Child and Spousal Support
Posted in Ontario Law by Andrew J. Kania, LL.B., LL.M. on May 4, 2015
In family law matters the Divorce Act1 is the statute that enables married persons to make claims for child and spousal support, while parties who are not married can make similar claims by relying on the Family Law Act2.
In Ontario, the Child Support Guidelines3 (CSG) (unmarried parties) and the Federal Child Support Guidelines4 (FCSG) (married parties) provide the starting point for any discussion with regard to child support entitlement and quantum. These statutes in essence mirror one and another, however, each deal with different jurisdictions.
Both the FCSG and the CSG contain tables which set out how much child support is owed by a payor parent. The quantum of support is determined by applying the relevant table in the CSG or FCSG in relation to the payor parent’s income and the number of children for whom child support is payable. There are of course exceptions to the rules, such as when one parent can prove undue hardship or where a parent earned over a certain income, but for the most part, the table amount is the golden standard for determining child support amounts.
When one parent has the child(ren) sixty one percent of the time or more, the other parent will likely be required to pay 100 per cent of the available child support under the FCSG or CSG. When parents share parenting time such that the child(ren) spend between forty to forty nine percent of the time with the “access parent”, it is possible that the amount of support paid by the parent with less access time will be reduced to reflect the increased costs of this increased access parenting arrangement.
In cases where the parents each have the children for equal amounts of time (50/50), a set-off amount is normally applied by looking at what each parent would pay under the applicable table, with the result that the higher earning parent then pays a reduced amount to the lesser earning parent.
Child support is a mandatory obligation and ordinarily only once a child no longer qualifies for support under the respective statute will the obligation for the payor parent cease, unless of course the parties agree otherwise.
While entitlement, quantum and duration of child support is relatively simple to determine, the opposite is often true for spousal support.
Claims for Spousal Support are often determined by applying the Spousal Support Advisory Guidelines (SSAG)5. Although not a statute or regulation, these guidelines have been applied in countless cases throughout Canada and as such hold a great deal of influence in the determination of spousal support. These guidelines examine the factual circumstances of both the relationship and its breakdown. Such factors include whether there were any children of the relationship, the length of the relationship, the roles of each party during the relationship, the incomes of both parties, and the means of both parties to be self sufficient post separation, to name a few.
Unlike child support which is mandatory, spousal support is only granted once an entitlement has been proven and the duration and amount of any such payments will be determined by applying the standards enumerated in the case law and the SSAG.
Of course, every case is different, so any person either seeking child/spousal support, or any person being asked to pay child/spousal support, should speak with a qualified lawyer in the Province where they reside.
(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law).
2 Family Law Act, RSO 1990, c F.3 at Part 3
3 Child Support Guidelines, O Reg 391/97
4 Federal Child Support Guidelines, SOR/97-175
5 Spousal Support Advisory Guidelines: A Draft Proposal (Ottawa, Dept. of Justice: 2005)