"I am confused about child support...."

Child support is an area of Family Law on which were receive most questions. There is much confusion on what child support is, who gets it, why and for how long?

Why is there so much confusion? We cannot come up with a definitive answer but we suspect that "popular culture" and "urban legend" have contributed to the formulation of a number of myths and misconceptions about this issue.

This post is designed to give you only the basics of child support in Ontario - this information is NOT sufficient to enable you to deal with child support on your own as "one-size-does-not-fit-all" - the specific facts of your case may lead to a specific result, not addressed here - see a Family Law lawyer for advice on how the law of child support applies to your case.

We have seen many cases in which some element of child support was misunderstood by either the payor or the recipient for years at a time - this misunderstanding led to unfair results.....do not let that happen to you.

Question 1: what is child support?

Answer: at the most basic level, child support is financial assistance with a child's expenses.

Question 2: what kind of "expenses"?

Answer: it means all expenses, as long as the child remains eligible to receive child support.

Question 3: you mean food, clothing AND even college?

Answer: yes - the cost of college/university does fit into the definition of "child support"

Question 4: what forms can child support take?

Answer: many forms. For example:

(a) the table amount of child support, paid monthly to the other parent;
(b) contribution to special or extraordinary expenses, like ballet, camp or braces - payment directly to the other parent;
(c) contributions to the cost of college, with tuition payments for example being paid directly to the college;
(d) monthly payments to a university student to assist with his or her "room and board" while at school;

-the list goes on.

Question 5: when does child support end? - is it then a child turns 18?

Answer: no - child support continues after the age of 18 in situations where the young person is unable to become financially independent, generally for the following reasons:

(a) they are attending school OR
(b) they have health issues which prevent them from completing schooling and/or becoming financially self-sufficient.

Question 6: does the child over 18 have to attend school full-time in order to qualify?

Answer: not necessarily - you need to get advice from a lawyer on the specifics of your case to have a specific answer to this question.

Question 7: who pays child support to whom?

Answer: generally speaking, the parent with who a child or children live most of the time receives child support from the other parent. The calculation of child support becomes more complex when a child or children live with one parent at least 40% of the time - you need to see a family law lawyer to assist you with this situation.

If you need further answers to child support-related questions, we have them. Again, it is not wise to deal with your family law case simply by relying on information you find on a internet - we provide free consults. Many other lawyers do as well. Get legal advice. It's important.

Support and related income considerations

When support (either child or spousal) is an issue in a family law case, there are a number of questions which need to be addressed before the actual support calculation is made.  

For example, in the case of child support, is a young person over the age of 18 still eligible to receive child support?  If so, in what form is that support to be paid? To whom? 

On the issue of spousal support, is the potential support recipient making best efforts to contribute to his or her own support based on their current ability to do so?

The income of the potential payor is a key question to address in any consideration of support obligations.  “Income for tax purposes" is not necessarily “income for support purposes” in family law.  In other words, simply because Canada Revenue Agency accepts a potential payor’s representations of his or her income for tax purposes does not mean that a family law Judge will do the same. 

Family law spreads a much wider sweep over a potential payor’s income sources to determine the true extent of his or her ability to pay support.  

The Child Support Guidelines, which technically apply to the calculation of child support but have now been wildly accepted as applying to spousal support calculations as well, permit the inclusion in income for support purposes of a wide variety of income sources.  The intent of the legislation is to ensure that financial dependants receive support based on all sources of the payor's actual income but also on sources which are available to the payor, even if he or she chooses not to tap into them. 

By way of one example only, income earned by a business which is not paid out to a shareholder but could be is vulnerable to being included in his or her income for support purposes.  Personal expenses run through the business are also vulnerable to being added back to the payor’s income for support purposes.

"When do my child support payments end?" (2)

We have previously posted in response to this question, here:

http://ontariofamilylawblog.blogspot.ca/2010/03/when-do-my-child-support-payments-end.html?showComment=1379060235828#c1072379374379690057

The post generated many comments and questions so we decided to provide more guidance in the form of the following "flash cards" on this topic:

1. Contrary to a wide-held view, in Ontario child support does not end automatically when a young person turns 18. It also does not continue automatically until a young person is 18, without regard to what the young person is doing. For example, if a 16-year-old leaves school, begins working and moves in with friends, child support will end then and not continue for another two years until he/she turns 18.

2. A young person may continue to be considered "a child" for the purposes of child support even when they are 23-24.  Whether or not they remain eligible to receive support depends on the specific circumstances of each case but generally speaking, if a young person cannot become financially independent because they are still at school or unable to attend school or work for medical reasons, child support may continue to be payable.

