FAQ: Child Support
Q. How can I find out whether my child is entitled to child support?
Both the Divorce Act and the Family Law Act define a child, and specifically a child who is eligible for child support.
Under the Divorce Act, a child of the marriage is a child of two (2) spouses or former spouses who (a) is under the age of majority (18 years of age in Ontario) and has not withdrawn from parental charge or (b) is the age of majority and over and under parental charge but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life.
Under the Family Law Act, a child is (a) unmarried, (b) a minor (under 18 years of age) or enrolled in a full-time program of education, and (c) if 16 years of age or older, still under parental control.
Q. Who is obligated to pay child support?
Generally, the persons who have the obligation to support an eligible child are the child(ren)’s parents or persons who stand in the place of a parent.
Q. If I receive child support for my children, do I have to pay taxes on it?
As of May 1, 1997, the payment of child support and receipt of same is neither tax deductible nor taxable income.
Q. How does a court determine the appropriate amount of child support to be paid?
To determine the appropriate amount of child support payable, the Child Support Guidelines are referenced. Although there are provincial and federal Guidelines, they are essentially the same. The table amount of monthly support paid by the payor, which is based on the number of children and the payor’s income, is invariable. The child support amounts are specified in the tables for annual incomes of up to $150,000.00. Incomes in addition to this amount, child support is determined based on a combination of the table amount for the first $150,000.00 and either a percentage of the amount over $150,000.00 or a discretionary share of that amount. The amount that is paid in addition to the table amount should be an amount that is reasonable to meet the needs of the children without being needlessly excessive.
Q. What if my child is over the age of 18?
Child support for children over the age of majority may be determined in accordance with the Guidelines, as if the child(ren) were under the age of majority, or on a discretionary basis, having regard for the means of the child(ren) and the financial means of each parent.
Q. How does a court determine the payor’s income for child support purposes?
Income for Guidelines purposes is the total taxable income for the calendar taxation year adjusted by making the deductions and additions in Schedule III of the Guidelines.
Q. I have daycare expenses for the children. Does the payor of child support have to contribute to these expenses?
In addition to child support, the payor may be liable for special and/or extraordinary expenses incurred by the recipient parent on behalf of the child(ren). Special and/or extraordinary expenses are shared proportionate to the respective incomes of the parents after deducting from the expenses, the contribution, if any, of the child(ren). To determine how much the payor should contribute to special and/or extraordinary expenses for the child(ren), the court will take into consideration the necessity and reasonableness of the expense having regard to the means of the spouses and those of the child and the family’s pattern of spending prior to the separation. The Guidelines may be referenced for a specific list of special and/or extraordinary expenses.
Q. Is the recipient’s income relevant to a payor’s child support obligation?
The income of the child support recipient is irrelevant as it relates to child support payments under the Guidelines, but is entirely relevant in the determination of the parents’ respective share of special and/or extraordinary expenses for the child(ren).
Q. Does the parenting arrangement that I and my spouse have in respect of the children have a bearing on child support?
Parenting arrangements do have a bearing on child support. For example in a split custody arrangement, where each parent has custody of one or more children, the amount of child support is to be the difference between the amount that each parent would otherwise pay if a child order support were made against each of them. In a shared custody arrangement, where one parent has custody of the child(ren) and the other has access to the child(ren) not less than 40 % of the time during the year, the amount of child support is determined taking into consideration the amount set out in the tables for each parent, the increased cost of the shared custody arrangement, and the needs and means of the parents and of the child(ren) for whom support is to be paid.
Q. Is it possible for a parent to pay less than the table amount of child support under the Guidelines?
Parents may agree to an amount less than the table amount, or a court may order a lesser amount, where the payment of child support in accordance with the Guidelines would pose an undue hardship on the payor. This hardship may be as a result of high family debts, high access costs or the payor’s obligation to support others. Hardship to the payor will not result in an adjustment to his or her child support obligation where it means that the payor’s household would have a higher standard of living than the recipient’s household.
Q. My spouse has medical and dental insurance coverage available through his employer. In addition to paying child support, can he be made to maintain the children as beneficiaries of his insurance policy?
A child support payor may be ordered to obtain and/or maintain the child(ren) as beneficiaries of his or her medical/dental insurance policies in addition to paying child support under the Guidelines, if that insurance is made available to him or her by his or her employer, for as long as the child(ren) are entitled to child support. In some cases, a child support payor may be required to obtain medical/dental insurance coverage for the child(ren) where it is not available through his or her employer, provided that it is affordable and would not compromise the payor’s ability to meet his or her child support obligations.
Q. How do I get access to the payor’s income information for child support purposes?
Effective March 1, 2010, for as long as child support is to be paid, the payor of child support must provide updated income disclosure to the child support recipient each year, within thirty (30) days of the anniversary of the making of a child support order in accordance with s. 24.1 of the Guidelines. Where the special and/or extra-ordinary expenses for the child(ren) are shared proportionate to the parties’ respective incomes, the child support recipient will be required to provide similar disclosure to the child support payor. The child support recipient is also obligated to provide the child support payor with any current information respecting the status of such expenses, including a calculation of the actual cost over the last year, whether such costs have increased or decreased since the last court order and whether such costs will continue into the next year, together with satisfactory proof of the costs.
Q. What if my child is no longer entitled to child support?
Child support awards may be varied where there has been a change in circumstances.
DISCLAIMER: The foregoing material is not intended to and should not be taken or relied upon as legal advice by the author. It is general information provided by the author to the reader with a cautionary note to seek legal advice with respect to any questions or concerns the reader may have in respect of their own family law issues or the content of this material.