A Colleague of ours just came through a rough year of cancer treatment. We are extremely grateful that this partner in our firm is healthy and back to work. This colleague recently asked me to provide my comments to him for a presentation he is giving at our local Gilda’s Club regarding legal considerations when you are faced with a cancer diagnosis. Below are things to be considered if you have been diagnosed with cancer and you now want to seek spousal or child support; if you have an obligation to pay support; or if you are a support recipient.
- If you have separated and have not dealt with issues pertaining to support and property division before your cancer diagnosis, get legal advice and start this ball rolling as soon as possible to preserve your rights and entitlements.
- If you have not pursued spousal support previously because you were working and able to support yourself, you may now be entitled to support.
- If you have a child in your care and you have not pursued support in the past, you should pursue support for that child, as that support may become very crucial if/when your income will be reduced while you are off work and undergoing treatment.
- Get legal advice from a Family Law Lawyer.
- If there is an Order or an Agreement for support then that Order or Agreement stands until varied.
- As the payor, find out how the diagnosis will affect your income stream (e.g. will you continue to be paid? Will you be on Employment Insurance? Get short-term or long-term disability payments?) You need to consider and estimate what your income will be while you are off. Your Human Resources contact at your workplace can help you to determine what your income will look like while you are off work.
- Just because your income may be reduced due to your illness, does not necessarily mean that your support obligations will be suspended or reduced. You cannot just decide unilaterally to stop paying and if you do, the recipient may seek to enforce the payment of support through the Family Responsibility Office.
- The Family Responsibility Office (FRO) will not suspend or change your support obligation and will enforce the recipient’s entitlements to support unless there is an Agreement or Court Order. In some cases FRO may agree to refrain from enforcing your support Order or Agreement pending the outcome of a Court action.
- In regard to Child Support, you can determine your reduced obligation by referencing the Child Support Guidelines. Determine what your monthly income will be while you are off work and look at the CSG Chart for your province to determine the corresponding child support obligation.
- In regard to spousal support, your illness may be considered a material change in circumstance which gives rise to a variation of your support obligation (it also may not be a material change if the change in your income is such that your income is not materially affected).
- In any event, if you believe that you need to reduce or suspend child or spousal support payments due to illness, you should notify the recipient in writing, advise him or her of why you are requesting the reduction or suspension, and give him or her as much information as you have available in regard to how this diagnosis will impact you in respect to income. The more open you are with this information the more likely the recipient will be amenable to agreeing to a suspension or reduction in support.
- If you believe you are able to properly calculate reduced child support, make the calculation, provide the recipient with your calculation, and request that the recipient enter into a written agreement to reduce the support based on the change in your circumstances.
- If you are unable to pay at all as you are off work without an income or your income is drastically reduced, request that support be suspended and that the recipient agree to this suspension in writing.
- If you are varying a Court Order you may need to file a motion to change on consent to ensure that the Court Order in place reflects any tempoarary agreement you may have around the reduction or suspension of support.
- If the support recipient does not voluntarily agree to suspend or reduce the support payments, you should seek to obtain a Court Order in this regard. Get legal advice.
- If you are paying support directly to a recipient and the support is to continue, you may wish to register your Order or Agreement (and any amended agreements) with the FRO. FRO not only enforces Support Orders and Agreements, FRO acts as an accounting agent to keep payments flowing through electronic funds tranfers and they maintain the record of payments made and received; taking this burden away for the supporrt payor and/or their family or friends helping them while they are undergoing treatment.
- Check your Order or Agreement and see if there is a provision that deals with your incapacitation or death and see how support is dealt with. You may need to advise your Power of Attorney for property regarding your support obligations and ensure that they have your Agreement or Court Order.
- Check as to whether you have met the Life Insurance obligations under your Agreement or Court Order as they relate to the recipient(s) of support, ensure that you have fulfilled those requirements and that the support is secured or continues to flow to the recipient.
- Get legal advice from a Family Law Lawyer.
- If you are the recipient of child support, with children solely in your care with only access to the other parent and the children are remaining in your care while you are uindergoing treatment, there in should be no change in child support coming to you while you are off work. A reduction in your income does not affect the amount of child support you receive as that amount is determined by the support payor’s income.
- There may be a reduction in the amount of add-on or extra-ordinary expenses you are required to contribute to, if your income is reduced.
- If you are in a shared parenting arrangement and support is coming to you, you may be entitled to more support if your income is reduced.
- If you are receiving child support and the children must be temporarily cared for by the support payor, you should agree in writing to the suspension of child support payments while they are in the payor’s care.
- If you are receiving spousal support or you waived an entitlement to spousal support in an Order or Agreement, your diagnosis may be a material change in circumstances which would trigger a review and variation of spousal support entitlements.
- If you are receiving support directly from a payor, I recommend that you register your Support Order or Agreement for enforcement with the Family Responsibility Office as they keep accounting records for you as to payment s received. Registration with FRO ensures that payments continue to flow to you from the payor without you having to cash cheques or have someone pick-up cheques from the payor on your behalf.
- If you are receiving support check your Order or Agreement to determine what happens with that support in the event of your death.
Before you decide how you need to proceed…get legal advice! At the very least, attend a single consultation with a Family Law Lawyer to ensure you understand your rights and obligations. Most Court Houses in Ontario have a Family Law Information Centre (FLIC) with staff available and with access to written information about your rights and obligations and the Family Court process. FLIC may also have free advice lawyers available for a consultation for those who meet a means test. If you are pursuing support, legal assistance may be available through your local Legal Aid office if you qualify. This may be something you will want to tackle before treatment starts, as you may not be able to deal with these issues effectively once you are undergoing treatment.
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