What’s child support?
Child support is the payment one parent makes to the other, usually paid monthly, to the parent that the child lives with permanently.
Although payments are made to the parent, the courts in Canada have been clear that child support is the right of the child, not the right of the parent the child is living with. A parent doesn’t have the right to bargain away, or negotiate a lesser payment of child support and any agreement to that effect won’t be recognized by the court.
And the amount paid is only to represent the payor’s share of supporting the child. It doesn’t represent the full cost of supporting the child.
Child support is paid out of after-tax dollars. That means that there is no tax deduction or tax credit for the payment and that it isn’t to be counted as income for the parent getting it.
The Parliament of Canada, and the various Provincial Legislatures, are clear that the Child Support Guidelines determine the amount of child support to be paid, unless there are special circumstances (which are rarely found). The Guidelines are mandatory and have to be applied.
Who pays child support?
Parents. Both parents have an obligation to contribute to the financial support of their children. If the parents are or were married, then the Federal Child Support Guidelines apply. If the parents lived common law, or never lived together but are the biological parents of the child, the Provincial Child Support Guidelines apply. The Provincial Guidelines also apply if you’re not the biological parent of a child but have lived with, and treated, the child as yours. That said, The Ontario Child Support Guidelines are a adopted from the Federal Child Support Guidelines.
Who’s a Parent?
For the purposes of determining who’s required to pay child support the law is very simple. If you’re a child’s parent and aren’t living with the other parent, you pay. You’re a parent if:
- you’re the biological parent of a child – even if you’ve never lived with the other parent or weren’t even told you had a child
- you’re the adoptive parent of a child
- you ever stood in the place of a parent, even if a biological parent is also around or making payments
- you’re the biological parent of the child and have separated from the other parent
You don’t need to be married to the other parent to be obliged to pay child support. You don’t even have to have ever lived with that other parent to be obliged to pay. And you don’t even have to have known about the child to be obliged to pay.
Who gets the child support?
The person the child is ordinarily lives with gets the child support.
That said, the child support is actually the right of the child. It’s the child who is entitled to it, not the parent getting it.
This means that the parent who is to get the support can’t legally make a bargain that none will be paid. Even if they do, the courts won’t respect that agreement, unless the parties can show that some other arrangements were made for the benefit of the child.
Sometimes the parent receiving child support is also receiving government assistance. Even though they don’t want to claim any child support, the government agency paying her or him then has the rights to seek child support to help pay them back for what they’re paying out. It’s standard practice for these agencies to be strict about trying to recover child support.
Is income tax paid on child support?
No. When the Child Support Guidelines were made effective the government also eliminated any income tax effect for such payments. Unlike spousal support, which is discussed separately, child support is paid out of a taxpayer’s after-tax dollars and the recipient doesn’t include it in their income for tax purposes. The legislation making this change took effect on May 1, 1996 and only affected court orders or agreements for child support made after that date.
How are child support orders enforced?
In most jurisdictions there arrangements for government enforcement of child support. In Ontario every order for child support is automatically enrolled with the Family Responsibility Office (the FRO). Payments are made to the FRO and it’s charged with forcing collections. Ontario is one of the last jurisdictions in North America where a person owing child support can be thrown in jail. Before that happens, The FRO will serve you a notice that you have 90 days to make up the arrears at the end of which they’ll remove your driver’s license. They can also arrange to have your passport and certain other permits and licenses lifted until the arrears have been paid or settled. They can also begin proceedings to take a defaulter to jail.
The problem is that in a province like Ontario the FRO has a lot of orders to enforce and it’s often slow reacting when a particular order isn’t being paid at all or in full. If the two parties agree, an order can be withdrawn from the FRO and payments can be made directly.
The FRO doesn’t have the legal authority to negotiate a settlement. If there was an order that you pay child support based upon an income at the time of $60,000 per year, But you then lost your job, were unemployed for quite a while, and then ended up getting a job at $45,000 per year, The FRO can’t make any adjustment to whatever arrears have built up. They’ll say you still have a legal obligation to pay support of the higher amount throughout the entire period. In that case, you have no choice but to initiate court proceedings to obtain a court order wiping out or reducing the arrears and setting the new payment schedule. Sometimes the recipient will agree it, but not always. In either case, you need to get a new court order. Keep in mind that if the recipient has been on public assistance for any period of time, the new order you’re seeking to eliminate arrears can only be made if you served the government agency to which the support was assigned. You’ll have to bargain with them to eliminate any arrears during the period when they were paying public assistance to the recipient.
