American R&B and pop singer-songwriter and record producer, Terius
Youngdell Nash (born June 14, 1981), better known by his stage name The-Dream,
is getting divorced. Terius and multitalented artist Christina Milian
married just last September after a two-month engagement. Just 10 months
after getting married, Christina and The Dream, disclosed that their marriage
was “unsuccessful” and officially separated. Terius filed for
a divorce on February 16, 2010, just nine days before Milian gave birth
to their daughter, Violet.
Christina agreed to sign Terius’s lengthy petition for divorce which
stated that the two did not have any children, waived both parties right to
spousal support, and entitled both parties to maintain their own assets. However, Christina
has since contested the petition, claiming that she was in an incapacitated
state when served with the divorce papers as she was mere days away from
having their baby. Further, Christina was pregnant at the time of the
alleged separation and demands that the petition for divorce acknowledge
their now 5-month old daughter. In short, now being a single parent, Christina
hopes to invalidate Terius’s petition and receive financial support
for their daughter.
While the validity of the signed petition is a matter of contract law and
thus beyond the scope of this article, our focus will be on child support
and is based on the assumption that paternity is not at issue and that
Terius is the biological father of Violet. This also fictitiously applies
the laws of Canada and Ontario to this scenario, which is not a matter
before our domestic Courts.
Violet’s Right to Child Support
In Ontario, the
Family Law Act, as well as the
Divorce Act if the parties are married, dictate that all dependent children have a
legal right to receive financial support from their parents. When parents
live together with the children their costs are assumed to be inter-related
and so, any money the parent with custody spends on the household will
also benefit the child. Upon separation, however, support becomes an issue,
the outcome of which is dependent on the living arrangements determined
to be in the child’s best interests. The child can either reside somewhat
equally with each parent, or one parent may have primary care of the children.
When the children remain in the primary care of one parent, that parent
is said to have primary residence of the child. As such, the parent with
primary residence has the main responsibility for the day-to-day care
of the child. Therefore that parent has most of the ordinary expenses
of raising the child. The other parent must help with those expenses by
paying money to the parent with custody.
In the case of shared parenting, the child resides with each parent no
less than 40% of the time. Therefore, in this residence arrangement it
is typical for Courts to “set-off” the parties’ respective
child support obligations such that the party with the higher income pays
to the party with the lower income the difference between their individually
owed child support payments.
In view of the law regarding child support in Ontario and assuming Violet
remains in the primary care of Christina, she will be entitled to receive
child support from Terius.
How much Support
The issue now becomes of quantum. The
Family Law Act and
Divorce Act both dictate that where children reside primarily with one parent, child
support is calculated using the
Federal Child Support Advisory Guidelines. The Guidelines specify that unless otherwise stated, the amount of child
support payable is:
-
the amount set out in the applicable table, having regard to the
number of children a couple has and to the
income of the payor spouse, AND - the amount, if any, determined to be a special or extraordinary expense
(ie. post-secondary education, dance lessons, soccer, tutors etc.).
Since Terius is speculated to earn in excess of $150,000 per annum from
his lucrative music career, his child support obligation is likely to
deviate from the suggested table amount. For incomes over $150,000, the
tables list an amount of child support for the first $150,000, and a percentage,
which if found appropriate by both parties, may be applied for the part
of the income over $150,000. Alternatively, for the amount of income over
$150,000, the parties can agree on a sum based on the condition, means,
needs and other circumstances of both parents and the child, such as whether
the child is over the age of majority and is earning an income.
How Long does the Obligation Exist
Also worth consideration is the duration of Terius’s child support
obligation towards Violet. In Ontario, child support must be paid as long
as a child remains dependent. A dependent child is any child under the
age of 18, unless:
- the child has married, or
- the child is 16 years of age or over and has voluntarily withdrawn from
parental control.
Child support might also continue after a child turns 18 years of age if
the child is unable to be self-supporting because he or she:
- has a disability or illness, or
- is still going to school full-time. Even if the child is not living at
home while going to school, as long as the child’s primary residence
is with the parent with custody, - the parent without custody might have to continue to pay child support.
This usually continues until the child turns 22 years of age or gets one
post-secondary degree or diploma. In some circumstances, a judge might
order support to continue even longer.
When deciding how much support should be paid for a child who is 18 years
of age or older, the judge will take into account any earnings or income
the child receives from other sources.
Making Sure He Pays
Having established Terius’s obligation to pay support, let’s shift
our attention to enforcing Violet’s entitlement to child support.
In Ontario, enforcement occurs through a provincial government office
called the Family Responsibility Office (FRO). When the court makes an
order for child support, it automatically files the order with the FRO.
The payor parent is required to make all support payments to the FRO.
Upon receiving payments, FRO delivers a cheque to the parent with custody,
or deposits the money directly into that parent’s bank account.
The FRO ensures collection of owed support payments through a number of
ways. It can:
- get the payments directly from the parent who is supposed to pay support,
- have the payments automatically deducted from the parent’s wages or
other income (other income includes things like sales commissions, Employment
Insurance, Workers’ Compensation, income tax refunds, severance pay,
and pensions), - register a charge (a lien) against the personal property or real estate
of a parent who fails to pay the support that he or she owes, - garnish (take money from) the bank account of a parent who fails to pay
support, or garnish up to 50% of a joint bank account that he or she has
with someone else, or - make an order against another person who is helping a parent hide or shelter
income or assets that should go toward support.
Where the preceding tactics prove unsuccessful, the FRO can put additional
stress on parents who do not make their support payments by:
- suspending their driver’s licenses,
- reporting them to credit bureaus so that it will be difficult for them
to get loans, or - cancelling their passports.
Once the order or agreement is filed with the FRO, then it is the FRO,
not the primary residence parent, that is responsible for any actions
taken to enforce it. A recipient parent may withdraw or re-file their
support payment with FRO depending on their circumstances.
Conclusion
Violet is certainly entitled to child support. It is Violet’s legal
right of to receive financial support from her parents. That right exists
whether or not her parents were ever married and whether or not they ever
lived together and continues until the she turns 18 years old. Even after
18 years of age, if Violet is still a dependent – owing to illness
or disability, or because the child is still in school, for instance –
then her right to financial support will continue.
Assuming Christina maintains primary responsibility for Violet’s day-to-day
care, then Terius being the non-custodial parent must pay child support.
While Terius’s extraordinary income makes it difficult to be exact
with respect to the quantum of his support, the basic table amount obligates
him to pay at least $1,254 in support per month.