Child Support

Children typically will spend more time with one parent than the other when parents separate. Therefore, child support is an important issue that needs to be dealt with when parents separate. Parents do not have to file for divorce, nor do they need to be legally married to request child support.

When children live and spend more time in one parent’s care, the expenses for the children are typically more. Yet, one parent should not be burdened with providing 100% of the children’s financial support. They are entitled to seek financial support from the other parent in the form of child support payments.

The Family Courts require parents to be financially responsible for their children. The parent responsible for child support payments is meeting this requirement by paying their share of childcare expenses.

What is a dependent child?

The definition of a dependent child is typically any child that is less than 18 years old. However, if they get married, voluntarily withdraw from parental control, or become fully independent once they reach age 16, they are no longer considered dependent.

However, there are certain exceptions parents need to be aware of that could affect the duration of child support payments. For instance, if the child is disabled or has special needs, or is enrolled in a full-time university degree program, child support payments can continue after the child turns 18.

Who creates the child support agreement?

The parties can enter into these Agreements themselves, or they can bring an Application to the Family courts, asking for a child support order.

How are child support payments determined?

Initially, financial information, such as income tax returns, business statements, pay stubs, and other such documents, are reviewed to determine the income and earning capacity of each parent. From there, the courts rely on the Child Support Guidelines to determine the exact amount of child support.

Can child support payments change?

Yes, child support payments can change and should change yearly based on the payor’s income. The payor is the parent paying child support. The obligation to change child support payment especially where the payor’s income has increased, exists independent of whether or not request is made by the recipient for them to update their financial information. The payor can also request the other parent update their financial information if there has been a change in earning capacity that can impact the amount of child support payable (for e.g. in shared parenting situations) or if there are special and special expenses being paid by both parents.

How are child support payments enforced?

Family Courts will fill all child support orders with the Family Responsibility Office (FRO) to begin enforcement once the order is signed and becomes legally binding. The FRO is responsible for enforcing child support payments using the following methods:

• The FRO takes necessary action when payments are missed.
• The FRO serves as the intermediary between the parents on behalf of the court to ensure payments are collected and issued.
• The FRO collects payments from a parent who lives outside the jurisdiction where their children primarily live and issues those payments to the other parent.

What are the Child Support Guidelines?

The Child Support Guidelines provide a reference for the parents and the Family Courts to use to determine how much child support the payor will need to pay. Each province and territory in Canada has its own tables, and amounts can vary from one area to the next.

Are There Any Exceptions?

There are a few exceptions where the Family Court could lower child support amounts from the Table Amount. For example, in cases of undue hardship, where the payor’s income is very high, or a stepparent, grandparent, or another legal guardian has a financial responsibility to a child, the amount can be reduced.

Does the court look at both parents Table Amounts?

Yes, in cases involving shared parenting, the Family Court will review the Table Amount for each parent to determine their respective payments. The smaller amount is deducted from the larger amount. The difference is typically the amount of the child support payment.

Additionally, when there are extraordinary and special expenses, like daycare, healthcare insurance premiums, medical bills, extracurricular activity expenses, etc., the Family Court will take these into consideration when the payor is fully covering these expenses. As such, child support payments could be reduced. Alternatively, when parents split these expenses, then the amount of child support may not change.

How do I know my Table Amount?

Your Scarborough child support lawyer can assist you in determining your Table Amount. For example, if you reside in Ontario and the children reside in Ontario, then the Ontario Table Amount is used.

On the other hand, if you reside in British Columbia and the children reside in Ontario, the British Columbia Table Amount is used. For payors who reside outside of Canada, and the children reside in Ontario, the courts will use the Ontario Table Amount by default.

What is Imputing Income?

The Family Court judge has the right to impute income as allowed by the Child Support Guidelines. Imputing income is used in various situations such as where the payor has a higher earning capacity and intentionally quit their job, is underemployed, or attempting to circumvent their financial obligation to their children.

The details about imputing income are contained in Section 19 of the Child Support Guidelines as follows:

• 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.

The judge has complete discretion to decide if imputing income is necessary by reviewing situations listed in Section 19 and considering scenarios not covered in this section.

It is essential to remember the courts will always place the child’s best interest first and foremost, including when deciding whether to impute income. To ensure children are receiving financial support from both parents, the judge will intervene when necessary and impute the payor’s income to ensure both parents are contributing fairly to the financial support of their children. This financial obligation is covered in in Section 26.1(2) of the Divorce Act and Section 31 of the Family Law Act.

