The Basics of Child Support in Ontario
January 22, 2020
Understanding the legal ramifications of the end of a long term relationship can be daunting. Matters like division of assets, equalization of property, and spousal support can involve complex formulas and considerations. Thankfully, calculating child support is comparatively simple. In this primer we will examine what child support is for and how it is calculated.
What is Child Support?
Child support refers to money paid by one parent to another, for the benefit of one or more children of the relationship, In many cases, the custodial parent (the one with whom the children primarily live) receives child support from the non-custodial parent. The effect of access on the amount of child support will be discussed later.
What does Child Support Cover?
The money is intended to go towards necessities like food, clothing, and shelter (rent, mortgage, etc.), but can also cover medical care (that OHIP and private health insurance don’t cover), education (including extracurricular activities, textbooks, and other required materials). In some cases, one or more of the parties may be seeking special or extraordinary expenses as well.
If you are paying child support and have a legitimate concern about whether the other party is using the money “properly”, you can ask for an accounting assessment, either in court or in settlement negotiations. You should be able to demonstrate good reason for your suspicion before making this request.
How Long Does Child Support Last?
In most cases, child support will continue until the child in question turns the age of majority (18 years old), but there are some exceptions. Children support may continue for a child 18 years of age or older if:
- they suffer from a disability or illness that compromises their ability to be self-sufficient, or
- they are going to school full time for their first post-secondary degree or diploma.
In the latter case, child support will cease when the child reaches the age of 22 or obtains that post-secondary degree or diploma. If the child is receiving financial aid towards these studies or works at the same time, the court will take that into consideration when calculating the amount of child support to be paid. In rare cases, the court may order child support to continue beyond that, if there are special circumstances.
Do Step Parents Have to Pay Child Support?
This will depend on whether the step parent is considered in loco parentis, or “standing in the place of a parent” to children who are not theirs biologically. The court will look at factors such as how involved the step parent was in the children’s lives/parenting, daily routines, child care responsibilities, as well as the general relationship.
How is Child Support Calculated in Ontario?
As of 1997, Ontario uses the Federal Child Support Guidelines to determine how much child support is to be paid. This means that you use the same formula, whether your case is heard in Provincial Court or Superior Court,, under the Family Law Act or the Divorce Act . Child support is based on gross annual income, not net. Spousal support is calculated very differently, and the comparative financial circumstances of both parties have much more importance to calculation of payments.
The Government of Canada has an excellent Child Support Calculator to help you determine how much child support may be paid in your case. For example, if you input a gross annual income of $70,000 for two children in Ontario, you end up with a figure of $1,067.00 a month. Alternatively, you may want to look at the Child Support Tables for one to four children or for five or more children
The 40% Shared Custody “Rule”
If the parties have shared custody whereby they have 60/40 child access or custody (i.e. when the non-custodial parent has 40%+ access or custody), the Federal Child Support Guidelines allow for a court to deviate from the regular child support guidelines. The court has discretion to consider the circumstances, such as increased costs, conditions, means, and other factors, and can choose whether to strictly adhere to the guideline amount. It may not be exclusively a mathematical calculation.
Child Access Vs. Child Support
Child support and child access are entirely different matters. Some parties have purported to withhold access to the children when child support payments are not met. This is like holding the child/children for ransom, and a court will not condone this behaviour. If there is an access issue, it should be addressed by the court, Similarly, child support issues should be brought before the court.
In some cases, parties have demanded more access or taken advantage of child access to try to affect the amount of child support. The only ones hurt by these sorts of power plays are the children.
If one of the parties doesn’t provide truthful and fair information of their actual income, the court has the power to impute income, or attribute a different income than what is claimed by the child support payor. The court may step in where the:
- is unemployed or underemployed on purpose (usually to avoid paying higher child support payments)
- exempt from paying income tax
- lives in a jurisdiction outside of Canada with a lower income tax rate;
- has hidden or diverted income (again, usually to avoid paying higher child support payments);
- fails to provide income information to the court.
Enforcement of Child Support
If the child support payor refuses to pay, or underpays, the court should be made aware so that it can refer the matter to the Family Responsibility Office. There must be a court order in effect for this to happen. This means that if you have a separation agreement, you must file it with the court before asking the court to help enforce the child support provisions. If you only have a verbal agreement, you need to start a court action for the court to have any power to enforce.
The Family Responsibility Office has authority under the Family Responsibility and Support Arrears Enforcement Act, 1996 to garnish wages and seize bank accounts of people in arrears with child support. The Family Responsibility Office can also exercise power to suspend passports, driver’s and other licences, and seize tax returns and rebates. It can even garnish Employment Insurance, CPP and other payments if need be.
Note that the Family Responsibility Office exists only to enforce child support orders. In other words, it doesn’t matter why you’re not making the payments. If it’s because you don’t believe the amount is correct, it is your responsibility to bring that matter before court and to try to get it changed.
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