Podcasts: Child Support

 

Child support affects every family with children.  It used to be that child support was extremely difficult to calculate and to apply – not so anymore.

In 1997 the Federal Government introduced the Child Support Guidelines. Though they are called Guidelines, they are actually regulations. They determine in virtually all contexts the amount of child support payable.

Child support is based upon the income of the person who does not have the children residing with him or her, and the number of children.  It is determined according to a table. You basically look up your income, and the number of children and that is the amount of child support you pay if the children are residing with the other spouse at least 60% of the time. There is very little room to maneuver on that amount. There is a capacity to alter that support payment in the event of undue hardship, but that is a highly restricted area. Basically, the child support is according to earnings.

One of the big difficulties of child support of course  is where you have a split or shared custody regime. In that context, it is far more difficult to determine the amount of support. Generally speaking, if the children are 50/50 in each parent’s care, you do the same process by determining how much support one parent would pay if the children were entirely in the care of the other and then you look at the amount of support that the other parent would pay if the situation was reversed.  You would start with setting off those amounts of support against each other. So, if Dad is supposed to pay $1,000.00 per month if the children were living entirely with Mom, and Mom was to pay $800.00 a month if the children were living entirely with Dad, then Dad would start at paying $200.00 per month to Mom for the support of the children.

This is not an iron clad rule of thumb because other factors can come into play, such as the costs relating to those individual children, possible issues relating to any disabilities that you might have to deal with regarding the children or the parent, or any other whole migrate of factors that may affect the support, but this is the starting point and this is the point at which you would determine if you need extra help in determining the amount of support payable.

Where child support is really problematic is where you have a shared custody regime that is not quite 50/50.  If you have a situation where the children are in one parent’s care for 43% of the time, it is highly problematic to determine what the actual amount of support will be and the opinions that vary on that are as different as the number of people who bring their ideas to the table. There is no real alternative to acquiring independent advice to look at that situation entirely.

I am Gerald Yemensky and if you are looking for further information, feel free to check us out at CCY Family Law here in Ottawa.

 

 

 

 

Podcasts: Divorce and Separation

 

Hi, I am Gerald Yemensky. I am a Family Law Lawyer and I work with Campbell Clark Yemensky here in Ottawa.

Let’s talk about the difference between divorce and separation. A lot of people believe that they are one in the same but, in fact, you have to do a little constitution 101 to be able to figure out what the differences are. Under our constitution, the Province has exclusive jurisdiction over property and civil rights. That basically means that all of the substantive issues that deal with a separation fall under Provincial law.

Here I am talking about things like parenting plans, child support, spousal support, division of property, the rights that you might have in each other’s estates; all of that is determined by the Province at Queen’s Park, and Queen’s Park has decided according to the Family Law Act that parties can enter into a private contract between themselves to determine these issues. That contract need not be registered anywhere – it is simply a contract between two parties to determine their mutual obligations and responsibilities after the end of their marriage. That contract is enforceable by a Court, and a Court can intervene and turn that contract aside if there are problems with the way it was put together, such as undue influence or threats or if information was withheld. Generally speaking, that is a private contract – it’s between you and your spouse and it determines your rights and obligations.

Divorce, on the other hand, is the exclusive jurisdiction of the Federal Government, and what divorce does is essentially changes your marital status from being married to being divorced. Once you have a Separation Agreement in place, that’s all you need to do, so from a practical point of view your obligations and responsibilities are determined by the Separation Agreement and you truly need not go any further than that.

However, if you are looking for final closure of your relationship, or you are thinking of remarriage, you will need to engage in a divorce process, which is a Court process. Once you have a Separation Agreement in place, then it is an uncontested process that takes 3-4 months to complete. If do not have a Separation Agreement in place, then you can add all of those issues that are unresolved into the Court process and then adjudicate them in the Court process.

If you are dealing with a simple uncontested divorce, let me give you one little piece of advice: in 99.9% of the cases, the divorce goes through without any hitches. However in that 0.1% it is always possible that something might go wrong. Either your file may be misplaced at some part of the process, or it is always possible that people with your names are engaged in an ugly divorce in Yellowknife. In those cases the divorce judgement will be delayed. So the rule of thumb is don’t book the caterers until you have the divorce judgement in your hand.

I am Gerald Yemensky and if you are looking for further information, feel free to check us out at CCY Family Law here in Ottawa.

 

 

 

 

Podcasts: General Family Law

 

Hi, I am Gerald Yemensky, I am a Family Law Lawyer and I work with Campbell Clark Yemensky here in Ottawa.

Let’s talk about family law generally. Family law is probably one of the most complicated areas of law currently that most people will engage in. Not only does it take into account the stuff that people generally think about when they are talking about family law, such as developing a parenting plan for your kids, dealing with issues to support the kids, spousal support, dividing up your property between you in an reasonable and equitable way, but it also brings in all kinds of things that people don’t often think about.

