Child Support

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How do I get child support?

You can apply to the court under either the Divorce Act or the Family Law Act in which case a judge will determine whether you are entitled. If so, a judge will use the Acts and the Child Support Guidelines to determine the amount.

Alternatively, you and your spouse can choose to mediate or arbitrate so that a determination can be made in a quick and cost-effective manner.

On the other hand, if you and your spouse are on good terms and able to agree on child support then the two of you can decide on an appropriate amount provided it is in accordance with the Child Support Guidelines.

However, it is important to incorporate the arrangement into a separation agreement. You may seek the services of lawyers to proofread and witness the signing of the agreement. You can then file the separation agreement with the court and have the Family Responsibility Office enforce it.

How is child support calculated?

In general, child support is calculated by using the gross income of the paying spouse and the number of children. Those two figures are matched in the Child Support Guideline table to determine the monthly amount payable.

However, there are circumstances where the court will not strictly adhere to the table amounts listed in the Child Support Guidelines, these are:

  • undue hardship
  • when the child is over the age of majority or independent
  • where the payor has an income over $150,000.00
  • whether the parent against whom support is sought is a step-parent
  • special or extraordinary expenses
  • split or shared custody arrangements; and
  • arrangements made by the parents for the support of the child that are reasonable and adequate.

Can I refuse access if child support is not paid?

No, custodial parents have no right to limit or deny the rights of an access parent on the ground that child support is not paid. When a court makes an order for child support, that order is filed with the Family Responsibility Office who then begins collecting support payments and administers the payments to the recipient.

Is child support taxable?

Child support is taxable in the hands of the paying parent, but not in the hands of the recipient parent.

Do I still need to pay child support if my ex-spouse and child live with a new partner?

As a parent you have a financial obligation to support your children until they are 18 or, if they are over the age of 18, if they are suffering from an illness or disability or if they are enrolled in a full-time post secondary education program.

It is your child or children who have the right to benefit from your financial means. That right cannot be overcome by reason of your spouse’s decision to begin relations with other persons or by any new developments in your ex-spouse’s life.

However, your financial obligations towards your children may change if your ex-spouse’s new partner decides to adopt the children and wants to support them financially. It may also change if you and your ex-spouse have a shared custody arrangement as this may impact your condition, means, needs and other circumstances as stated by the Supreme Court of Canada.

In short, the presence of a new partner in your ex-spouse’s life may increase the ability of your ex-spouse to financially care for your child or children and as a result you may be able to pay a reduced amount of child support.

I can’t afford child support anymore? What do I do?

As a parent you are legally obligated to financially support your children. However, if you truly cannot afford to meet your current child support obligations then you may petition the court for a reduction in child support payments on the basis of undue hardship.

Undue hardship refers to a situation that occurs when support payments cause serious financial difficulties to the paying parent. These circumstances include:

  • unusually high debts acquired before separation
  • unusually high costs associated with access to your child
  • a legal obligation to support another person
  • a legal obligation to support a child outside of the marriage

You will need to show that you have a lower standard of living than the standard of living in the household of the parent receiving the child support payments. If you are successful in proving undue hardship then your child support obligations can be changed to reflect your new circumstances.

You can also obtain a child support reduction outside of court, but only if you and your spouse are on good terms and or can agree that you are suffering undue hardship as a result of the child support payments.

This can be done in two ways:

  • if child support is being paid following a court order, then you and your spouse may draw up Minutes of Settlement which is a document. A Minutes of Settlement document outlines the clause of the original court order and states how much and why the child support payment is to be varied.
  • If child support is being paid pursuant to a separation agreement then you can amend the separation agreement. The amendment to the separation agreement should then be filed with the court.

My spouse is making more money than I am, do I still need to pay child support?

You will need to show that you have a lower standard of living than the standard of living in the household of the parent receiving the child support payments. You will also need to show that you are suffering from undue hardship as a result of making your support payments.  If you are successful in proving undue hardship then your child support obligations can be changed to reflect your new circumstances.

What will happen if I refuse to pay child support?

If the paying parent defaults on his or her payments the Family Responsibility Office has the authority to do the following:

  • garnish wages
  • suspend passports and driver’s licenses
  • seize income tax returns and GST/HST rebates
  • garnish employment insurance, CPP, OAS, and other federal periodic payments
  • reporting to credit bureaus
  • file a contempt order which can result in either a fine or imprisonment.

Is child support automatic?

No, child support is not automatic. You or your spouse need to apply for a court order or execute a separation agreement.