One of the major issues at separation is how much child or spousal support will be paid from one spouse to the other. This can often become very contentious between separating spouses as it can greatly impact both of their finances.
The Family Law Act (“FLA”) recognizes that each parent has an obligation to provide support for the children in accordance with the Child Support Guidelines, and that spousal support should recognize each spouse’s contribution to the relationship (see ss. 33(7) and (8) of the FLA). This is to ensure that there are fair provisions to assist a spouse to contribute to their own support after the relationship ends.
Both types of support can be paid to married AND Common Law partners. See our previous blog post regarding the differences between Married and Common law partners to learn more here.
This post will focus on child support. See our next family law post for information on how spousal support is determined.
Courts generally consider child support non-negotiable. This is a right of the child and can be enforced strictly to ensure that children are properly taken care of. This child support is meant to cover things like food, clothes and other essentials for the child’s well-being. Additionally, parents can be required to split extraordinary expenses or s. 7 expenses. These can be payments for things like after school programs or health related expenses.
Child support is determined by:
- The number of children;
- The province or territory where the paying parent lives; and,
- The paying parent’s before tax annual income.
These factors help us determine the “table” amount of child support to be paid. A very rudimentary and approximate formula used to determine this support amount is to pay 10.8% of your monthly Gross income for one child (“the initial amount”). If you have multiple children, you multiply the initial amount by the following approximate amounts:
- 1.6 for 2 children
- 2.1 for 3 children
- 2.5 for 4 children
Of course this only gives you a ballpark figure and is not completely accurate as the factors in the formula are slightly adjusted as income changes.
For a more accurate answer, follow this link and plug in your details to determine what child support could be paid from one spouse to the other.
As of the date of this post, and according to the calculator provided in the link above, a parent living in Ontario with an annual income of $60,000 and 2 children would pay $915.00 per month in child support.
This takes into account the fact that both children reside in the same home. If a parent has multiple children with multiple partners who all live in different households, you restart the calculation for each household. As an example, using the above facts again, a father paying support to two different mothers would pay $556 per month to each mother, rather than $915 split between them both.
Considering that child support is the right of the child and necessary to ensure they are supported throughout their development, it is understandable why courts are so strict in enforcing the table amounts of support. However, child support can change depending on certain factors. Generally, child support is paid to the parent who has the child the most. Yet should this residency arrangement be that one parent has the child 40% of the time and the other parent has the child 60% of the time, then child support payments can be reduced.
Another reason why child support could be reduced is as a result of the paying parent suffering an undue hardship.
S. 10 of the Federal Child Support Guidelines provides a means for parents to apply to change the set amount of child support if the parent or a child in respect of whom the request is made would suffer undue hardship.
Circumstances that could cause a spouse or child to suffer undue hardship can include:
- responsibility for an unusually high level of debt incurred to support spouses and children prior to separation or to earn a living
- unusually high expenses in relation to exercising access to a child
- a legal duty under a judgment, order or written separation agreement to support any person
- a legal duty to support a child, other than a child of the marriage
- a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability
Is there a deadline for Apply for Child Support?
There is no limitation period for applying for child support that has been ordered by a court or that was to be paid as a result of a written agreement. The problem arises when parents attempt to apply for child support without any court order or agreement in place. Under s. 31(1) of the FLA, every parent has an obligation to pay support for a child of the relationship if the child is:
- A minor;
- Enrolled in a full time program of education; or
- Unable by reason of illness, disability or other cause to withdraw from charge of their parent.
So generally, if the child is over 18 and self-sufficient, it is very unlikely that a court would make an order for child support.
The parent may be successful in a claim for retroactive child support. The general rule is that retroactive child support can be ordered back to three years before the child support recipient can prove that they asked for child support, or that child support should be changed. Keep watch on our blogs for a future post related to the topic of retroactive child support for more details.
Speaking with a legal representative about the support issues involved in your specific situation is a great way to ensure you can plan for your future. Contact Rabideau Law to see how we can help you.