Q: How is child support calculated?A:
The Child Support Guidelines calculate the base amount of child support by taking the payor parent’s annual income, and the number of children for whom support is being paid, and using those two factors to determine the percentage of the payor’s income that will be ordered as child support.
That base amount is referred to as the “Table amount,” after the tables in the Child Support Guidelines that list the applicable support amounts for various income levels and numbers of children.
On top of the Table amount may be added special or extraordinary expenses, often called “section 7 expenses” because they are set out in section 7 of the Child Support Guidelines. These expenses include things like daycare, private tutoring, or health care and dental expenses. These section 7 expenses are divided between the parents, with each parent paying in proportion to his or her income.
For more detailed information on how child support is calculated, including specific instances in which courts can depart from the above method of calculation, see the article Calculating Child Support.
Q: Do I have to pay for my kids’ university?A:
In general, it is accepted that a child continues to be a child of the marriage or of the common-law relationship during their first post-secondary degree. You therefore will likely have to pay for part of your children’s university education if you are able to.
In determining the amount of support for children over the age of majority, the court does have discretion to deviate from the Table amount, and can instead award “the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child” (Guidelines, s. 3(2)). This means that in determining the appropriate level of child support, the court can consider both parents’ incomes, as well as the child’s own ability to support herself, for example by working part time during the school year, or during the summers.
Q: How can I change my child support?A:
Either parent can apply to vary (change) a child support order made under the Family Law Act provided 6 months have elapsed since the order was made or the court last dealt with an application to vary. For child support orders made under the Divorce Act, either parent can apply to vary the order at any time.
However, in order to succeed in their application to vary an order under either Act, the parent applying must show that there has been a change in circumstances that would result in a different support order. If the circumstances of the support payor have changed—for example an increase or decrease in income—or child custody arrangements have changed, this will affect child support payments.
For more information, see the article Changing Child Support.
Q: Do I have to go to court?A:
Often parents can agree on custody and support issues, either between themselves or through mediation or arbitration, and prefer not to go to court. However, for matters of child support in particular, a court order can be very important for both parties. You and your spouse can negotiate matters between yourselves, or with the help of lawyers or a mediator, and then apply for a court order to reflect the content of your agreement.
Child support orders are automatically managed and enforced by the Family Responsibility Office (FRO), which can take a variety of actions to enforce support orders if support is not being paid, such as garnishing the payor’s income, pension, or employment insurance, suspending his or her driver’s license, or registering a lien on any personal property. See the article Enforcing Child Support for more information.
Having payment made through FRO also offers both parties the security of knowing there is an accurate record of support payments.
A court order also provides both parties with a record and something to rely on.
An alternative to court that still offers some security to both parties is the signing of a separation agreement. That agreement can then be registered with FRO, which will enforce support obligations as if they were the subject of a court order.
See the article The Importance of a Court Order for more information.
Q: Is child support taxable?A:
No, child support payments are not taxed. The support recipient does not include the child support as taxable income on his or her tax returns. Child support payments are also not deductible for the paying parent. Child support comes out of the payor’s after-tax income.
Q: When do my child support requirements end?A:
The answer to this question depends on whether the application for child support was made under the Family Law Act (for couples who were never married, or who are separating but not pursuing a divorce) or as part of a divorce proceeding under the Divorce Act (for couples who are seeking a divorce), because these two acts have different definitions of who is a “child” for support purposes.
Under both Acts, your support obligations will end if your child “withdraws” as a child of the marriage—in other words, if he or she moves out of the family home and becomes self-sufficient. Your support obligations will likely also end once your child is over the age of majority, unless he or she is in school full-time, in which case you may still be obligated to pay support. That obligation will likely cease after your child has completed a post-secondary degree.
Under the Divorce Act, however, if your child is over the age of majority but unable to withdraw as a child of the marriage because of illness or disability, you will continue to have an obligation to pay child support. Under the Family Law Act, in contrast, you would no longer be obligated to support that child once he or she is no longer a minor.
