Child Support: The Details
Child support in Ontario is often settled by the parents of the child by agreement. The Federal Child Support Guidelines help guide parents to come to reasonable agreements. The Guidelines provide detailed instructions on how child support should be calculated for incomes of $150,000 and under. The Guidelines’ tables are available on our website to help you determine child support amounts.
Since the Guidelines were introduced in 2006, the calculation of child support has changed. Support is calculated based on each parent’s gross income, which includes stock options, bonuses and shares.
Applying for Child Support
A number of provisions in the Ontario Family Law Act and the Canada Divorce Act govern child support. The Statutes, along with the Guidelines, designate who may bring an application for child support, what court can hear such an application, who can be held responsible for the payments, and how soon child support cases should be heard. As you will already know from this website, a child support claim may be filed as a separate application or it may be combined with an application for divorce or custody. As you have also learned, the issue of child support may be settled by private agreement, thus avoiding the necessity of going to court unless one party needs the assistance of the court in enforcing such an agreement. In order to obtain support, you have to file an application (Form 8.) along with a financial statement (Form 13). Section 33 of the Family Law Act empowers the court to make a determination that support is required and to order the amount of support to be paid.
A parent can apply for child support at any time after separation. It is customary to apply for support immediately after separation or as part of the divorce application. Even if child support is not sought at first, you can apply if your situation changes and you feel you need the support at a later time.
An application for child support must contain certain information: the identity of the parties and their residences, the identity of the minors involved, their dates of birth and residences, the existing custody arrangement and detailed financial information about the parties. Both parties must complete financial affidavits, setting forth the child’s monthly needs and expenses and the parents’ ability to provide for the child. Pay stubs and income tax returns, as well as any assessments and reassessments, are required to verify income assertions.
Obligation to pay child support
Part III of the Family Law Act deals with support obligations. It requires parents to support all of their dependant children. This is required as long as the child is a minor (under 18) or enrolled in full time education. Children with disabilities may remain dependants, and thus be entitled to support, beyond this point. Child support may be a legal obligation even if the parents of the child were never legally married. A person may be obligated to pay support even if the person is not the biological parent but has stood in the place of the biological parent.
Forms of child support
A court may order child support to be paid periodically (usually monthly) for either a definite or indefinite amount of time. The most common method of child support is cash payment in monthly installments. Child support can be paid to the custodial parent by the non-custodial parent or to the Family Responsibility Office, as explained below.
Amount of child support
As explained above, the amount of child support can be gleaned from the Guidelines. The Guidelines were brought in by the Federal government in 1997 and were later adopted by the province of Ontario. These Guidelines recognize that child support is a shared obligation. The parties’ shared monetary obligation is computed by considering both parents’ gross incomes as though the combined income dictates certain child-rearing costs, taking into account responsibility for other children, work-related daycare, and extraordinary expenses attributable to the child. The Guidelines provide rules and tables to help calculate the support a parent, who does not have custody of his or her child, owes to the custodial parent. The simplified tables are available on this site.
Who has legal custody of the children does not matter for support, but the amount of time spent with each parent does. The Guidelines stipulate that, where a parent spends more than 40% of the time with a child, the court must take into consideration the amount set out in the applicable table in the Guidelines, the increased cost of living in a shared custody arrangement and the condition, means and needs of the parents and child.
If a party wishes a deviation from the Guidelines, there needs to be evidence supporting this variance. You have some creativity available here and should not neglect to consider the standard of living of the people involved, unusual necessary expenses, support that takes an untraditional form, special educational provisions for the child, unusual visitation scheduling, and other demonstrable factors impacting on the amount owed. Deviation may be ordered in an amount higher than the guideline amount of child support. Upward deviation typically occurs in families of wealth and/or in families where the children have unusual needs. Deviation may also be ordered in an amount lower than the guideline amount. Downward deviation typically occurs when either the custodial parent does not require the full guideline amount to meet the child’s reasonable needs or when the non-custodial parent does not have the ability to pay the amount dictated by application of the straight Guidelines.
Child support and taxes
Agreements or court orders for child support made after April 30, 1997 are not subject to tax for the parent receiving the support. It is not included in the receiving parent’s taxable income and the parent paying support may not be deducted from their taxable income. Orders and agreements made before this, however, are subject to the old rule, where parents receiving support would pay tax on the amount received and parents paying the support could deduct such payments.
Agreeing to Child Support
As you have read elsewhere on this website, child support may either be agreed upon by the parties through a separation agreement or one party may request that the court make the award. Significantly, because a separation agreement is a contract, the parties may agree for a parent to assume child support obligations greater than those which the law imposes. Parties may wish for example to use a separation agreement to provide for private schooling, college or post-secondary education, summer camp, life insurance for the minor’s benefit in the event of the death of the parent paying child support, cost of living increases, extension of support beyond the age of eighteen, and transfer of the dependency exemption.
Enforcement
If child support is not paid, the court has many options it can use for enforcement. Enforcement is done through the Family Responsibility Office (FRO), a provincial government office who receives all court orders for support. If you come to an agreement about support, you can also file this with the court in order to have FRO help you enforce it. Paying parents then make all their payments to FRO, who then sends the money by cheque or direct deposit to the parent who is owed support. If payments are outstanding, FRO can receive owed support by having payments deducted from the parent’s wages, registering a charge against the parent’s personal property, or garnishing bank accounts. If support remains unpaid, FRO can suspend the parent’s driver’s licence, report the parent to the credit bureau or cancel their passport.
Varying support
Support can be changed. If both parents agree to change an agreement for child support, the process is simple. The parents can change their existing agreement or make a new agreement. The new agreement must then simply be filed with the court and mailed to the FRO for enforcement.
A court order can also be changed but only by the court. A change to child support will only be made by the court if there has been a material change in circumstances. Cases in which this may occur include: significant decrease in the paying parent’s income, the child has withdrawn from parental control or has moved houses, or the child has additional expenses (i.e. medical expenses).
Since the receiving parent’s income is not generally taken into account when making an order for support, it is similarly not considered for a change. So, a great increase in one parent’s income does not mean they no longer will receive support for their child.