This is where things start to get Better

If you are litigating your matter, social media posts made by your spouse or partner may be relevant, especially if they contradict what your spouse is claiming in his or her pleadings.

For example, if a spouse is claiming financial hardship, a Facebook post that shows that spouse going on an expensive trip or posing with an expensive car can undermine such claim  and, potentially affect that party’s credibility in court if presented as evidence on a motion or at trial.

Further to photograph-based posts, statements that are made on social media by one party can be relevant if said posts (i) are related to the litigation, to issues of parenting  and/or (b) they contradict statements that were made by the party in his or her pleadings. For example, if a party who is attempting to establish that he or she is an appropriate custodial parent, then recent social media posts about extensive partying and drug use made by that party may be relevant in court, as they may speak to that party’s fitness when it comes to appropriate supervision of a child in his or her care.

A restraining order in the context of family court is an order that prohibits the contact that one party can have with another. Based on the particulars of a given restraining order, it can prohibit direct and/or indirect contact, and require that the party against whom the restraining order has been taken out maintain a certain physical distance from the other party. In the family law context, a restraining order has to be requested by way of a motion brought at the court. The party seeking the order must provide affidavit evidence to substantiate the need for the restraining order. The party against whom the order is sought must likewise have an opportunity to argue his/her case, and to this end judges will usually ask that a motion for a restraining order be brought with notice to the other party.

If you believe that your restraining order is required immediately, you may bring an urgent, ex parte motion for same (ex parte means that the motion is brought without notice to the other party, who is not served with your motion materials and is not given notice that the motion will even be taking place). Because restraining orders can affect possession of the matrimonial home and parenting time, it is imperative that the party against whom the order is sought have the opportunity to make his or her own case. Accordingly, if a judge grants a restraining order brought on an urgent, ex parte motion, the judge will also order that the motion return in one week’s time so that the party against  whom the order has been granted may be  properly served with motions materials and  have an opportunity to defend the action.

No. The court is able to impute income if it feels that one of the spouses could be making more money but is deliberately working below his or her capability. The rules that allow imputing income were created to stop deliberate attempts on the part of one spouse to avoid the financial responsibility of spousal support.

The Federal Child Support Guidelines are in place to dictate a fair amount of child support, and generally courts are inclined to follow the guidelines strictly. The guidelines employ a mathematical formula taking into consideration the support paying parent’s annual income and the number of children and provide an amount. The general rule is that the guidelines should be adhered to.  There are a few circumstances, however, which permit a court to deviate from the Child Support Guidelines. Examples are as follows:

Where the person seeking child support is not a biological parent but rather one who stands in place of a parent. This means that a divorcing step parent could be ordered to pay child support to his or her step-children if that spouse stood in the place of a parent during the marriage. According to the Divorce Act, a spouse “stands in place of a parent” when his or her conduct manifests an intention of placing himself or herself in the situation ordinarily occupied by the biological parent by assuming the responsibility of providing for the child’s economic and parenting needs. Courts will look at a variety of factors before making this determination.

Where the child is over the provincial age of majority. This is determined by the laws of the province where the child ordinarily resides. If the child ordinarily resides outside of Canada, the age of majority is eighteen years of age.

Where the support paying parent earns an income of more than $150,000 . In cases where the paying spouse makes more than $150,000 per year, he or she will be ordered to pay the guideline amount for the first $150,000, and the court has discretion whether to impose a higher amount in child support due to the income earned in exess of $150,000.

In split custody arrangements whereby each parent has custody of one or more of the children. Where split custody exists, the amount of child support is determined by calculating the difference between the amount that each would otherwise pay if a child support order were sought against each of them. In situations where parents earn roughly the same income and each is responsible for the support of a child of the marriage, the court can decline to make any order for child support.

In shared custody or access arrangements where a child spends at least 40 percent of the year with each parent. If shared custody is established, then the court is permitted to deviate from the regular guidelines. Section 9 of the Federal Child Support Guidelines addresses this situation and provides that the court should consider the guidelines amount, in addition to the increased costs of shared custody, and the conditions, means, needs and other circumstances of each spouse and of the children. Section 9 promotes flexibility and fairness and leaves discretion with the judge to consider the circumstances.

Where undue hardship arises and the household income of the party asserting undue hardship does not exceed that of the other household . Simply showing it will be hard to make the payments won’t suffice; to meet this standard you must show that the hardship caused by the payments will by excessive, extreme, improper, unreasonable or unjustified.

For help navigating your child support obligations and/or entitlements, please contact your Toronto divorce lawyer.

It is not uncommon for someone to want to relocate after a divorce. If you still live in the marital residence, the familiar surroundings and memories may be too much for your heart to handle. Or in the process of reinventing yourself post-divorce you may want to take a new job, move closer to your friends and family, or simply wish to start fresh somewhere new. There are many reasons a person may want to move after going through a divorce, however if you have children you will need to think twice before making a big move.

Emotionally, it can be challenging for a child to move to an unfamiliar place. Often, they are most at ease in a familiar environment with access to family and friends. Changing schools, living in a new city or even a new house can be difficult on a child, especially after dealing with the emotional turmoil associated with divorce.

Legally, there are certain implications to relocating away from the current jurisdiction where the children ordinarily reside. Before moving you and the noncustodial parent can negotiate with the absence of a lawyer, a written agreement about the moce and any changes to visitation that may be needed. If you cannot reach an agreement about the move, you then must file an Application/Motion to the court to hear your matter and for a judge to make a decision before you move. Usually the court requires at least 30 days notice to the other parent of your court Application/Motion. It may take longer to reach an agreement with the other parent or get a court order. It is a good idea to give notice of 90 days before the move, as as soon as possible and to consult with a lawyer first. Upon receiving this notice, they can challenge your proposed change of residence or apply for a variation to the existing custody or access orders.

The leading case that sets out the legal test in determining mobility is Gordon vs. Goertz (1996) 2. S.C.R. 27

Similar to any other action involving variation of an existing custody order, the person challenging the relocation has to show that the move will result in a material change in circumstances affecting the child. Once this has been established, a judge will determine the best interests of the child in light of the relevant circumstances. These relevant circumstances include the existing custody and access relationship, the relationship between the child and the custodial parent, the views of the child, and the reason for the proposed change of residence among other circumstances. As with every other custody proceeding, the judges determination will turn on the best interests of the child. The judge’s inquiry is individualized and will involve all factors relevant to the case at hand.

Because mobility has become so easy in today’s society, often separation agreements or custody orders will address relocation and place specific restrictions on changing residences. Non-removal clauses that ban the extra-provincial removal of children without consent of the noncustodial parent. In these cases, the custodial parent who wishes to relocate will have to initiate the action by placing an application with the court.

If you are contemplating a move, you must consider the emotional needs of your child, as well as your former spouse’s right to challenge your relocation. Typically, courts only allow a custodial parent to relocate if the proposed move is in good faith and not intended to frustrate the noncustodial parent’s relationship with the child. Additionally, if a custodial parent relocates, they must be willing to accommodate the noncustodial parent’s access to the child; sometimes this means that the relocating parent will have to pay the additional costs of access.

In sum, if you are a custodial parent, moving isn’t as easy as just loading up the car and hitting the road – but it is still possible.