What you need to know as a parent
BEST INTEREST OF THE CHILD
Calculating Child Support
The dollar amount of child support payments have been set by the Federal Child Support Guidelines. It allows for consistency and provides parents, as well as judges, with a standard to follow. The calculation takes into account three factors:
1. The number of children;
2. The province or territory where the paying parent lives; and,
3. The paying parent’s annual income (before tax).
On the surface the calculation may seem straight forward, but based on the facts of your case it can get convoluted. Although courts must follow the Guidelines, they also have discretion to look at other factors such as discrepancy in the parents’ income, lifestyle prior to separation/divorce, the age of the child and impact of access/shared custody costs. If parties are civil and reasonable, they may come to an agreement without court intervention. They should consider factors such as the Federal Child Support Guidelines, after-school programs, daycare costs, the type of custody and any other factors they deem significant when determining support.
You can get a rough calculation of the guideline amounts by visiting the link below. These calculations do not include section 7 costs (costs outside of basic needs such as after-school programs and daycare).
Effect of Custody on Child Support
The amount of time each parent spends with a child can affect the amount of child support. The 40% rule states wherein shared custody cases a child spends at least 40% of their time with each parent, the child support obligation is often reduced. The 40% threshold is usually calculated by the number of nights a child spends with each parent in a year. In certain cases where this method is not effective, a judge may use other methods that better represent actual time spent with each parent.
To calculate child support the income of each parent is used to determine how much they would be paying in accordance with the Child Support Guidelines. The amounts will then be set off to determine the new child support payment. Judges have a great deal of discretion to award higher or lower payments. It is important the judge is provided with all the necessary information in making their decision in order to ensure a fair payment in the best interest of the child.
Impact of Access Costs on Child Support
Access can become expensive for a parent, either because of the cost of spending time with the child or the cost of exercising access. In the first instance a parent who spends five days a week with a child will incur more costs than a parent who is spending one day a week with their child. In the second instance, a parent may live in a different city or province and will incur large expense of travel to see their child. In both cases, these costs combined with their child support obligation may cause undue financial hardship. In these cases, a claim can be brought before the court asking to reduce the child support obligations.
The test for undue hardship has a high threshold. To prove hardship, the paying parent must show they are suffering significant hardship and that their household standard of living is not higher than that of the other parent. Calculating standard of living is very difficult in that it is hard to assign a dollar amount to it. Courts are reluctant to accept undue-hardship claims as most have been unsuccessful.
Child Support for Children Over 18
Children over the age of majority (18 in Ontario) may continue receiving child support based on their circumstance, which includes being enrolled full-time in post-secondary education. Courts have the discretion to move away from the Child Support Guidelines in order to consider other expenses such as University/College expenses, cost of residence (if not living at home) and income from the child’s part time job.
Effect of Incomes over $150,000 on Child Support
The Child Support Guidelines only account for incomes up to $150,000. Payors who make more will be required to pay child support in accordance with the appropriate formula. The calculations can result in very high child support obligations which may be deemed excessive. Accordingly, the rules give courts discretion to make an order in an amount different than that generated by the formula. In order to do this, the judge must come to the conclusion the payment would be inappropriate. As with any area of law, there must be compelling evidence to support this assertion. In making this finding, the court will consider factors such as:
The financial circumstances of the parties as it relates to the actual circumstances of their children,
The means and needs of the parties and the children,
The pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
Whether the child support payments would seize to constitute the needs of the child and instead be purposed as payment of spousal support or wealth transfer
Payment of Child Support
Child Support payments can be made directly from the payor to the payee, but it is very important that the payor keeps records of the payments. A copy of the check, an email confirming payment, e-transfer records or any other bank records which can effectively confirm payments is sufficient. It is the responsibility of the payor to prove they have made the payments.
For more certainty, parties can use the Family Responsibility Office (FRO) for the transaction. Where the parties have a court Order, FRO has the authority to enforce the support payments if the payor fails to make the necessary payments. FRO also has jurisdiction over payors living outside of Ontario – in other Canadian Provinces, the United States, as well as 31 other countries. Enforcement measures include:
Reporting the parent or caregiver who’s supposed to be paying to the credit bureau
Suspending the driver’s licence, Canadian passport or federal licence (e.g. a pilot’s licence) of the parent or caregiver who is supposed to be paying
Garnishing bank accounts
Without a court order, the parties can use the services if they are both agreeable to doing so.