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Archive for the ‘Child Support’ Category

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Section 7 Child Support Guidelines Special Expenses and Their Impact On BC Spousal Support Amounts

Monday, May 30th, 2011

MacLean Warns That Section 7 Child Support Expenses Impact Spousal Support Amounts


We often have new BC spousal support clients come to us after they have unwisely agreed to a spousal support payment that does not accord with a proper calculation under the Spousal Support Advisory Guidelines. The proper calculation of the Spousal Support Advisory Guidelines really does require a lawyer who focuses on BC family law spousal support and Vancouver alimony cases to properly input and analyze the calculations. Call us at 604-602-9000 if you have a concern on what the proper amount is and if you need help to ensure no mistake is made in your calculation of child support and spousal support.

The Federal Government SSAG website itself even cautions users as follows:

Section 7 expenses and the respective parental contributions have a critical impact upon the spousal support range generated by the formulas. By definition, any payment of s. 7 expenses will reduce the range, even for those expenses like child care that offer some tax break. Further, the correct parental contributions must also be input, especially if the contributions are fixed without respect to the payment of spousal support or fixed on some basis other than incomes after spousal support.

Surprising, lawyers and courts often fail to take s. 7 expenses into account in calculating the spousal support range, with the payor incorrectly paying more spousal support as a result. For just a few cases where s. 7 expenses were not considered, (there are more), see Morey v. Morey, [2009] O.J. No. 1160, 2009 CarswellOnt 1502 (S.C.J.); Boju v. Corr, [2009] O.J. No. 443, 2009 CarswellOnt 563 (S.C.J.); Southcott v. Southcott, [2009] B.C.J. No. 1143, 2009 BCSC 760.

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Posted in Blog Articles, Child Support, spousal support | No Comments »

BC STEPPARENT CHILD SUPPORT AND LOCO PARENTIS -STANDING IN PLACE OF A BC PARENT, TOP UP SUPPORT AND BC DIVORCE AND FAMILY RELATIONS ACT

Saturday, May 21st, 2011

Stepparent Child Support-MacLean Family Law's Future Surrey Law Office


WILL YOU HAVE TO PAY CHILD SUPPORT FOR YOUR BC SEPARATED SPOUSE’S CHILDREN FROM A PRIOR RELATIONSHIP? WHAT IS BC “TOP UP SUPPORT”?

A “parent” has the obligation to support their children, and after separation if the children live with one parent (the recipient) then the other parent must pay child support (the payor) based on the Divorce Act and Family Relations Act and the CHILD SUPPORT GUIDELINES.

It’s obvious that the payor must pay support for his or her biological children, but in certain circumstances that parent is obligated to pay child support for children who are not “theirs”, biologically. What the court will look at is:

1) the length of the relationship
2) whether the parties are or were married
3) the relationship between the children and the payor parent
4) whether the payor parent contributed to the support of the children during the relationship
5) when the application is made for child support

Child support can be ordered based on two pieces of legislation: the Divorce Act and the Family Relations Act. The Divorce Act obviously only applies to married couples.

Under the Divorce Act, a person is liable for child support if he or she “stands in the place of the parent”. It is a finding of fact specific to each case, with some considerations for a court being:
-whether the child participates in the extended family in the same way as would a biological child;
-whether the person provides financially for the child (depending on ability to pay);
-whether the person disciplines the child as a parent;
-whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child;
-the nature or existence of the child’s relationship with the absent biological parent

Under the Family Relations Act, the issue is much more straightforward, and it is easier to be ordered responsible for child support. If a person is a “stepparent”, as defined by the Act, then he or she is presumptively obligated to pay child support, as soon as two hurdles are met. A person is a “stepparent” if:

a) the person and the parent of a child are or were married; or
b) the person and the parent of a child lived together in a marriage-like relationship for a period of 2 years

If one is a “stepparent” as defined above, then that person will be presumptively obligated to pay child support if both of the following conditions are met:

1) the stepparent contributed to the support and maintenance of the child for at least one year, and
2) the proceeding seeking child support against that stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child

Therefore, there is a “limitation period” of one year when seeking child support against a stepparent under the FRA. It is crucial that if you are in a relationship that could fit into the “stepparent” category that you consult a lawyer quickly upon the breakdown of the relationship, because you could easily run out of time.

