Calculating Child Support

In order to avoid the enormous amount of wasted time and money that used to be spent on calculating an appropriate level of child support, the powers-that-BE instituted the Child Support Guidelines. The guidelines are a mandatory schedule of support based solely on the payor’s income and the number of dependent children.

As with all things, nothing is completely black and white, so inform yourself, and then talk to a lawyer.

Property Rights in a Common law “Marriage”

One of the most common misconceptions is that if you are living together for a certain number of years, then your partner is entitled to half of your assets. Not so. The property sections of the Family Law Act do not apply to commonlaw relationships. Is this fair? Maybe. It’s just how the law works. If you’re married, for example, then you are entitled to half of the value of the matrimonial home even your spouse owned it outright prior to marriage! (This is subject to a few fudge factors, but it’s the starting point). In a commonlaw relationship, there is no such rule. Your MIGHT have an equitable claim on the home (or other property) based on other factors under the principles of a “Resulting Trust”.

This should tell you that if you are considering living with someone, getting married, or separating, get independent legal advice. If your partner says “oh, we can do this without lawyers”, they’ve probably already gotten legal advice and don’t want you to know what they do. If you never remember another thing I say, remember this: “Get independent legal advice”.

Social Media Tip

If you’re ever involved in family litigation, DELETE your facebook pages. You wouldn’t believe the things that show up in court. “Oh, I never smoke dope”….Answer: “Oh, really?… then what’s this picture of you through the smoky haze sucking on an enormous bong?” Seriously, you never know what will be dragged out of the past…..

Choosing the Right Lawyer

How do you choose the right lawyer?

Family law matters almost always involve abnormally charged emotions as people deal with the fallout from failed relationships, anger, custody issues and money. It’s important to have a lawyer that can clearly explain what to expect from the legal process and give you confidence that your case is being handled properly, one that will tell you what you need to hear rather than just what makes you feel better.

The most important criteria is competence. It’s like surgery. Would you like a surgeon that makes you feel happy, or that gives you the best chance of survival? Experience Counts. Find out how long the prospective lawyer has practiced family law and what percentage of their caseload has been family law.

That said, personality does count. You need someone who is prepared to be a strong advocate and is willing and able to fight for the best outcome possible for you. Lawyers are people too (no, really!) and the middle of the process is no time to find out that you wish your lawyer were more agressive….. or not so agressive so as to have just made everyone angrier.

The best lawyers are those who can walk softly while carrying a big stick. Being able to tactically shift gears from cutting advocacy to a conciliatory tone is a gift possessed by all too few.

How do you find the best lawyer? Ask around. Reputations are built over time.

Child Support

The nation-wide child suppport guidelines were intended to limit the very costly and picayune litigation over child support. There are now helpful resources published using your tax dollars. See the link below for one such.

The problem is, wherever there is a “system”, a whole new set of problems arise as the system becomes a game that is played. Primary among these is the increasing belligerence shown by parents to the sharing of parenting. Generally, if both parents have equal income, and they have “shared” custody (most often being a weekly rotation of care), then the child support obligations of the parents cancel out each other. Knowing this, a parent who happens to have the children with him or her for more than half of the time tends to be extremely reluctant to move to a shared parenting plan simply because it means they will get less money.

Children are therefore turned into a commodity. Parenting plans and child support are supposed to be independent considerations. They are in law, but not in practice. Very recent experience in my practice shows how a parent who is otherwise fairly decent and caring, actually creates problems in order to avoid the sharing of custody.

What’s the answer? Ultimately, it is up to a trial judge to decide. One primary factor in deciding the “best interests of the children” is that the children should have maximum contact with both parents. Courts have held that where one parent is supportive of the other parent’s full involvement, but the other parent is not, primary care will be awarded to the one who is supportive of the involvement of both parents.

But that usually involved a trial, and we are back into costly litigation anyway. Plus ça change, plus c’est la même chose.

Read More about the Child Support Guidelines

Dads & Their Kids

Do fathers get custody of their children?

The short answer is “Yes”. The Children’s Law Reform Act does not impose any pre-disposition to mothers as primary parents. It is societal norms and, most often, fathers themselves that get in the way by deferring primary parental responsibilities to the mothers. There has been a growing trend towards shared (50-50) parenting of children as it often results in maximizing the time the children spend with both parents, which is one of the objectives of the Act.

One wrinkle to arriving at that as a settlement is that the child support tends to be then also a shared obligation, and the financial consequences to the (usually the mother) make the primary parent resist this conclusion. That’s often the practical impediment to settlement rather than the “best interests of the children” test…..so what is often the “right” thing to do is very much subject to the self interests of the parents.