Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit. The benefit is a tax-free monthly payment for children under the age of 18 and is intended to help families with the cost of raising their children.

In situations involving separated or divorced parents, CRA pays the benefit to the parent who resides with the child and who primarily fulfils the responsibility for the care and the upbringing of the child. According to CRA, this is generally the mother, and therefore in situations of separation or divorce, CRA presumes the mother to be entitled to the benefit.

In cases where both parents claim the benefit, CRA will conduct a review to determine which parent qualifies for the benefit. If it is determined that the child resides with both parents, CRA will pay one parent for six months and then rotate the payments to the other parent for the next six months.

Details of this and further information can be obtained at the CRA website at www.cra-arc.gc.ca or by calling toll free 1-800-387-1193.

In the 2010 case of Dishman v. Dishman, the husband accepted an early retirement buyout from General Motors which had the effect of decreasing his income from approximately $85,000 to $38,000 per year.

The Dishmans were married for 20 years later. After they separated in 2000, a final order required Mr. Dishman to pay his wife $750 per month in spousal support.

Nine years later in 2009, when Mr. Dishman was 52 years, his employer General Motors announced that it was closing its plant where he worked for 28 years. He was offered an early retirement incentive. Mr. Dishman could have continued to work for a few more years. However, if General Motors went bankrupt before that date, then the offer would no longer be available. Mr. Dishman accepted the offer and retired on June 1, 2009.

To convince Madam Justice Nolan to terminate spousal support, Mr. Dishman explained that his pension with General Motors had already been equalized with his wife when they settled their affairs in 2001. Mrs. Dishman kept the matrimonial home. The amount owed by Mrs. Dishman to Mr. Dishman for his share of the matrimonial home was off-set by the value of Mr. Dishman’s pension at the time. In calculating the amount of Mr. Dishman’s pension at that time, the parties valued it based on a retirement age of 59 years, as opposed to the 52 years when he actually retired. Stated another way, Mrs. Dishman argued that a significant portion of her husband’s pension was not equalized at the time of the agreement or court order.

Madam Justice Nolan relied on a series of past decisions such as Moffatt v. Moffatt (2003) that established that where there is early retirement that will severely prejudice the recipient spouse, the court may assign income as though the person had not retired. The judge also considered Bullock v. Bullock (2007) which held that a support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and therefore avoid his or her spousal support payment obligations.

Her Honour found that Mr. Dishman’s retirement was considerably earlier than anticipated, and Mrs. Dishman had good reason to rely upon support being provided for several more years. She stated that there is no reason why Mr. Dishman might not and cannot be expected to seek new employment opportunities and that Mrs. Dishman was in need and had a limited ability to earn more income.

In conclusion, the court found that this was a long marriage, that spousal support was payable because Mrs. Dishman was in need and should not be expected to bear all of the negative financial consequences of Mr. Dishman’s early retirement and, accordingly, the spousal support payments of $750 per month were to continue until 2016.

When a marriage ends, each spouse usually wants to resolve all outstanding issues as quickly and inexpensively as possible. But at the time of separation, there may be poor communication between the spouses. Although they may both want to resolve the same issues, they require a professional to assist them in arriving at terms that are fair and agreeable. A family mediator is a professional who will work with both spouses to facilitate a resolution of the issues that need to be resolved. Although many family mediators are lawyers by training, they do not represent either spouse. It is critical that each spouse retain a family lawyer to be advised of his or her rights (before and during the mediation process) and be provided with strategic advice. At the conclusion of a successful mediation, the spouses will have arrived at terms of settlement that can be incorporated into a separation agreement. This is prepared by one spouse’s lawyer for review and consideration by the other spouse’s lawyer.