Remember- the natural parent’s obligation is never extinguished by the appearance on the scene of a new “step-parent” but a step parent’s obligation may be reduced or abrogated entirely by the liability of the natural parent. Frequently, a “top up” award is made where both (or more!) “parents” share the liability where the amount might equal or exceed the CSG mandated amount based on the “parent’s” incomes. A recent 2008 BC Court of Appeal case called U.V.H. states that the natural parent cannot give the other natural parent “a free pass” in solely focusing on suing the step-parent for full child support. Often the new step-parent may wish the natural parent excluded from a child’s life while the they are in the relationship with one of the natural parents, however upon the relationship ending they will often seek a contribution from the natural parent. WE POINT OUT THAT A STEPPARENT CAN CLAIM SUPPORT FROM THE NATURAL PARENT IF THEIR EX-SPOUSE FAILS TO DO SO AND COMES SOLELY AFTER THEM OR THE NATURAL PARENT DOES NOT OBTAIN PROPER SUPPORT FROM THE NATURAL PARENT BEFORE COMING AFTER THE STEPPARENT!

The issue of liability to pay stepparent child support and what the amount should be is a complex one. Call us toll free at 1-877-602-9900. We have offices in Vancouver, Surrey and Fort St John BC and we routinely act throughout the province.

I hope this article article helps -James Cudmore, Associate at MFLG. cudmore@bcfamilyla.ca

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Posted in Blog Articles, Child Support | No Comments »

New BC Family Law, Criminal Law and Personal Injury and Immigration Law office Opening in Surrey, BC

Saturday, March 26th, 2011


MacLean Law Group’s Ethnic diversity expands to allow us provide family law, criminal law, personal injury ICBC and immigration legal services in Punjabi, Hindi and Farsi as well as in English!

Lorne MacLean, BC Divorce and family lawyer is proud to announce the location of the MacLean Family Law Group’s new Surrey British Columbia office located at the corner of Number 10 Highway and 152nd Street in Surrey, BC where clients from Langley, Surrey, White Rock and Delta BC as well as the Fraser Valley who speak Punjabi, Hindi as well as English will be helped. Mr. MacLean is delighted to have hired a new law associate who will start work in April 2011, namely Sumit Ahuja a lawyer, vakeel who speaks fluent Punjabi and Hindi as well as support staff who will also be able to help Punjabi speaking clients who need help in the areas of Divorce and Family law matters involving child custody and support, spousal support, property division and common law relationship issues. Sumit Ahuja will also assist with immigration law matters.

We have also hired two new associates who will handle Surrey family law, divorce and criminal law matters in all three of our offices namely Mike Jakeman and Ari Wormeli (May 22, 2011) and who look forward to assisting our clients in the Fraser Valley, Vancouver and in Fort St John BC.

Finally, we will soon add Ronak Yousefi a Farsi speaking Persian articling student who will become a lawyer in July 2011 working at our downtown Coal Harbour, Vancouver office who will help us with Persian and Farsi family law and immigration law clients who are more comfortable speaking Farsi when they seek our legal assistance.

We provide this link to Punjabi articles related to family law to assist our Surrey, Langley, Delta and White Rock Bc family law and divorce clients.

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Posted in Blog Articles, Child Support, Common Law and Same Sex, Custody and Access, Division of Property, Divorce Planning, General, Separation Agreements, spousal support | No Comments »

BC CHILD SUPPORT GUIDELINES -UNDUE HARDSHIP FOR ACCESS COSTS OR SHARING ACCESS COSTS AS A TERM OF CUSTODY

Tuesday, January 11th, 2011

Shelagh Kinney Vancouver family lawyer and Parenting Coordinator

Greene v. Greene 2010 BCCA 595 – December 29, 2010

The BC Court of Appeal considered an appeal of a BC child support order, in part on the basis that BC child access costs had been taken into account in determining the amount of BC child support to be paid.

