Child Support

by Anteneh Fekade Kassa on Jun. 15, 2019

Divorce & Family Law Child Support 

Summary: An Overview of Child Support

CHILD SUPPORT

How do I get child support?

You may receive child support if you are the primary parent of your child, and any one of the following:

    1. your child is not16 or older and independent
    2. 18 years of age or older and is in full time education, or
    3. 18 years of age or older and has a disability which prevents him or her from being independent.

When a court makes an order for child support, that order is filed with the Family Responsibility Office (FRO) who then begins collecting support payments and administers the payments to the recipient.  You and your spouse may agree to opt out of having FRO collect and administer the child support payments.

How much is child support?

Determining the amount of child support your child(ren) is entitled to is relatively straight forward.  In general, child support is calculated by using the gross income of the paying spouse and the number of children. Those two figures are matched in the Child Support Guideline table to determine the monthly amount payable.

However, there are circumstances where the court will not strictly adhere to the table amounts listed in the Child Support Guidelines, these are:

  1. undue hardship,
  2. when the child is over the age of majority or is at least 16 years of age and independent,
  3. where the payor has an income over $150,000.00,
  4. whether the parent against whom support is sought is a step-parent,
  5. special or extraordinary expenses,
  6. split or shared custody arrangements, and
  7. arrangements made by the parents for the support of the child that are reasonable and adequate.

 

Can I refuse access if child support is not paid?

No, you have no right to limit or deny your child’s parent from visiting with the child on the basis that child support is not paid.

Is child support taxable?

No, you do not need to report child support in your taxes.  Also, your spouse cannot claim a deduction for child support in his/her taxes.

Do I still need to pay child support if my ex-spouse and child live with a new partner?

As a parent you have a financial obligation to support your children until they are no longer entitled to child support.

The right to child support belongs to your child, not your spouse.  Therefore, your ex-spouse’s decision to live with a new partner does not necessarily mean you can stop paying or reduce your child support payments.

However, your financial obligations towards your children may change if your ex-spouse’s new partner decides to adopt the children or stands in loco parentis.  The term in loco parentis refers to a non-parent who engages in parental activities with your child.  Some examples of this are when the non-parent,

  1. provides discipline,
  2. provides care and guidance,
  3. attends parent-teacher meetings,
  4. attends extracurricular activities,

You can think of the term in loco parentis as standing the shoes of a parent.

Only a court can determine if your spouse’s new partner stands in loco parentis.  If he or she is found to be so, then it may reduce or eliminate your child support obligation. 

I can’t afford child support anymore? What do I do?

As a parent you are legally obligated to financially support your children.  The amount of child support depends on your income and the number of children you have. 

If you cannot afford to meet your child support obligation, then you may reach an agreement with your former spouse to reduce child support.  This can be done in two ways:

  1. if child support is being paid following a court order, then you and your spouse may draw up Minutes of Settlement which is a document. A Minutes of Settlement document outlines the clause of the original court order and states how much and why the child support payment is to be varied.
  2. If child support is being paid pursuant to a separation agreement then you can amend the separation agreement. The amendment to the separation agreement should then be filed with the court.

If an agreement cannot be reached, then you may petition the court to reduce or eliminate child support based on undue hardship.  Undue hardship refers to a situation that occurs when support payments cause serious financial difficulties to the paying parent. These circumstances include:

  1. unusually high debts acquired before separation
  2. unusually high costs associated with access
  3. a legal obligation to support another person
  4. a legal obligation to support a child outside of the marriage

 

You can also obtain a child support reduction outside of court, but only if you and your spouse are on good terms and or can agree that you are suffering undue hardship as a result of the child support payments.

My ex-spouse is making more money than I, do I still need to pay child support?

Yes.  Child support belongs to your child and is not dependant on your ex-spouse’s income

What will happen if I refuse to pay child support?

If you fail to pay child support then, the Family Responsibility Office has the authority to do the following:

  1. garnish wages,
  2. suspend passports and driver’s licenses,
  3. seize income tax returns and GST/HST rebates,
  4. garnish employment insurance, CPP, OAS, and other federal periodic payments,
  5. reporting to credit bureaus, or
  6. file a contempt order which can result in either a fine or imprisonment.

 

What should I do if I am behind on child support?

If your child support obligation is in arrears then you may ask the court for a refraining order.  However, this request must be made within 3 months of receiving notice from FRO that it will be taking enforcement measures.

Is child support automatic?

No, child support is not automatic. You or your spouse need to apply for a court order or agree to pay child support.

 

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