation with children.

• Accept that your lifestyle is going to take a significant dip. Children can’t be shielded from that reality; however, they can be shielded from any blame game targeting their other parent for the change in financial circumstances.

• Spousal + child support + extraordinary expenses can add up to 50% or more of take home pay. In addition, there is a need to find a suitable place for the children, when they are residing with you on overnight stays. If a boy/girl that may mean an extra bedroom or a child sleeping in your room. It isn’t that this isn’t doable; however, there is a psychological aspect to a situation, when they are with you ‘feels’ inadequate or less than what they are used to or have in their other home.

• Unfortunately, it may be a good ‘defensive’ step to ensure that the sleeping arrangements are ‘suitable’ by approaching a child specialist or even F&CS.

• I made the mistake of discouraging sleepovers for my 12-year-old daughter at my ‘new place’ for the reasons given.  In addition, when my oldest daughter (age 16) moved to my residence (?) almost immediately, I failed to build a dad’s home in any meaningful way. Life seemed to be always in transition.
• “I failed to understand that I was now a single parent, building a single parent home, just as my children’s other parent was doing.’

• Consumer proposals are common enough for separating families with relatively low family incomes. Child support and any arrears are not reduced in a consumer proposal. These obligations are a priority that must be paid. Arrears may be subject to a court ordered repayment plan that is more ‘manageable’. Only a successful argument re: undue hardship may provide relief on Court ordered family support payments. Undue hardship is a difficult test and we suggest that you read more on that topic.

• Allowing arrears to build up is a deadly outcome. Arrears cannot be willed away. They simply build and grow. You must take ‘timely’ steps to stop the bleeding in order to get a reduction in support payments for loss of job, layoff or pay reductions (reduced hours, etc.). Some of these relief actions may occur when tax returns (line 150) are disclosed in order to adjust the next year’s payment. However, there are life events where seeking immediate relief is required or arrears will begin to add up.

• Unfortunately, there is no facilitator for negotiating a new agreement for legitimate change in financial circumstances. Because these payments are set out as Court orders, the court must agree to alter the financial agreement. One way to accomplish the change is for the recipient to agree to the changes on a voluntary/consent basis. The form is available on-line through the Attorney-General of Ontario web site. It is worth reviewing!

• Mediation may be part of the agreed to process by the parties for settlement, if the parties are unable to reach an agreement.
• Every separation agreement SHOULD have an accepted process to deal with finding solutions to the inevitable, life changes that are outside of going to court. It must be a process built expecting success not failure. It is my belief it should be mandatory.

• Overwhelming weekly deficit and debts can lead to interrupted parenting and as such, even workplace problems from absence owing to depression. On too many occasions, I have had clients enter our office and when they leave, I know with high certainty that they are going to be overwhelmed financially and are ill-prepared for the financial challenge.

• Updating your FRO payments because of conflict or substantial change through the Court with a lawyer may cost $3000 or more. It is a wicked system. The current system leads to serious, negative outcomes, because we can’t provide a process and solutions that are based on common sense. A concern is that law is built too often on unusual cases and these cases are not applicable for most disputes, where there is simply not enough money. (See resources – articles)

• The use of the words voluntary, consensual, mediation and collaborative suggest that I am living in my own ‘dream’ world – agreements are often created from anger and discord. However, it is necessary to create a different, everyday environment for your children and yourself; or at least one of benign indifference!

• The suggestions above are in everyone’s long term interest, including children, extended family, new partners, etc. Including the intention to follow a process set out in the original separation agreement is a head start to find non-conflict solutions.

‘Focus on fairness, respond with calm, never respond with anger!’ – A separated dad

To that wise advice, forgive yourself for a lapse…and then rededicate yourself to the above goal.

Do your homework on fairness! Don’t expect the law/guidelines to be thrown out because you have your unique, family history from yesteryear. What matters is finding a reasonable solution for where your family is now.

A Final Personal note:

Many years ago, half way through a 3 year journey to arrive at a final separation agreement, I said ‘enough is enough’. I was tired of being run over, so I decided to go to Small Claims Court over a couple of financial matters. I had hesitated for many months over taking such an action. I barely knew the process, except, that I was right about my cause and my expectation for success.

The details really don’t matter. What did matter was how I felt going through a process with my children’s mother, my son and my new partner in the court. Here were two former intimate partners, middle-aged parents, fighting over money OR to be truthful driven by everything that had happened over the last few years. I felt pathetic!

My ‘enough is enough’ cry would not be satisfied by a court victory or a court loss.

I was simply left with sadness and embarrassment at my decision to proceed. A lesson that I have never forgotten! I forgave myself in time; I learned a forever lesson! Does it move us to a calmer place or a more chaotic place? Each parent has to make their own assessment.

As stated earlier, cases are often based on unusual circumstances. As such, I still hold a belief that former, intimate partners and still parenting partners are better off working out common-sense solutions and compromises within the boundaries of family law.

It is unclear that the logic of the outcomes in the cases below had long-term benefits for the children, parents and grandparents. The judicial path places control in the hands of a justice and case law and perhaps whoever has the best lawyer.

I know that I would prefer to trust loving parents if at all possible!

               Remember the two resources that are great introductions to this topic:

              1) Our Kids Matter,    2.) My Family Matters…Too!