After the BC separation, the mother had moved with the children from the Lower Mainland to Vernon BC. A BC Child Support agreement was reached at that time to lower the Vancouver BC child support to half of the Table amount to take into account the father’s expenses to exercise access in Vernon BC. Several years later, after seeking financial disclosure, the mother sought an increase in BC child support. An increase in British Columbia child support was granted on the issue of BC access costs, but not to the full Child Support Guidelines Table amount for the father’s current income, or retroactively to the date the mother had sought.

On the issue of BC child access costs being taken into account in setting child support other than the Table amount, the Court of Appeal noted that only one section of the Child Support Guidelines, being section 10 “undue hardship” claims, expressly provided for unusually high access costs as a basis for child support in an amount different from the Table, and then only where the relative household income of the payor is less than that of the payee.

This suggests that the drafters of the Guidelines intended to “draw the line” where the effect of the payment of access expenses is to reduce the payor to a standard of living less than that of the payee, and that otherwise access costs are not to be considered a basis for deviation from the Table amount under any other section of the Guidelines.

The section 7 “special or extraordinary expenses” provisions of the Child Support Guidelines cannot be used as a basis for sharing access costs, but access costs could be taken into account in relations to the “means” of a payor parent in assessing the reasonableness of other expenses to which his or her contribution is sought.

Although the Divorce Act expressly permits the Court to award an amount different from the Guidelines if the court is satisfied that special provisions in an order or written agreement have been made for the benefit of a child, it was found that there was insufficient information on the financial circumstances at the time of the consent order to support Mr. Greene’s argument that the reduced child support payable was a “special provision” for the benefit of the children, nor was he entitled to assume that his child support payments would never be more than half of the table amount at any particular time. Both his income and the children’s basic and other needs had increased since that time.

The Court notes that it is open to parents to reach their own agreements with respect to sharing access costs, as long as those agreements do not short-change the children with respect to child support. The view was expressed that such adjustments should not be at the expense of child support, but on some other basis such as a set off against spousal support or an adjustment to property division.

Access costs have been allocated between parents in mobility cases under s. 16(6) of the Divorce Act where, as a term, condition or restriction of a custody and access order, access costs are to be shared or borne entirely by the parent who wishes to move, even where the payor would not meet the “undue hardship” provisions of the Child Support Guidelines. The Court in Greene left as an open question with significant implications whether the use of s. 16(6) survived the enactment of the Child Support Guidelines, as the claim of the payor in this case was not made under this section of the Divorce Act.

Shelagh Kinney is a senior lawyer at the MacLean Family Law Group and a Parenting Coordinator. Call her if you have a question on this topic or any other family law related issue at 604-602-9000.

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Posted in Blog Articles, Child Support, Custody and Access | 1 Comment »

BC DIVORCE and Holiday Season Financial Stresses and Child Custody

Tuesday, December 28th, 2010

BC DIvorce Lawyer Lorne MacLean in Kelowna BC


Here is an article we feel relates well to BC divorcing parents who face BC child custody and BC child and spousal support challenges that we obtained from social worker Gary Direnfeld in a past post which we felt appropriate at this time of year.

Happy Holiday Season Depends on Family Financial Planning

Many kids have parents convinced that life will just be a bust without the latest video game or hottest cell phone. With the recession looming large though, parents are struggling to shelter the children from their financial and employment woes, yet bestow upon them a memorable Christmas.

As parents withhold their concerns, their children continue to up the ante for this year’s Christmas take. The risk is either a disappointing Christmas or overwhelming New Year’s bills.

The challenge is for parents to resist the incoming tide of subtle and not so subtle expectations.

To reduce the risk of Christmas gift disappointment and overwhelming bills, try some family financial Christmas planning with these strategies:
Be honest and forthright with teenaged children about your financial and employment concerns, without trying to instill fear. Let your children know of your plans to survive the economic meltdown including cutting back on the Christmas gift-giving budget. This may actually put them to ease despite their upset at the impact of the current economic situation too.

