Under Ontario family law, is child support payable for the time period in which the payor parent has a block of access time with the child? This was the question before the Ontario Superior Court of Justice in Nicholson v. Nicholson, 2016 ONSC 5573.
In this case, the payor exercised a block of time with the child pursuant to an agreed upon schedule. The payor then brought a motion claiming that child support is not properly payable for the period of time in which the child was in their care. The court disagreed, stating:
The support being paid by the respondent is for the benefit of the [child]. The respondent’s time with [the child] during the summer was the agreed upon summer parenting time schedule. This on its own, in my opinion, does not vitiate the obligation to pay child support for [the child] during the time the respondent had [the child].
The result is not surprising but perhaps it is avoidable by way of separation agreement. Consult a Toronto family lawyer to discuss child support and separation agreements.
Jeffrey L. Hartman
When a custody dispute arises under Ontario family law, the child’s status quo becomes an important consideration for the family court. All judicial decisions affecting a child are determined by the best interest of the child. One factor in ascertaining the child’s best interest is the status quo. Parties to a family law dispute must therefore carefully contemplate not only the child’s best interest but also their strategic bargaining position when entering a temporary agreement or consent order changing the child’s residence.
Sometimes parents unilaterally change the status quo, as the mother did in Cosentino v. Consentino, 2016 ONSC 5621 (CanLII). Here, mother entered a custody and access agreement with father and then unilaterally decided to move the child from Hamilton to Niagara-on-the-Lake, Ontario. Not surprisingly, father brought a motion in the Superior Court of Justice for various relief including sorting out the access and custody arrangement now that mother changed the status quo.
The family court took quite a dim view of mother’s actions. Justice Pazaratz opened his judgment with a warning: “Parents should think twice about trying to move a child to another city in the middle of a custody dispute. In any contest between ‘best interests of the child’ and ‘fait accompli’- best interests will always prevail”. Mother was ordered to transport the child to and from school and access with father, both in Hamilton, from her residence in Niagara-on-the-Lake as required by the circumstances. This was a temporary order and the parties were required to return to court to canvass the child’s best interest more fully.
Justice Pazaratz’s message is clear: the status quo matters and often has a long lasting effect. It is therefore important for parents involved in custody and access disputes under Ontario family law to contact a Toronto family lawyer before making such an important decision.
Jeffrey L. Hartman