What’s the relationship between child support payments and spousal support payments?
None – at least not directly.
Your child support obligations are obligations regardless of the spousal support arrangement you make. You start by setting your child support payment. Spousal support comes second.
However, in practical terms the amount of spousal support you pay will be lower if you’re also paying child support and will increase when you’re no longer obliged to pay child support.
In some cases there may not be enough money around to pay spousal support. In those cases the payment of spousal support will be suspended until the child support obligation ends. At the other end of the economic scale, making a high spousal support payment and a low child support payment in order to get the tax deduction of the spousal support won’t work if the matter gets in front of a judge. You could be stuck with the spousal support payment and still have to pay the proper child support arrangement.
How does bankruptcy impact child support?
It doesn’t. In fact, bankruptcy probably makes it easier to make child support payments by wiping out your other debts.
Bankruptcy doesn’t wipe out the child support obligation for arrears.
What are the Child Support Guidelines (CSGs)?
To begin with, they’re not guidelines. “Guidelines” are like suggestions. The Child Support Guidelines (CSGs) are law – they’re mandatory.
They were created by the Federal government in 1996 as part of an initiative to make the amounts of child support parents across the country were paying be consistent. There was to be one set of rules for children all across the country. The amounts vary a little from province to province because of economic variations, but the same rules apply.
Although the Federal CSGs only apply to married couples seeking divorce, various provinces have since created their own CSGs. Ontario’s CSGs have only minor changes from the Federal CSGs.
In a nutshell, CSGs outline how much child support the parent who isn’t the one with whom the child primarily lives must pay to the parent the child lives with. They’re intended to make the obligations clear.
The CSGs make it clear that it’s government policy that each parent contribute to the support of their child or children according to that parent’s means.
Obviously, the parent with whom a child lives contributes automatically to the care of that child. The payor parent contributes an amount based upon his or her income and the number of children.
There’s an overriding principle that the children see reasonably similar households when they visit the parent paying child support as compared to their home with the parent with whom they primarily reside. So where support-paying parent is a high income earner, that parent will end up paying a high amount of support. For example, it’s not considered fair if the kids can only afford to have hamburgers when they’re at home but steaks when they’re with the other parent for access. Or have to go to YMCA camps when with one parent but ski vacations in Europe when with the other.
In the most straightforward case, you go down a table to find the row showing your income (up to $150,000 per year) and then go across the table to get to the column for the number of children you’re supporting. The figure shown is considered your share of child support, for people with your income based upon families of your size.
While the Table only goes up to $150,000 per year for income, entering a higher figure in the various child support calculators will give you a higher figure. And the courts follow the Guidelines formula for incomes much higher than $150,000 per year as a routine matter. It’s only at very high incomes that the courts begin to use discretion to order less than what the computer calculation shows. For most self-reps, this isn’t an issue.
One other thing to remember. The Tables don’t set an amount of child support to be paid for one child and then multiply that by the number of children. You twice as much ketchup for two kids as with one, but the rent will probably stay the same. Because there are some “economies of scale”with more children, the amount of child support to be paid goes up for each child, but not by the full amount. That’s why you need to check the Tables every time there is a change in the payor’s income or the number of children being supported by a monthly payment.
There’s a helpful booklet published by the Department of Justice, The Federal Child Support Guidelines: Step-By-Step to give you some assistance navigating the CSGs.
Where can I find the Child Support Guidelines?
You can enter your province or territory, your income and the number of children you have to see what the CSG Table says is the amount for you to pay. That’s the Table amount that the support-paying parent has to pay as his or her child support.
Keep in mind that this payment is only that parent’s share of the expenses. The parent with the child is expected to contribute her or his share so that the combined amount is the estimated cost of supporting the child.
The Table amount is the basic monthly payment. But each parent’s regular monthly payment may be more based on variety of other expenses to be shared by the parents. These are called “s. 7 expenses”, “special expenses”, or “extraordinary” expenses.
What are ‘special expenses’ or ‘s. 7 expenses’?
They’re all the same thing but different names. Section 7 of the Child Support Guidelines deals with what are called “Special or extraordinary expenses”. Lawyers, judges, and everyone else tend to use the 3 terms interchangeably.
These expenses are shared “rateably”. That means each parent pays a percentage of that expense based upon the ratio their income bears to the combined incomes. These are paid in addition to the Table amount. Very often, even though this isn’t the right figure, parents agree to share the expenses 50/50 or 25/75 instead of working out a percentage each year.
