Sken:nen A'Onsonton - To Become Peaceful Again
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Family Issues

Child Related Issues

Who will benefit from our services:

The Children of Divorcing & Separating Couples

No matter how hard a parent tries to hide their frustration, children of any age are sensitive to their environments and they pick up quickly on moods and feelings.

Sken:nen A’onsonton – Alternative Dispute Resolution (ADR) Facilitators have the ability to move as quickly as the parties are emotionally capable of proceeding.  Sken:nen A’onsonton - ADR attempts to reduce friction, maintain focus and  limit discussions to what is really important.  Sken:nen A’onsonton –ADR provides a forum to the resolution of crisis in a quick, co-operative manner and is free of charge.  Less stress on the parents can mean less stress on the children.

Parents Will Have a Better Understanding of Their Rights & Responsibilities

The path to resolution is created by the participants with the help of the facilitators.  The results obtained are the direct result of discussion between the participants.  There is no Judge to make an Order directing the parents rather there is joint decision-making process about the well-being of the children and other personal matters.

Grandparents & Blended Families

Sken:nen A’onsonton – Alternative Dispute Resolution (ADR) recognizes the importance of extended family caring for the younger generations.  The children have the right to maintain a relationship with grandparents and blended family members so long as the focus is always upon the children.  A grand parent who exercises access or custody must respect limitations upon other family members.  Blended family members (such as step-siblings and a step-parent) have the right to see persons with whom they have developed a unique relationship.  The primary focus is always on the child and whether or not the child would benefit from on-going contact (not whether one parent does not get along with another adult).

Rights of Non-Custodial Parent, Safety & Routine during Visitation

The word “custody” is often misunderstood because it represents an emotional topic.

If a parent grants “custody” of a child to the other parent it does not mean that the child has been abandoned.  On the contrary, it simply may mean that one parent recognizes that, at that time, under the current circumstances, the parent with whom the child resides is most capable of making the important decisions about the well-being of the child.

A parent who has given “sole decision making custody” to the other parent still retains right to regular contact and to receive information regarding the decisions made for the child.  That parent may receive information from a school, health providers and others who have contact with the child.  Where a parent believes that the parent with custody has made a decision which is not in the best long term interest of the child; then an objection can be raised about the plan for the child’s upbringing.  Such an objection could be resolved through Sken:nen A’onsonton. 

A parent who has given “sole decision making custody” to the other parent may still retain contact or access to the child.  How much access will usually depend upon factors which will change over time, i.e. age, ability to travel, activity schedule and the “wishes of the child.”

Safety & Routine During Visitation

The parent with “sole decision making custody” has the right to know that the rules and routines established for the child must be respected.   It is important that the child understand that rules and expectations are consistent so that one parent isn’t played against the other. 

Types of “Custody”

Sken:nen A’onsonton (To Become Peaceful Again) – Alternative Dispute Resolution (ADR) can help parents understand their responsibilities to ensure healthy children by facilitating agreements. Where disputes exist…we can help.

Peaceful Resolution or Court… It’s Your Choice.

In Quebec there are different types of “Custody” called: 

  • Physical Custody
  • Shared Physical
  • Split Custody
  • Legal Decision Making Custody
  • Joint
  • Sole

1)  What isPhysical Custody?”

This is the term used to describe the situation where a child resides with one parent, but may have regular access to the other parent.  Most people think of this situation when they talk about “having custody of their child.”

  • What is “Shared Physical Custody?”

This may describe a situation where the child lives with each parent on   a roughly 50/50 basis. 

  • What is “Split Custody?”

This may happen when there are two or more children and some may live with one parent most of the time, while others may live with the other parent most of the time.

In Quebec there are different types of “Custody” 

  • What is “Legal Decision Making Custody?”

This involves the right of a parent to make the important decisions concerning the health and well-being of the child.  Decisions regarding health options, religious upbringing, education, etc. are “important decisions” as opposed to day to day choices which may vary.   Not surprisingly “Custody” is typically awarded to the parent who is in the best position to meet the physical and emotional needs of the child. 

  • What is “Joint Custody?”

Joint Custody” is concerned with “who makes the important decisions concerning the health and well-being of the child.”  “Joint Custody” means that both parents are required to cooperatively make the important decisions.

  • What is “Sole Decision Making Custody?”

