Frequently Asked Questions on Divorce
Support Payments
What are Child Support Guidelines?
These are tables that have been established to provide consistency in the calculation
of a fair standard of support for children. The Guidelines set out the monthly child
support payments for each Province on the basis of the annual income of the spouse ordered
to pay child support (the support payor) and the number of children for whom the table
amount is payable.
There is a threshold income below which no amount of child support is payable
(currently $7,999.00). Child support amounts are specified for incomes up to $150,000.00
yearly. Amounts over $150,000.00 yearly are determined by Section 4 of the Guidelines.
The amounts vary from Province to Province due to differences in Provincial Income Tax.
(top)
When Can I Stop Paying Child Support?
Section 31 of the Family Law Act provides that every parent has an obligation to
provide support for his or her unmarried child who is a minor or is enrolled in a full
time program of education to the extent that the parent is capable of doing so.
Section 31(2) of the Act indicates that the obligation does not extend to a child over
the age of 16 who has withdrawn from parental control.
Therefore, an unmarried child under 16 or aged 16 and 17 who has not withdrawn from
parental control or 18 and over and enrolled in full time program of education and who has
not withdrawn from parental control, are entitled to support from their parents.
Usually supports lasts to the first post-secondary degree.
(top)
Can I Vary a Child Support Order?
A child support order is never final and is subject to a sufficient change in
circumstances under Section 17 under the Divorce Act or under appropriate Provincial
Legislation.
Changes in income, changes in custodial arrangements, changes in the status of the
child and the cost of Section 7 extra-ordinary expenses can be deemed sufficient changes.
Applications can be made for variation of child support to cancel or reduce arrears to
reflect the payors reduced abilities to pay at the time the arrears occurred. The payor
would have to show that there was no "blameworthy conduct" on his part.
(top)
What is Spousal Support?
Spousal support is dealt with under both the Divorce Act and the Family Law Act of
Ontario. Both Acts give guidelines for support. Under Section 15.2(4) of the Divorce Act
the Court would take into consideration, condition, means, needs and other circumstances
of the spouse including:
- length of time the spouses cohabitated;
- the functions performed by each spouse during cohabitation; and
- any order, agreement or arrangement relating to support by their spouse.
Paragraph 15.2(6) give the objects of the spousal support order:
- to recognize any economic advantage or disadvantage to the spouses arising from the
marriage or its breakdown;
- apportion between the spouses any financial consequences arising from the care of any
child of the marriage over and above any obligation for the support of any child of the
marriage;
- relieve any economic hardship of the spouses arising from the breakdown of the marriage;
and
- insofar as practical promote the economic self sufficiency of each spouse within a
reasonable period of time.
Under the Family Law Act, Section 33(8) states an order for support should:
- recognize a spouses contribution to the relationship and economic consequences of
relationship with a spouse;
- share the economic burden of child support equally;
- make fair provisions to assist the spouse to become able to contribute to his or her own
support;
- relieve financial hardship if this has not already been done by orders under Part I
(Family Property) and Part II (Matrimonial Home).
Under the Family Law Act, parties that live together for a period not less than 3 years
or in a relationship of some permanence if they are the natural or adoptive parents of a
child can be considered spouses and they are also eligible for spousal support.
The object of spousal support is to relieve the economic hardships resulting from
marriage breakdown. The income of both parties will be considered. The roles that the
parties took in their relationship will also be considered.
The party asking for support must show need and the paying party must show an ability
to pay.
A spouse unable to maintain something approaching the accustomed lifestyle upon
marriage breakdown may be entitled to spousal support.
Spousal Support Advisory Guidelines (SSAG) have come into existence to help establish
the amount of spousal support payable. These are guidelines only and the amounts stated in
these Guidelines are not law (unlike the Child Support Guidelines). However, they are
useful in establishing a range of support. Courts will look at the calculations under the
Spousal Support Advisory Guidelines.
(top)
What are the Spousal Support Advisory Guidelines?
Spousal Support Advisory Guidelines (SSAG) allows calculations to be made for spousal
support taking into account the length of marriage and number of children and respective
incomes of the parties and will give a range of quantum of support.
