CHILD SUPPORT

When a separation occurs and children are involved, the parent who retains custody of the child will generally receive child support from the other parent. In Ontario, there are guidelines which set out the rules for entitlement and the amounts paid. Every province has a Table which calculates the amount of child support owed based upon the number of children in the family and the income of the parent who owes support. The amount of support also depends on how much time the children spend with each parent. Here are some common scenarios: 
  1. Sole Custody: for the purposes of child support, a parent who has the child or children in their care over 60% of the time has sole custody. The other parent will pay child support based upon the full table amount.
  2. Shared Custody: this exists when the children spend at least 40% of their time in the care of each parent. A starting point to calculate support will normally be the “simple set-off formula” where the support payment is calculated by determining the Table amount for each of the parents as though each was seeking child support from the other. The amount payable is the difference between the two amounts. This amount can be adjusted based upon the increased cost of sharing custody of the children and the circumstances of each parent. The goal is to achieve a fair standard of living in each household and ensure the contributions by each parent are also fair. 
  3. Split Custody: this exists when one child is in the sole custody of one parent, and their sibling is in the sole custody of the other parent. Each parent would owe support to the other. For practical purpose, the higher earning spouse would owe the difference between the parents child support obligations.  

In addition to child support, a parent may also be required to contribute to “special or extraordinary expenses” such as daycare, medical or dental premiums, other health related expenses, educational expenses (including post-secondary), and extracurricular activities. Generally, the parents will share these expenses in proportion to their income with the higher earning spouse paying a greater percentage. 

There are several important concerns when considering the amount of child support you may be owed or required to pay. Here are several common issues:
  1. Imputing Income: If the parent who owes support (the payor) is not declaring income, deliberately making less money than he/she is capable of, or enjoying tax benefits of being self-employed, status Indian or residing in a foreign jurisdiction with lower taxes, the court can impute income or determine an amount that it considers fair based on the parent’s earning potential or access to funds. Here are some cases:
    1. ​​A.C. v. M.Z [2010] OJ No. 5291, at paragraphs 75-89 where income was imputed higher for a hairdresser as a result of undeclared, tax-free tips and commissions.
    2. M. v. M. [2013] ONSC 709, where the judge refused to impute a higher income to either spouse. The husband voluntarily took a reduced salary in order to spend more time with the child, and the wife was unable to work due to post-traumatic stress disorder and substance abuse. The court followed a 3-part test and found that the husband was intentionally underemployed but his reasons for doing so were reasonable - to care for the children. The wife was not intentionally underemployed because she was not a good candidate to return to work. 
    3. T. V. T. [2003] OJ No. 1263, the court imputed a higher income to the payor who worked and lived in Texas. Expert evidence established that the payor would have been taxed at a significantly lower rate in the United States (see paragraph 54).  
  2. Undue Hardship: either the payor or the recipient spouse may claim that the table amount for child support is too high or too low and would cause them to suffer an undue hardship. This may happen if the individual has many other dependents or has significant debts. The court compares the relative standards of living of both parents in making the determination. Typically a payor spouse claims undue hardship, since a recipient can apply for spousal support in addition to child support if their needs are not being met. Since the hardship must be "undue" or excessive/exceptional, it applies only to low income people who have difficulty meeting basic needs. Here are some cases on undue hardship: 
    1. ​Debt: in order to qualify as an "undue hardship" the debt must be related to family expenses incurred during the relationship or to earn a living. See G. v. W. [2006] OJ No. 1536 where the payor father assumed much of the family debt after marriage. The debt caused him undue hardship and the court reduced child support payments from the table amount of $807.75/month to $600.  
    2. ​
  3. Retroactive Orders: this is when the court determines an amount that should have been paid in the past if support payments were not made after a separation or were made but were inadequate. Generally, a parent who owes child support will be required to pay for the payments missed, but there are exceptions. 

Before you enter an agreement on child support you should consult a lawyer, even if it is only for a brief 1 or 2-hour consultation. Please email me if you have any questions: [email protected].