Child Support and Retroactive Child Support in a
Child support is a term that signifies the financial assistance from one parent to another, in order to support a child following a separation or divorce. The Federal Support Guidelines are rules and regulations under the Divorce Act. They set out the guidelines of child support following a divorce. Their main objectives are:
• To establish a fair standard of support for children so that they continue to benefit from both parents’ incomes after the separation or divorce;
• To reduce conflict and tension between parents by making the calculation of child support more objective;
• To ensure that parents and children in similar situations are treated the same; and
• To make the legal process more efficient and encourage settlements by giving courts and parents guidance about child support.
During the time of a divorce or separation, it is highly important for parents to be cooperative while reaching an agreement for child support. Parents may seek assistance from an experienced family law lawyer in order to understand:
• Their legal rights and responsibilities, and the rights of your children;
• The options for resolving differences between you and the other parent; and
• How the court system works.
In this way, both parents may save time and financial resources by resolving issues without going to court.
The Federal Support Guidelines provide rules and regulations in order to help an individual successfully calculate child support. It must be noted that not all the following steps may be necessary for every case. In summary, the steps are:
1. Determine which guidelines apply: In this step, you must assess whether federal, provincial or territorial laws are applicable in your unique situation. The Federal Guidelines are applied to a case unless both parents live in a “designated” province. Designated provinces include Manitoba, New Brunswick and Quebec. These three provinces use their own guidelines.
2. Determine the number of children requiring support: This step will help take into account how many children the parent must support. The child’s situation and age must also be taken into consideration, as it may affect the calculation of child support.
3. Determine the parenting arrangement: This step will help assess the parenting arrangement of the child/children in order to accurately calculate the child support. The
Federal Guideline makes use of the terms “sole custody,” “split custody,” and “shared custody,” referring to the amount of time a child spends with each parent.
4. Find the right table: This step allows an individual to choose the table in the Federal Guideline which is relevant to their circumstances, regarding their income, number of children and the province or territory in which they reside. Each province and territory, excluding the designated ones, have a different table due to their differing tax rules.
5. Calculate annual income: This step gives information on how to calculate one’s income for child support. At this stage, it may be helpful to consult a family law lawyer, especially if one is self-employed or has an income which fluctuates often.
6. Find the table amount: This step explains how to find the table amount that is applicable to the parent’s circumstance by matching their income and number of children being supported.
7. Determine if there are special or extraordinary expenses: This step requires a parent to assess whether there are any extraordinary expenses in their particular situation. In the case that they are, it should be added to the basic table amount.
Extraordinary expenses may be:
• Child care expenses due to an illness, disability or educational requirements
• The portion of a parent’s medical and dental insurance premiums that provides coverage for the child
• The child’s health-care needs that exceed $100 per year if the cost is not covered by insurance
• Expenses for post-secondary education; expenses for the child’s extracurricular activities.
8. Determine if there is undue hardship: This step will assist a parent in assessing whether there is undue hardship in their situation. The amount of child support determined through the previous steps may be difficult for a parent to provide, in this case, the parent may claim undue hardship.
In order to prove undue hardship, the parent must prove two things:
1. That your circumstances would make it hard to: – pay the required amount; or – support the child on the amount of support you receive.
2. That your household’s standard of
Retroactive Child Support
Retroactive child support refers to child support that may be owed to a parent due to a few reasons:
• The payor had an increase in their income and the Table amount (as discussed above) was not adjusted accordingly
• The payor failed to pay child support when they were required to
• The payor was paying less child support than required
When assessing whether retroactive child support is appropriate, the court considers the situation from all angles, such as the financial need of the supporting parent and the paying parent’s ability to provide. Once the court has established that the request for retroactive support is valid, the support will be calculated from the time notice was given to the payor. This requires the supporting parent to approach the problem as soon as they discover the need for retroactive child support, either by filing an application or having a written request for the increase of support. Failure to take action in a timely manner may be of the supporting parent’s detriment in receiving an increase of support.
At Tailor Law, we understand that following a separation or divorce, your child and their upbringing may be your foremost concern. Our lawyers are well-equipped in providing you with excellent services on the next steps of seeking and implementing child support. If you require assistance, do not hesitate to call us at 905-366-0202, or visit our website here.