Child support refers to the amount of money one parent pays to the other parent to assist in the payment of the costs of caring for a child.
In Canada, it is governed by the federal Child Support Guidelines (CSG), which layout a clear formula for which parent must pay child support, how much that support must be paid, and how long the support payments must be made for. However, child support determinations can be complicated by several factors.
Jurisdiction over family law matters is split between the federal and provincial governments. Canada’s Divorce Act 1985 applies to child support ordered in cases of divorce, whereas Ontario’s Family Law Act 1990 applies to child support ordered if the parties were not married or are choosing to separate rather than divorce.
Amendments to the Ontario legislation have brought it into line with the CSG, so there is one method of calculating child support for all circumstances. However, there are differences between the two pieces of legislation, including the definition of a child for support purposes, so it is important to obtain advice from an experienced lawyer on your particular circumstances.
Every parent has an obligation to support their children. Generally, the parent who spends less time with the child pays support. It is payable even if the parent does not live with the child or does not see the child. Generally speaking, the parent paying the child support must do so until the child reaches the age of majority.
Generally, support is paid to the recipient parent and not the child. The paying parent is not able to specify how the money is spent.
A court calculates child support payments by using tables in the Child Support Guidelines (CSG). The presumptive amount depends on the paying parent’s gross income, number of children and province of residence. For example, a paying parent that earns $50,000, has two children and lives in Ontario owes $755 per month.
However, it can get much more complicated than this. The court can determine the paying parent’s income using methods other than simply looking at their tax return. For example, income can be calculated using an average over the last three years if that would be fair in light of any income fluctuations. The court can also input an amount of income to the paying parent if, for example, the parent is intentionally under-employed or unemployed.
There is a range of circumstances in which a court can depart from the table amount. If the paying parent earns more than $150,000, the court could decide to depart from the table amount if it considers that amount inappropriate. In respect of the balance of the income over $150,000, a court can decide to award an amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the children and the financial ability of each parent to contribute to the support of the children.
On the other hand, a court can vary the amount of child support if the paying parent or child would suffer undue hardship. This may occur if, for example, the parent has responsibility for an unusually high level of debts reasonably incurred to support the children prior to separation or to earn a living.
There are also rules that apply if there are multiple children and each parent has the majority of time with one or more children, or if each parent exercises not less than 40% of parenting time with a child over the course of a year (split custody).
In addition to the basic child support payment, a parent may have to contribute to “special or extraordinary expenses” (also known as “section 7” expenses) which are normally divided between the parents in proportion to their income. These may be ordered taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents. These expenses may include:
There is an option to set up child support online or through a written agreement between the parents. Otherwise, a court can order the payment of child support.
A court may order retroactive support where a parent has a duty to support a child but has not paid child support or has paid less than the amount required under the CSG. You may be able to claim up to three years in the past for retroactive child support.
When child support is set up online or in court, it is automatically filed with the Family Responsibility Office (FRO). You can also register a written agreement with the FRO. The FRO collects payment from the paying parent and distributes it to the recipient. If payments are not made, the FRO has the authority to collect the money owed.
Due to the potential for child support issues to become complicated, it is essential to obtain legal advice early in your separation process from a family law lawyer with extensive experience with these matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including child support. Contact us online or at 416-481-5604 to book a consultation.