Sole Decision Making Custody means that the parent alone exercises parental authority (i.e. makes final decisions regarding the children). The non-custodial parent has the right to be consulted regarding major decisions that usually concern health, education, religion, etc.

It is possible:

  • To have a child spend equal time with each parent, but only one parent has decision making responsibility (Legal/Decision making custody).
  • To have a child spend a majority of time with one parent, yet both      parents will cooperate to make decisions.
  • That a parent will not have Legal/Decision making custody, however that   parent is entitled to be kept informed of any decisions made.

Any aspect of “Custody” or the terms described in this pamphlet can be changed over time if there has been a “significant change in circumstances.”

Child Support

Sken:nen A’onsonton (To Become Peaceful Again) – Alternative Dispute Resolution (ADR) can help parents understand their responsibilities to ensure healthy children by facilitating agreements. Where disputes exist…we can help.

Peaceful Resolution or Court… it’s Your Choice.

Quebec Child Support Guidelines

The factors taken into account are:

  • the number of children
  • the gross incomes from all sources of both the father and mother
  • the amount of residential time of the children with each parent
  • additional expenses to meet the children’s needs, if any

In Quebec both parents contribute toward the needs of the child, in accordance with the table below.
* The following table is only an example of how basic parental contribution of each parent is calculated.


Example of how to calculate the basic parental contribution of each parent

Two former spouses have two dependent children. The mother's gross income is $20,100; the father's gross income is $40,100. Annual net child care expenses total $2,000.

Father

Mother

Gross employment income

$40,100

$20,100

Basic deduction

$10,100

$10,100

Disposable income

$30,000

$10,000

Disposable income of both parents

$40,000

Basic annual contribution of both parents according to the 2008 table

$8,880

Basic parental contribution of each parent

$6,660

$2,220

Child care expenses (net of taxes)

$2,000

Contribution of each parent to child care expenses

$1,500

$500

This example shows that the father's disposable income represents 75% of the total (combined) disposable income ($30,000 out of $40,000) and the mother's disposable income equals 25% of that total ($10,000 out of $40,000). These are the percentages used to determine the basic parental contribution of each parent, and also each parent's contribution towards child care expenses.

 


Calculating “Gross Employment Income” for Determination of Support Under the Guidelines

Income includes all direct and indirect monies collected, such as wages, interest, rents, etc. and all company benefits and perks.

Indirect payments most often occur when a payor is self-employed and can control how he is paid, and how much he is paid directly.

Undeclared or cash income that can be proven is considered as well for support determination as net income.

What is the “Basic Deduction?”

The goal of the “Basic Deduction” is to allow a parent to meet his or her main needs before being required to pay child support.
The amount of the basic deduction is adjusted each year, if necessary. For 2010, the basic deduction has been set at $10,100.

Abandonment of Revenue Generating Activity

If you quit work to avoid paying/lower child support payments, support can be determined on the amount earned before you quit your job.

Failure to disclose income

The Court also has the discretion to arbitrarily determine a person’s income for support determination if it concludes that income has been hidden, and it is impossible to specifically quantify the amount in question.

Special expenses                                                                               

Over and above the "base amount" of support, there are "special expenses” that are calculated.

The expenses that qualify as “special” are the net cost of daycare, post-secondary school expenses, and certain other expenses that qualify as "special" because they are necessary for each child's particular situation. Common examples are private school expenses such as tuition, books, uniform, school trips, extra-curricular activities, and as well medical, dental, orthodontic expenses, etc.

Claim for child support against a non-biological parent
In 1999, it was settled by the Supreme Court of Canada that child support can be claimed from a non-biological parent if that person has voluntarily acted as a parent to the child (i.e. assumed the role of a parent and has acted in loco parentis).

Where a child is over 18 years of age and is a student
Child support does not automatically stop when a child turns eighteen years of age, but may continue through CEGEP and even beyond if the child attends university.
Sken:nen A’onsonton (To Become Peaceful Again) – Alternative Dispute Resolution (ADR) can help parents understand their responsibilities to ensure healthy children by facilitating agreements.


How Sken:nen A'onsonton can Help You with a Divorce and/or Separation

Divorce
How can Sken:nen A’Onsonton (To Become Peaceful Again) - Alternative Dispute Resolution (ADR) help me if I am considering getting a Divorce?

