CHILD SUPPORT LAWYER TORONTO
What is child support?
Child support is the right of the child and is an obligation that exist regardless of whether or not an order has been made asking the payor to pay child support to the recipient.
Who is a dependent child?
A dependent child is a child who is under 18 years old and who is unmarried and continues to live with one or both parties. If the child is over the age of 18, they remain a dependent child if they are unable to become self-supporting because of illness, disability, or continuing education.
How is child support determined?
The amount you need to pay or receive for child support is set out in the child support guidelines and your parenting arrangements would determine the amount of child support payable. If the child(ren) lives with one parent primary, the full table amount of child support is to be paid to that parent only.
If there is a shared parenting arrangement, then each parent pays child support to the other, based on their respective incomes.
If there is a split parenting arrangement, each parent pays child support to the other for the child or children in their care, based on their respective incomes and the prescribed amount in the child support guidelines.
The income on which your child support amount is determined is based on whether you are a T4 employee, self-employed, are the owner-operator of a corporation or receive your income from various other sources such as capital gains, dividends, etc.
To determine the amount of child support to be paid every year, you are required to exchange the following financial information:
- (a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return for each of the three most recent taxation years;
- (b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;
- (c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent’s or spouse’s employer setting out that information including the parent’s or spouse’s rate of annual salary or remuneration;
- (d) where the parent or spouse is self-employed, for the three most recent taxation years,
- (i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and
- (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;
- (e) where the parent or spouse is a partner in a partnership, confirmation of the parent’s or spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;
- (f) where the parent or spouse controls a corporation, for its three most recent taxation years,
- (i) the financial statements of the corporation and its subsidiaries, and
- (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;
- (g) where the parent or spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and
- (h) in addition to any information that must be included under clauses (c) to (g), where the parent or spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information. O. Reg. 391/97, s. 21 (1); O. Reg. 446/01, s. 7; O. Reg. 25/10, s. 5.
Under some circumstances, the court may find it appropriate to impute income to a support payor or recipient.
Imputing income – Federal Child Support Guidelines
- 19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
- (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
- (b) the spouse is exempt from paying federal or provincial income tax;
- (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
- (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
- (e) the spouse’s property is not reasonably utilized to generate income;
- (f) the spouse has failed to provide income information when under a legal obligation to do so;
- (g) the spouse unreasonably deducts expenses from income;
- (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
- (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Child support less than the Table Amount
In some circumstances, the payor parent can pay less child support than the table amount found in the Federal Child Support Guidelines. This can be as a result of the parenting schedule, a high income or undue hardship (discussed in its own section).
If the parents have a shared or split parenting arrangement, then the table amount of child support payable may be inappropriate as each parent would generally be expected to pay for the basic needs and residential requirements for the child(ren). In a shared parenting arrangement, each parent would have the child more than 40% of the time and they would both be expected to pay child support to each other. Sometimes, the parents only deal with the set-off amount which represents the difference in the amount of support that each parent needs to pay to each other. In such circumstances, the parent who has the higher income would generally pay the parent with the lower income a set-off amount of the monthly child support which would be less than the table amount.
In a split parenting arrangement, the parents would have more than one child and each parent would have primary residence of at least one of the children. As a result, the parent who is not the residential parent would be expected to pay the table amount of child support to the other parent. Similar to the set-off amount mentioned above, the parents can decide to pay on the set-off amount of child support which would be less than the table amount.
In both parenting arrangements mentioned above, the parents can mutually agree to another amount of child support which is still appropriate and meets the needs and circumstances of the child(ren). An example of this is when parents have relatively similar incomes, and the set-off amount would be a nominal amount that they choose to waive. It is important in each of these scenarios to consider any tax implications.
In circumstances where the payor parent has an income of over $150,000, the table amount may be inappropriate for child support. The court would consider the means, needs and circumstances of the child and if the table amount of child support is too high.
Special and Extraordinary Expenses
Special and Extraordinary expenses, commonly referred to as Section 7 Expenses, are reasonable and necessary expenses not included in the table amount of child support. This is because the table amount of child support is generally expected to cover the basic expenses for a child pursuant to the payor parent’s income.
Any special and extraordinary expenses are in addition to the table amount of child support and can include expenses such as: daycare/childcare fees, health expenses, tutors, private school fees, post-secondary fees, some sport programs etc. Generally, each parent must contribute toward these expenses in proportion to their incomes after taking into consideration any concessions on the upfront expenses such as subsidy coverage, insurance coverage, discounts etc.
Termination of child support
The termination of child support will generally look different for each case. This is because there is no exact age that termination takes place. Under the Divorce Act and the Family Law Act, it is generally understood that child support does not end simply because a child turns 18 years old. A child, over the age of 18, is still eligible to receive child support payments if they continue to remain a dependent child due to an illness or they are pursuing further education and are enrolled in full-time post-secondary school. Termination can be considered for reasons such as: a child finishes their post-secondary school program, they drop-out of school, they do not pursue post-secondary education, they get married, or for any reason are no longer considered a dependent child.
What if I do not want to pay child support?
Child support is regarded as the right of the child and not the right of the parents. It is generally non-negotiable. As such, unless the payor parent has any undue hardship claims, the parenting arrangement supports it or there is an agreement between the parents that child support shall not be paid, it is not optional. In most circumstances, the parent who does not have the child in their primary care (i.e. at least 60% of the time) will have to pay child support. There is a presumptive duty to pay child support for the child due to being the biological parent of that child. In some circumstances, a parent who stood in place of a biological parent could also be responsible to pay child support for a child even if they do not want to.
The law recognizes that sometimes a parent may experience undue hardship if they are required to pay the table amount of child support pursuant to the Federal Child Support Guidelines. On an application to the court under Section 10 of the Federal Child Support Guidelines, a parent can claim undue hardship and seek that they pay an amount of child support that is different from the table amount of support required of them.
- 10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
- (2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
- (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
- (b) the spouse has unusually high expenses in relation to exercising parenting time with a child;
- (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
- (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
- (i) under the age of majority, or
- (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
- (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
Enforcement of child support payments
The Family Responsibility Office of Ontario (FRO) enforces child support payments. If you have a child support order from the courts, it would be automatically enforced by FRO, except you both withdraw from FRO enforcement. FRO receives and forwards the support payments and takes the necessary actions when payments are missed. FRO has a lot of enforcement tools that are available to it such as suspending a payor’s license which makes FRO enforcement preferrable to trying to enforce it yourself.
If your child support is not being paid pursuant to a court order, you can still file your separation agreement with the courts if you want it to be enforced by FRO.