To illustrate, imputing income is common for many parents who are self-employed or are a small business owner. Since there are deductions and tax write-offs they can utilize to lower their gross income, their tax returns do not accurately reflect their earning capabilities. As such, the judge can decide to impute the income of the payor.

How likely will the judge impute my income?

The judge could impute your income for any of the nine reasons covered in Section 19 of the Child Support Guidelines. Equally so, your income could be imputed if you are self-employed, underemployed, own a small business, attempting to hide income, or deliberately quit working.
The primary issue when imputing income is holding the parent accountable for their financial responsibilities towards their children.

Can the court stop me from starting a business?

No, the court cannot stop you from becoming self-employed or starting a business. This is entirely up to you to decide. However, the court can hold you accountable for child support and impute your income accordingly.
It is the payor’s responsibility to plan ahead so they can continue to maintain their child support payments regardless of their decision to become self-employed or start a business.

What other discretion do courts have regarding child support payments?

The Family Courts can rely on case law relating to other imputing income cases, as well as unique circumstances, to use their discretion to vary child support payments as they see fit while protecting the child’s right to be financially supported by his or her parent.

Past Imputing Income Cases

• In Quintal v. Quintal (1997), 9576 (ON SC), the father was forced to resign and take early retirement. He asked the court to reduce child support payments because his income was drastically reduced from $51,577 to a pension of $12,288. The family court agreed to reduce the child support payments for six months as the father was actively seeking employment, after which the payments would revert to the former amount whether he found employment or not.
• In LePage v. Porter (2000), 7 R.F.L. (5th) 335 (S.C.J.), the court held since the parent decided to leave working as a social worker to engage in a stock speculation and real estate investing venture, and choose to venture into a self-start-up career outside their usual profession, according to Section 26.1(1) of the Divorce Act, the parent still had an obligation to pay child support. Even though the parent’s income plummeted, the court still imputed his income.
• In Visnijic v. Visnijic (2000), 7 R.F.L. (5th) 195 (S.C.J.), the court stated if the payor parent wished to pursue self-employment, they must continue to meet their child support financial responsibility either through borrowing or using their business capital.
• In Depace v. Michienzi (2005), 5 R.F.L. (5th) 40 (S.C.J.), the court held they might allow for a grace period to allow for start-up business losses a payor parent may face when starting a business.
• In Risen v. risen (1998) AC.W.S (3d) 669 (Ont. Ct.) (Gen Div), the family court held that while Section 19 of the Child Support Guidelines establishes a non-exhaustive list of reason to impute income, the court has the discretion to deviate from the list, as the case bears some similarity to the reasons on the list.
• In Mascarenhas v. Mascarenhas (1999), 44 R.F.L. (4th) 131 (Ont. Ct.) (Gen Div), the family court held that in any situations where the court has to use their discretion outside the list in Section 19, it should have some resemblance to the items on the list.

Is a child support agreement dependent on parenting and contact orders?

One common misconception parents have about their child support agreement, and parenting orders is they are dependent on each other. Some parents believe if one parent prevents parenting time for the payor, then the payor does not have to make child support payments.

However, this is not true, and both parents could end up in trouble with the court. Child support orders are considered a separate agreement. So, the payor is required to make payments even when the other parent is preventing them from having parenting time with their children.
Conversely, the payor has a right to parenting time even when they are not making child support payments. When these situations arise, it is best to resolve them with assistance from our Scarborough family lawyers.

Why get help from Scarborough child support lawyers?

There are all sorts of scenarios and situations that vary from one case to another. The circumstances in your case are often different from someone else. Our child support lawyers can provide assistance in determining the financial contribution of each parent to help you get an idea of how much child support you will receive or will need to pay.

Furthermore, we perform an in-depth financial analysis and utilize the Child Support Table to determine the amounts. If you have concerns over situations where imputing income may be necessary, it is better to obtain legal representation.

It is worthwhile to be prepared for child support matters when they arise, whether you will be receiving child support payments or are the payor.

AP Lawyers have been assisting parents with child support matters for numerous years. Our experience with Family Courts, child support payments, and situations where imputing income can occur can be of great value when you need legal advice and representation to resolve child support issues.

For further information or to schedule a confidential consultation to discuss your child support matters, please feel free to contact AP Lawyers in Scarborough.