The child support clawback

In several Canadian provinces (including Nova Scotia) child support payments are deducted from social assistance.  A group of single mothers in British Columbia has launched a court challenge against this policy:

The case will argue that the deduction of child support payments from income and disability assistance violates single parent’s right to equality under the Canadian Charter of Rights an Freedoms.

Milne said the law is unconstitutional because it conflicts with the purposes of the child support system, denies the children of parents on income or disability assistance the right to benefit from their child support, and has a disproportionately negative impact on parents with disabilities and single mothers.

“Other kinds of families are better able to earn other kinds of income and they are allowed to keep some of it before it is deducted from their income or disability assistance,” said Viveca Ellis of the Single Mothers’ Alliance of B.C. “Meanwhile, these vulnerable children have an opportunity for better lives through their child support, but they are not allowed to benefit from it and their parents experience additional financial consequences.”

I’m not aware of any court rulings on this issue, so I’ll be keeping an eye on this one. (There is a PEI Human Rights Panel decision which found that the clawback was not discriminatory, but that wasn’t a Charter case.)

His condition was updated to “alive”

1990: man mysteriously disappears without a trace.

2000: his grieving wife reluctantly has him declared legally dead, and begins collecting his pension.

2010: man reappears, claiming he had amnesia. Now he has commenced legal action to recover the pension:

…four years ago — 20 years after he disappeared — he came home. Bright said it wasn’t for a reunion.

“All he talked about was money,” she said.

Court documents show her husband filed a petition to prove he’s Winston Bright and to win back his pension, CBS 2’s Weijia Jiang reported.

He was not only alive but well, and teaching in San Diego with a new identity — “Kwame Seku.”

In his court filing, the “missing” man said, “I was never returned home but rather found myself in California with no recollection of how I got there or who I was.”

Seku said he suffered from amnesia, but his son A.J. said he isn’t buying it.

“You don’t just walk down the black and catch amnesia,” he said.

I’m not sure how this will play out, but by revealing he was alive all along, Mr. Bright/Seku has opened himself up to a potential claim for child support arrears:

Leslie said if Seku proves he is her husband, she’s taking him to divorce court. She said they’re still legally married and he owes her a lot — money to cover years of child support, for starters.

The end of “custody” and “access”

A survey of Canadian family lawyers shows most opposed to a presumption that children should spend close to equal time with their divorced or separated parents, but overwhelming support for changing the outdated, confrontational terms currently used to describe the “winners” and “losers” in cases involving children:

Canadian family law lawyers and judges reported that an average of 46 per cent of their cases involve some form of equal parenting time (“joint physical custody,” “shared custody” or “shared residence”), in which the children spend at least 40 per cent of their time with each parent. Further, an average of 68 per cent of their cases involve some form of shared parenting (“joint legal custody” or “joint guardianship”). Thus, this survey suggests that roughly two thirds of cases involve some form of what may be broadly viewed as shared parenting.

The respondents also reported a substantial increase in the use of roughly equal parenting time over the past five years (31 per cent said that this had increased substantially, 51 per cent increased somewhat, 17 per cent said it stayed about the same and only one per cent report reported a decrease). Equal time cases, however, are still a minority of shared parenting cases. In only 13 per cent of their cases was there a provision for limited contact with one parent, and respondents report that there is no provision for contact with a parent in only three per cent of their cases.

A clear majority of the respondents (77 per cent) did not support the enactment of a presumption of equal parenting time, as proposed in Bill C-560. However, a substantial majority of the respondents (78 per cent) support the amendment of the Divorce Act to use language other than “custody” and “access,” such as through the of phraseology as “parental responsibility,” “parenting time” or other similar concepts. Of note, the majority of respondents (55 per cent) were from BC or Alberta, where the provincial legislation has already been reformed to include presumptions of mutual parental guardianship and to use the concepts of “parental responsibilities” and “parenting time” as the basis for making post-separation parenting arrangements.

Many of the respondents explained the need to change the language of “custody” and “access” because those terms are “adversarial” and “proprietary.” One respondent commented that “custody … implies that the custodial parent has possession, or control, or ownership rights to the children, while the access parent has something substantially less.” Another observed that they “are extremely dated terms and concepts.”

