I want to take my kids to Disneyland but my ex, the children’s mother, doesn’t agree. Can I take them anyway?

In most circumstances, you must get the written consent of your minor child’s other parent or guardian to travel outside of the country, even during your own scheduled parenting time.  Even if you and the other parent are still in a relationship, and you plan a trip alone with your children, the other parent will still need to provide written consent to such travel.

In your case; therefore, you will most likely not be able to travel outside of Canada unless your ex indicates her consent on a notarised travel permission document.

Sometimes, when parents separate, they include a term in their agreement order that indicates that the consent of the other parent is not necessary for travel outside of the country.  If that is your situation, then you will need to take a copy of the order or agreement with you for travel.  Note that if your agreement was informal, and was not signed with independent legal advice, it may not be accepted as valid by third-party agencies (like airlines or customs agents).   

If you don’t have an agreement or order, or you do have one but it doesn’t reference international travel, you will typically need a notarised travel permission document from your ex to take the children out of the country. 

For more family law information, listen to "Family Law Answers for Real Life" radio program live every second Wednesday night at 9 p.m. (MST) or on demand at:  http://www.blogtalkradio.com/lisatose

My work schedule has changed and now I can’t see my children at the time stipulated in the parenting order. What do I do?

Unfortunately work schedules can often change and this may affect your ability to see your children. If you have a parenting order or agreement with specified times and dates for parenting time, when your employer changes your work schedule you will have to try to amend the parenting order or agreement. Ideally the other parent would understand that you have little or no control over your work schedule and would accommodate a change to the parenting order or agreement with little formality. 

It may be helpful for you to bring up the possibility of your work schedule changing at the time that you are creating your parenting order or agreement. It is wise to build in provision into your parenting agreement that allows for the schedule to change if your work schedule changes. For example, if you see your children 30% of the time you could change the dates in the order to accommodate your new work schedule and still see the children 30% of the time.  Essentially, you and the other parent may agree to have a term in the order or agreement that allows that you each have the same proportion of time with the children regardless of your work schedule changes.

Another option is to structure your parenting order or agreement without specified dates for each parent, but with a guideline of how much time each parent will have parenting time (with the children).  That way, if either parent's schedule changes, or other events arise, the order or agreement is already sufficiently flexible to accommodate those unforeseen changes.  This kind of an agreement is much more flexible, but requires both parents to have good communication and co-parenting skills.

It is important that both you and the other parent remember that you are working together as co-parents, for the best interests of your children, regardless of the fact that you are now separated or divorced.   It may require some cooperation and some extra effort on your part or the part of the other parent, but it is usually considered in law to be in the best interests of children to have as much parenting time as possible with each parent. With this in mind, when a parent’s work schedule is changed, the children should not lose out on their time with that parent. 

If the other parent is not accommodating or willing to change your parenting order, you may seek the assistance of a family mediator or a collaborative lawyer to help to create a peaceful resolution. Should you need to go to court for assistance, a change to your work schedule would be sufficient grounds for amending a parenting order.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

We live in Canada but were married in Mexico. Where do we get divorced?

Q:  We were married at a resort in Mexico, but have always lived in Canada.  We’ve separated and now we want a divorce.  Where do we file divorce papers?

If you live in Canada, you should start divorce proceedings in the province in which you live, regardless of where you were married.  To be able to file papers in your province, you will have to have been living there for at least one year prior to starting the divorce process. If you have recently moved to a province, and haven’t yet lived there for one year, you will have to wait to file divorce documents.  Otherwise, the court in your new province will not legally have jurisdiction over your divorce proceeding.   If you travel, or spend time in a few different provinces, the appropriate province for starting the action will be the one in which you mostly, or ordinarily, lived and consider to be your home.   

You are your spouse do not both need to live in the same province to start divorce proceedings.  Often, people will be living in a different province from their spouse when a divorce action is started.  In that situation, either spouse may start the process from within the province in which he or she has been living for at least the past year.

For example, Casey and Rory met each other in a running group in Calgary, Alberta.  They wanted a destination wedding and were married in a beautiful ceremony on the beach in Mexico.  After the wedding, they continued to live in Calgary until they experienced marital difficulties two years ago, when Rory moved to Vancouver.  Now, Casey wants to start the divorce process.  Casey, having lived in Alberta for many years, must file divorce documents in Alberta.  Rory, on the other hand, having lived in British Columbia for the past two years, would have to file divorce documents in British Columbia.  If both Casey and Rory each file divorce documents in the two different provinces, only one action will be allowed to continue.  Generally, the action that continues will be the one that was started first. 

In Canada, divorce law is governed by a federal law called the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.).  To read the Divorce Act online, go to Canlii.org . 

Please consult with a lawyer in your own jurisdiction to obtain professional advice on how the law applies to your unique situation.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

 

Can Someone Quit His or Her Job to Avoid Paying Child Support?

Has your ex told you that he or she will quit his or her current job to reduce or eliminate child support payments?   Are you considering finding a lower-paying job, working less or getting laid-off so that you won’t have to pay as much child support?  It is a very bad idea for anyone to quit his or her current job for a lower paying position with the goal of reducing child support payments.  The short answer is that the payor will probably end up paying the same amount as when he or she had the higher income job.

