The Brampton News - http://www.thebramptonnews.com
Family Lawyer answers tough divorce issues
http://www.thebramptonnews.com/articles/4371/1/Family-Lawyer-answers-tough-divorce-issues/Page1.html
Legal Notes
Law Society Tribunal Decisions and legal issues; civil litigation, family law, corporate and commercial law, real estate and estates. 
By Legal Notes
Published on 08/30/2009
 
Question: I have recently separated from my husband.  We agreed on an amount of child support but I don't want any spousal support from him.  I want nothing to do with him or his money and I don't want him to be entitled to custody or access to our child if he pays me support.  Am I making the right choice?

Question:

I have recently separated from my husband.  We agreed on an amount of child support but I don't want any spousal support from him.  I want nothing to do with him or his money and I don't want him to be entitled to custody or access to our child if he pays me support.  Am I making the right choice?

Answer:

Your question raises a number of legal issues. The first is that determining child support is not as simple as some people would like to think.  Even though generally child support approximately works out to be 10% of the payor's gross income for the first child, a critical factor in calculating child support is determining the right amount of income in the first place.  Several factors should be considered.  First, is the payor self employed?  If so, then his Income Tax Return or Notice of Assessment may not reflect his true gross income.  Different ways to ascertain income can include analyzing his business expenses, reviewing bank and credit card statements and professionally valuating his business.  Second, is the payor under-employed?  If so, the courts can impute income to the individual for the sake of paying support even though he does not earn that amount.  Finally, if the custodial parent has asked for support payments from the ex husband for a certain period of time with no response, she may be entitled to retroactive support payments from the date when she first demanded payments.

The second issue is that a parent is not guaranteed any custody or access rights to a child just because he pays support payments to his ex spouse.  Custody and access is determined primarily from the point of view of what is in the best interests of the child.  What kind of bond does the child have with the parent?  How much time did the parent spend with the child while the couple was still together?  What are the child's views and preferences?  What is the ability and willingness of the parent to provide for the needs of the child?  These and other factors are considered when granting a parent custody or access.  Therefore, support payments and custody/access are generally two distinct issues in the context of separation.

The final issue that is applicable to your question is spousal support.  People often do not consider that support for a spouse is also meant to take into account the economic disadvantage that arises from taking care of a child before and after separation.  The custodial parent generally sacrifices her earning potential when she is the primary caregiver of the child whether or not the husband exercises access.  It is not easy to work over-time or keep up with colleagues at work that stay in the office past 9 o'clock if you have to prepare dinner for the children or go to parent-teacher interviews at school.  These and other factors are taken into account when determining spousal support.  Therefore, by refusing to accept spousal support for whatever reason, a custodial parent loses out on money that she rightfully may deserve.

David Frenkel, B.Sc. LL.B.
Barrister and Solicitor

To have your family law questions answered in the Brampton News, email to david.dflaw@bell.net 


David Frenkel is a family law lawyer in Etobicoke, Ontario.  He is a member of the Law Society of Upper Canada, the Ontario Bar Association and the Peel Law Association.  He received his Bachelors of Law and Science both from the University of Windsor.  David has also worked as an environmental researcher experimenting in developmental genetics and ecotoxicology.  In addition to running his own family practice, David volunteers at local organizations such as the Salvation Army Women's Shelter, the Women's Habitat and different social meeting groups by providing educational seminars on various family law topics.