Most families in Ottawa probably deal with pension law; they deal with real estate law, wills and estates and in the inevitable questions of taxation that go to all of these dispositions of property.  This is something that you should just not do on your own. Doing family law by yourself is pretty much the same as doing your own dentistry; it’s just simply going to give you a lot of pain.

If you find yourself in a situation where you are in need of dealing with these issues, consultation with an expert is really your only viable option. In my work, a lot of what we do in untangling the agreements that people make between themselves at the kitchen table that inadvertently end up bringing into play things that they never even thought of. If you are thinking about in terms of “well what’s this going to cost me to deal with it”, it is certainly going to cost, there is no question about that, but you have to put it in perspective. Two people who are reasonable and intent on settling their situation in an equitable way with appropriate direction, can probably get a Separation Agreement and divorce completed in less costs than it does to do your kids orthodontics; certainly in less costs than it does to sell the average Ottawa home and, most likely, half the cost of the average wedding. So in a perspective thing, doing it right the first time is probably the best way of being able to get out of the mess that you find yourself in.  There is no replacing an expert.

I am Gerald Yemensky and if you are looking for further information, feel free to check us out at CCY Family Law here in Ottawa.

 

 

 

 

Podcasts: Marriages

 

Hi, I am Gerald Yemensky, I am a Family Law Lawyer and I work with Campbell Clark Yemensky here in Ottawa.

We are going to talk about the difference between common law marriages and marriages. A lot of people believe that there is no difference after two, three, four, five years but in fact there is a very significant difference.

In a traditional marriage, the parties get together on a specific day, they stand in front of the entire world and they say, for better or for worse until death do us part and when they do that, they create a contract.  That contract creates an economic partnership of interest that will continue from the day they are married until the day they die or the day they separate.

Everything that they accrue over that time, whether it be assets or liabilities, becomes property accrued during the course of the marriage and is divisible between them.

Common law couples don’t do that. Common law couples generally have an evolving relationship that starts with one person moving their closet into the closet of the other, and the relationship develops from there. At the end of the day, it may not be any different in terms of the resemblance to marriage, but it lacks one fundamental commitment and that is the commitment to create an economic partnership of interest.

Therefore, the property that is accrued over a common law relationship is not necessarily divisible. You first look to determine who owns the property and it is assumed that person owns the property and the other person must be able to establish that they have contributed to that property in some way in order to acquire an interest.

That is the simple rule, but there is one thousand variations to that. The essential difference is that there is no divisible property regime in common law relationships that is automatic as there is in marriage.

As far a support obligations are concerned with regard to support for children or support for spouses, if a common law couple have been living together for a period of three years or some period less than that where they have children together, then the law of spousal support is basically exactly the same as it is for married couples.

The law for child support is exactly the same regardless of whether the parties have ever lived together.

In essence, marriage is a contract and an economic partnership of interest and common law is not.

I am Gerald Yemensky and if you are looking for further information, feel free to check us out at CCY Family Law here in Ottawa.

 

 

 

 

Podcasts: Minimizing Cost

 

Hi, I am Gerald Yemensky, I am a Family Law Lawyer and I work with Campbell Clark Yemensky here in Ottawa.

When people are getting into discussions relating to separation or divorce, there is no question that the potential costs end up being a focus for consideration.

If parties find themselves embroiled in a piece of ugly litigation, there is no question that the costs can border on the extreme. I have personally been involved in Court Actions where the parties are spending well in excess of $50,000.00 a piece to argue about how they are going to deal with the children, deal with spousal or child support, or divide their property between them.

There are ways to avoid that, and the first way to avoid it is to understand that the negotiations you are engaging in with your spouse are not the equivalent of the negotiations between Ford and General Motors about a patent right. You are dragging into the discussion all of the baggage that comes with your relationship and you must be very careful to not let the baggage dictate where the train is going to go.

In that context, acquiring very cogent and focused legal advice is the key to be able to delineate between what is emotional and what is practical.

To minimize your costs, one of the best ways to proceed is to first understand what it is that your individual rights are. In that context, acquiring an individual consultation with a lawyer so that you have an understanding of your situation from your perspective is the very first place to start.

Mediation is probably the most cost effective way of dealing with these situations on a one-on one basis. This is definitely something worth considering.

If you find yourself embroiled in a Court Action and can no longer afford the litigation, many law firms are offering what they call “unbundled services” or “litigation support services” where they will help you through the stages of the process meaning they will give you advice on the procedure, help you put together your documentation and assist you with legal research so that when you do stand before a Judge you will understand what your rights are and will be able to utilize that system as best as is possible under the circumstances. Unbundled services appear to be one of the ways in which the legal system is addressing the great influx of self-represented people finding themselves before the court.