In Alberta (and most jurisdictions in Canada) when there is a court order stating the amount of child support payable, the payor is legally required to pay the amount on the order until the court varies the amount in the order.  If the payor brings an application before the court to reduce the child support that is payable, the judge will definitely ask why he or she has changed jobs and is now making less money.  When a court believes that someone is trying to be underemployed (either in position, hours or pay) according to a person’s qualifications, abilities and past employment, then it is normal for a court to impute, or deem, income to that person. 

For example, let’s say that Kerry and Alex had two children during their relationship and then separated.  The children now live with Alex through the week and Kerry has parenting time every weekend.  After their separation, Alex brought a child support application to the Alberta Provincial Court and got an Child Support Order that stated that Kerry had to pay $1700 per month in regular child support payments.  After one year, Kerry decided that this was too much money to pay in child support, so Kerry switched jobs from being a full-time neurosurgeon to become a part-time coffee shop attendant.   According to Kerry’s calculations, the new child support payable based on the part-time coffee shop attendant job would reduce the child support payable to only $200 per month.  Kerry then went back to the Alberta Provincial Court with an application to vary the current Child Support Order.  The Judge declined to reduce Kerry’s payments because Kerry had the ability to continue to work as a full-time neurosurgeon.   In making the decision, the Judge declared that Kerry would be deemed to have the same income as when Kerry was working as a neurosurgeon, and as such, the payments were maintained at the same amount, even though Kerry was making far less money.

If someone loses his or her job due to circumstances beyond his or her control, or, has to switch jobs for a legitimate reason, then child support might be varied to reflect the new income level.  Nonetheless, it is up to the person whose income has reduced to prove that he or she has made good-faith efforts to find a job equivalent to the previous position. 

The laws of child support in Alberta, and in Canada, are designed to ensure that children have adequate financial resources to preserve their well-being after their parents have separated.  Thus, courts do not look favourably upon parents who try to avoid paying the appropriate child support amount.

If you would like to calculate child support payments based on income, you can go to this website:  http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp   Please note that this is a simplified calculation tool only.   If you have a shared custody arrangement, you will need to do additional calculations.  Watch for a future blog post on calculating child support when there is a shared custody arrangement or when children live with each parent at least 40% of the time.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

My partner and I just separated. We were common law, not married, so do I have to pay spousal support?

In Alberta, "common law" relationships (or "adult interdependent partner relationships") can give rise to a claim for partner support (“alimony ” or “spousal support”) just as in a legal marriage.  Being “common law” rather than married does not change the entitlement of someone to claim partner support. 

Entitlement to spousal support is based on many diverse factors.  One of the key considerations is if one partner sacrificed his or her position in the paid labour force due to the relationship.  Another factor is the length of the relationship.  These two qualities are key.  Thus, the longer a couple has lived together, and the longer one partner has remained out of the paid labour force, the more likely it is that there will be entitlement to partner or spousal support. 

Other considerations for spousal or partner support include the labour force qualifications, education, positions pre-relationship and post-relationship, age, abilities and needs of the party making the claim.  Additionally, it is important to consider the means of the other party (his or her income and assets).  Often, the age of both parties is a critical factor as the needs and means of the parties as at retirement may change the circumstances significantly.  

The historical textbook situation where spousal support is a live issue occurs when one partner leaves the paid labour force to stay home to raise the children and take care of the domestic duties, while the other partner is enriched by this sacrifice and is able to devote more time and attention to his or her employment and career.  Nonetheless, spousal support claims can certainly arise absent any children when the above factors are met. 

Spousal support has many goals, including compensating  a person for the sacrifices that were made during a relationship that benefitted the other partner and may have had significant effects on the recipient partner’s overall lifetime income, earning potential and career achievements.   However, one of the most important goals of spousal support is to allow the receiving partner an opportunity to have some money to live on until he or she is able to find employment that will take care of his or her needs.  These days it is increasingly uncommon that spousal support would last throughout a person’s lifetime, but that will be the subject of another blog post!

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

 

Can I Keep the Kids if the Other Parent isn't Paying Child Support?

As a family law lawyer in Alberta, Canada, I’m frequently asked by clients who are having problems getting child support if they can withhold parenting time or access to the children from the non-paying parent.  Child support and parenting time (or access) with kids are two totally distinct issues in law.  You cannot withhold the other parent’s time with the kids simply because he or she is behind on child support payments.

Although its frustrating, if a parent is supposed to pay child support and isn’t paying, you are not entitled to suspend the time the other parent is supposed to spend with the children.  Instead, there are specific approaches that you can take if the other parent hasn’t been paying their child support.  You should ensure that your child support agreement or Order is registered with the Maintenance Enforcement office so that they will take care of dealing with late or missed child support payments on your behalf.

Don’t forget that Alberta family law principles are based on protecting and preserving the best interests of the child.  Usually, this means that children get to spend time with both parents.  Although you might reasonably argue that a parent who isn’t paying child support is also not respecting the best interests of the child, the law and the courts nonetheless don’t let you keep the kids away from the other parent for the purposes of getting child support. 

Watch for the next blog post about spousal support ("alimony") in common law relationships.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose