CHILD SUPPORT BASICS

Both parents have a legal duty to support their children financially, even after divorce. Once you have worked out the residential arrangements for your children, you will need to deal with the issue of child support.  Child support is the amount of money paid by one parent (the Payor) to the other (the Recipient) for the care and upbringing of dependent children. A parent or step-parent may be obligated to pay child support even if they were not married to, but just co-habitated with, the child’s parent. The amount of money one person pays the other for the support of children in the care of that other person is called child support and is now determined by the Child Support Guidelines (commonly referred to as the "Guidelines"). To calculate your child support payments use child support calculator.

The guiding principle of Canada’s child support law is that children should continue to benefit from the financial means of both parents just as they would if the parents were still together. Therefore, if you are divorced or separated from the other parent, you are still both responsible for supporting your children financially. Your children need the support of both parents. They are also entitled to it by law if they are under the age of majority and still dependent on their parents. The age of majority in Canada is 18 or 19 years, depending on the province or territory where the child lives. If your children are over 18 or 19, they may be entitled to support if they cannot become independent because of an illness, disability or "other cause". Courts often order parents to support an older child going to university or college after they finish high school. This level of education can be considered a valid "other cause" in certain families. Otherwise, financial support for an older child is optional.

Child Support Laws

In Canada, there are provincial/territorial guidelines and the Federal Child Support Guidelines. The guidelines that are used, either by a judge or by parents, depend on the situation of the parents. The Federal Child Support Guidelines are used if the parents were legally married to each other and are obtaining or have obtained a divorce. If both parents live in a province that has chosen to be "designated" (currently, the designated provinces are Manitoba, New Brunswick and Quebec) the provincial, not federal guidelines, apply. Provincial or territorial child support laws are applicable is the parent have never been married to each other or if they are  married but are only separating (not getting a divorce). Most of the provincial and territorial guidelines are a lot like the federal guidelines. You may wish to contact your provincial ministry of Justice for more information. Whether you use provincial, territorial or federal guidelines, these guidelines are the law.

Definition of “child” for Child Support Purposes

The Divorce Act defines a “child of the marriage” as a child who is under the age of majority and still in the care of one or both parents, or a child who is the age of majority or over but is still being cared for by the parents by reason of illness, disability or other reason and is therefore unable to withdraw from their care or obtain the necessities of life on their own.

Child SupportWho is a Parent? The question, although seemingly easy to answer is actually more complicated when it comes to the issue of child support.  Of course, a biological or adoptive parent is a “parent” in the conventional and obvious sense.  He/she would be obligated to pay child support for his/her child. However, even if you are not a biological or adoptive parent of a Child, it is possible that you may still be liable for child support upon the breakdown of a relationship.  If a party is found by a court to be in loco parentis (i.e. acting as if you are the parent of the Child), that person may be liable for child support.

Determining the Amount of Child Support Payable

The amount of child support that is payable is based on Federal, or Provincial  Child Support Guidelines. Factors that are taken into consideration include the number of children, the annual income of the payor, and the custody arrangement. Additional factors affecting the amount of child support payable, include whether:

  • There are shared or split parenting arrangements
  • The payor earns more than $150,000.00
  • The payor is experiencing financial hardship

Child support may vary annually corresponding to variations in the payor’s income. Comprehensive information, tables for looking up child support payable, and a user friendly workbook are available at Federal Child Support Guidelines.

Income for the Purposes of Support

Income for the purpose of child support is based on line 150 of the individual’s income tax return and notice of assessment. If the payor’s income varies significantly from year to year their income may be averaged over three years to establish their income for the purpose of determining the amount of support payable.

What Changes Have Been Made to the Income Tax Act that Affect Child Support?

For court orders or agreements obtained on or after May 1, 1997, the parent receiving child support will not have to include the support in his or her taxable income. Similarly, the parent paying the support will no longer be able to deduct the support payments from his or her income. These tax changes also apply to any variations made to old orders or agreements made after May 1, 1997.

Reduction in Child Support

In some circumstances, the amount of child support can be decreased. For example, the amount of child support could be adjusted to prevent financial hardship for a parent. This might be fair when, for example, the parent paying the child support is suffering a hardship—perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support. The guideline amount of child support may be reduced when:

  • There is a claim for a hardship variation by the payor because he/she suffers financial hardship, a high expenditure to exercise access to a child or is under an  obligation to support another person
  • An alternate custody arrangement exists where the child spends equal time with each parent; this arrangement is referred to as shared custody.
  • A split custody arrangement exists when one or more of the children live one parent and one or more of the other children live with the other parent.

Negotiating Your Own Agreement

If they agree, parents can negotiate their own agreement regarding child support. Parents generally have some flexibility about the amount that will be paid by the payor — as long as they can agree and the amount is fair. Many parents use child support guidelines to help them come to an agreement. If a judge is asked to decide, the judge must set child support amounts according to rules set out in child support guidelines. The federal government website provides instructions which contains clear instructions and work sheets that you will find useful when calculating how much child support a judge would likely order. Keep in mind, however, that figuring out child support amounts and setting up an agreement with the other parent can be complicated, and it would be best if you got advice from a professional such as a family law lawyer.

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to go about child support issues following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.