A Petition for Divorce may include a request for other legal remedies, such as:

  • Child custody
  • Support
  • Splitting of property (assets and debts)

The Courts of Canada have often had difficulty dealing with Property situated on a Reserve.

Although Sken:nen A’Onsonton (To Become Peaceful Again) - Alternative Dispute Resolution (ADR) cannot grant a Divorce Decree we can help spouses resolve issues related to children and property issues. An agreement reached between spouses can be filed in the Courts of Canada to indicate areas of common interest and thereby potentially save both time and money.

How Can I Get a Divorce?

The Divorce Act is a law made by the Government of Canada and is applied throughout the Provinces and Territories. A Petition for Divorce may be granted where either of the following has occurred:

1) The spouses have lived “separate and apart” for more than one year;
2) Your spouse has committed adultery; or,
3) Your spouse has treated you with intolerable mental or physical cruelty.

1) “…have lived separate and apart for more than one year”
This is the most common basis for receiving a Divorce from the Court.
It is also the least expensive reason for asking for a Divorce.

To be living “separate and apart” there must be an emotional detachment and representation to the public that there is a separation from a spouse.
The Court process for a Divorce can begin at any time, but the Divorce cannot be finalized until one year has elapsed since parties have lived together.

2) “…adultery…”
Unless the act is admitted to by a spouse in a statement made under oath this reason is very difficult to prove. Mere suspicion is not enough.

3) “…intolerable mental or physical cruelty…”
The Courts have interpreted “cruelty” to be conduct which makes it impossible to continue living together.

Joint Petition for Divorce
Where both spouses agree, a Joint Petition for Divorce is possible. If one spouse refuses to sign a Joint Petition then one spouse alone may make the request.

A Judge Will Grant A Divorce:
1- When one of the reasons for divorce have been proved
2- If there are children and reasonable agreements have been made for their support

Other Considerations
If there are no children, then it is sufficient that evidence is presented that the parties are aware of services to assist in reconciliation even if there is no likelihood of reconciliation.

If there are children, the Court must receive evidence that child support is being paid in an appropriate and reasonable amount.

What is an appropriate and reasonable amount of child support? Usually the income tax returns of a parent are used to calculate Child Support responsibility. Obviously, when a parent works without the usual documentation there will be difficulty.

Registration with the Kahnawake Mohawk Registry

Sken:nen A’onsonton recognizes the importance of having a child properly registered with the Kahnawake Mohawk Registry to ensure he or she receives all rights, benefits and protections under the law.

Parents SHOULD Register a Child For Enrollment With Kahnawake or Indian Affairs.

The Kahnawake Membership Law requires two named parents.

The Membership Law determines who are members at birth of the Kanien’keha:ka of Kahanwà:ke and establishes the entitlements and responsibilities associated with membership.

A copy of the Kahnawake Membership Law is available on-line at www.kahnawake.com

The Kahnawake Membership Law describes:

    • “Entitlements of Members”
    • “Privileges of Non-Member Residents”
    • “Responsibilities of Members”
    • “Obligations of Non-Member Residents”

 

Where a child does not meet the criteria under the Kahnawake Membership Law, then the child may still be eligible to reside in Kahnawake as a non-member resident until the age of 18.

Where a child does not meet the criteria under the Kahnawake Membership Law, then the child may still be eligible to be registered by INAC.

Where only one parent is named there is a risk that loss of status may occur for that child’s children.

If a Parent Refuses To Acknowledge Paternity

A “Paternity Test” or “DNA Test” may assist in proving paternity. 

What to do when a parent refuses to acknowledge paternity?
Either a man or woman may apply to have the child registered  even if one party refuses to acknowledge paternity.

The process requires that an Application for Registration be made, along with a “Statutory Declaration.”

A Statutory Declaration is simply a formal statement made before a Notary.

The Statutory Declaration requires the name of the father be given and the reason why either parent has refused to sign the birth certificate.

Keep in mind that the registration of a child, with only one parent listed will make it difficult for status to be passed onto future generations.

It is possible for an adult to file an “Application for Registration of an Adult Under the Indian Act” form.

Sken:nen A’onsonton recognizes the importance of having a child properly  registered with the Kahnawake Mohawk Registry to ensure he or she  receives  all  rights, benefits and protections under the law.