Insights & Articles
Child Support 101
While determining an appropriate payment amount and length of time for spousal support can be a bit of a nightmare for a non-family lawyer, child support can be far simpler to determine.
Determining the payment amount for child support is fairly straightforward: you refer to the appropriate Child Support Guideline table, which, collectively, are called the “Tables”, and identify the monthly payment amount that correlates with the gross annual income amount of the parent paying child support. In theory, all of this sounds simple, but what complicates the exercise of determining child support are the complexities that can, and often do, arise—complexities which you may not realize apply to your situation. For this reason, it is always a good first step to consult a family lawyer who can appropriately advise you as to the steps to take, the documentation you need, and whether there are any complexities.
Determining How Much Support Will Be Given
Before looking at any Table, you will need to determine the gross annual income of the parent who will be paying support. In certain situations, the gross annual income of both parents may need to be calculated. Financial disclosure is very important when determining annual income. At the very least, you and your former spouse will exchange your Income Tax Returns for the three most recent taxation years as well as your Notices of Assessment and Reassessment.
If an individual’s only source of income is income from employment, then his or her annual income is the amount that appears on line 150 of his or her income tax returns. Calculating income becomes more complicated if you are self-employed, own or have shares in a corporation, or have varied sources of income. For example, if you receive income from employment and from different investments, you will have to provide financial disclosure of all income received from each source.
“In high conflict separations, the parties almost inevitably want to satisfy themselves that their former spouse’s income is as he or she states it is—but not all family law matters are high conflict. In situations where the parties get along fairly well despite their separation, clients have questioned the necessity of exchanging financial disclosure. My advice to my clients is this: not only does legislation require full financial disclosure, but there is simply no way for you—or your lawyer—to know with certainty what your former spouse’s income is without it. It is no secret that family disputes are emotionally taxing on the parties, not to mention the children. It is much better to diligently examine your former spouse’s financial disclosure now, while you are already in a dispute, than it is to try to change a settlement or Order later, possibly years down the road, should you discover that your former spouse’s income was not quite as you were lead to believe.”
Determining Who is Entitled to Support
Once you have determined the gross annual income of the parent (or of both parents, in some circumstances) who will be paying support, you will then need to determine the number of children who are entitled to support. The Divorce Act states that support is required for any “child of the marriage”, and this includes biological as well as adopted children who:
- are under the age of majority; or
- have reached or are above the age of majority but continue to be dependent due to illness, disability or other cause.
“The ‘other cause’ element adds a layer of complication. The Courts have included the pursuit of reasonable post-secondary education as one such ‘other cause’. I have acted as legal counsel in several cases where the focus has been on whether a particular post-secondary degree is reasonable and justifies the payment of child support. With post-secondary degrees increasingly becoming a pre-requisite to many forms of current employment, the reality is that these issues are becoming more common and are likely to arise more frequently in child support cases.”
Referring to the Appropriate Table
Once you know the gross annual income of the parent paying support and the number of children for whom support will be paid, you can then refer to the appropriate Table. Figuring out which Table applies can be somewhat challenging for non-family lawyers as it depends on the number of children that are eligible for support, on whether you and your former spouse are married or common law, and in which province you each reside in. The good news is that there is not much variance from Table to Table and your family lawyer will be able to easily identify which Table applies to your situation.
With the appropriate table identified, you can now determine the child support amount to be paid by identifying the payment amount that correlates with the gross annual income of the parent paying child support. As mentioned, all of this sounds fairly simple, but there is often something in the circumstances of a case that complicates the determination of child support. Already mentioned is whether support is being paid for an adult child who is dependant while pursuing reasonable post-secondary education.
“Another common issue that arises and that will affect the amount of child support to be paid is the parenting arrangement between you and your former spouse—that is, the time that the child spends in the care of each parent. Parties unfamiliar with the nuances of family law may find themselves in a position where they have agreed to a particular parenting arrangement without realizing the implications it might have on child support. So while the concept of calculating child support sounds simple, it is the subtleties in the law that makes a family lawyer’s services so valuable.”
A few other circumstances affecting child support include, but are not limited to: whether the parent paying child support has a net annual income over $150,000; whether one or both parents is deliberately unemployed or underemployed; whether the parent paying child support is claiming undue hardship; and whether there are any special or extraordinary expenses for the child.
As you can see, what seems like a fairly simple exercise may not be so simple, depending on your situation. Given the complexities that may arise, it is best to consult a family lawyer to guide you through this process.