The Child Support Guidelines say that the guiding principle to determine the amount of the s. 7 expense to be covered is that the expense is to be shared by the parents in proportion to their respective incomes ”after deducting from the expense, the contribution, if any, from the child.” The contribution of the child usually it comes into play with respect to post secondary school expenses.
Schedule III of the Guidelines (found at the very end of the Guidelines after the Tables) says in s. 3.1 that when calculating the income to be used in figuring out each parent’s share of a special expense, the support-payor should deduct the spousal support paid to the other parent and the recipient-parent has to include it.
An expense is ”extraordinary” if it’s more than what the parent requesting it can ”reasonably cover”, taking into account that parent’s income plus the amount that the parent receives from the Table monthly support payment, or where the court has determined that the Table amount being received is inappropriate.
The court can also consider an expense to be “extraordinary” by taking into account such things as the amount of the expense in relation to the income of the parent requesting it, the nature and number of the educational programs and extracurricular activities, any special needs and wants of the child or children, the overall cost of the programs and activities, and ”any other similar factors that the court considers relevant.”
It’s not easy to figure out what all of this means and very often parents take the matter to court to have a judge figure it out. Expenses for pizza day and after-school hockey are normal expenses which the parent receiving child support should cover entirely as part of normal child support payment. The Child Support Guidelines formula has taken these things into account already.
But things such as school trips to another city, or being on a travelling, or select, hockey team is considered extraordinary, and the cost of that, including equipment would be shared. Normal gymnastic lessons aren’t “extraordinary”, but special training because the child might be going into competition would likely be considered extraordinary.
For most families, the parents aren’t quite so fussy. They tend to agree to share the soccer enrolment and equipment costs and the other expenses for even ordinary extracurricular activities, even if a court might not consider them to be a real s. 7 expense. After all, both parents will go to the practices and games as well as any recitals, etc., so why shouldn’t they share the cost? But if they disagree, it will be up to a judge to decide if the expense is a proper special expense – to be shared rateably – or not.
There’s more to how the courts determine deal with “special expenses” and you’re encouraged to read section 7 in its entirety. If you have any questions about it, you should check with an experienced family law lawyer.
Are there times when the child support tables don’t apply?
There are 6 situations in which the Tables don’t automatically apply:
- Where the support payor has an annual income of over $150,000
- Where the child is over the age of majority (Over 16 years of age)
- Where there is split custody
- Where a child spends more than 40% of her or his time with each parent
- Where there is what the Guidelines call an Undue Hardship.
- Where other arrangements have been made which the court feels are of sufficient benefit for the child to not use the Guidelines.
What if the payor makes of $150,000 per year?
There’s a formula to apply when a payor’s income is over $150,000, but the judge also has some flexibility in the decision. So if you’re earning over $150,000 you should check with a lawyer because you might be able to arrange to pay less than the formula would suggest.
The real life situation, however, is that judges won’t vary from what the formula shows until the income is quite a bit higher than $150,000. They are comfortable awarding high monthly support so that the children will be able to enjoy a roughly similar lifestyle in the homes of both parents.
There’s a helpful booklet published by the Department of Justice, The Federal Child Support Guidelines: Step-By-Step to give you some assistance navigating the CSGs.
What happens if the child is over 16 years of age?
Generally, where a child over 16 is still living at home because of educational (still going to high school), or health reasons and unable to withdraw from parental support, the Table will continue to be applied.
But support also continues for a child over 16 years who may be away from home at a post-secondary educational institute. This will generally continue until the child has completed their first secondary degree, diploma, or certificate, but will go past that to the level of degree that one of the parents achieved.
In these cases the educational expense (tuition,. school fees, books and supplies, room and board, travel, phone, etc., etc.) is covered as a s. 7 expense to be shared by the parents after deducting the contribution from the child by way of the child working or receiving bursaries, grants, etc.
And if the child returns to the home during the 4 month summer break, then the Table amount of support will be ordered for that period. (Often the full amount is spread out as monthly payments throughout the year.)
See the next question for more about a child away at school.
What do the Child Support Guidelines say you pay when a child is living away for school?
Schooling is a “special expense” covered in s. 7 of the CSGs. Parents are to share the cost of a post-secondary education proportionately to their income. That means that if one parent earns 46% of the total parental income, that parent should pay 46% of the post-secondary costs.
