So, somebody’s made a complaint to the Law Society about my web site and, in particular, about this page that deals with child support.

While I haven’t yet received a copy of the complaint, apparently the essence of the complaint is that this page encourages fraud and encourages people to evade their child support obligations.

The reality though is that numbers 1 through 4 are simply statements from the Federal Child Support Guidelines.

In particular, #1 is just a restatement of section 10 of the Child Support Guidelines, #2 is based on section 3(2) of the CSGs, #3 is a restatement of section 4 of the CSGs, #4 is a restatement of section 9 of the CSGs.

Number 5 is from the Divorce Act and is based on section 15.1(5).

Numbers 6 and 7 are certainly more aggressive, but are based on my experience. In particular, in Ottawa it is common for people in the high-tech industry to take low salaries and receive stock options that hopefully will result in a large payout in the future.

The final paragraph mentions a web site where people can buy a book on the subject.

I think as a lawyer I’d be negligent not to inform people of what the law is, or of ways in which they can accomplish their goals. If the page had been entitled “7 ways to pay less income tax” I wonder if it would have generated such a complaint. People have the right to arrange their affairs within the boundaries of the law so as to accomplish their financial goals.

When I recommend to people that they should get a marriage contract to reduce any future equalization payment, am I also encouraging fraud?

Finally, I’d like to think that one of the reasons people like my divorce web site is because I tell it like it is, regardless of whether the reality is pleasant or not. The goal of my web site is to present as much divorce information as possible to people, so that they can make their own choices and aren’t so dependant on lawyers.

What do you think? Is this page inappropriate? Let me know by adding your comment below.

You can now subscribe to my blog via email. Simply fill your email address in to the little box under my photo, and click the “subscribe me!” button. It’s kind of a neat technology that every night takes my postings, converts them to email, and mails them out.

If you’re into reading a lot of blogs, you can also get a newsreader account and subscribe to my blog feed. There are a bunch of colourful buttons under the heading “Syndicate” (located at the bottom of the right-hand column of my blog) to make it easy to subscribe using the newsreader of your choice.

No fault divorce means that you can obtain a divorce without proving that either spouse has done something wrong. In Canada, the divorce laws were overhauled in 1968, and since then it has been possible to obtain a divorce without proving fault.

So, for instance, in Canada, you can obtain a divorce simply on the ground of one year of separation. Your spouse does not need to cooperate to give you the divorce. Your spouse does not need to sign any papers. You do not need to prove that your spouse has committed adultery or abused you or anything like that.

New York is the only jurisdiction in the United States without a no-fault divorce provision. Currently, they are considering introducing legislation allowing no-fault divorces. I read with some interest that the President of the New York chapter of NOW is opposed to this. She alleges that no-fault divorce is bad for women. The reasons she gives for this are:

1. Fault-based divorce is needed to give economically weaker spouses (normally women) leverage in divorce negotiations.

2. There’s proof of #1 – studies show that women are receiving alimony and the marital home less often under fault-based regimes than under no-fault regimes.

3. Erm, that’s it.

Interestingly enough, the situation is the reverse in Pennsylvania. There, political interests seem to be making inroads towards repealing no-fault divorce provisions. As a result, the President of the Pennsylvania chapter of NOW is opposed to this (even though the situation is the reverse of New York). She alleges that fault-based divorce is bad for women, although she doesn’t state her reasons. She simply implies that fault-based divorce will result in worse economic conditions for women.

So, there you have it, according to NOW, women will be poorer under a no-fault regime than under a fault regime, and women will also be better off under a no-fault regime than a fault regime. Talk about having your cake and eating it as well.

There are several problems with NOW’s arguments, and with arguments in general about requiring fault to obtain a divorce. I’ll be discussing these in my next post. As well, this debate is part of a larger debate regarding appropriate social and legislative steps to take to reduce the divorce rate. I’ll discuss this in a future post as well.

When an unmarried couple separates, there is no automatic division of property. Each party keeps what is in his or her own name. If this result is not satisfactory, it may be possible to make a claim for
unjust enrichment. I discuss this in detail on my common law web site.

It’s important to note, however, that the claim of unjust enrichment is not limited to unmarried couples, but is often used by married couples too. Although normally the provincial statutory scheme for property division yields fair results, in cases where it doesn’t, a claim for unjust enrichment may be possible.

One of the most common uses of a claim for unjust enrichment is where the matrimonial home is in one spouse’s name. In today’s markets, real estate prices increase quickly, while divorce settlements can take years. Under Ontario legislation, the spouse who owns the matrimonial home would get to keep any increase in value of the matrimonial home that occurred between the date of separation and the date of the divorce settlement. The non-titled spouse can make a claim for a share of this appreciation in value by bringing a claim for unjust enrichment.

A claim for unjust enrichment in this case would normally be fairly strong, because regardless of the roles each spouse played in the relationship, it is likely that there was a significant contribution, financial or otherwise, to the matrimonial home as matrimonial homes are usually an important part of a couple’s life.