I am Gerald Yemensky and if you are looking for further information, feel free to check us out at CCY Family Law here in Ottawa.

 

 

 

 

Podcasts: Options to Proceed

 

Hi, I am Gerald Yemensky and I am a Family Law Lawyer and I work with Campbell Clark Yemensky here in Ottawa.

If you find yourself facing a family law problem then your next step is going to be deciding how it is that you are going to deal with these things.  There are all kinds of options to proceed but the very first option that you should avail yourself of is finding out what exactly it is that you are dealing with. Last week, or a week or so ago, we talked about the idea of acquiring an expert. Information is power – find out what your situation is from your own perspective by acquiring the advice of someone who knows what it is they are talking about, someone who practices family law as their essential specialty. Armed with that information, and that is usually a 1 hour consultation, you go back to your spouse and try to work it out. You work it out by direct negotiation with your spouse to try and figure out what the parameters are. Use as your safety net the rule that you will not be bound by anything that you agree to until you have had the opportunity to check it out, but get all the ground work out of the way so that you know what is the essence of your difficulty because there are thousands of things that you can deal with, like who is going to get the cutlery and where is the lawnmower going to go, before you get to the nitty gritty stuff about how you are going to divide up pensions.

Once you have narrowed your issues there are several methods you can use to deal with them. One is called mediation, and in mediation the two of you will sit down with a third party mediator whose mandate is to assist you to come to some terms and agreement that will stand the test of independent scrutiny. Usually that means that you will get a Separation Agreement at the end of the day that you can bring to an independent counsel of your choice, which is highly recommended, so that they can look at it from your perspective and give you advice as to whether it makes sense or not.

The next level of intervention is called Collaborative Family Law, and in Collaborative Family Law both of you have your own independent counsel who are working together to try and balance your independent interests.

For both mediation and Collaborative Family Law you can do searches on the internet to get all kinds of information as to what it is about, and as to who does it. In the event that you can’t come to a collaborative or mediated agreement, there is always the alternative of some form of court action or arbitration. Arbitration is usually a private adjudicated process where a third party is going to decide what you cannot decide for yourself, and the fallback is always the court system and the court system is extremely expensive and extremely divisive. It should be used only when you have no other alternative.

Those are your basic options and each one of them are searchable on the net.  Find the one that works best for you and see if you can settle these things amicably between you.

I am Gerald Yemensky. If you are looking for further information feel free to check us out at CCY Family Law here in Ottawa.

 

 

 

 

Podcasts: Spousal Support

 

Hi, I am Gerald Yemensky and I am a Family Law Lawyer and I work with Campbell Clark Yemensky here in Ottawa.

Spousal support is probably one of these most problematic areas in Family Law. Obviously in most cases it is going to be the one that is most contentious. The essential law regarding spousal support is that the support is designed to address the economic disadvantages that have arisen over the course of the marriage either because of role that one party has adopted during the marriage or because of the economic impact of the dissolution of the marriage itself. In that context, we are thinking about the person who suspends his or her career in order to stay at home in order to look after the kids, or the fact that the parties’ incomes have a very significant disparity in them at the time of the separation and the economic disadvantage arises to one of the parties who no longer has the advantage of being able to pool income with the other party. In that context, what a court will do is it will evaluate the situation according to four criteria: the length of the cohabitation, the number of children and the child care arrangements that are related thereto, the duration of the relationship, and the relative incomes of the parties. Based on those four factors the court will determine what is the most appropriate support under the circumstances.

One of the tools that they use is called the Spousal Support Advisory Guidelines. These are in fact guidelines; they are recommendations based upon the data accrued relating to those four significant issues.

A court will look at the Spousal Support Advisory Guidelines and then they will basically say: “okay, so looking at those four criteria, how does this couple not fit into that mold”.  What is different about the situation that these people find themselves in is that the recommendations of the Spousal Support Guideline should not apply to them.

One of the problems with spousal support is that it is still very discretionary and it is determined according to the views of individual Judges or adjudicators determining what is an appropriate amount of support to be paid under the circumstances. Though the Spousal Support Advisory Guidelines have come a long way to assist people in coming to terms with spousal support, it still remains one of the most problematic areas.

Do it yourself spousal support will almost always end up with either too much support being paid or, most often, not enough support being paid. That may seem to be an expeditious way of dealing with it at the time but as time progresses that disparity will end up accumulating to the detriment of one party or the other, and untangling these agreements is often significantly more arduous and expensive than dealing with it right the first time.  Consequently, as in all of these little tidbits that I am giving you, we come down to acquiring cogent and experienced advice before you proceed any further.

I am Gerald Yemsenky.  If you are looking for further information please feel free to check us out at CCY Family Law here in Ottawa.