Inform your children of your budget and ask them for their gift preferences in line with the budget. When expectations are clear on both sides, there is less room for disappointment.

Involve your children in cost-cutting decisions and making plans for Christmas celebrations. It just may be that if included, they come up with some good ideas. Being part of the planning process, they will then likely enjoy what you mutually determine.

Pool resources. You may not be able to afford that one special gift yourself. However, if you go in on it with a few relatives, it may then be affordable. So the answer may not be how many gifts are given and received, but how many people contribute to that one special present

Children typically respond and adjust better to change when they are part of the process. The recession is real and discussing it with them can help them to cope better and you to feel better. Children may be initially disappointed and that would be normal and reasonable. However, they too must learn to live within their means and make the best of life and circumstances. A memorable Christmas may just be one where everyone comes together with a workable plan to enjoy the day.

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CHANGES PROPOSED FOR BC SEPARATION, BC PRENUPTIAL, BC COHABITATION AND BC MARRIAGE AGREEMENTS

Saturday, July 24th, 2010

MacLean Family Law Group-BC Separation Agreement Changes Coming


BC Family law changes and clarification of the law related to BC Separation, BC, Cohabitation and BC prenuptial and Marriage Agreements are proposed in Family Relations Act Reform White Paper 2010 legislation which will include a separate section for Bc family agreements acknowledging the important role marriage and separation agreements play in resolving family law issues.

The law respecting bc marriage, cohabitation and separation agreements will be simplified in that references to different types of agreements will be eliminated. The proposed statute will set out formalities for agreements, which if used will limit the court’s ability to set aside property and spousal support provisions of agreements.

It is important that the legal framework for agreements be as clear and straightforward as possible in order to encourage the use of written agreements. In furtherance of this objective, the proposed legislation provides further guidance on how agreements may be set aside:
• Child-related provisions in agreements may be set aside if they are not in the best interests of the child. (restates current law)
• Child support provisions in agreements may be set aside if they fail to comply with the Federal Child Support Guidelines. (restates current law)
• All agreements may be set aside on the basis of procedural fairness concerns, such as where there is inadequate disclosure or where one party has taken unfair advantage of the other.
(restates current law)
• Property and spousal support provisions in agreements that meet the formalities may only be set aside for non-procedural reasons in the limited circumstances where it would be clearly unfair not to do so. This is a significant restriction of the ability to vary compared to the current law. In considering whether to set aside a provision in an agreement a court will consider the length of time that has passed between the making of the agreement and the time at which the application is made, the intention of the parties in making the agreement to achieve certainty, and the objectives of the Act in relation to spousal support.

The government feels providing greater clarity around when a particular provision in an agreement may be set aside increases the certainty of the law and encourages parties to use written agreements to manage their affairs.
Parenting plans will not be made mandatory. While they are useful in many contexts, there are some circumstances, such as where there is an ongoing risk of family violence, where they are not appropriate.
These changes are only proposed at this time and it remains to be seen if part or all of them are made law in BC.
Call us at 1-877-602-9900 if you have a question concerning the fairness of any agreement you are contemplating making, enforcing or seeking to vary.

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BC High Net Worth Divorce Income and BC Family Assets Divorce Warning

Wednesday, June 23rd, 2010

Spencer MacLean Heads To Law School

The duty of full financial disclosure in a BC family law case can lead to mischief in the hands of disgruntled spouses

Did you know your BC divorce and BC family law finances disclosed in a BC divorce are not private?

Case in point, Michie v. Michie [2010] B.C.J. a BC family law appeal from the dismissal of an appellant husband’s interim family law application for an order to prevent his former wife from disclosing any information given by him to her in the BC divorce proceedings to determine his BC child support requirement to third party interests. The husband further requested a sealing of the file be established to the registry file with respect to the proceedings to prevent access to information by third parties on the basis it would jeopardize him financially.