Another case where a claim for unjust enrichment might be made is where there is a marriage contract. If a marriage contract results in a very lopsided division of property, a claim for unjust enrichment may be a way around this. I would argue that this is analogous to a common law situation. In other words, if a claim for unjust enrichment would succeed on a particular fact situation for a common law couple, it should succeed if the same fact situation arose for a married couple with a marriage contract, despite the Hartshorne decision.

As an example, say that a couple enters into a marriage contract that provides that the wife keeps the matrimonial home when they separate, and that all other property is divided according to title. During the long-term marriage, both parties work and there are no children. During the marriage, the husband pays for all of the household expenses, mortgage, house insurance and property taxes. The wife on the other hand saves all her money in an RRSP. At the end of the marriage, the only assets are the matrmionial home and the wife’s RRSP. Under the terms of the marriage contract, the wife would get everything. I think that the husband would have a good claim for unjust enrichment in this case.

On February 13, 2006, the Supreme Court of Canada heard arguments about whether child support should be varied retroactively when the support recipient has delayed requesting an increase in child support. The case has even garnered international attention.

The issue has previously been dealt with by Courts of Appeal in Ontario, Alberta and British Columbia. The 3 courts have come to different conclusions. The Supreme Court will be resolving this conflict between the lower courts.

I’ve previously discussed the awarding of retroactive child support in Ontario.

Under the statutory scheme, support recipients have the right to request support payors’ income information on an annual basis. This would normally be done around May, after a person has completed and filed their income tax return. Based on this updated information, the support recipient can request a variation of child support.

As a practical matter, the language from the statutory scheme regarding annual requests for income information and for annual variations of child support is incorporated in separation agreements as standard practice. As well, many final court orders also include this language. This helps ensure that both parents are aware of their financial and legal obligations in this regards.

The issue is that often support recipients wait several years to make the request for financial disclosure. If variations of child support can be made retroactive for many years prior to the request for varying child support, the amount of arrears can be staggering. In one case, the amount totaled around $100,000.

Frankly, I believe that the statutory scheme is quite clear and easy for support recipients to follow. Support payors shouldn’t be penalized simply because the support recipients don’t follow the statutory scheme. All that the support recipient must do is annually mail the payor (preferably with proof of posting) a letter requesting the payor’s updated income information.

If the payor does not comply with this request, the payor will run into trouble for breaching the Guidelines by failing to provide financial disclosure, and get hit with retroactive child support as a result. If the payor does comply, and the payor’s income has increased, the recipient can preserve their right to an increase in child support simply by mailing a letter to the support recipient making a request for the increase.

A lot has been made of the fact that support recipients often do not have the financial or emotional resources to request more child support. It’s no doubt true that legal proceeding are expensive and emotionally draining. Litigation is certainly not something that should be entered into lightly. But it is fairly easy under the current statutory scheme to preserve your rights without starting litigation simply by creating a proper paper trail until you are ready to litigate (and it’s a lot cheaper than litigating all the way to the Supreme Court of Canada).

Some critics of the current statutory scheme state that a further step should be added to it — namely, annual adjustments to child support. Annual adjustments can be cost prohibitive. The reality is that determining a person’s income for child support purposes is often not straightforward. Entire chapters of family law texts are devoted to this subject. I think that the drafters of the Guidelines were wise to require that the parties exchange all the information that they need to determine whether child support should be adjusted, but to leave the final decision as to whether an adjustment should be made in the parties’ hands.

As well, the issues involved in this appeal have been cast as an issue of wealthy male payors shafting helpless female payees. But the reality is that the law cuts both ways. Many times in my practice, I’ve seen men, due to tough economic times, take lower paying jobs, and continue to pay the same amount of child support as they did at their previous higher paying jobs. Or, they have been unemployed for a few months, and not had the financial resources to request a reduction of support while they were unemployed. And in one case of mine, a father waited for 3 years after a child died to request a reduction in child support due to this. The mother took the position that there could be no reduction prior to the date of the father’s request, and that she should pocket the extra child support paid for the last 3 years.

Update: This case has received further international attention.

If you’re reading this blog, you probably realize that pretty much anything you need is on the interent. However, it’s not always easy to find things. Here’s a list of websites relating to divorce and family law that I refer to regularly:

Family Court Fees – Darned if I can remember how much court fees are and besides, they’re always changing. Right now, the total court fee to obtain a divorce is $447. It costs $157 to file an answer to an application for divorce. There are slightly different fees for different types of proceedings so check here for details.

All Government Forms – With the government, there’s a form for everything. Gotta love that paperwork. Need a form? Check here.

Apply for a marriage certificate or divorce certificate – Who still has their marriage certificate after all these years? But you can’t get a divorce without one. Order yours here. Order early, as it can take a long time to receive it. And if you want to re-marry, you’ll need to prove you were divorced. You can get your divorce certificate here as well. For Ontario only – each province has a separate office.

Divorce Act – The law governing divorces in Canada.

Family Law Act – Provincial legislation. Applicable for property division or for other issues where there is no divorce (e.g. common law separations).

Family Law Rules – This is what governs the court procedures in Ontario.

Family Responsibility Office – These are the people who enforce child support and spousal support orders. Expect to be on hold a long time when you call. Contact details and any forms you need to deal with them are here.