3. Child support is the right of the child and not the right of the recipient parent. Parents do not have the right to bargain away, between themselves, the child's right to support.

4. There are different forms of child support contemplated by the Child Support Guidelines. The form and the amount of child support is likely to change when a young person enrolls in post-secondary education and in particular, if they live away from home for part of the year to attend school.

5. The overall means (ie: what is available in funds) of the parents and the child are always relevant to the issue of child support - particularly when post-secondary education is involved. This means, for example, that a parent earning $40,000 a year will not be expected to participate in covering any significant portion of a child's attendance at an Ivy League university in the US, at considerable cost. That parent will only be expected to contribute proportionately to their actual income.

6. The Courts do not simply accept line 150 of a payor's income tax return as an indication of their actual income for child support purposes. Self-employed individuals, in particular, will be subject to much closer scrutiny as to income and benefits available to them, pursuant to the Child Support Guidelines.

Making an important point once again - there are some general guidelines from the law on the issue of child support - there is no doubt about that  - BUT, each case also turns on its own facts and you should consider those specific facts with an actual lawyer to make sure that your particular circumstances are properly addressed.

Sharing child care expenses in Ontario

Generally speaking, child care costs are what are described by the Child Support Guidelines as "special or extraordinary expenses" (also called "Section 7 expenses" as that is the section in the Guidelines which deals with them).

Note the qualifying wording of the subsection itself - it's a mini-test for whether or not particular child care expenses will fall under this section:

"(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;"

A child's or children's expenses which qualify under section 7 of the Guidelines (and this includes child care expenses incurred by a parent by reason of employment, disability, illness or education/training) are shared by the parents proportionately to their respective incomes, taking into account any tax deductions available and taken by the residential parent. In other words, the non-residential parent is expected to share with the other parent only the after-tax-deduction portion of the expense. 

The formula is straightforward when one parent is the primary residential parent. It becomes more complicated in cases of either shared or split custody (addressed in another blog post).

Lawren Harris ~Coldwell Bay

"I have daycare expenses...will the other parent contribute?"

Pursuant to the Federal (and Ontario) Child Support Guidelines, daycare expenses are special or extraordinary expenses if they result from the residential parent's employment, illness, education or training. This means that if you have to have care for your child/children for any of those reasons, the other parent is expected to contribute to the cost of those expenses, proportionately to his or her income.  The portion of the expense which you and the other parent will be sharing is the after-tax-deduction cost of it. In other words, in determining how much she/he is to pay you per month, for example, you need to take into account the fact that you will be taking a tax deduction for the expense on your Income Tax Return. For answers to more specific question, consult a lawyer....

Art by Liz Brizzi ~ Escape Route

Imputing Income for Support Purposes

If you live in Ontario and are involved in a family law matter, you may have heard about the possibility of someone (perhaps you) being imputed with income. What does this mean?

The Child Support Guidelines (both at the provincial and federal level) give the Court the power to make a finding that a payor of child support should be treated, for the purposes of a court case, as if he or she were making an income which is not actually being received by that person.

There are a number of scenarios in which this may take place. By way of one example only: a parent claims that he or she cannot pay support because they are jobless and yet, that parent cannot provide a persuasive reason for their being unemployed. Plainly put, if a parent deliberately tries to avoid their child support obligations by being without employment, that parent risks being imputed with income by the Court, usually based on their historical ability to earn a particular level of income.

Imputed income is an interesting but complex area of family law and I encourage you to speak to a lawyer about your particular scenario to see if the concept is relevant to your case.

What is "custody"?

In Ontario family law, the word is generally used in reference to decision-making about a child or children.
In general terms, a parent who has sole custody of the child makes, on their own, all major decisions about that child’s health, welfare and education. Parents who are joint custodians make such decisions together. There is also the concept of "parallel parenting" which I will address in a future post.

Please note that a child’s custodial parent may be different from that child’s residential parent. “Residence” refers to where the child lives. For example, the parents of a child may be that child’s joint custodians but the child may live primarily with Dad.

The use of the phrase “shared custody” in the Child Support Guidelines (both federally and provincially) has caused some confusion. In the Guidelines, the term refers to a situation where the child essentially has two homes and spends some time with one parent and the rest of the time with the other. In this particular instance, the word “custody” is used to denote the child’s residential arrangements but this is an exception to the general rule outlined above with respect to the use of these phrases.