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Accountability and shared responsibilities for children involved

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Anonymous Asked:

Due to overgrowing issues in marriage, option of divorce has emerged out as a healthy option for all involved.
Could you please assist in advising the options, accountability and shared responsibilities for children involved if this option is progressed with?
Applicant is my Sister (Permanent Resident in Canada) married to a Citizen in Canada (both from Indian decent) with 2 kids (both Canadian Citizens). For years, the husband has not drawn a healthy salary to support the family, is currently out of job, on Centrelink/Govt support money, on Public Police watchlist for frequent domestic fights and still continuously creates related issues around the house (fighting/drinking/not looking for a job with determination). My Sister is looking after kids, while working at the same time (she is the only one drawing salary to support the house, husband and kids). Since it has gone bad to worse with no hope of improvement in the marriage of 13 years, she is now considering the option of Divorce for everyone's benefit. What I seek assistance with is finding out the options she has in these circumstances, support from law and what her husband would be accountable for in terms of supporting the kids if this option is progressed with. Main concern - financial support enough to look after herself and the children.
Any advisement would be highly appreciated.

Expert Comment:

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Your question focuses on the children and financial support. Accordingly, I will address custody/access, child support/spousal support. The legal test for custody/access is the best interest of the child. I would need further facts from you; however my initial impression is that it would be better for the children if they lived with your sister. Assuming that the children live with her at least 61% of the time then the father is required to pay 100% of the required table child support. However, in order for him to pay table child support he must earn an income. If he does not earn an income then we would have to obtain an Order from a Judge imputing income to him on the basis of his being intentionally under or unemployed. I would need to speak with your sister and obtain further facts before providing any further analysis on these issues.

The same analysis applies to spousal support. If he is truly unable to work then, as a matter of theory, your sister may owe him spousal support. Thus, imputing income to him is likely important, so as to obtain child support from him and avoid spousal support. Of course, these are preliminary comments and as indicated above I need to speak with your sister prior to providing actual guidance. She is welcome to call me at 866-557-3222 for a free consultation. If she agrees, you are welcome to participate at the same time.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact Andrew Kania for a free consultation).

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