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Support is calculated on income, and a spouse who owns the company decides what their income looks like on paper. Family law for Vaughan families whose largest asset is a business neither of them can simply sell.
Start My Enquiry →Serving Vaughan, Woodbridge, Maple and Concord | Family Court, 50 Eagle St W, Newmarket | Business owner and self-employed files | Initial Assessments
Vaughan is a city of owner-operated businesses. Construction and trades, transport, food production, professional practices, property. When those marriages end, the two hardest questions are the same ones every time: what is this business worth, and what does its owner actually earn.
Neither question is answered by a T4. A shareholder who controls a company controls the salary it pays, the dividends it declares, what it deducts, and how much profit stays inside it. The Federal Child Support Guidelines anticipate exactly that, and give a court several routes around a tax return that does not reflect the money actually available.
The other half of the problem is that the business is usually the largest asset and the least saleable one. Ontario law takes that seriously. An order under the property provisions cannot be made so as to require or result in the sale of an operating business or farm, or so as to seriously impair its operation, unless there is no reasonable alternative. Family Law Act, section 11(1).
So a Vaughan file is rarely a fight about whether someone should be paid. It is a fight about the number, and then about how to pay it without destroying the thing that generates it.
Vaughan has no courthouse. Every family case for Woodbridge, Maple, Concord, Kleinburg and Thornhill north of Steeles is heard at the Family Court in Newmarket, a branch of the Superior Court of Justice under section 21.1 of the Courts of Justice Act. Because it is a Family Court, the Ontario Court of Justice has no family jurisdiction in York Region and there is no choice of court to make.
Divorce, equalization of net family property, business valuation disputes, parenting, child and spousal support, restraining orders, child protection and adoption. One court and one judge for the whole file, which matters more than it sounds when a case involves both a parenting schedule and a forensic accountant.
Part of Thornhill lies within Vaughan and part lies within Toronto, and the boundary is Steeles Avenue. If your address is south of Steeles your file belongs in Toronto rather than Newmarket, and court staff must refuse a filing started in the wrong municipality. We check the postal code before anything is issued.
Two of these three are about the company. That is usually where a Vaughan file is decided.
Where a spouse is a shareholder, director or officer of a corporation and the income shown on their tax return does not fairly reflect all the money available to them for support, a court may include all or part of the pre-tax income of the corporation and of any related corporation. Federal Child Support Guidelines, section 18(1).
There is a reverse onus inside that provision which is easy to miss and often decisive. In working out the corporation’s pre-tax income, all amounts paid as salaries, wages, management fees or other benefits to people the corporation does not deal with at arm’s length must be added back, unless the spouse establishes the payments were reasonable. Section 18(2). A salary paid to a new partner, a sibling or a parent has to be justified, not merely disclosed.
Separately, a court may impute income where a spouse is intentionally under-employed, where income has been diverted, where property is not reasonably used to generate income, where expenses are unreasonably deducted, or where a significant part of the income comes from dividends or other sources taxed at a lower rate. Section 19(1). The list is not exhaustive and the reasonableness of an expense is not settled simply because the Canada Revenue Agency allowed it. Section 19(2).
Retained earnings deserve a word of caution in both directions. Money left in a company is not automatically available for support, and retained earnings are shareholders’ equity rather than cash in an account. The approach Ontario courts take is a two stage one: the spouse asking for attribution must show some basis for engaging the provision, and the owner must then explain why retaining the earnings rather than drawing them was reasonable as a business decision.
A business owned on the valuation date is property and its value goes into net family property, which frequently means the owner owes an equalization payment far larger than any cash they have. Ontario law does not require them to sell the business to pay it.
An order cannot be made so as to require or result in the sale of an operating business or farm, or so as to seriously impair its operation, unless there is no reasonable alternative. Family Law Act, section 11(1). Where that applies, the court may order a share of the profits instead, or, if the business is incorporated, order shares transferred or issued to the other spouse. Section 11(2).
The payment can also be spread. Where necessary to avoid hardship, a court may order an equalization payment in instalments over a period not exceeding ten years, or delay it for up to ten years, and may require security including a charge on property. Family Law Act, section 9(1). The ten year limit cannot be extended. In return the paying spouse can be ordered to provide periodic financial statements and to permit inspections, which is the fair price of being allowed to wait.
The rest of a Vaughan file is ordinary family law and we do all of it at Newmarket. Where a family business employs one spouse and is owned by the other, the employment question and the support question tend to arrive together, and they need to be handled as one problem rather than two.
Our North York office at 2 Sheppard Avenue East is the closest to Vaughan and is on the subway at Sheppard-Yonge. Most matters qualify for a no-obligation initial assessment. If a company is involved, bring or send the last three years of financial statements. That is the document that tells us what your case is actually about.
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