Affidavits filed by the husband supporting his financial application that provided details about his current financial situation were copied by his former wife and sent to a previous business associate of the husband. The previous business associate and the husband were involved in an acrimonious dispute where the husband was publically alleged to have harassed the associate as well as his family.

The appeal contested that the chambers judge did not fairly nor fully take into account the husband’s privacy interests. The husband argued that the Rules of Court (B.C) provide a right of privacy most specifically Rule 60D(35), which required confidentiality for documents obtained in accordance with the Rule, as well as Rule 60D(3), which requires a party to provide applicable income documents arguing it was important to recognize that the definition also includes a statement of earnings. Primarily based upon the two rules stated above, the husband believed that these rules were general enough to include information related to the deponent’s financial circumstances contained within an affidavit so it would be kept private.

The appeal was dismissed on the grounds that there was no general right of privacy for financial information disclosed in a family proceeding. Although rule 60D(3) identifies specifically to the material which confidentiality applied it was determined to be an exception to the general open court policy of the law, and therefore did not include an affidavit that provided a comprehensive account of the deponent’s financial circumstances.

The court stated:

[23] Mr. Michie relies on Rule 60D(36) which allows the court to restrict publication of information if disclosure “would be a hardship”. He contends that dissemination of the information would prejudice his opportunity to obtain employment and this is an extra feature of his situation.
[24] The chambers judge specifically rejected this contention and was not satisfied it was “sufficient to establish hardship” under the Rule. In my view, he did not err in principle or commit a palpable and overriding error in so concluding.

This BC Appeal is significant because it provides us with insight into the importance of determining what is private as well as the consequences associated with a lack of privacy whether it be personal or financial. The privacy concerns are balanced against the right of the public to have open access to court files.

Moreover, this case raises serious concerns for parties involved in competitive business enterprises. Since the specific statutory wording in section 60D(35) does not prevent third parties from obtaining sensitive financial information concerning the parties, and in cases of high net worth individuals owning sensitive proprietary assets or being involved in a highly competitive industry the potential for mischief by a disgruntled spouse in revealing sensitive information cannot be underestimated.

It is critical that if you are involved in a case involving significant assets of a sensitive nature that you contact a lawyer who is fully knowledgeable about seeking orders of nondisclosure and the sealing of your file or the use initials on the file for privacy concerns related to finances, the parties, or most importantly their children.

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Posted in Blog Articles, Child Support | No Comments »

Key Canadian Tax Decision Allows Deduction of Divorce and Family Law Legal Fees Related to BC Child Support

Monday, June 14th, 2010

Lorne MacLean -New Tax Deduction for Legal Fees to Claim BC Child Support

A new Tax Court ruling affecting BC child support legal fee deduction could help you save thousands provided your BC family law counsel is aware of this important development. Come see The BC child support lawyers at MacLean Family Law Group to learn more about how this important ruling affects you. In short a new case has expanded the class of people able to deduct legal fees to claim BC child support.

If you are seeking child support from you former spouse you are entitled to a CRA tax deduction of those legal fees against your income tax payable thanks to Trignani v. The Queen [2010] TCC 209.

In this case, the separating parent’s August 2000 agreement stipulated joint custody for the child and the appellant was to pay child support of $350/month. In May 2001 the Ontario Superior Court of Justice ordered that the appellant would have sole interim custody of the child with the spouse having interim access 50 percent of the time with supervision. And, the appellant was to continue to pay $350/month in child support.

For the majority of the time the appellant had physical custody of the child because appropriate supervision at the spouse’s residence was not available.

The Honourable Justice Judith Woods in her decision dated April 9, 2010 notes that as long as the person seeking, or pursuing child support against the other parent does not abandon their claim for child support before the relevant legal services were provided; and, that it has not been determined by a court that you do not have a pre-existing right to child support because that right was extinguished by a court order, then you are entitled to the deduction in computing your income.