Under the Family Law Act, your support obligation also ends if your child marries, even if your child is still a minor at that time. That is not the case under the Divorce Act.
Q: What legal remedies are available to me if my spouse is not paying child support?A:
If your spouse is not paying child support and that child support award is part of a court order, or a separation agreement filed with the courts, then your support order will be registered with the Family Responsibility Office (FRO). That office is in place to enforce support orders. In fact, it is the responsibility of FRO to collect and enforce support.
If your child support agreement is not filed with the courts, before you can have it enforced by FRO you must file it with the courts. In order to do so, you would file a Form 26B along with a copy of your domestic agreement. See the Child Support Forms section for more information.
See the article Enforcing Child Support for more information on how to contact FRO, their various enforcement methods, and what will happen if your spouse continues to miss payments.
Q: If we lived common law, will I have to pay child support?A: Yes. In Ontario, child support obligations fall upon all parents, including common-law parents. Canada recognizes that the choice to marry is a personal choice. However, being a parent to a child results in a positive obligation to support that child, whether you are married to the child’s other parent or not. Parents for the purposes of child support include married, common law, estranged, biological, and adoptive parents.
Q: If we lived common law and the children were not my biological children, will I have to pay child support?A:
You may have to pay support for children that are not yours biologically. Under the Divorce Act (which applies to married spouses who are pursuing a divorce) and the Family Law Act (which applies to common-law parents and to married parents who are separating, but not seeking divorce), a parent can be obligated to pay child support for a child that they have demonstrated an intention to treat as their own, or for whom they are “standing in the place of a parent.”
Whether or not this is the case in your situation will have to be determined on the individual facts of your case. Courts look to see whether you engaged in typical parental activities with the child, participated in daily routines, took on childcare responsibilities, contributed financially to the child’s care, and generally held yourself out to others as a parent to the child.
Q: How do I get child support?A:
There are numerous ways to get child support:
- the most obvious is to apply to court under either the Divorce Act or the Family Law Act and have the judges determine entitlement and amount by having regard to the Acts as well as to the Child Support Guidelines.
you and your former spouse/partner are on good terms and able to agree on child support without the help of a judge or lawyer then the
two of you can decide on an appropriate amount yourselves providing it is in accordance with the
Child Support Guidelines.
- You may also choose to incorporate the informal arrangement into a separation agreement.
- You may seek the services of lawyers to proofread and witness the signing of your agreement. This is recommended. If you choose to include it in an agreement have the agreement filed with the court so that the FRO may enforce it.
- If you find yourself in a very high conflict situation where you and your former spouse/partner cannot agree then you can also choose to mediate or arbitrate so that a determination regarding support can be made in a quick and cost-effective manner.
Q: If I have to go to court to decide child support, how can I best prepare?A:
You can best prepare by firstly, hiring a lawyer. It might also be beneficial to work out an arrangement with your former spouse/partner beforehand to present to the court. This can have the effect of reducing the time that you will need to spend in court as well as the cost.
If that proves to be impossible, and you are the parent against whom an application for support is sought, then you should obtain all necessary and important income information and other relevant financial information listed under ss. 21-25 of the Child Support Guidelines so that the best possible and most accurate support payment can be awarded to your children.
It is of utmost importance that all financial and income information be presented to the court when making a determination about support because if it is later discovered that it was not disclosed then you may be required to pay support retroactively so that the support payment reflects your full and complete financial situation.
If on the other hand you are the parent who is eligible to receive child support then generally you may not have to disclose any financial information as it is not relevant for a determination unless:
- the child is over the age of majority
- the paying parent is a high-income earner (i.e. he or she makes over $150,000.00)
- there are any special or extraordinary expenses to consider
- there is a split or shared custody arrangement, or
- there is a claim of undue hardship.
Q: If we have shared custody, does anyone have to pay child support?A:
Yes, the parent who does not have primary physical residence of the child will have to pay, however, the amount of support that will be paid may differ from that found in the tables.
If the time is shared, i.e., if the child spends at least 40% of his or her time with an access parent then the amount of child support that the access parent needs to pay may be lowered. Since the child is spending almost equal amounts of time with both parents then the expenses that they may have, that are associated with taking care of the child, will be more or less the same and as a result they should not have to pay an excessive amount of support which could then result in a windfall gain to one parent and undue hardship to the other.
The relevant section to consider is s. 9 of the Child Support Guidelines (both federal and provincial) which has been interpreted by the Supreme Court of Canada. This case established a2-step approach to determining child support in situations of shared custody.
The first step is to determine whether the 40% threshold has been met, and if it has, then the amount of support is decided by considering subsections (a), (b) and (c):
- Subsection (a) states that the starting point in figuring out the appropriate amount is a simple “set-off” whereby the amount payable is the difference between the Table amounts for each parent (as though each was seeking child support from the other). This amount may be varied or added to based on the evidence presented under subsections (b) and (c).
- Subsection (b) refers to the increased costs that are associated with shared custody. These costs are determined by examining the budgets and actual expenditures of each parent.
- Subsection (c) gives the court the power to consider the condition, means, needs and other circumstances of each parent and child and vary the amount payable where necessary.
It seems as though the courts are most concerned with the standard of living of the child involved and will probably try to award an amount that will allow the parents to maintain that standard of living.
You should be aware of the fact that establishing the 40% threshold requirement may be difficult as courts have been inconsistent with the factors used in order to make this determination. Some judges include weekends, holidays and overnight stays (i.e. the hours during which the child is sleeping) in the calculation of the 40% whereas others do not. So far, there is no bright-line rule dictating what is required in order to meet the threshold.
Q: Can a parent refuse access if child support is not paid?A:
No, custodial parents (or parents with primary physical residency of the child) have no right to deny or limit the rights of an access parent.
When a court orders child support that order is automatically filed with Family Responsibility Office (FRO) who then contacts the parties and begins collecting support payments from the paying parent to then administer to the recipient. If there is no order and instead only a separation agreement then the parties can file the agreement with the court who then files it with the FRO.
Therefore, if the paying parent begins defaulting on his or her payments the FRO has the authority under the Family Responsibility and Support Arrears Enforcement Act, 1996 to:
- garnish wages
- seize bank accounts
- suspend passports and other federal licenses
- seize income tax returns and GST/HST rebates
- garnish 50% of Employment Insurance, CPP, OAS, and other federal periodic payments, and
- suspend a driver’s license,
If the FRO is unsuccessful in enforcing the support payments and the paying parent is still defaulting then the last alternative available is to find him or her in contempt of the orders pursuant to s. 49(1) of the Family Law Act, which may result in either a fine or a term of imprisonment.
Q: If I have custody, will I automatically receive child support payments?A:
Maybe, it all depends on whether or not you have primary physical residence of the child, i.e., if the child lives with you primarily which forces you to bear the burden of all the expenses associated with raising the child.
If instead you only have custody over the child, i.e., the right to make all important decisions regarding that child’s well-being and upbringing, and he or she resides primarily with the other parent then you may not be entitled to support automatically rather you may be the parent making the payments.
Also, if you do have custody and primary physical residence of the child then you should not assume that child support will be paid to you automatically. Instead, you need to bring an application for support to the courts under either the Divorce Act or the Family Law Act.
If you do not want to go to court and instead are able to negotiate the terms amicably with the other parent of the child then you may also choose to mediate and include the support arrangements in an agreement.
Q: Do I still have to pay child support if my kids and my ex move in with a new partner?A:
Yes, but the amount may be reduced/changed.
Parents have a financial obligation to support their children until they are eighteen, or if they are over the age of eighteen then parents may be required to support them for reasons of illness/disability, enrolment in a full-time education program, etc.
Children also have a right to benefit from their parent’s financial means. This right cannot be discarded simply because a former spouse/partner has moved in with a new partner as your obligation is towards your children is unaffected by your former spouse/partner and any new developments in his or her life.
This reasoning was affirmed by a 1998 decision from the Ontario Superior Court. Here, the court ordered that a father had to pay support to his children despite the fact that the mother had moved in with a new partner who had a good and steady income and was willing to support the children.
The obligation towards the children may change if your former spouse/partner’s new partner decides to adopt the children and wants to support them financially.
Or, it may change if you and your former spouse/partner have a shared custody arrangement as this may impact on your condition, means, needs and other circumstances as set out in s. 9(c) of the guidelines as well as the test enunciated by the Supreme Court of Canada.
The presence of a new partner, and his or her financial contributions, may increase the ability of your former spouse/partner to bear the burden of the costs associated with raising your children and as a result you may be able to pay a reduced amount of child support.
Q: My children are almost adults. When can I stop making child support payments?A:
Usually you are required to make payments for child support only until the child reaches the age of majority, i.e. 18 years of age.
Depending on the Act under which you bring your claim, if you decide to bring the matter to court, this period may be extended because the child (who is now over the age of majority) is either enrolled in an education program full-time, has an illness or disability, or due to some “other cause” requires continuous support (i.e. depressed job market is making it impossible for an adult child to find a job).
If instead you and your former spouse/partner drafted an agreement specifying the amount of support and the time period for which it will be paid then payments cease once the term has expired.
Q: My income is seriously decreased. I can’t make my payments. What can I do?A:
You may bring an application to vary an existing order, if there is an order in place, so that the payments are adjusted to match the table amounts that best reflect your current economic situation.
If the table amount however is still too high and you are still unable to make your payments then under s. 10 of the CSGyou may make a claim for undue hardship.
The result of finding that undue hardship exists is that the judges can deviate from the table amount and order an amount that is lower. However, you should be aware of the fact thatthe standard for undue hardship is very high and the only time it will be found is when the standards of living test in s. 10(4) (and found in Schedule II) is satisfied showing that the household of the parent claiming hardship has a lower standard of living than the other household.
Or, if there is an agreement in place dictating the amount that is to be paid for support then you and your former spouse may agree to change the arrangement accordingly.
Ensure that the new agreement is filed with the FRO so that the payments may be enforced if necessary.
Q: My former spouse/partner’s income has increased dramatically. Can I go to court and get an order to increase his child support payments?A:
Yes. You may bring an application to vary an existing order when this occurs. Normally, support payments are increased to match the increase in the paying parent’s income because as was previously mentioned children are entitled to be supported by both of their parents and they also have a legal right to benefit from the financial means of their parents.
Since parents have an obligation to support their children based on their total income then anytime that income increases they can adjust the support payments according to the applicable table amounts found in the Guidelines.
If instead you and your former spouse/partner have decided to arrange support in an agreement then you may change the agreement. Ensure that the change is consented to, signed and witnessed. Once you have changed the agreement ensure that you file it with the FRO for enforcement purposes.
Q: I have a child support order from another province. Is it enforceable in Ontario, or do I have to go back to court?A:
You do not need to go back to court. According to s. 13(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 a support order made by a court in a province or territory outside of Ontario (AKA a “reciprocating jurisdiction”) that is registered under s. 19(1) of the Interjurisdictional Support Orders Act, 2002 may be filed with the FRO and enforced as if it were ordered by a court in Ontario.
The parties may choose to waive this right by providing notice with the order stating specifically that it shall not be enforced in any other jurisdiction. Moreover, the Interjurisdictional Support Orders Act, 2002 does not apply to Quebec.
Q: The Family Responsibility Office is threatening to take my driver’s licence because I am behind in support payments. But if they take my licence then I can’t work to make money. Can they do this?A:
Yes they can. S.6 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 gives the FRO the authority to use any type of enforcement mechanism necessary to enforce support payments. Also, ss. 33-39 regulate the suspension of driver’s license and s. 34 requires that the FRO give notice before suspending a driver’s license.
After notice is given the paying parent has 30 days to either:
- pay the arrears,
- make an arrangement for payment, or
- obtain an order to refrain under s. 35(1).
Therefore, if you satisfy the terms of s. 35(1), you may be able to stop the FRO from suspending your license.