Child Support
Overriding principle: the Child Support Guidelines
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How is the amount of child support determined?
After separation, both parents have a legal duty to support their children financially. Once you have worked out the residential arrangements for your children, you will need to look at the payment of child support. Generally speaking, people who break up can make whatever arrangements they like. The exception to this is child support. For example, if you are separated from your spouse and are seeking a divorce, the court must be satisfied that proper financial arrangements have been made for the children; otherwise a court is legally compelled to deny a divorce. If child support is not being paid in at least the Guideline Table amount, there must be a good reason why not.
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What are the Child Support Guidelines?
In May of 1997, the legislature implemented the Child Support Guidelines. This was an attempt to simplify the child support issue. And relatively speaking, the child support issue has been somewhat simplified.
After separation, if a child of the relationship lives primarily with one parent—which is to say at least 60% of the time—the other parent must pay child support. This is an obligation that does not depend on the primary parent's income, even if the primary parent is better off financially than the parent required to pay support.
You will use a set of rules called the Child Support Guidelines to help you calculate the amount of child support. The federal and provincial governments have produced 'Tables' to determine the appropriate level of child support. There is a different table for each province and territory. If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province, the table for that province is the one that applies.
Child support is not tax deductible for the payor spouse, and the recipient spouse does not have declare the amount received for tax purposes.
After separation, if a child of the relationship lives primarily with one parent—which is to say at least 60% of the time—the other parent must pay child support. This is an obligation that does not depend on the primary parent's income, even if the primary parent is better off financially than the parent required to pay support.
You will use a set of rules called the Child Support Guidelines to help you calculate the amount of child support. The federal and provincial governments have produced 'Tables' to determine the appropriate level of child support. There is a different table for each province and territory. If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province, the table for that province is the one that applies.
Child support is not tax deductible for the payor spouse, and the recipient spouse does not have declare the amount received for tax purposes.
Shared Parenting
Shared parenting refers to a situation where the children live with each parent approximately one half of the time; or at the very least over 40 percent of the time. Section 9 of the Children Support Guidelines addresses how child support should be apportioned in a shared parenting scenario.
S.7 Special Expenses
The 'table' amount of support is the starting point. This amount contemplates a contribution towards feeding and clothing the children, and a contribution towards the roof over the children's heads. In addition to the support amount set out in the table, parents who pay support may be required to contribute towards certain added expenses. These expenses could include:
- the cost of child care needed for the parent with custody to work or go to school or because of that parent's health needs;
- medical and dental insurance premiums for the child;
- health-related expenses for the child, such as orthodontic, prescription drug, therapy or hearing aid costs;
- special expenses for a school or educational program to meet the child's particular needs;
- expenses for post-secondary education for the child;
- in certain cases, 'extraordinary' expenses for the child's extracurricular activities.
Undue Hardship
In some circumstances, a parent might argue that she/he should pay less than the table amount of support on the grounds of undue hardship. Section 10 of the Child Support Guidelines enumerates certain examples that could result in undue hardship. For example, the parent paying the child support perhaps suffers from 'undue hardship' because she/he is supporting a new family with new dependents.
Persuading a court to order less than the Table amount of child support is difficult. Courts are reluctant to make a finding of undue hardship. Furthermore, the undue hardship test is two-tiered. Even if a court concludes there might be hardship, the court must then compare standards of living of the two parents' households. If the payor's standard of living is still comparable or better than the recipient's household, the undue hardship claim will fail.
If you believe you might be in a position to pursue an undue hardship claim, you might be well advised to seek the assistance of a family lawyer.
Persuading a court to order less than the Table amount of child support is difficult. Courts are reluctant to make a finding of undue hardship. Furthermore, the undue hardship test is two-tiered. Even if a court concludes there might be hardship, the court must then compare standards of living of the two parents' households. If the payor's standard of living is still comparable or better than the recipient's household, the undue hardship claim will fail.
If you believe you might be in a position to pursue an undue hardship claim, you might be well advised to seek the assistance of a family lawyer.