Tag: child support
Today on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the use of discretionary trusts in the context of the payment of child support as raised in the decision of Borges v. Santos
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
The answer is no according to Borges v. Santos, 2017 ONCJ 651.
In Borges v. Santos, a garnishment proceeding was commenced by Maria, who was entitled to child support from Antonio. Maria sought to garnish a trust that was established from the Estate of Antonio’s mother. Pursuant to the Will of Antonio’s mother, the Trustees were given an absolute and unfettered discretion to pay any part of income or capital for Antonio’s benefit and to keep Antonio’s comfort and well-being in mind in exercising their discretion. In this case, the Trustees also happened to be Antonio’s brother and sister as well as the gift-over beneficiaries of this Trust such that they will be entitled to all income and capital that were not distributed to Antonio 21 years after their mother’s death.
In one of her arguments, Maria contended that the Trust was not truly discretionary because of the non-arm’s length relationship between the Trustees and Antonio since they were siblings. The Court in case clarified that Tremblay v. Tremblay, 2016 ONSC 588, “does not stand for the proposition that all familial relationships between trustees and beneficiaries automatically demonstrate that the trust is under the control and hence the property of the beneficiary” for the purposes of the Family Law Act.
Interestingly, Antonio gave evidence in this proceeding that he wanted the Trustees to honour his child support obligations to Maria, although they chose not to comply with his wishes. Ultimately, as obiter, the Court also asked the Trustees to consider making a distribution to Antonio for his comfort and well-being by supporting his son, Christopher, while acknowledging that he could not order them to do so.
For those of you who are interested in the essential elements of a Henson Trust, click here, for a previous blog on this topic by Ian Hull.
Thanks for reading!
I am often asked what effect child and/or spousal support obligations have on an estate. Do they cease as a result of the payor’s death or does the payor’s estate owe an obligation to continue the payments?
In Ontario, the law is clear as to an estate’s obligation to continue making support payments. According to section 34(4) of the Family Law Act, “an order for support binds the estate of the person having the support obligations unless the order provides otherwise”.
The rationale is explained by the leading decision of Linton v. Linton where the Ontario Court of Appeal held that as long as no contrary order is made, a support order is binding on the payor’s estate. Specifically, “…the practice of the family law bar…in which support is an issue…is to provide for the continued payment of support by the estate of the payer, or the payment of a capital sum, usually through life insurance, as a substitute”. Otherwise, the Court of Appeal states that if a support order is not binding on an estate, the needs of the survivor remain intact without any payments to satisfy them.
In the context of the Linton decision, the Court of Appeal states that the surviving spouse has every reason to expect that she is to be looked after in a financial way in the event her husband predeceased.
So what’s the bottom line? When seeking an order or negotiating in a separation agreement for the payment of child and/or spousal support, parties must be explicit as to whether support continues post death and whether that obligation is secured by life insurance.
Find this topic helpful? Please also consider these related Hull & Hull LLP Blogs:
- Dependants’ Support and the Spousal Support Guidelines
- Support Orders and the Limiting Role of the OCJ
- When Does a Separation Agreement Release an Entitlement Under a Will?
In Ontario, minors who are 16 years or older may choose to withdraw from parental control under section 65 of the Children’s Law Reform Act. This means that these minors have the ability to leave home prior to reaching the age of majority without obtaining the permission of their parents or the courts. However, this is not a decision that should be taken lightly as it can be accompanied by serious consequences.
Aside from practical concerns such as living arrangements and limited employment prospects for minors, withdrawing from parental control carries potential repercussions regarding entitlement to financial support. In short, a minor who has voluntarily withdrawn from parental control may inadvertently disentitle him or herself from receiving financial support.
This is an issue that is commonly raised within the context of child support. Section 31(2) of the Family Law Act provides that the obligation of a parent to support his or her child does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. The question that the courts have struggled with is whether the minor’s withdrawal is voluntary or not. In many cases, the minor did indeed make the decision; however, if the minor was driven to this decision as a result of difficult circumstances in the home, it is likely that the decision will be viewed as a necessity.
Withdrawal from parental control can similarly impact a minor’s ability to claim dependant’s support after the death of a parent. According to section 62(1)(q) of the Succession Law Reform Act,
62(1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,
(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control
Accordingly, withdrawal from parental control is one of a variety of factors that the court will look at in determining dependant’s relief claims (including the importance of moral claims which is discussed in more detail on our podcast here).
Thank you for reading.
"Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law." – Mr. Justice Joseph Quinn as quoted in the Globe and Mail.
Until that day, the fighting parents who appeared before Mr. Justice Quinn have been barred from court unless they obtain special leave. Looking at the context, it’s hard to argue they did not earn it: 25 court orders from 12 different judges over 7 years, three contempt motions, one suspended sentence, 12 different lawyers, 2000 pages of court filings.
An apparent lack of respect for the rulings of the Court by both litigants was a factor in this extraordinary Order. As Mr. Justice Quinn is quoted, "[b]oth sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave."
Mr. Justice Quinn is further quoted as saying "[t]he parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again,". It is easy to forget that courts are very expensive operations: rent, upkeep and salaries. An hour before a judge in court is not cheap for society, whether or not the litigants are represented by lawyers. As a purely editorial comment, it is heartening to see principled recognition of this fact.
The father, perhaps unsurprisingly given the reported facts, is apparently considering an appeal.
Enjoy the weekend,
Read the transcribed version "Separated Spouses and Estate Planning Issues"
During Episode #58, Ian and Suzana discuss estate planning and separated spouses including the equalization process, the importance of valuation on the day of separation, and how issues of spousal support and child support can dovetail into estate planning.
Suzana mentions the case of A.A. v. B.B., 2007 ONCA 2 from the Ontario Court of Appeal, wherein a child may have three parents.