Frequently Asked Questions about Child Support in Ontario
One of the most serious problems a family can face due to a separation or divorce is the financial consequences of the breakdown of the parties relationship. It is important that a Child’s standard of living be maintained as much as possible after the separation of his/her parents. Canadian law holds both parents responsible for providing proper financial support for his/her Children.
Child support payments are essentially determined based on formulas as specified by the Child Support Guidelines. The quantum of support is based on the payor’s income, the number of Children and the province in which the payor resides. If a payor is self-employed or does not declare all of his/her income, it may be more difficult to determine the payor’s income and the corresponding quantum of support. It is important to have an experienced Family law lawyer to investigate the payor’s circumstances and ensure that proper child support is being paid.
In the event that there are issues with respect to determination of child support (either as a payor or a recipient) or it is necessary to vary the quantum of child support (due to a change in your circumstances or you are responding to a motion to vary the quantum of ongoing support) , our experienced lawyers can also assist and protect you.
Q: Do I have to pay child support?
A: The law considers “child support” to be for the benefit of the Child. Child support is paid to the primary caregiver of the Child from the other parent. The amount of Child support is based on the payor’s income; the recipient’s income is irrelevant. The recipient’s income is only considered in some circumstances (eg.. undue hardship, shared or split custody, special or extraordinary expenses for the Child).
Although some parties express concern that their support payments will not be spent on the Child, it is very difficult to convince a court that you should not pay child support or that the support should be paid directly to the Child. The law assumes that the recipient of child support will use the monies received for the benefit of the Child. Child support is not tax deductible to the support payor or taxable to the support recipient.
Q: How is the amount of child support determined?
A: Throughout Canada, if you were married, the Federal Child Support Guidelines are used to determine how much child support is owed to the recipient. The Federal Child Support Guidelines contains a formula for the determination of child support based on the income of the support payor and the number of Children from the relationship. Under very limited circumstances (i.e., “undue hardship”) can the amount of support be different from that provided under the Federal Child Support Guidelines.
A support payor’s income is relatively easy to determine when the payor is not self-employed. The payor will receive a T4 which will set out his/her income. The payor’s Income Tax Return would then be examined, and the amount of support would be based on his/her income as set forth in line 150 of his/her Income Tax Return. However, when a support payor is self-employed, his/her income for support purposes may not be the same as the declared income as set forth in his/her Income Tax Return. A self-employed support payor’s income for support purposes may be more difficult to determine than someone who is an “employee.” When a support payor is self-employed, a court may determine that certain personal deductions from the payor’s income or business be added back into the payor’s declared income, and grossed up for tax, in order determine his/her income for child support purposes.
Child support calculators can help with determining the amount of child support owed, but this can be a difficult process that may require the assistance of an expert (i.e., accountant, etc.) when a payor’s income for support purposes is difficult to determine. An experienced Toronto family law lawyer can assist you in determining your child support obligation or how much child support you are entitled to for the care of your child.
Q: How is child support in Ontario collected?
A: Once the Court has made an Order for child support, the Order must be enforced. Fortunately, the Provincial Government in Toronto has created an enforcement agency to collect support payments. The agency is called the Family Responsibility Office (“FRO”). Most often, FRO will collect the payments by way of garnishing of the payor’s wages directly from the source. However, a payor can make arrangements with FRO to pay them directly. All Orders that contain a support clause are forwarded to FRO for enforcement; however, the parties are able to opt out if both parties consent. If at a later date one party decides to have FRO enforce an Order, an administration fee is charged. FRO does not charge support recipients to enforce a child support Order.
If a support payor is self-employed, it may be more difficult to enforce a support Order. Unlike a support payor who is employed, there are no wages to garnish. However, if a self-employed payor does not pay support, FRO has numerous enforcement mechanisms to ensure that he/she complies with the support provisions of an Order including revoking the person’s driver’s licence, passport, etc..
Q: Who Pays Child Support in Joint Custody?
A: Joint custody is awarded when the judge feels parents can amicably agree on parenting matters. If each parent has the child at least 40% of the time, this is considered shared custody. In order to determine if a parent cares for the Child at least 40% of the time, one must calculate the actual amount of time spent with the child. Even if the payor is able to reach this threshold, a court has to consider various other factors in order to determine if the quantum of support should be reduced.
The Federal Child Support Guidelines are used to determine how much child support should be paid based on the payor’s income and the number of children. The court will consider each parent’s gross income, as well as the costs associated with the joint custody. The judge may also take into consideration whether or not the parent is living with a new spouse or has other dependents. Once the Order for child support has been made by the court, that Order will be enforced.
Q: Do I have to pay any more money to my former spouse for child support, other than the base amount of support as determined by my income and the Federal Child Support Guidelines?
A: The Federal Child Support Guidelines also provide that in addition to the base amount of child support to be paid by a payor (as determined by his/her income and the Federal Child Support Guidelines), a support payor must also pay his/her pro-rata share of the Child’s special or extraordinary expenses. Section seven (7) of the Federal Child Support Guidelines, provides that extraordinary expenses include, but are not limited to, the following:
- health expenses for the child
- orthodontic expenses for the child
- daycare expenses
- extraordinary expenses for primary or secondary school education
- extraordinary expenses for post-secondary education
- extraordinary expenses for extracurricular activities
In order to determine the amount of the extraordinary expenses, the parties must determine the cost of the expense to the recipient (net of tax), after deducting any contribution from the child (the child’s income, inheritance, loans, etc.). In determining the support payor’s proportionate share of the s.7 expenses, you must also determine the support recipient’s income. The extraordinary expense is then shared by the parties in proportion to their respective incomes.
Q: My former spouse, in Toronto, has sole custody and has refused to allow me to visit with my Child. Do I still have to pay child support?
A: The law considers child support to be the right of the Child. Therefore, it is irrelevant if the support payor is not visiting with his/her child or the support recipient is preventing the same. If you have a child and are earning income, you must pay child support.
Q: I am not the biological father of the Child. Do I still have to pay child support for the Child?
A: If you have treated the Child as if he/she was your biological child, you will likely have an obligation to pay child support. This is always a question of fact. It may be a good idea to consult an experienced lawyer if you are not the biological father of a child for whom you are being asked to provide support.
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