Child Support

What is child support?

Child support is the financial contribution paid by a parent to help provide for his or her children, who are not in that parent’s custody. Under the Guidelines, child support will be determined by a set formula, rather than decided on a case-by-case basis by a judge.

The amount of the payment is based on the income of the parent who pays support and depends on the number of children being supported. Tables have been prepared listing the amount to be paid based on income level and number of children. Under the Guidelines, a court may order a support amount that is different from the tables under certain circumstances.

Who pays child support?

Every parent has a legal duty to support their dependent children to the extent that they can. A parent can be the birth mother or father, an adoptive parent, or sometimes a step-parent.

A step-parent is someone who has treated their partner’s children as members of their own family. It does not matter if the partners were legally married to each other or living common-law. A court is less likely to order a step-parent to pay child support as more time passes since they had a relationship with their partner’s child. This is especially true if the step-parent’s social and emotional relationship with the child has ended.

More than one parent can have a legal duty to pay child support for the same child. For example, if a child’s birth parent and step-parent separate, the other birth parent and the step-parent might both have to pay child support. A biological father usually has a legal duty to support his child financially. This is true even if he never married, lived with, or had an ongoing relationship with his child’s mother.

The right to child support and access are separate issues. They are both rights of the child. The law usually gives parents access to their children if they do not live with them. Access can be limited or refused only if the parent’s behaviour is likely to harm the child. The law assumes that it is usually good for a child to have a relationship with both parents.

A parent cannot be denied access to their child because they have not paid child support. And a parent might still have to pay child support even if they do not have access.

For how long is child support paid?

 Child support must be paid for as long as a child is a dependent. A dependent child is any child under the age of 18, unless:

  • the child has married, or
  • the child is 16 years of age or over and has voluntarily withdrawal from parental control.
  • Child support may also continue after the child turns 18 years of age if the child is unable to be self-supporting because he or she:
  • has a disability or illness, or
  • is still going to school full-time. Even if the child is living away from home for school, and as long as the child’s primary residence is with the parent with custody. This typically continues until the child turns 22 years of age or gets one post-secondary degree or diploma.

When deciding how much support should be paid for a child who is 18 years of age or older, a judge will take into account any earnings or income the child receives from other sources.

How are child support payments calculated?

The amount of child support paid is usually based on the Child Support Guidelines. Usually, these Guidelines say that child support is made up of both:

  • a basic monthly amount, called the table amount
  • an amount for other expenses, called special or extraordinary expenses

The Child Support Guidelines have a Child Support Table for each province and territory. The Table shows the basic monthly amounts of child support to cover expenses like clothes, food, and school supplies. The basic amount is also called the table amount.

The table amount is based on the gross annual income of the payor parent and the number of children the support is for. Gross annual income means total income before paying taxes and most other deductions. It is usually the amount on line 150 of the payor parent’s income tax return.

In simple cases, the amount of child support paid is based on the Table. In more complicated cases, the Table is used as the starting point for deciding the amount of support.

Here is a link to the child support calculator:

http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp

If the parents do not agree on the amount of support, they may go to court. Sometimes, a judge might not accept what the payor parent says their income is. For example, if the parent:

  • fails to share information about their income,
  • does not have a job or is underemployed on purpose, or
  • is self-employed or is being paid in cash, and there is reason to believe they do not report all of their income.

Then the judge might decide on a figure for the parent’s income that is reasonable based on things such as the parent’s work history, past income, and education. The judge applies the Table to that income. This is called imputing income.

 

Special or extraordinary expenses

Besides paying the table amount, the Child Support Guidelines say that the parents might also have to help pay toward certain other expenses. These are called special or extraordinary expenses. Here are some examples:

  • child care fees, such as daycare, to allow the parent who looks after the child to go to work or school
  • the part of medical and dental insurance premiums the other parent pays to cover their child
  • their child’s health expenses, such as orthodontics, prescriptions, eyeglasses, counselling, or hearing aids
  • reasonable and extraordinary expenses for school or educational programs to meet the child’s particular needs, such as tutors or private school fees
  • expenses for post-secondary education
  • reasonable and extraordinary expenses for the child’s extracurricular activities, such as competitive sports classes, that are not covered by the table amount

If the parents do not agree on how much each should pay for special or extraordinary expenses, they might go to court. The court looks at whether the expense is necessary for the child’s best interests and whether the amount of the expense is reasonable. In most cases, both parents contribute to special expenses based on how much they make. So, if both parents make roughly the same amount of money, they split the cost of special expenses equally. If a child pays toward their own expenses, that amount is subtracted before the parents divide the expense.

Can child support be retroactive?

 Yes. It is possible for a parent to get child support for a period of time before they apply to the court for support. The court looks at the following things when deciding on retroactive child support:

  • why the application for support was delayed,
  • the behaviour of the payor parent,
  • the child’s situation in the past and now, and
  • whether granting the retroactive support causes severe difficulty for the payor parent.

Usually, the court limits retroactive support to the past 3 years, unless the payor parent acted in a blameworthy way. For example, if the payor parent hides a pay increase from the other parent.

How can child support be changed?

There are several ways to change existing child support payments.

With a new agreement

If both parents agree to change child support, they can make an agreement. The agreement must be dated, signed by both parents, and signed by a witness.

If the new agreement changes an old agreement that was filed with the court, a “Notice of Calculation”, or a “Notice of Recalculation”, then any new agreement should also be filed with the court. If it is not filed with the court, the FRO cannot enforce the new support amount.

If the new agreement changes a final court order, the parents need to ask the court to change their order based on their new agreement.

Use the Ontario government online service

In some cases, parents can use the online Child Support Service (CSS) to change child support. Based on new income information, the CSS mails the parents a Notice of Recalculation that tells them how much child support must be paid.

But sometimes the service cannot be used to change child support. For example, if any of these are true:

  • you used the CSS to decide or change child support less than 6 months ago
  • a parent lives outside of Ontario
  • the payor parent earns more than 20% of their income from self-employment, rental income, or investment income
  • the parents have shared or split custody

Get a court order

If the parents cannot agree, or cannot use or do not want to use the online CSS, either parent can ask the court to change child support.

Unless the other parent agrees, the court only makes a change if there has been a significant change in circumstances. For example, if:

  • the payor parent’s income has gone up or down
  • the child has left the parent’s house voluntarily
  • the child has moved from one household to another
  • the child is no longer in daycare or full-time school

A change in the income of the parent getting support is usually not a reason to change the order. This is because that parent’s income is not usually taken into account when support is calculated.

To ask the court to change an order, a parent must bring a motion to change.