However, many respondents expressed concern that enacting legislation to a presumption of equal parenting time could cause harm to children. One wrote: “some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.” Another stated: “presumptions have no place in the formulation of the best interests of the child … this is fact-dependent and should be based on a holistic view and the unique factual circumstances implicit with the determination.”

The divorced parent’s worst nightmare

A Toronto woman had sole custody of her two children, but she allowed her ex-husband to use them in a trip to Europe.  A few weeks later, she received a phone call from them – from Afghanistan:

Zaiba Zaiba has full custody of seven-year-old Mateen and four-year-old Hosna and approved for their father to take them both on a trip to Europe in June.

‘I don’t understand why the government cannot bring my children back.’
—Zaiba Zaiba, Toronto mother
Several weeks later, she unexpectedly received a call from a number in the Middle East and realized her children’s fate.

“When I saw the number I was shocked because I don’t get (many) calls from Afghanistan,” she said. “When I said ‘hello’ and recognized his voice I was in tears and I knew that he took them.”

The weeks since have been an emotional struggle, which she has spent pleading with the Department of Foreign Affairs, the RCMP, Toronto police and even her local member of Parliament for help in bringing her Canadian-born children back home.

“I don’t understand why the government cannot bring my children back,” she told CBC News in an exclusive interview.

Foreign Affairs said it’s been made aware of Zaiba’s case and is continuing to provide “consular assistance.”

But family lawyer Andrew Feldstein said Zaiba will face an uphill battle because Afghanistan is a country that has not signed on to the Hague Convention — an international agreement that, in part, protects children from abduction.

“Which means you would need a court in Afghanistan to agree that the children ought to be returned to Canada,” Feldstein said. “You’re subject to their laws because that’s where, regrettably, the children are right now.”

Here’s a list of countries which have signed the Hague Convention. If your ex is from a country which isn’t on the list, I would take a hard line against allowing him or her to remove the children from Canada.  If the other parent asks for it, say no.  If he or she commences a court application, fight it. If an order allowing their removal is issued, appeal it.

I can sympathise with a parent from outside of Canada who wants the kids to see their ancestral home and meet their extended family.  Certainly, in the absence of any safety risks to the children, access in Canada should be facilitated. But if there’s no legal way to bring the kids back from the other parent’s home country, the risk is just too great.

What I’d really like to know about the Zaiba case is how the father got the children from Europe to Afghanistan. If a person is traveling alone with children, He usually won’t be allowed through customs without documentation confirming that he’s allowed to travel with them.

Unrecommended legal strategies (I)

It’s bad enough when clients wear old jeans and hoodies to court.  This is just a little bit worse:

Heath Campbell is the leader of a pro-Nazi group called Hitler’s Order. He lives in New Jersey, and chose to name his son Adolph Hitler Campbell. Both of his children were taken away from him in 2009, and now he wants them back.

On Monday Campbell was in court fighting to get his children back. The state of New Jersey took them away saying that he was an abusive father, but Campbell thinks differently. However he may not be helping himself by wearing a Nazi uniform to court.

Crime doesn’t pay. Criminals do.

So your income went down after you were convicted of a criminal offence, and now you can’t pay child support?  Too bad:

When it comes to paying child support, courts won’t sympathize with parents who are the authors of their own financial demise through criminal activity, a family court judge recently ruled this month.

In Rogers v. Rogers, Superior Court Justice Alex Pazaratz found an Ontario father who lost his well-paying job due to criminal convictions couldn’t use his reduced income as an excuse to stop paying child support.

The father, Scott Rogers, “is intentionally under-employed. His intentional behaviour caused him to lose employment and limit his opportunities to find replacement employment,” wrote Pazaratz.

Rogers drove without a licence for 10 years and was convicted of driving while suspended 12 times, according to the ruling. He kept driving after each conviction until “it all caught up with him” in February 2011, wrote Pazaratz. The court sent him to jail for eight months, the judge noted.

