Child Support And Calculating Child Support

Child Support and Calculating Child Support

Under the Family Law Act, parents have an obligation to provide financial support for any children upon separation. This is why child support takes priority over spousal support and is calculated first. The amount of child support awarded will vary the calculation of spousal support. Under the Divorce Act, spouses will not be granted a divorce until they have made reasonable arrangements for the support of the children.

The Child Support Guidelines (CSG) list the amount of child support owed based on the number of children and income of the payor parent. Section 39 of the Family Law Act provides for recalculation of child support in accordance with the guidelines to reflect updated information. Of note, conduct (e.g., adultery, abuse) is not a factor to determine child support.

The amount of child support can be negotiated in a domestic contract between married and common-law spouses. Although, section 56(1.1) of the Family Law Act stipulates that courts can disregard “unreasonable” child support provisions in the contract, having regard to the Child Support Guidelines.

Terminating Child Support

A common question that arises is when child support obligations come to an end. Generally, child support is payable until the child reaches the age of majority (18 years in Ontario). However, when it comes to terminating child support, there are exceptions. Under the Divorce Act and Family Law Act, child support may continue beyond this age if the child remains dependent due to post-secondary education, illness, or disability. Courts assess each case based on the child’s needs and the financial circumstances of the parents.

In some cases, parents may seek to terminate child support by demonstrating that the child is financially independent. However, courts require substantial proof, and a mere part-time job or occasional financial contribution from the child may not suffice. The obligation to provide support is deeply rooted in ensuring the child’s welfare, and courts tend to interpret termination provisions conservatively.

Calculation of Spousal Support

Spousal support is typically determined after child support is calculated. The amount and duration of spousal support depend on multiple factors, including the length of the marriage, the financial needs and means of both parties, and any economic disadvantages resulting from the marriage or its breakdown. While the Spousal Support Advisory Guidelines provide a framework for determining support amounts, courts retain discretion based on the specific circumstances of the case.

In some cases, the calculation of spousal support may be affected by the payor’s child support obligations. Since child support takes priority, it may reduce the available income for spousal support. This interrelation highlights the importance of comprehensive financial planning during separation and divorce proceedings.

Calculating Child Support

Step 1: Determine which Child Support Guidelines apply

Federal CSG

• Divorcing spouses, whether they reside in the same province or Ontario CSG

• Married spouses that are separating and not divorcing

• Common-law spouses who are separating

“Designated Province” CSG

• Married and Common Law spouses in New Brunswick, Manitoba, and Quebec have their own CSGs.

Step 2: Determine the number of children to whom child support is owed

1. Who is a parent?

   • Biological parents have a presumption to provide support for their offspring.

   • Assisted reproduction parents: Section 4 of the All Families Are Equal Act states that any person with an interest can apply to the court for a declaration of parentage.

   • Social parents may have an obligation to provide support depending on whether the parents are divorcing or separating.

2. Who is a child?

   • Under the Divorce Act, child support obligations extend to biological or adopted children who:

     • Are under the age of majority and still dependent

     • Have reached the age of majority but cannot become independent due to illness, disability, or “other cause”

   • Courts also enforce support obligations for adult children pursuing post-secondary education.

   • Under the Family Law Act, obligations extend to unmarried children who are minors or enrolled in full-time education.

Step 3: Determine the parenting arrangement

• Shared Physical Custody: The child resides with each parent at least 40% of the time.

• Sole Custody: The child resides with one parent more than 60% of the time.

• Split Custody: Each parent has custody of one or more children.

Step 4: Find the right table

The Federal Child Support Guidelines table amounts for Ontario align with the Ontario CSG. Refer to the Simplified Federal Child Support Tables for specific amounts.

Step 5: Calculate the annual income

Income determination includes factors such as:

• Fluctuations in income

• One-time payments (e.g., bonuses)

• International tax differences

• Spousal support adjustments

• Universal Child Care Benefit

• Income of a child over the age of majority

Disclosure obligations under Section 21 of the CSG ensure transparency, requiring tax document submissions from payor parents within 30 to 60 days.

Step 6: Find the table amount

• Sole Custody: The table amount is based on the income of the payor parent and the number of children they are responsible for supporting.

• Split Custody: The amount of support is calculated using a set-off formula:

  • Determine the amount each parent would pay if the other had sole custody.

  • Subtract the lower amount from the higher amount.

  • The difference is paid to the parent with the lower obligation.

• Shared Custody: The 40% threshold applies, requiring further adjustments:

  • Consideration of each parent’s table amount.

  • Adjustments for increased costs associated with shared custody arrangements.

  • Consideration of each parent’s financial circumstances, needs, and the child’s best interests.

High-Income Earners

For payor parents earning over $150,000, courts may:

• Apply the table amount

• Adjust amounts based on the needs of the children and financial ability of each parent

Step 7: Dealing with special expenses (s.7)

Parents are to share special/extraordinary expenses in proportion to their respective incomes, after deducting any contribution from the child.

A list of special/extraordinary expenses includes:

• Childcare expenses incurred as a result of the custodial parent’s employment, illness, disability, education or training for employment

• A portion of the medical and dental insurance premiums attributable to the child

• Health-related expenses that exceed insurance reimbursement

• Extraordinary expenses for a primary or secondary school education or for any other educational programs that meet the child’s particular needs

• Expenses for post-secondary education (if they meet the test of being reasonable + necessary expenses)

• Extraordinary expenses for extracurricular activities

Step 8: Dealing with undue hardship

Undue Hardship Circumstances include:

• 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;

• Spouse has unusually high expenses in relation to exercising access;

• Spouse has legal duty to support any person (i.e., under separation order or judgment);

• Spouse has legal duty to support a child, other than a child of the marriage, who is: under the age of majority, or the age of majority or over but unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

• Spouse has a legal duty to support any person who is unable to obtain necessaries of life due to an illness or disability

Courts use a household standard of living test to compare financial situations and determine undue hardship claims.

Consult a Divorce Lawyer in Mississauga

We understand that child support is one of the most complicated and stressful matters to negotiate at separation. Let a divorce lawyer in Mississauga at Tailor Law do the hard work for you so you can concentrate on making a fresh start with your child.

Nothing in this article should be considered or relied on as legal advice or opinion. This article only provides general information. Should you require assistance, please contact us to book a free initial consultation at 905-366-0202 or through our website.