This would include room and board while the child is away from home for school as well as school supplies, travel, etc. However, the child is expected to contribute something to his or her schooling so the parents aren’t sharing the full cost.
In the case of a child away at school for i months and then back home for 4 months, most courts usually order what’s often called a “summer” schedule. That is, the payor would have to pay the full Table amount of monthly child support for the 4 months of April – August, assuming the child stays at home during that period, and their proportionate share of the expenses for the other 8 months while the child was away at school. But if the child stayed away in the community where the school is for the full year, even though they may come home for brief vacations, there would only be the sharing of those expenses and no Table amount for the 4 months.
What if we have split custody?
If one or more children live with each parent, s. 8 of the CGSs requires you to do an off-set. To calculate the adjustments, figure out what each parent would pay if each of the children was primarily living with the other. Subtract the lower amount from the higher amount, and the parent with the higher payment pays the difference to the other one.
If there are 3 kids and one with the father and two with the mother, you figure out what the father would pay the mother for those two kids and subtract – or set-off – the amount the mother would pay the father for the one child living with him.
What if the child spends equal time with both parents?
Section 9 of the CSGs has a 40% rule. If a child is with one parent at least 40% of the time, then the court will look at whether adjustments need to be made. after all, each parent may need to keep a full household for all of the time because the child is with them just a little more or less than half the time.
There are a complex set of considerations a court is to take into consideration to work out the right amount of support in this case. This is often hotly fought over. If it goes to court there’s a lot of evidence and a lot of calculations required. In most of these cases it can be more expensive to go to court than it’s worth.
So what most people in this situation do is to figure out what each parent would pay if the child was primarily resident with the other, subtract the lower amount from the higher amount to get the difference, and the parent with the higher payment pays the difference plus some additional amount to the other one. They work out a payment that is somewhat more than, but reasonably close to, a set-off.
What is “undue hardship”?
The court can order an amount of child support that’s higher or lower than what the Table amount sets out if the parent making the claim establishes that he or she is experiencing “undue hardship”. While s. 10 sets out some examples, the list isn’t carved in stone. However, s. 10 is rarely used and the party seeking such an order rarely succeeds.
If you think you qualify for “undue hardship”, it will help for you to talk with a lawyer for advice. What you think is an undue hardship may not be the same as what the Guidelines have in mind.
Can we work out other arrangements for child support that we agree is fair but doesn’t match the CSG?
Yes, you can. But it may not be upheld in court.
As child support is the right of the child, no court will honour an agreement in which one parent bargains it away or agrees to a lesser amount. The payor could get the recipient to agree to some lesser amount on Monday and the recipient could go to court on Tuesday to ask for the proper amount.
However, if you agreed to pay an amount higher than the Table shows, a judge is likely to say you knew what you were doing and wanted to benefit the child by being generous. So that arrangement wold likely be upheld.
There may be circumstances, however, in which there are other financial arrangements for the benefit of the child provided for in your particular agreement that would cause the court to say okay to a lower monthly amount. Perhaps a house was transferred into the names of the children so they were getting an asset of value, and they and the parent with whom they were living could live there cost free. The court may then allow for a lower monthly payment, but this is exceedingly rare. Also, the other parent can later return to court for the full monthly amount, even though the house had already been transferred to the children.
There are lots of parents who want to work out their own private child support arrangements. But you need to keep three things in mind:
- Child support is the right of the child and not the right of the parent. So no parent has the ‘right” to commit the court to an arrangement outside of the Child Support Guidelines.
- The court is legally obligated to follow the provisions of the CSG regardless of the opinions of the parents, subject to the exceptions set out in the Guidelines themselves.
- If the recipient goes onto public assistance the child support is assigned to the agency providing that assistance and becomes theirs to collect and enforce. They’ll seek to enforce the proper amount, including arrears, despite any agreements between the payor and the publicly assisted recipient.
How does the court calculate a person’s income?
The court will start by looking at the Total Income from Line 150 of the parent’s tax return. If a person’s income fluctuates, you can look at the past three years to see if that helps.
But the court isn’t bound by what is shown on a person’s tax returns, particularly when a parent is in a position to influence their income figure. Can they ask their father or siblings, in a family run business, to keep their salary low but give them big “gifts”? Can they lower the income available to them from their business by putting people on “salary” who aren’t really working there? Do they get a large amount of their income through dividends or bonuses? Do they have a cash business and only declare a small amount of what they normally receive? All of these may be taken into consideration and a judge has pretty wide discretion to fix an income even if it varies from the income tax