Federal Child Support Guidelines – This is how child support works in Canada.

Child Support Tables – Calculate how much child support you should pay or receive.

Ministry of the Attorney General – Family court services, supervised access, legal aid, Children’s Lawyer and more.

Ontario Court Forms – More forms for you.

Pension Benefits Division Act – Mostly useful for Federal Government employees.

Request for Director’s Statement of Arrears – Find out how much spousal support or child support you owe or are owed.

List of Ontario Court Addresses – It’s always helpful to know where to file your divorce papers.

Find a Person.

Canada Post – Find a postal code.

Currency Converter – By the Bank of Canada. Useful for presenting official conversion rates in court if you or your ex lives outside of Canada.

The Law Society of Upper Canada – Governing body of the legal profession.

And … don’t forget my other sites as well: I’ve got more divorce information here, information for unmarried couples here, information in French here, and marriage contract and cohabitation agreement information here.

In May 2006, there will be some sweeping changes to Canada’s child support laws.

There are basically 3 major changes, as follows:

1. Since the Guidelines have come into effect, there has been a lot of litigation over what are know as “special or expenses” or “section 7 expenses” or “add-ons.” These are additional amounts that support payors must pay on top of the table amount of child support. Examples of section 7 expenses are private school tuition, orthodontist bils, etc.

In the past, “extraordinary expenses” has not been defined, and different judges have interpreted the phrase differently. Take as an example horseback riding lessons. The impact of paying for your children to take these lessons will differ greatly depending on whether your income is $50,000 per year or $250,000 per year.

The argument is that if you’re paying the table amount of child support based on an income of $250,000 per year, you’re paying so much support that things like horseback riding lessons should be included in the table amount. Some judges would agree with this; others not.

This amendment is supposed to clarify things by defining “extraordinary expenses.”
The new definition is:

“(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means:

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.”

Well, this definition certainly gives judges and lawyers a framework on which to make a decision about whether an expense is extraordinary. But I’m not sure that it’s going to reduce litigation. I can see caselaw developing under each of the 5 prongs of the part (b) test. As well, part (b)(v) really leaves the door open for argument. So many things can fit into a category of “other.”

2. In the past, under section 19 of the Child Support Guidelines, a court could take into account the fact that a child support payor living abroad may pay lower taxes than if the payor were living in Canada, and increase child support because of this.

However, the reverse was not true. People living in countries where there were higher taxes than Canada did not get a break on child support. I once had a client in Germany where this was a really difficult issue which I couldn’t do anything about. The new section 20 now allows a judge to decide whether a person living in a high-tax country can pay less child support as a result of the higher taxes.

3. The third change is that new child support tables are going into effect. The new child support amounts are higher than the old ones, by between 10% and 20%. For high income earners, the increases tend to be higher in percentage terms than for low income earners.

In my opinion, this is unfair. As inflation increases the cost of living, peoples’ salaries increase, and so the amount of child support is increased, which compensates for the increased cost of raising children due to inflation. There’s no need to change the table amounts.

The child support tables were supposed to reflect the cost of raising children and the amount of money people would be using to raise their children had they not separated. So, if there’s an increase in child support, to justify this there should be substantial evidence that the costs of raising children have significantly increased.

In any event, the new table amounts are a boon to family law lawyers across Canada. The coming into effect of the new table amounts constitutes a material change in circumstances justifying a chance to change child support. In other words, come May 2006, support recipients will be heading en masse to their lawyers to get this increase in child support. I’m already stocking up on espresso beans to prepare for the many late nights ahead.

Can you spot a loopy piece of code faster than a speeding bullet? Can you create security systems more powerful than a locomotive? Can you leap across multiple platforms in a single bound?

If you answered yes to these questions, you may be a Superman when it comes to technology, BUT if you’re like a lot of IT professionals I know…

You’re Clark Kent when it comes to identifying the tell-tale signs of a system crash in your marriage.

Even with Superman’s super x-ray vision, you could still be missing the ‘red flags’ that signal the end of wedded bliss. That’s why I’ve created the….

Top 10 Ways An IT Professional Knows It’s Time To Call A Divorce Lawyer

1. Your wife puts a blond wig on your monitor to remind you of what she looks like.

2. You communicate with your family via email, IM and your blog more often than in person.

3. Your idea of romantic lighting is the soft glow of an active-matrix LCD panel.

4. Instead of your wife’s name, you murmur “Matt Cutts” in your sleep.

5. Instead of referring to your first child “Junior,” you call him “2.0.”

6. Your idea of a come-on line is “Nice set of Floppies.”

7. You send birthday wishes, holiday cards, and chocolate Valentines to the people at the Dell service desk, but forget your wedding anniversary.

8. Your bumper sticker reads, “Married2MyComputer.”

9. You don’t know how long you’ve been married, but you know exactly when you bought your notebook computer.

10. When your wife says, “If you don’t turn off that computer and come to bed, then I am going to divorce you!” you yell at her for leaving out the “else” clause.

Okay … the truth is there’s nothing funny about divorce. If your marriage isn’t working out, you need seriously to address the problem, and without delay.