Once you have worked out the important details for living and care of your children, through custody and access arrangements, you will next need to determine child support. Despite being divorced, both parents always remain legally obligated to financially support their children. The main principle of Canada’s child support law is:
“All children should continue to benefit from the financial means of both parents as if they were still together”.
In fact, in Canada a judge must be satisfied that appropriate financial arrangements have been made for children, before a divorce will be granted. Child support is the right of the child. A parent cannot contract out of a child’s support with the other parent.
All children need the support of both parents and as such, they are also legally entitled to it. If you are the non-custodial, or non-principal residence parent, and your children are under the age of majority or unable to live independently for a valid reason such as illness, disability or because they are attending school at a post secondary level etc. - then, by law, you are required to pay child support.
One of the biggest questions with regards to child support is “How much child support will I have to pay or will I receive?” Child support amounts are calculated based on four things:
- Income
- The residency arrangements of the children
- The number of children involved
- The province or territory where you live
The amounts that individuals are generally required to pay for support is based on tables set by the government. These tables were originally devised using a formula which was based on:
- A parents gross income,
- Cost of living,
- Provincial income tax
- Average national amounts that families spend to care for children.
In reality, the Child Support Guideline Table amount is mandatory, hard and fast. A parent simply pays the Table amount based on the Payer’s gross total world income and the other bullets mentioned are only relevant where a Payer goes to court to get the child support amount reduced. Except in rare instances, parents are required to follow these tables. However, in some cases you may be required to pay more than the table amounts indicate. The court may order payment for expenses, such as day care, extra-curricular activities, educational expenses or medical/health/ dental expenses which aren’t covered by health insurance plans. The after-tax cost of these special expenses is shared between both parents, in proportion to their incomes, and this is important as many special expenses (like child care) are tax deductible.
A parent’s pro rata share may be determined by adding both parent’s incomes together and then showing each income as a percentage of one hundred. For instance, if the mother makes $60,000.00 per year and the father makes $40,000.00 per year, then the father’s pro rata share of a child’s special expenses would be 40%. If a child had an expense for a prescription which was not covered by a health plan for one hundred dollars, then the father would pay $40.00 and the mother would pay $60.00.
To find copies of these tables you can visit the Department of Justice Website. Available is a booklet called The Federal Child Support Guidelines: Step–by–Step. This document contains clear instructions about child support amount, rules and calculations. It also provides a list of contacts for information about the family justice system in each individual province/territory.
Tax Implications
Child Support is not taxed as income in the hands of the Recipient, nor is it deductible by the Payer.
Creating a Child Support Agreement:
There are two ways a child support arraignment can be created.
- Mutually between parents out of court.
- A legal ruling set by a judge in court.
Writing Your Own Child Support Agreement
You do not necessarily need a lawyer to set up a child support agreement. In the event that you and your ex are amicable and can agree on this together, then there is no need to involve courts or lawyers. When a couple sets up their own child support agreement they allow some flexibility about the amounts that are to be paid. The only real rule is that both parties must agree that the amounts set are fair and binding. Such agreements are always subject to review by a Court if either of the parties later became dissatisfied with their agreement, or if either party later applies for a divorce.
In order to determine what an acceptable amount of child support is, many parents will use the child support guideline tables set by the government. This can easily be found on the Department of Justice Website, as noted above. Generally the Court will uphold amounts agreed to that are outside of these government guidelines if it is satisfied that “special” provisions have otherwise been made to benefit the child and that the application of the regular guidelines would be unfair given special provisions. A good example of special provisions would be if a couple decides to postpone the sale of their matrimonial home in order to allow the custodial parent and children to remain in the home. This decision comes at a significant cost to the non custodial parent and it can be reflected by a decreased amount of child support. If calculating child support amounts and setting up agreements is not something you are comfortable doing, or if you are not in an amicable situation with your ex, then it is always best that you get advice and involvement from professionals. This could be a lawyer, or depending on your province/territory there may be family justice services such as mediation available to you. Check with your local courthouse or yellow pages to find the different available services in your area.
Judge Ordered Child Support Agreements
If a judge is asked to decide on support amounts, it will be determined according to rules set out in child support guidelines. In Canada, there are provincial/territorial guidelines, as well as Federal Guidelines. The specific guidelines that the judge will use, is determined by the situation of the parents and the province/territory that they reside in.
- Federal Child Support Guidelines: These guidelines will be used if the parents were legally married. The only exception being when both parents reside in the provinces of Manitoba, New Brunswick or Quebec. In these three provinces, the provincial guidelines are always applied.
- Provincial/Territorial Child Support Guidelines: These guidelines would be used if the couple was never legally married, or if they were legally married but they are not seeking a divorce only a separation. Also, if both parents reside in the provinces of Manitoba, New Brunswick or Quebec provincial guidelines will always be used, as Federal guidelines are not in effect.
For most key aspects, the provincial/territorial guidelines are very similar to that of the federal guidelines. However, you may wish to contact your provincial ministry of Justice for more information.
Following a Child Support Order
The most important thing to remember about child support is the sole purpose of it is, to benefit your child. They deserve it and have a right to it! You are legally obligated to adhere to all child support agreements/orders and there are consequences for not meeting these obligations. However, there are also legal options for individuals that are enduring undue hardships which make their support payments truly unmanageable. We can educate you on exactly what happens if you don’t pay, or can’t pay, child support in Canada, as well as what options you have.