Rogers’ employer refused to take him back after he got out of jail, forcing him to take up another job that pays far less than his previous income of $74,500. Rogers also accumulated convictions for uttering threats and harassing his ex-wife.

According to the judge, the father “made conscious decisions to do things — illegal things — with the full knowledge that his reckless and anti-social behaviour would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.”

The father of two had gone to court with an application to stop paying child support once his income plummeted to an expected $33,000 in 2013. But Pazaratz said his children and ex-wife shouldn’t have to pay for his bad decisions.


The Ontario Court of Justice decided similarly in Costello v. Costello. In that case, a father sought reduced support for his two children after losing his job following run-ins with the law.

Toronto family lawyer Bill Rogers calls the decision a “really good reminder” for both family lawyers and litigants of how the courts treat parents who lose their jobs through their own actions. “It’s basically like quitting your job,” he says.

According to Pazaratz, the definition of intentional doesn’t require establishing that the father lost his job just so he could stop paying child support. “There is no requirement of bad faith or need to find a specific intent to evade child support. Rather, as the objectives of the child support guidelines state, parents have a joint and ongoing obligation to support their children. Imputing income is one method which courts can use to give effect to this obligation.”

He added: “The expectations placed on the applicant were not terribly onerous: Obey the law. Support your children. It would be counter to public policy to allow the applicant to deliberately breach the first obligation and then use his own misconduct to avoid the second.”

Mom of the year

A New York court has ordered a woman to stop posting anything online about her children:

There’s not much to “like” about this woman’s Facebook habits.

A mean upstate mom who cyber-bullied her emotionally-disturbed 10-year-old son on Facebook by calling him an “a—–e” has been banned from posting anything about her kids online.

“Melody M.” told the court she wrote the insult about her son because that’s what “he is,” court documents said.

“Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child,” an upstate appeals court said Feb. 14.

The court barred Melody from “posting any communications to or about her children on any social network site.”

The court found that Melody used Facebook to “insult and demean the child,” calling him an a—–e, among other things.

“17 Common Mistakes To Avoid In Divorce Proceedings”

From family lawyer Sherry Donovan in the Huffington Post.  I agree with all of them, and I’d add an 18th: concentrate on what’s best for the children and yourself, not what might punish your ex.

I’ve warned many clients that they’re likely to come out much worse at trial than if they accepted a reasonable settlement offer, but some are so embittered that they want their day in court anyway.  If they’re particularly obstinate, I will tell them to seek other counsel.

Who gets the RRSPs?

The Globe and Mail on division of Registered Retirement Savings Plans following the breakdown of a marriage:

While family law across Canada calls for a 50-50 split of matrimonial property, couples don’t necessarily need to split each asset right down the middle. And many don’t, says Ms. Linden, choosing instead to allocate certain types of assets to each spouse in a way that gives both parties roughly the same dollar value in the end.

The tax implications inherent in an RRSP should make parting couples pause for thought, says Tracy Theemes, a certified financial planner and co-owner of Sophia Financial Group in Vancouver.

“There’s a lack of understanding of what an RRSP really is,” says Ms. Theemes, a financial divorce specialist.

“It’s a tax holding structure. With an RRSP, you have a relationship with the CRA (Canada Revenue Agency), and that’s a distinct difference from other types of assets.”Dividing or transferring an RRSP during a divorce does not trigger a tax bill or credit for anyone, but cashing it out will, says Ms. Theemes. That’s why it’s important for divorcing couples to make sure they’ll have enough cash to take them through the transition period after separation, and beyond.

Ms. Theemes says she usually advises couples to just divide all assets down the middle – RRSPs, other investments, and cash from the sale of the family home.

“Especially in high-conflict splits, that’s the best thing to do,” she says.

I usually recommend to clients that the RRSPs simply be divided by way of tax-free rollover, whereby the funds are equalized between the parties without any monies being withdrawn.

If the parties insist on anything other than an equal division – say, if one party decides to waive her entitlement to the RRSPs in order to keep the matrimonial home – standard practice in Nova Scotia is to deduct the applicable withholding tax rate (between 10% and 30%, depending on the balance)   In other words, $50,000.00 in an RRSP would be valued at $35,000.00 for division purposes.