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.
Calculating Child Support
Step 1: Determine which Child Support Guidelines apply?
- Divorcing spouses, whether they reside in the same province or Ontario CSG
- Married spouses that are separating and not divorcing
- For 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. The definition of a social parent is a difference depending on whether the parents are divorcing or separating.
Divorcing couples: s.2(2) Divorce Act stands in place of a parent
To determine whether the person stands in place of parent look at the time that the family functioned as a unit, not at the time of the hearing.
Factors: opinion of the child, the intention of the person, whether a person provided financially or emotionally for the child, disciplined the child, and the nature of a child’s relationship with the absent biological parent.
Common-Law couples: s.1(1) Family Law Act settled intention to treat the child as a child of the family.
2) who is a child
Under the Divorce Act, there is an obligation to provide support for any child of the marriage, including biological or adopted children of a couple who:
- are under the age of majority (18 years) and still dependant
- s.2(2) DA have reached the age of majority but cannot become independent due to illness, disability, or “other cause”
Courts have also enforced a presumption to support an adult child who is pursuing post-secondary education.
Under the Family Law Act, there is an obligation to support an unmarried child who is minor or enrolled in full-time education, to the extent that the parent is capable.
Step 3: Determine the parenting arrangement
Look at physical custody, not legal custody of who makes decisions for the child.
- In Shared Physical Custody, the children live with one parent at least 40% of the time. This includes a 40-60% or a 50-50% arrangement.
- In Sole Custody, the children live with one parent more than 60% of the time over the course of a year.
- In Split Custody, there is more than one child and each parent has custody of one or more children.
Step 4: Find the right table
The table amounts for the Federal Child Support Guideline (CSG) for Ontario and the Ontario CSG are the same.
Please refer to the Simplified Federal Child Support Tables.
Step 5: Calculate the annual income
Parties can agree as to income in the T1, total income for income tax purposes.
The income of the parent can be adjusted by the court if:
- It varies a lot from year to year
- Received a one-time payment, such as a bonus
- Lives in another country where tax rates are very different
- Pays or receives spousal support
- The parent receives the Universal Child Care Benefit.
- Your child is over the age of majority and has an income
Disclosure obligations in section 21 of the CSG:
Payor parents must disclose certain tax documents within thirty days of the application being served if they live in Canada or the United States. Sixty days’ disclosure is required for payor parents residing in other countries.
Recipient parent can also have financial disclosure obligations in 5 circumstances:
a. Child is over the age of majority
b. Payor’s income over $150 000 (high-income earner)
c. Special or extraordinary expenses (s.7)
d. Split or shared custody
e. Claims of undue hardship (s.10)
Step 6: Find the table amount
- Sole Custody: the table amount will be based on income and the number of children
Please use the link to the Simplified Federal Child Support Tables.
- Split Custody: the amount of support is based on a simple set-off formula
- How much support would each parent pay for the child(ren) in the other parent’s custody?
- Subtract the lower amount from the higher amount
- The difference goes to the parent paying the lesser of the CSG table amounts
- Shared (physical) Custody: 40% threshold
(a) Consider the applicable table for each of the parents
(b) Adjust for the increased costs of shared custody arrangements
(c) Adjust for other conditions, means, needs and other circumstances of each parent and child
Children are entitled to benefit from an increase in the income of the payor parent. It is unfair for the payor to hold his family to the pre-separation lifestyle while he gets to save the increase in his post-separation income for his benefit alone.
If the income of the payor spouse is over $150,000, the amount of a Child Support order is:
(a) The table amount (s. 3); or
(b) If the court considers that amount to be inappropriate,
(i) On first $150 000 of spouse’s income – table amount
(ii) On the balance of income – amount court considers appropriate having regard to condition, means, needs and other circumstances of children and the financial ability of each spouse to contribute to Child Support; and
(iii) The amount, if any, under s. 7 special expenses
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:
(a) Childcare expenses incurred as a result of the custodial parent’s employment, illness, disability, education or training for employment
(b) When, a portion of the medical and dental insurance premiums attributable to the child
(c) Health-related expenses that exceed insurance reimbursement
(d) Extraordinary expenses for a primary or secondary school education or for any other educational programs that meet the child’s particular needs
(e) Expenses for post-secondary education (if they meet the test of being reasonable + necessary expenses)
(f) Extraordinary expenses for extracurricular activities
1) Is the expense or totality of expenses claimed on behalf of the children extraordinary?
To determine an “Extraordinary” Expense, a court considers:
(i) The amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table
(ii) The nature + number of educational programs & extracurricular activities
(iii) Any special needs + talents of the child or children
(iv) The overall cost of the programs and activities
(v) Any other similar factor that the court considers relevant
2) Is the expense or expenses reasonable and necessary?
Factors to order an additional s.7(1) expense:
- The necessity of expense in relation to the best interests of the child
- Reasonableness of expense in relation to means of the parents
- Means of the child where they can contribute (child’s financial income)
- A family’s spending patterns with respect to the child prior to separation
Step 8: Dealing with undue hardship
Undue Hardship Circumstances include:
(a) 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) Spouse has unusually high expenses in relation to exercising access;
(c) Spouse has legal duty to support any person (ie. under separation order or judgement)
(d) 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;
(e) Spouse has a legal duty to support any person who is unable to obtain necessaries of life due to an illness or disability
Calculate the income of every member of both households to compare the standards of living if either of you is claiming undue hardship using the test below.
Schedule II TEST: If the household’s standard of living is lower than that of the other parent?
Please find the test on the link here.
Note: The court has the discretion not to adjust the amount even if all the undue hardship conditions are met. Some undue hardship is expected as a result of the separation.
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 and should you require assistance, please contact us to book a free initial consultation 905-366-0202 or through our website here.