Unlike the Federal Child Support Guidelines that are legislative by the Government and
accepted and enforced by the Courts, the SSAG give the Courts and the parties a basis for
negotiation and assist in arriving in an amount of support. These figures are recognized
by the Court.
(top)
Can I Vary a Spousal Support Order?
A Court can vary a spousal support order if there is a material change in circumstances
after the order is made.
An Application will have to be made to the Court that originally made the order. The
Court has to be satisfied that a change in the condition, means, needs or other
circumstances of either former spouse has occurred since the making of the spousal support
order (S.17) of the Divorce Act.
A person's retirement may result in a significant decrease in income which would be a
material change and could give grounds to vary a spousal support order.
(top)
Do I Still Have to Pay Support for an Adult Child?
When a child is the age of majority or older, unless otherwise provided under the Child Support Guidelines, the amount of child support is determined by applying the guidelines as if the child was under the age of majority, or if this would be inappropriate, the amount that a court considers appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
In the recent Court of Appeal case the court felt that students should contribute towards their own post secondary education expenses; however that has to be balanced against the student being saddled with debt when the parents have the necessary means to pay.
The guidelines would be inappropriate if the child has sufficient resources to contribute to their needs. Earnings and inheritances would be considered.
If a child attends post-secondary school away from home then it would inappropriate to follow the guidelines as well. A reduction can be made taking into account the fact that a contribution is being made for the child's living expenses away from the home.
(top)
How Do the Child Support Guidelines Apply to Incomes Over $150,000.00?
Where a support payor earns more than $150,000.00, if a court considers the guideline support to be inappropriate it may order the payor to pay the table amount for the first $150,000.00, decide what proportion of the balance of the table amount should be devoted to child support having regard to the conditions, means, needs and other circumstance of the child, the financial abilities of each spouse and contribute to the child's support and the amount, if any determined under section 7 of the guidelines.
A court must order the table amount for the first $150,000.00 and a court may increase or decrease the presumptive amount of support where it is inappropriate but it is unlikely that it will do either.
The courts should only increase or decrease the amount of support if the table amount is so in excess of the child's reasonable needs so as to no longer qualify as child support.
Most courts are unlikely to reduce the table amount of support for incomes less than $1,000,000.00 annually.
It could be argued that courts should decline to award add on support under section 7 of the guidelines in high income cases in absence of proof that the total amount is insufficient to meet the needs of the special expenses.
(top)
Is a Step-Parent Obligated to Pay Child Support?
If a person is not a biological or adoptive parent of a child, but voluntarily assumes the role of a parent of the other parent's child, a court may award whatever amount of support considered appropriate having regard for the child support guidelines and any other persons legal duty to support the child.
It seems that the biological parent has the primary obligation for support while the step-parent has a "top-up" obligation consistent with the child's lifestyle in the house established by the step-parent.
(top)
Am I Responsible to Have Medical and Dental Insurance While Paying Child Support?
Where medical or dental insurance is available to either parent through his or her employment or otherwise, at a reasonable rate, a court may order that the coverage be acquired or confirmed for the child's benefit.
A court will usually order that parent's maintain their children as dependents under an employment plan so long as the child qualifies under the plan.
(top)
Will My Child Support be Reduced if I Have the Child More Then 40% of the Time?
In a shared custody situation where a parent has access or custody of a child more than 40% of the time over a course of a year, the amount of child support must be determined by taking into account the amount set out in the guidelines for each parent, the increased costs of the shared custody and arrangements, and the conditions, means, needs and other circumstances of each spouse and the child for who the support is ought.
There seems to be a variety of method used to calculation how the 40% is arrived at.
(top)
Can I Pay Less than the Child Support Guidelines Due to Undue Hardship?
A court may award an amount of child support that is different from the amount determined under the child support guidelines, if the court finds that the parents would otherwise suffer undue hardship.
Circumstances that may cause undue hardship include:
- The parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living.
- The parent has unusually high expenses in relationship to access to the children.
- The parent has a legal duty to support a child (other than the child of the marriage).
The application will be denied if the court is of the opinion that the household of the parent who claims undue hardship, would after determining the amount of child support under the guidelines, have a higher standard of living then the household of the other parent.
The court can put a time limit on any Order.
(top) |
