British Columbia’s new Family Law Act came into force on March 18th, 2013. Most notably, it confers family property rights upon common law couples. Previously, only married spouses were entitled to a division of property when their relationship ended. Now, any couple who has been living together for at least 2 years in a marriage-like…Read More
There’s a new film coming out on January 10th narrated by Dr. Drew Pinsky (of ‘Celebrity Rehab’ fame) critiquing the the dysfunctional divorce industry in the U.S. The movie, ‘Divorce Corp.’, explores the divorce industry- from what it costs to retain a lawyer, to the length of time it takes to get a divorce, and…Read More
Every parent in Ontario has an obligation to financially support their children. The amount of child support payable is determined in accordance with the federal Child Support Guidelines. In scenarios where primary residential custody resides primarily with one parent (the custodial parent), the amount of child support payable is determined by the income of the access parent. The Child Support Guidelines are, essentially, provincial tables listing monthly child support amounts which correspond to the number of children, and income, of the payor parent. The basic level of child support (i.e. the table amount) is not negotiable- it’s an amount the government has determined is fair given the payor’s income and number of children he or she is supporting.
However, there is often child support payable in addition to the table amount of support. This support is for what are called ‘extraordinary expenses’, also known as s. 7 expenses. These expenses include the cost of daycare, sports or other extracurricular activities, private school tuition, orthodontic costs or other medical expenses, and postsecondary education. Allocating responsibility for these costs as between two parents is not as clear cut as determining the table amount of support payable under the Guidelines. Section 7 expenses must consider both the needs of the child and the parties respective abilities to pay.
While one parent might feel that it’s important for their child to be enrolled in an expensive competitive sport, for example, a court might conclude that, taken as a whole, there isn’t room in the family budget to support such an endeavour. In other words, one parent doesn’t get to unilaterally incur an expense, and then demand that the other parent contribute towards the cost. There can be significant disagreement between parents about which extraordinary expenses are justified, particularly when expenses like postsecondary education have become so high.
The fact that someone is obligated to support their children financially doesn’t mean the payment of child support is automatic. Like any other right, it has to be pursued and enforced. If you don’t have a written agreement outlining child support obligations, or the payor isn’t paying support, you need to apply to the courts for a court order. Although it’s preferable to arrive at an agreement without having to resort to litigation, there are many circumstances, particularly in acrimonious situations, where a negotiated agreement is not possible.
Having a court order or agreement in place is one thing, enforcing it is another. Once you have a court order or agreement, if there is any default on the part of the payor, then the order or agreement can be enforced through the Family Responsibility Office (FRO). FRO has a variety of mechanisms at their disposal, including the ability to suspend a payor’s driver’s license, to make sure that payors are honouring support orders. That said, it’s not uncommon for support orders to go unpaid, sometimes for years.
Given that most people’s incomes are not static from year to year, the amount payable for child support will also vary. Ideally, parents will exchange financial information annually so that the table amount of support, and any s. 7 expenses, can be adjusted for and kept up to date. However, if a payor refuses to provide a recipient with ongoing financial information (usually in the form of tax returns, notices of assessment, and employment pay stubs), then that parent may have to go to court in order to compel the payor to disclose this information. Without current financial details, there really is no way of knowing whether a payor is making adequate child support payments or not.
Similarly, a payor can also apply to court to have their child support obligations reduced if their income decreases.
As a court may be reluctant to award retroactive child support if you have delayed in bringing your Application or Motion to Change forward, you’re best to initiate proceedings as soon as possible.
It can be challenging to ascertain the amount of child support payable when a payor is intentionally unemployed, or underemployed. Since parents are expected to financially support their children, they are not entitled to become full time students in lieu of paid work. Nor are they entitled to accept work at a lower wage than they are capable of earning. If a payor chooses underemployment or unemployment, a judge has the option of imputing income to them. So, if it’s determined that a payor is capable of earning a salary of $50,000.00 a year, for example, then they will be required to pay child support based on this imputed income, notwithstanding that they aren’t actually earning that salary.
Child support ends when a child is 18 and is no longer a child of the marriage. An adult child will continue to be a child of the marriage if they are enrolled in postsecondary education, at least for the completion of the first degree or diploma.
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I'm a lawyer representing clients in Kanata, Nepean, and the west-end of Ottawa.
Kerry Fox, LL.B.
Barrister & Solicitor
90 Centrepointe Dr,
Nepean, ON K2G 6B1
Tel: (613) 224-4400
Fax: (613) 226-8767
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