It has generally been accepted that legal expenses incurred to obtain child support are deductible in computing income: Wakeman v. The Queen, [1996] 3 CTC 2585; McColl v. The Queen, 2000 DTC 2148; Sabour v. The Queen, [2002] 1 CTC 2585 (in obiter at para 9); and Rabb v. The Queen, [2006] 3 CTC 2266. This principle is also accepted by the Canada Revenue Agency, as evidenced by Interpretation Bulletin IT-99R5, at para 17.

With respect to child support, legal expenses have been considered to be on current account on the basis that there is a pre-existing right by virtue of a legislative obligation on each parent to support their children.

A note of caution must be raised: The person seeking child support or pursuing a claim for child support must be making a bona fide claim that is not frivolous, and must have a reasonable prospect of success. You will also need to have your lawyer keep track what portion of fees related to child custody and get a letter from them that sets out the correct amount.

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Posted in Blog Articles, Child Support, Divorce Planning | No Comments »

BC Spousal Support Advisory Guidelines-SSAG- BC Support Success Story for MacLean Family Law Group-Pre Tax Profits Used For High Support

Sunday, June 13th, 2010

Lorne MacLean Vancouver BC spousal support guideline award and SSAG spousal support guidelines lawyer


Lorne MacLean BC SSAG support and spousal support guidelines lawyer, using the with child support spousal support advisory guideline formula, recently succeeded in obtaining a lucrative BC Spousal Support Advisory guideline ” SSAG” and BC child support guidelines award on behalf of his client, the wife, in a complex and high net worth BC spousal support guidelines and BC child support guidelines proceeding where a BC child support award of $8771 retroactive for 13 months (plus private school and extracurricular fess of roughly $3000 monthly) and a BC spousal support advisory guidelines award of $17714 was ordered meaning the combined monthly payments of spousal support advisory guidelines support and child support approached $30,000 per month. The award ranks as one of the highest court BC spousal support awards in BC since the SSAG spousal support calculations came into effect. Mr. MacLean succeeded in having the court use all of the companies pre-tax profits for the SSAG calculation based on BCCA law from the cases of Klukas and Teja, defeating the husband’s spousal support claim that double dipping applied to BC spousal support and a lower BC spousal and BC child support payment should thus be paid, blocking any $350,000 cap argument where BC spousal support is not increased on high salaries above $350,000 per year and finally in having the child support portion of the order made retroactive so a large lump sum payment was received for the children’s benefit. We were delighted to have achieved such a generous BC spousal support and BC child support result for our BC family law client.

For privacy reasons the case is referred to as A.R.J. v. Z.S.J. [2009] B.C.J. No. 2393, B.C.S.C. The brief facts are:
-Married for 16 years.
-Two children.
-Husband, a surgeon, was sole director and equal shareholder in his professional services corporation.
-A personal services corporation unlike a company involved in a riskier or more capital intensive maunufacturing business, generally speaking, does not require significant injections of capital in order to operate.
-Citing our Appellate case authority Mr Justice Savage determined that in the absence of legitimate calls on the pre-tax corporate income of a company, children and a spouse are entitled to support based on the full income available to the payor spouse.
-The double-dipping argument was rejected as it was the income earning capacity of the payor that gave rise to the assets in the company and this argument was not valid.
-No $350,000 cap would be used for the husband’s income which would have drastically lowered the wife’s support.

We look forward to helping high net worth spouses involved in complex family law cases.

A Happy Client gives Lorne MacLean a Great Birthday Cake

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Posted in Blog Articles, Child Support, spousal support, Success Stories | No Comments »

Lorne MacLean Quoted on BC Parental Support in Macleans Magazine June 18th Edition

Friday, June 11th, 2010


Check out the Macleans Magazine article and read Lorne MacLean’s explanation of how parental support claims can be made in BC. MacLean feels the section should be abolished as it is anachronistic, most children already voluntarily support parents in need and it makes no economic sense to open old family wounds considering most children are struggling to support their own spouse and children in today’s tough economy.

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Posted in Blog Articles, Child Support | No Comments »

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