By John T. Syrtash, Associate, Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38 years.
Question: I can’t take it anymore. I just want to move out and take my small kids with me. Can I do that?
Answer: If you are a victim of violence and/or your children are then you have every right to move out with your kids so long as you send your husband an email and text as to where you are, with all contact information. You also need to simultaneously commence a court action for parenting rights, whether the children will be shared equally or if you claim for primary care and control or sole custody. If you have been the victim of violence or threatened with physical danger, then see a lawyer about obtaining a restraining Order if the police won’t assist you. I advise such steps with caution because in the normal course parents should agree on a parenting plan before anyone “moves out” with the children unilaterally.. The reason is that under Ontario law both parents retain joint custody of children until they strike a written parenting agreement or one of them obtains an Order for custody or primary care and control. They should also agree on child support using the Child Support Guidelines to figure out “how much” should be payable, all based on the income of the non-custodial parent. If the children are to be shared the formula is complicated: speak to a lawyer.
If your husband earns substantially more than you, then go see a lawyer as to how much you should get in spousal support before entering any agreement on this subject. If he has cash income and you are afraid that no one can prove what earns then go to a senior family law lawyer. They know how to treat the finances of such people with finesse. For instance, if he or she gets paid for a service in cash then a good lawyer will ask for his credit/debit card statements and show that he’s spending more than he’s claiming to earn.. If he is a Dentist taking cash, for instance, the Court can impute hidden cash income by reviewing the lifestyle he leads and the amount of supplies he ordered in the previous year. If you have been living together for over 10 years and you have been dependent on him, you could be titled to monthly support for the rest of your husband’s/wife’s working lives. If more than one year you could be entitled to support as well, but for a much shorter duration. See a competent family law lawyer or details.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
John T. Syrtash B.A. (Hon.) LL. background:
Invited Speaker on Bill 78, Proposed Changes to Canada’s Divorce Act, House of Commons Standing Committee on Justice and Human Rights (November 26, 2018)
Editor of the Syrtash Family Law Newsletter, Lexis Nexis
President of the Syrtash Spousal Support Database
Author of Religion and Culture in Canadian Family Law, Butterworths
Author A Calendar of Northern Fables, Amazon
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
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