The amount of money that a non-custodial parent owes the custodial parent for the maintenance and support of their mutual children is determined by the Child Support Guidelines, adopted by the Federal Government in 1997. These guidelines apply to couples entering into a divorce agreement, under the Divorce Act, as well as to couples who were never married, or are entering into a separation agreement without getting a formal divorce, under the Family Law Act. The guidelines must apply whenever a parent seeks to alter current support arrangements, unless both parents and the judge agree that another arrangement is reasonable or the judge feels that the guidelines would be unfair if applied to a particular situation.
A Child Support Table sets out the specific amounts of child support to be paid. This amount depends on the:
- Gross income of the payor parent
- Number of children covered by a child support order
- Province and territory in which the parents live
The gross income of the payor parent is that person’s annual income prior to taxes and deductions. To demonstrate gross income, the payor parent typically presents a statement of income to the judge presiding over the child support case. However, sometimes a judge will not accept a statement of income. This often occurs when the parent:
- Fails to provide the required information
- Is purposefully unemployed or underemployed
- Is self-employed or fails to report the proper amount of income on tax returns
In these instances, the judge will use an amount of income that is based upon the parent’s work history, past income, and education.
There is a separate table for each province and territory in Canada . If both parents live in the same province, the table for that province applies. If the payor parent lives outside of Canada , the table for the province of the payee is used. If both parents live in Canada , but live in separate provinces, the table that applies is the one for the province where the payor parent resides. For instance, the Child Support Guidelines are applied if the payor parent lives in Ontario and the other parent lives elsewhere. Each table has slightly different figures, primarily dependent upon the standard of living in that particular area.
There are certain instances where a different amount of child support can be set. Increased amounts of support can be provided in instances where a child has special expenses, such as special education, childcare or medical needs. Likewise, decreased amounts of child support are permitted in instances where the payor parent demonstrates undue hardship.
Special expenses are those that are necessary because they are in a child’s best interests. Examples of such expenses include:
- Childcare expenses
- Medical insurance premiums
- Healthcare needs that exceed $100 and are not covered by insurance, such as orthodontic, prescription drug, counseling, or hearing aid costs
- Extraordinary expenses for primary and secondary education
- College tuition expenses
The parents may agree as to how special expenses, both current expenses and future expected expenses, are to be paid by the parents. Such an agreement must be reasonable in relation to the incomes of the parents and the family’s past spending patterns. If the parents cannot agree as to how special expenses are to be divided, a mediator can assist the parents in coming to an agreement, or a judge can be asked to make a decision for the parties.
Sometimes, the non-custodial parent may be financially unable to pay the amount of child support required in the Child Support Guidelines. In such situations, an alternative child support amount is determined either by agreement of the parties or by a judge.
To determine whether a parent is experiencing undue hardship, courts use two questions:
- Are there circumstances that could cause undue hardship for the parent?
- Does the parent claiming undue hardship have a lower standard of living than the other parent?
Circumstances that could cause undue hardship include:
- Unusually high debts resulting from supporting the family prior to separation
- Unusually high costs associated with access to a child
- Legal duty to support another person, including another child or another person who cannot support themselves due to illness, disability or another cause
Even if there are circumstances that could cause undue hardship, the parent requesting a deviation from the guidelines must also demonstrate that the standard of living in his household is less than that of the other parent.
The amount of support provided to a child may be reduced if each parent maintains partial custody of the child. Three instances of such arrangements exist:
- Shared child custody
- Split child custody
- Hybrid child custody arrangements
Shared child custody is a situation where a child spends equal time with each parent. The Child Support Guidelines define shared child custody as each parent having custody of the child at least 40 percent of the time. Shared custody child support is determined by a number of methods, such as the:
- Set-off method – determine the guideline amount for each parent and subtract the lower amount from the higher amount
- Revised set-off method – use the amount determined by the set-off method and then apply the percentage of time the child actually spends with that particular parent
Either of the above methods can be agreed to by the parents, or the revised set-off method can be applied by a court.
Split child custody exists when there is more than one child, and at least one child resides with each parent. Child support in this case depends on the income of both parents. Under the Child Support Guidelines, each parent is essentially charged support for the children living with the other parent, and the parent who owes more money must pay the difference in child support.
Hybrid situations often arise when there are three or more children and the custody of the children is split. For instance, one child may reside with the mother, one child may reside with the father and custody of the other child may be shared. Calculating child support in hybrid situations is often the most complicated.
For purposes of child support, a “child” may be the natural child of a parent or, in some instances, a step-child that a parent has treated as his or her own. If you raised a spouse’s child as your own, and later underwent a divorce, you may be responsible for providing support for that child. When determining whether a child was intended to be treated as one’s own, the court applies the following factors:
- Age of the child when the payor and child began living together
- Whether the child receives support from his or her natural parent
- The number of years that the child and payor have cohabited
- Whether the payor disciplined the child or claimed the child for income tax purposes
- Whether the child referred to the payor as a parent
While no one of these factors is dispositive of the issue, tax returns where a child is claimed as a dependent, cohabiting with a child who is under three years of age and references to the child as a son or daughter are all strong indications that there was a settled intention to treat the step-child as a natural child.
Under the Child Support Guidelines, there is no set termination date for child support. However, the Guidelines do specify that, once a child reaches the age of 18, that child’s income may be examined to determine an appropriate amount of support and the court may vary this amount in its discretion. Oftentimes, courts will continue child support in instances where children pursue post-secondary education.
For more information on child support, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.
Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer